Recent Cases: Commonwealth
'AFT' and Independent Parliamentary Expenses Authority (Freedom of Information) [2023] AICmr 124 (11 December 2023)
‘AFT’ (“applicant”) submitted an FOI request to the Independent Parliamentary Expenses Authority (“respondent”) for documents relating to submissions made by a former Australian politician and/or their representatives in relation to the potential release of documents under another FOI request.
Whilst processing the request, the respondent undertook third party consultations with three individuals. The individuals provided their submissions regarding s 47F of the FOI Act to the respondent.
The respondent made a decision to release the requested information in full. The respondent advised both the FOI applicant and IC review applicant of their decision. Subsequently, one of the individuals, the IC review applicant, sought a review of the respondent’s decision pursuant to s 54M of the FOI Act.
Issue
The Commissioner’s primary consideration was whether the documents that the IC review applicant contended were conditionally exempt were exempt under s 47F. The respondent contended that the IC review should be closed as it was no longer current. This was dealt with as a preliminary issue.
Reasoning
Preliminary issue
The respondent argued that the FOI request was no longer current as the individual who made the FOI request no longer works for their employer – the individual being the third party for the review rather than the employer. The Commissioner disagreed and said it was clear that the request was made on behalf of the individual’s employer which could be inferred from the request and from communications with the OAIC, that in absence of express confirmation from the individual’s employer that the FOI request had been withdrawn. The FOI request therefore remained.
Personal privacy exemption – s 47F
While the IC review applicant sought to be heard on matters outside the application of s 47F, the Commissioner confirmed that there was only standing to raise the issues about which the third party was consulted.
The personal information in question was the IC review applicant’s name and their association with a private law firm. The Commissioner confirmed that this was personal information for the purpose of s 47F(1) of the FOI Act. The Commissioner then considered the factors set out in the FOI Act and the Guidelines in forming a view on whether disclosure of the personal information under the FOI Act would involve an unreasonable disclosure of personal information.
The IC review applicant contended that the documents revealed their association with a subject matter that was not well-known or available on any other public source. Whilst the respondent affirmed this, it submitted that the applicant had a significant media presence and their association to the former politician was public information. The Commissioner conducted its own searches and agreed with the respondent that the applicant’s name, position and association to the former politician was public information, a factor weighing in favour of disclosure. Where there is no publicly accessible information that could link the individual to the specific subject matter of the documents, this weighs against disclosure.
Whether there is opposition to disclosure
The IC review applicant submitted that the former Australian politician is well-known and disclosure of the disputed documents would be likely to attract media attention, likely causing the applicant’s personal information to be disclosed, be inconvenient and cause significant personal embarrassment and reflected on the identity of the FOI applicant as a media outlet.
Whilst the Commissioner acknowledged that the IC review applicant opposed disclosure, it was not satisfied that the information was particularly sensitive in nature and noting the information was publicly available through various sources.
The Commissioner was of the view that given the passage of time, it was unlikely that the news media outlets would report on the information. Nevertheless, the Commissioner still accepted that there was still potential for media attraction, given the information concerned a former Australian politician.
Whether disclosure of the information might advance the public interest in government transparency and integrity
The Commissioner considered the role of the respondent, which under the Independent Parliamentary Expenses Authority Act 2017, is tasked with advising, reporting and auditing work expenses of parliamentarians and their staff.
The respondent submitted that while the former politician is no longer a member of Parliament, they were until recently. Therefore, the disclosure of the disputed materials would increase the scrutiny of, and discussion on Government activities, thereby promoting transparency. Taking this and the content of the documents into account, which contained the former politician’s views on whether the respondent should disclose such information, the Commissioner agreed that disclosure would advance the public interest in government transparency and integrity.
Decision
The Commissioner affirmed the respondent’s decision that the name and position of the IC review applicant were not conditionally exempt under s 47F. As a result there was no need to consider the public interest requirement under s 11A(5).
Webster and Commonwealth Superannuation Corporation (Freedom of Information) [2023] AATA 4137 (14 December 2023)
Cyril Ken Webster (“applicant”) applied in 2018 to the Commonwealth Superannuation Corporation (“respondent”) for access to documents relating to his superannuation.
Documents were released to the applicant over the following 5 years in 8 separate releases as a result of a revised FOI decision being made by the respondent during Commissioner review and various decisions of the Tribunal to alter the decision under the Administrative Appeals Tribunal Act 1975 (Cth). Four of the additional releases of documents occurred during the hearing of the matter over various days.
In a hearing before the AAT held on 16 September 2022, the applicant raised concerns regarding the adequacy of the searches conducted by the respondent, primarily due to inconsistent page numbers between the first and second release. The hearing didn’t conclude, with both parties requesting an adjournment to allow for time to potentially resolve the matter through disclosure of a complete copy of the applicant’s TRIM record.
The issue was not resolved and the hearing was resumed in October 2023. A further four releases of documents were disclosed to the applicant, with the Tribunal identifying additional documents and a previously un-identified third-party (“Sixth Release”); reviewing the redacted information which resulted in more documents being released from the respondent’s Outlook accounts (“Seventh Release”) and reviewing redacted information, with newly released documents, more third-party names and information redacted as irrelevant (“Eighth Release”).
Issue
The primary issue was whether the respondent had undertaken all reasonable steps to locate documents in accordance with s 24A of the FOI Act.
Reasoning
With regard to the Sixth, Seventh, and Eighth Releases, the Tribunal confirmed the redacted information was not relevant to the applicant’s request and therefore, correctly redacted.
The Tribunal also confirmed that the applicant’s concerns regarding the respondent’s file management and actions throughout the review process was outside the Tribunal’s jurisdiction, but it was open to the applicant to complain to the Ombudsman or Information Commissioner.
s 24A – Adequacy of searches
The applicant contended that the 8 releases did not establish that all relevant documents had been found or that all reasonable searches had been conducted. The Tribunal considered whether the respondent had taken all reasonable steps to find the documents and whether the documents are in the respondent’s possession but cannot be found or do not exist.
The Tribunal referred to the Sixth Seventh and Eighth releases as showing that the respondent had not undertaken all reasonable steps. The further 4 releases of documents to the applicant between the initial hearing and rescheduled hearing demonstrated all reasonable steps to find documents falling within the scope of the request, and it was satisfied that any documents not found were either in the respondent’s possession but could not be found, or did not exist. in forming this view the Tribunal had regard to the nature of the documents being sought, the file management system of the Respondent and the steps already taken to locate the documents.
Tribunal reiterated that the respondent’s past shortcomings in not releasing all documents, exemplified by the eight separate releases of documents, did not affect the finding in the current hearing. In considering whether all reasonable steps have been taken, the Tribunal is looking at the position as it was at the time of the resumed hearing. While there may have been shortcomings in the search efforts originally, the additional steps taken may mean that the Tribunal finds that the respondent has subsequently met those requirements.
The respondent’s evidence outlining the extensive steps taken in various searches was accepted. Despite the inability to explain the differing page numbers or the imperfect record-keeping endeavours, the Tribunal was satisfied that the respondent had taken all reasonable steps to find the sought documents that were within the scope of the request.
Decision
The respondent had discharged its obligations under s 24A of the FOI Act, as all reasonable steps had been taken to find the documents to which the applicant sought access, and any further documents that might have fallen within the category of documents to which the applicant sought access could not be found by the respondent or did not exist.