Paul Farrell and Department of Defence (Freedom of information) [2021] AICmr 3

Mr Farrell (“applicant”) applied to the Department of Defence (“Department”) for access to findings from a punishment report from September 2014.

The Department identified one document within the scope of the applicant’s request. It was a report that detailed the outcomes of Court Martial and Defence Force magistrate ("military tribunal”) proceedings of Australian Defence Force staff (“ADF”) between September 2014 and 18 September 2017 (the date of the request). The Department refused access to the name of the persons on trial under s 47F Freedom of Information Act (“FOI Act”).

In December 2017, the applicant sought review of the Department’s decision by the Australian Information Commissioner (“Commissioner”). During the review, the Department claimed that the material in the document was also exempt under conditional exemptions ss 47E(c) and (d).

Management of Personnel exemption (s 47E(c))

The Commissioner was not satisfied that s 47E(c) applied to the material as claimed by the Department. The document contained surnames and initials of individuals on trial before the military tribunal, as well as other information such as charges, plea, date finalised and findings. The Commissioner noted that the main requirement of s 47E(c) was that disclosure would, or reasonably could be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or an agency.

The Commissioner decided that as the relevant legislation made it clear that hearings are open to the public and relevant material, such as surnames and initials of individuals who were on trial and appeared before the military tribunal, were to be kept, then the disclosure would not have a substantial adverse effect on discipline. The Department’s policy of de-identifying personal information when it published military tribunal lists and outcomes had also changed from the time of the original decision. From 31 March 2019, the names of accused in military tribunals would be published. The Commissioner held that this indicated that publication would not have a substantial adverse effect on discipline.

Certain operations of agencies exemption (s 47E(d))

The Commissioner accepted it is an imperative that the Department is able to manage disciplinary issues and take corrective action to ensure that discipline is maintained so as to ensure it can fulfill its functions.

Personal privacy exemption (s 47F)

The Commissioner confirmed that the document contained personal information being the names of 161 ADF personnel appearing before a military tribunal. In relation to whether disclosure would be unreasonable, she considered the appeal process from the military tribunal, the fact that tribunal sittings are in public under the relevant legislation and that orders can be made to restrict publication. In particular she considered that where no such order existed, then the military tribunal website would include the decision with full name of the accused and detail of the offence. She agreed it was unreasonable to consult with 161 third parties to obtain their views, due to the time and resources involved. She also considered the Department’s practice of de-identifying outcomes where an accused had not had their matter heard by the military tribunal, or where no decision was published, and held such information was conditionally exempt under s 47F.

HELD:

The Commissioner was not satisfied that the claims made about the risk of disclosure to discipline was sufficient reason for names to be exempt under s 47E(c) and the exemption did not apply. In relation to s 47E(d), given the nature of the material and reasons for the individuals appearing in the document, the Commissioner was not satisfied that the Department had provided sufficient particulars regarding the purported effect of a break-down of the disciplinary system and a reduction of morale, so the conditional exemption did not apply. However, s 47F applied to material where individuals were identified when they had not had their matters heard or decisions published by the military tribunal.

RMBR and National Disability Insurance Agency [2021] AATA 3

On 23 November 2018, the National Disability Insurance Agency (“Agency”) refused RMBR’s (“applicant”) request made under the National Disability Insurance Scheme Act 2013 (Cth) (“NDIA Act”) for a plan review for her son. The applicant did not seek review of that decision.

On 14 August 2019, under s 48 of the Freedom of Information Act 1982 (Cth) (“FOI Act”) the applicant requested amendment of seven sentences in the decision of 23 November 2018 on the basis that they contained personal information that was incomplete, incorrect, out of date or misleading. The request was made so that the applicant could apply for Specialist Disability Accommodation funding in future and the applicant believed that they were not the record of the decision but purported to be factual statements, so amendment would not have the retrospective effect of altering the decision of the Agency.

The Agency decided not to amend the document. The decision was affirmed during internal review, however an annotation was made to the document with a statement by the applicant on those parts of the record she claimed were incomplete, incorrect or misleading. The applicant sought review by the Australian Information Commissioner, which was not undertaken, which led to a review by the Administrative Appeals Tribunal (“Tribunal”). The Tribunal considered whether it had power to amend the sentences under s 58AA(2)(a) of the FOI Act.

Powers of Tribunal – limitation on amending records: s 58AA

While the Tribunal has power to review certain decisions as set out in s 57A of the FOI Act, s 58AA limits the Tribunal’s power to amend a record. The purpose of s 58AA(2)(a) is to prevent the FOI Act being used as a “backdoor method to review decisions of the agency”.

The applicant’s view was that s 58AA was limited so individual sentences in a decision could be reviewed in circumstances where they were not the actual decision. The applicant referred to the various types of information in the decision letter such as: the record of a decision, reasons for decision, facts in relation to the applicant and her son, and statements of opinion by the Agency which the applicant said were incorrect. The applicant proposed considering each sentence in the decision letter separately. The Agency opposed this, arguing that s 58AA(2)(a) referred to ‘a record’ as a whole and not parts of a record or information contained within the record and that the section would be ineffective if it were possible to pull apart individual sections of a record. It also noted that the applicant could have sought review of the decision under the NDIA Act, but she did not do so.

The Tribunal’s view was that s 58AA(2)(a) is clearly intended to limit the Tribunal’s jurisdiction so that it does not have power to amend the entirety of the record nor to amend particular sentences which of themselves constitute part of the record of a decision. If the Tribunal were to have jurisdiction to review individual sentences within a record by characterising those sentences as something else, for example statements of opinion, fact or personal information, then that would render s 58AA(2)(a) ineffective. In practice it would open a second avenue for review of NDIA Act decisions. The agency had met its obligations under s 51 by making the annotation which recorded the applicant’s intention but did not disturb the record of decision.

HELD:

The Tribunal does not have jurisdiction to amend the record of decision by the Agency. The application for review was dismissed.

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Issue 1 · 17 Mar 2021

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