08 Apr 2009

FYI - FOI and privacy case notes

by Avinesh Chand

Maksimovic and Australian Customs Service [2009] AATA 28 - Section 37(2)(b); procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law; reasonably likely to, prejudice the effectiveness of those methods or procedures

On 16 January 2009, the AAT (Senior Member Handley) affirmed the respondent's decision not to release certain documents which the applicant had sought access to because they were subject to the exemption at sections 37(2)(b) and 41(1) of the FOI Act.

The applicant had been convicted and imprisoned for offences relating to the sending of a package containing drugs. The contents of the package had been discovered by officers of the respondent during a mail screening process at its Melbourne office on 1 March 2005.

The applicant applied under the FOI Act for "All documents pertaining to a parcel that was detected by AustralianCustom's [sic] Officers on 01 March 2005 at the Melbourne Mail Transit Centre during overseas mail screening process. The parcel had a registered mail sticker number RR 113428229CR". In response to the FOI application, some documents were released in whole and in part, but the respondent claimed an exemption for those parts of the documents not released. Following an internal review affirming the decision, the applicant sought review of the decision in the AAT.

The AAT hearing concerned only two documents described as an "Information Report" and an extract from the "Detained Goods Management System". In refusing access to those documents, the respondent relied upon the exemptions in sections37(2)(b) ("Documents affecting enforcement of law and protection of public safety") and 41(1) ("Documents affecting personal privacy"). Section 37(2)(b) provides that a document is exempt if its disclosure "would or could reasonably be expected to ... 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" [emphasis added]. The AAT made the following observations on the interpretation of section 37(2)(b):

  • The first use of "could" as an alternative to "could reasonably be expected to" required "no more than a degree of reasonableness" being applied to deciding whether disclosure would cause the specified consequences. Such a finding need not be made on the balance of probabilities; and
  • The second use of "would" or "would be reasonably likely" is "an indication of a belief by Parliament (preferring it to the word "could") that the methods and procedures described [in the provision] if disclosed, would, on the probabilities, cause prejudice".

The AAT referred to a decision of the ACT AAT in Re Anderson and the Australian Federal Police (1986) 11 ALN 355 which noted that lawful methods and procedures employed in intelligence gathering may vary from quite routine overt police inquiries to a range of more clandestine or covert operations. A document might disclose methods or procedures either by specifically identifying them or providing information from which the methods or procedures might be inferred. Furthermore, it is one thing for observers to deduce methods and procedures from everyday experience; it is another to have that information produced by the agency in question. In that respect, it was said, the "risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them".

In Maksimovic, the AAT found that the respondent's investigative methods and procedures were unlike traditional methods well known to the public such as interviewing, fingerprinting, taking of photographs and forensic analysis. As such, the AAT held that the relevant document which disclosed these methods and procedures was exempt under section 37(2)(b). Furthermore, the document contained a web address that would reveal the respondent's intelligence network. That too qualified those parts of the document for exemption.

The AAT also found that certain parts of the documents in issue were exempt from release because release would result in an unreasonable disclosure of personal information.

Maksimovic and Attorney-General's Department [2008] AATA 1089 - Section 33(1)(a) and (b); damage to the international relations of the Commonwealth; information or matter communicated in confidence by or on behalf of a foreign government

On 5 December 2008, the AAT (Senior Member Freidman) affirmed the decision to exempt from release certain documents pursuant to section 33(1)(a) and (b) of the FOI Act.

The applicant was convicted of and imprisoned for drug offences (see above for more background). In the course of its investigations, the Australian authorities had sought assistance from Costa Rican authorities pursuant to the Mutual Assistance in Criminal Matters Act 1987. The applicant sought access under the FOI Act to "all mutual assistance requests involving the Commonwealth Director of Public Prosecutions for 'outgoing requests' involving Costa Rica and Serbia and Montenegro".

The respondent claimed partial exemption for documents pursuant to

  • section 33(1)(a)(iii) (disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth)
  • section 33(1)(b) (disclosure would divulge material communicated in confidence by or on behalf of a foreign government); and
  • section 41(1) (disclosure would divulge personal information about a person).

The applicant sought AAT review of the claimed exemptions.

One of the documents subject to an exemption claim contained an extract from the mutual assistance request to Costa Rica. Ms Harmer, the Assistant Secretary of the Mutual Assistance and Extradition Branch of the Attorney-General's Department, provided evidence in an affidavit that she had extensive experience in these matters; had reviewed the exempt documents; and held discussions with the relevant officers. She formed the view that the names of the three Costa Rican intelligence officers would, or could reasonably be expected to, damage Australia’s relations with Costa Rican authorities, which may reduce the prospects of those authorities co-operating effectively with Australian authorities in the future.

The AAT noted the decision of a Full Court of the Federal Court in Attorney-General's Department v Cockcroft (1986) 10 FCR 180 which said that the phrase "could reasonably be expected to" required a judgment to be made by the decision-maker "whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous" that a particular result would occur if particular documents were released under the FOI Act.

The Tribunal also noted a previous AAT decision of Re Maher and Attorney-General's Department (1985) 7 ALD 721 where the AAT had found that a mere allegation or possibility of damage to international relations was insufficient, and that the phrase "damage to international relations of the Commonwealth" comprehends intangible damage such as a reduction in trust and confidence, even though such damage may be difficult to assess. The AAT also noted its decision in Re Bui and Department of Foreign Affairs and Trade (2005) 85 ALD 793 in which it had held that "damage to international relations" refers to "Australia’s ability to maintain good working relations with other overseas governments and to protect the flow of confidential information between Australia and other governments". The decision of a Full Court of the Federal Court in Commonwealth v Hittich (1994) 53 FCR 152, holding that there is no public interest test in section 33, was also noted.

The AAT accepted Ms Harmer’s evidence that "there are real and substantial grounds for the expectation that damage to Australia’s international relations by way of a lessening of trust or confidence would occur if the names of the officers were disclosed". The AAT concluded that disclosure would reasonably be expected to lead to damage to international relations between Australia and Costa Rica, and that the names of the Costa Rican intelligence officers should be exempt from disclosure under section section 33(1)(a)(iii). The AAT also found that disclosure of the names of the intelligence officers would be an unreasonable disclosure of personal information and, as such, was also exempt under section 41(1) of the FOI Act.

The applicant's request also concerned a number of documents sent by the Attorney-General's Department to the Australian Embassy in Mexico. Amongst other things, the documents included the names of Costa Rican nationals and information provided by the Costa Rican authorities to the Australian Federal Police. An AFP officer with direct involvement with the applicant's case gave evidence that the information about the Costa Rican nationals was provided in confidence.

The AAT noted that whether a document is communicated in confidence is a question to be decided on the balance of probabilities and that conclusion can arise by implication or inference, and also noted that there is not any scope for importing into section 33(1)(b) the equitable principles relating to breach of confidence. It accepted the evidence from the respondent that, on the balance of probabilities, the name of the Costa Rican nationals was provided to the Australian Federal Police by Costa Rican authorities in confidence and that the names of the Costa Rican nationals should be exempt from disclosure under section 33(1)(b). The AAT also found that disclosure of the names of the Costa Rican nationals would be an unreasonable disclosure of personal information and, as such, was also exempt under section 41(1) of the FOI Act.

Another group of documents subject to the AAT review included an email from the Australian Embassy in Mexico City to the Attorney-General's Department providing an update on progress made by the Costa Rican authorities in processing the request for mutual assistance and an email from the Attorney General's Department to the Australian Embassy in Mexico City commenting on that progress. The AAT accepted Ms Harmer's evidence that release of the email and cable "would, or could reasonably be expected to, damage Australia's relations with Costa Rican authorities, and that the damage could reduce the prospects of those authorities cooperating effectively with Australian authorities in the future". The Tribunal found that the email and cable were exempt from disclosure under section 33(1)(a)(iii). In relation to one of the emails that contained a progress report prepared by the Costa Rican authorities on the request for mutual assistance, the AAT accepted Ms Harmer's evidence that the information was provided in confidence by the Costa Rican authorities to Australia's diplomatic representatives and, thus, should be exempt from disclosure under section 33(1)(b) of the FOI Act.

Daws and Department of Agriculture, Fisheries and Forestry and Animals Australian Inc (Joined party) [2008] AATA 1075 - Section 43(1)(c); documents relating to business affairs; reverse review

On 26 November 2008, the AAT dismissed a "reverse review" application by the applicant seeking review of a decision by the respondent to release an Australian Quarantine and Inspection Service ("AQIS") report to Animals Australia Inc under the FOI Act.

Animals Australia had sought access to copies of the AQIS reports relating to live shipments of Australian animals. In processing Animals Australia's FOI application, the primary decision-maker had undertaken consultations with the applicant's company pursuant to section 27 of the FOI Act. The applicant's company had contended in its submission to the primary decision-maker that release of the relevant documents to Animals Australia would damage the business of the company. The primary decision-maker rejected Animals Australia's application.

In the letter containing her decision, the internal review decision-maker advised that she had decided not to accept the applicant’s submission. She stated that her views had been significantly influenced by the fact that regular reports which disclosed a significant amount of information concerning the business of the company had already been made public through the reporting process described in section 57AA of the Australian Meat and Live-stock Industry Act 1997 (Cth). The decision-maker advised in her letter that she intended to release the reports with certain identifying information deleted. She considered that those deletions would substantially address the applicant's concerns in relation to potential injury to the company's business.

The applicant sought "reverse review" of the decision to release the relevant documents, albeit with some exemptions, to Animals Australia.

The question for the AAT was whether the document was exempt under section 43(1)(c)(i) because disclosure "would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business…". Before the AAT, the applicant submitted that his company had a high reputation as being ethical and lawful. It was argued that the industry in which the company was engaged in was highly transparent. It was further argued that if Animals Australia were granted access to the report with or without deletions, the report's contents were capable of being used out of context and to disadvantage the company. The applicant indicated that if access were granted to the FOI applicant, its past conduct suggested that the information would be used adversely to the company.

The AAT found that given the extent of disclosure through Parliament, it could not see "any proper basis upon which to conclude that the release of the investigation report to the extent it may refer to the matters disclosed to Parliament would unreasonably affect the business, commercial or financial affairs of the applicant's company". The AAT stated in its decision that "release of facts already in the public arena could not be found to be causative of any affectation save if it again gave rise to adverse affectation as a consequence of drawing attention to the facts to which it refers" and that "when those facts are already in the public arena any such affectation would not be unreasonable affectation". The AAT thus rejected the claim based on section 43(1)(c)(i).

In relation to the applicant's argument regarding the FOI applicant's motives in seeking the report, the AAT found that, in view of section 11(2) of the FOI Act, the AAT could not form a belief based on the applicant's submissions as to what Animals Australia's reasons were for seeking access. The AAT noted that, in any event, apart from the applicant's submission there was no evidence to support a finding of intended improper use.

Privacy decisions

GQ v NSW Department of Education and Training (No 2) [2008] NSWADT 319 - Application of Privacy and Personal Information Protection Act 1988 (NSW) outside NSW

On 2 December 2008 Deputy President Handley of the NSW Administrative Decisions Tribunal decided that the Tribunal did not have jurisdiction to review the application.

The applicant was a teacher employed at a secondary college in Victoria. Prior to that time, the applicant was employed as a temporary teacher at a New South Wales high school. During her time at the NSW high school, the applicant had been overpaid. The NSW High School contacted the Victorian college to request the applicant's contact details. The Principal of the Victorian college was informed of the outstanding debt, and subsequently asked the applicant to contact the NSW high school regarding a private financial matter.

The applicant complained to the respondent about the use and disclosure of her personal information. The respondent acknowledged that there had been a disclosure in breach of the Privacy and Personal Information Protection Act 1988 (NSW) and apologised to the applicant. However, it refused monetary compensation on the basis that it was not justified. The applicant then applied for review of the decision.

During the course of the review proceedings, the Privacy Commissioner, who had joined the review, raised a preliminary issue whether the Act applied to trans-border disclosure of information. The Tribunal noted section 18 of the Act which prohibits a public sector agency from disclosing personal information that it holds about a person to a person or body, other than to the person the information relates to unless one of the exceptions listed therein is met. It is clear that none of the exceptions allowing disclosure applied in this case.

However, the Tribunal also noted section 19 of the Act, which says:

"(2) A public sector agency that holds personal information must not disclose the information to any person or body who is in a jurisdiction outside New South Wales or to a Commonwealth agency unless:

(a) a relevant privacy law that applies to the personal information concerned is in force in that jurisdiction or applies to that Commonwealth agency, or

(b) the disclosure is permitted under a privacy code of practice.

(3) For the purposes of subsection (2), a "relevant privacy law" means a law that is determined by the Privacy Commissioner, by notice published in the Gazette, to be a privacy law for the jurisdiction concerned.

(4) The Privacy Commissioner is to prepare acode relating to the disclosure of personal information by public sector agencies to persons or bodies outside New South Wales and to Commonwealth agencies.

(5) Subsection (2) does not apply:

(a) until after the first anniversary of the commencement of this section, or

(b) until a code referred to in subsection (4) is made,

whichever is the later".

The Privacy Commissioner submitted that, while section 19 commenced operation on 1 July 1989, no privacy code had yet been made by the Privacy Commissioner. Thus, section 19(2) had not yet become operative. Applying the interpretive presumption generalia specialibus non derogant (ie, where there is an inconsistency between statutory provisions of a general nature and those of a specific nature, the specific provisions prevail), the Tribunal found "that section 18(1) is a general provision limiting the disclosure of personal information, whereas section 19(2) is a specific provision dealing with disclosure of personal information to a person or body outside NSW". Thus, the Tribunal found that section 19(2) prevailed over section 18(1). As such, the Tribunal concluded that "section 18(1) does not apply in respect of the disclosure of personal information by a public sector agency in NSW, such as the Department, to any person or body in a jurisdiction outside NSW or to a Commonwealth agency".

The Tribunal also accepted the Privacy Commissioner's argument that there was nothing in the Act to indicate that the NSW Parliament intended to displace the presumption against extra-territorial operation of legislation when it enacted section 18(1), and that extraterritorial disclosures had been specifically addressed in section 19(2).

W v Pathology Clinic [2008] PrivCmrA 24 - NPP 2; disclosure of personal information; medical report

The complainant had medical tests conducted at a medical clinic for the purposes of preparing a claim to be made with a Federal Government agency. The complainant asked that the test results be provided to their treating medical specialist and solicitor. Following the tests, the complainant became aware that the medical clinic had provided the tests to the government agency. The clinic conceded that it had, as a result of an error, done this. The clinic informed the Privacy Commissioner that, at the time of conducting the tests, its staff had incorrectly assumed that the results of the particular tests carried out were usually requested by, and the results sent to, the government agency in question. Clinic staff marked the complainant's paperwork with the government agency's name and sent the tests result to the government agency following completion of the results. The clinic claimed that the actions of its staff in this case were an isolated error.

The Commissioner formed the view that the disclosure of the complainant's personal information to the government agency was an interference with the complainant's privacy as the information was disclosed for a purpose other than the primary purpose for which it was collected and the disclosure was not permitted by any exceptions listed in NPP 2.1. Following conciliation by the Privacy Commissioner, the clinic unreservedly apologised to the complainant, waived the costs incurred by the complainant in processing the complainant's tests and paid the complainant an undisclosed sum to compensate them for any hurt suffered as a result of the interference with their privacy. The clinic also contacted the government agency and requested it to securely destroy the complainant's personal information.

The Privacy Commissioner closed the complaint under section 41(2)(a) of the Privacy Act on the grounds that the clinic had dealt adequately with the matter.

Own Motion Investigation v Direct Marketer [2008] PrivCmrA 23 - Direct marketing; NPP 2; disclosure of personal information; email addresses

The Privacy Commissioner had been informed that a direct marketer had, in a promotional email, displayed the email addresses of all recipients. The Commissioner decided on her own initiative under section 40(2) to conduct an investigation into possible breaches of NPP 2.1 and NPP 4.1. The direct marketer informed the Commissioner that it had provided its promotional list to a third party organisation to issue the promotional email. As a result of human error, the email addresses were displayed on the sent email rather than in the blind carbon copy function. The usual data quality control procedures had not been followed. The third party organisation counselled and trained the responsible individual, and the direct marketer contacted all email recipients to apologise.

In relation to NPP 4.1, the Commissioner "noted that the parties had steps in place to ensure the security of the personal information and the incident appeared to have occurred as a result of a one-off error." As to NPP 2, the Commissioner "considered that the steps the parties were taking to remedy the situation were adequate in the circumstances." On that basis, the Commissioner ceased her investigation into the incident. However, any complaints from individuals would be assessed on their merits.

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