Recent Cases: Commonwealth
Paul Farrell and Department of Foreign Affairs and Trade (Freedom of information) [2024] AICmr 28 (12 February 2024)
Mr. Farrell (“applicant”) applied to the Department of Foreign Affairs and Trade (‘Department”) for access to email and phone correspondences (including message-based applications) between Mr Joe Hockey, Ambassador and the Liberal Party Treasurer and CEO of a company holding an Australian Government travel contract, and in which Mr Hockey held shares. The Department identified 2 documents falling within the scope of the request. The Department refused access to both documents in full, relying on the personal privacy and business affairs exemption in ss 47F and 47G of the FOI Act.
The applicant sought an Information Commissioner (“Commissioner”) review.
During confidential submissions to the Commissioner, the Department revealed that a further two additional documents had been identified as falling within the scope of the request but that the Department had considered them to be outside the scope of the Request and had not provided them to the Commissioner. The Commissioner issued a written direction under s 55(2)(e)(ii), requiring the Department to provide the Commissioner with marked up and unredacted copies of the two additional documents identified.
The Department provided submissions to the Commissioner claiming the documents not produced were irrelevant to the decision and that it no longer contended the two documents in dispute to be exempt under s 47G.
The Acting Commissioner’s primary considerations were whether the material claimed to be irrelevant to the request was irrelevant, and whether the documents were conditionally exempt under s 47F.
Irrelevant material – s 22
The Department submitted that the documents were irrelevant to the request as they were not correspondence between the individuals identified in the applicant’s request. On reviewing the documents, the Acting Commissioner was satisfied that they were irrelevant.
Personal privacy exemption – s 47F
The Acting Commissioner considered whether the documents contained ‘personal information’ and whether disclosure would be unreasonable. The Acting Commissioner was satisfied that the documents contained person information comprising names and email addresses of a departmental employee as well as other third parties.
The Acting Commissioner needed to be satisfied that disclosure would involve an unreasonable disclosure of personal information considering the factors set out in s 47F(2) and the FOI Guidelines.
The submissions for disclosure addressed the public interest in documents relating to the performance of the Ambassador’s duties and in understanding how diplomatic staff exercise their functions and engage in activities that may benefit private parties.
This contrasted with the Department’s contentions that while the documents ‘say something’ about concerned parties, this did not relate to the applicant and that 2 third parties consulted with under s 27A of the FOI Act objected to disclosure of their personal information. Given the nature of the information and the implications disclosure would have for identified individuals, disclosure would be unreasonable as the information was not well known nor publicly available.
The Acting Commissioner decided that, given the applicant sought access to the information, it was still relevant. Further, disclosure would advance the public interest in government transparency and integrity. While third parties objected to disclosure, the Acting Commissioner determined that the public interest in transparency of Mr Hockey’s dealings with Mr Burnes outweighed the privacy of those third parties. On that basis, the Acting Commissioner concluded that disclosure would not be considered unreasonable in this instance. While the documents contained credit card information, it was out of date The documents were not conditionally exempt for the purposes of s 47F of the FOI Act.
Decision
The Acting Commissioner set aside the Department’s decision, substituting it with a decision that the documents found to be irrelevant by the Department were irrelevant but that the documents the subject of the original decision were not conditionally exempt under s 47F of the FOI Act.
Shafran; Secretary, Department of Veterans Affairs and [2024] AATA 115 (5 February 2024)
On 8 April 2018, Mr Shafran (“respondent”) applied to the Secretary of the Department of Veterans Affairs (“Department”) for access to documents, specifically seeking names and dates. One of the documents sought was an audit log identifying staff and contractors of the Department that had access to a particular file note recording a complaint by the respondent made to the Department. The Department granted partial access to the audit log document, with personal information of relevant departmental staff and contractors withheld as exempt.
On internal review of the Department’s decision, the Department affirmed its original refusal decision. The respondent then sought Information Commissioner (“IC”) review.
The IC review decision set aside the internal review decision, instead finding that the relevant family names and login information in the document was not exempt under ss 47E(c), 47E(d) or 47F of the FOI Act. The Department sought review by the Administrative Appeals Tribunal (“Tribunal”).
The issue to be decided was whether the audit log was conditionally exempt under ss 47F or 47E(d) and, if so, whether access to those names or details would have, on balance, been contrary to the public interest.
Section 47F – Personal privacy exemptions
The Tribunal determined that the audit log was conditionally exempt under s 47F because it included family names. Disclosure of the names would have constituted an unreasonable disclosure of personal information. It was acknowledged that there is no starting premise in the FOI guidelines that the classification level of a departmental officer determined whether his or her name would be unreasonable to disclose. The Tribunal considered that opposition to disclosure from the relevant individuals was likely, and disclosure could have reasonably been expected to negatively impact on the Department’s duty to its staff and contractors in terms of health and safety.
While the family name might be considered well known and available from publicly accessible sources, the names would not generally have been known to the public, to clients of the Department or those lodging claims with the Department in matters associated with the audit log.
The Tribunal found difficulty in identifying any public interest factors that supported disclosure of the personal information. It was unclear to the Tribunal how disclosure of the names would have assisted with the overall interests in obtaining the information or promoted the objectives of the FOI Act. The Tribunal highlighted that while disclosure of family names may have been of interest to the public, it was not in the interest of the public. Upon balancing the relevant factors, the Tribunal concluded disclosure would have been contrary to the public interest. Therefore, the family names were exempt under s 47F.
Section 47E(d) – Certain operations of agencies exemptions
The Tribunal concluded that the audit log was conditionally exempt under s 47E(d) because it included log in details. Disclosure of the log in details could have reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the Department. The log in information granted access to the Department’s IT system. Disclosure of these details would give rise to a weakness in the Department’s IT system which contained a large amount of sensitive information.
With regard to the public interest test, the Tribunal held that disclosure of the log in details would, on balance, have been contrary to the public interest. There was no evidence to suggest that disclosure would have promoted the objects of the FOI Act, informed debates on a matter of public importance, promoted effective oversight of public expenditure or allowed an individual to access their personal information. Therefore, the login in details were exempt under s 47E(d).
Decision
The IC decision was set aside and substituted with the Department’s access refusal. The relevant family names were exempt under s 47F, and the log in details were exempt under s 47E(d).