Recent Cases: Commonwealth
'AJQ' and the Department of Veterans' Affairs (Freedom of Information) [2024] AICmr 85 (23 April 2024)
Facts
‘AJQ’ (“applicant”) submitted a request to the Department of Veterans’ Affairs (“Department”) requesting documents outlining the Department’s decision and reasons for discontinuing the High Needs Case Management Pilot (“HNCMP”).
The Department made a decision to refuse the request under s 24A of the FOI Act, that the documents cannot be found or do not exist. The applicant then applied for an Information Commissioner (“Commissioner”) review of the Department’s decision.
Reasoning
Preliminary Issue – Whether the Department had reasonably interpreted the scope of the applicant’s request
The Commissioner was persuaded that the Department had reasonably interpreted the scope of the request. The request sought documents that “decide and discontinue” the HNCMP and stated the reasons it was discontinued. In light of this, the Commissioner interpreted the scope as confined to documents that recorded the decision for discontinuing the HNCMP and its reasons.
Reasonable steps to find documents – s 24A
The Department needed to demonstrate that it took all reasonable steps to find the requested document. The applicant’s view was that it was unreasonable to contend that a high value project briefed to a Minister and Secretary, that was the subject of a high-profile internal review, did not have a record of any decision in relation to its discontinuance.
To demonstrate it took reasonable steps, the Department provided evidence of its record holdings, how records of the type sought would be held, the date searches were undertaken and who conducted them, the search terms used, the outcomes and reasons as to why no documents were found. The ‘Client Benefits Division’ was the area of the Department most likely to hold relevant documents as that particular area oversaw the HNCMP. The relevant staff conducted searches of their central record holdings, which is where documents, if any existed, would have been stored in accordance with the Department’s recording keeping procedures.
While a further document was identified by the relevant area after the Department advised the applicant of its decision. However, the document was outside of the scope of the request as it did not relate to the discontinuance of the HNCMP. Having considered the request, the submissions and the Department’s evidence of searches, the Commissioner was satisfied that the Department had taken all reasonable steps to find documents within the scope of the request pursuant to s 24A of the FOI Act.
Decision
The Commissioner affirmed the decision of the Department of 26 April 2022, that all reasonable steps were taken to locate the requested documents in accordance with s 24A, and that no documents could be found or did not exist.
NCKX and the Australian Information Commissioner 2024 AATA 1100 (10 May 2024)
OAIC review
On 13 June 2015, ‘ZJ’ (“complainant”) submitted a complaint via email to the Department of Foreign Affairs and Trade (“Department”) regarding funding for an overseas project (“complainant’s email”). On 15 June 2015, the complainant explicitly requested that the email remain confidential, as it contained their personal information. On 21 June 2015, the Department advised in an email that they were not the appropriate body to deal with this complaint (“Department’s email”). The Department’s email forwarded the complainant’s email and request for confidentiality. An officer of the Australian Centre for International Agricultural Research (“Agency”) was copied into the Department’s email. That Agency officer then forwarded the Department’s email to at least two other Agency Officers.
On 24 October 2017, the complainant made a freedom of information request to the agency for access to documents relating to the subject of the complainant’s email and information regarding the dissemination of the complainant’s email within the Agency.
Given that the Agency did not provide a decision within the statutory timeframe under the FOI Act, the request was deemed refused under s 15AC. The complainant requested a review by the Office of the Australian Information Commissioner (“Information Commissioner”). On 1 June 2018, the Agency made decision to release the documents in full to the complainant. Following its decision, the Agency published the decision and the documents released to the complainant, including the complainant’s email, in full on its Freedom of Information Disclosure Log (“Disclosure Log”) accessible on the its website.
A representative of the complainant requested that the documents be removed from the Disclosure Log, which occurred within 24 hours of the request. While the Agency could not ascertain the exact number of times the documents had been viewed within the timeframe it was available, the website page including the Disclosure Log had been viewed 17 times in the previous days. The complainant’s evidence was that the pages removed from the Disclosure Log remained available in online historical caches on Google for over 12 months.
On 18 July 2019, the complainant made a privacy complaint to the OAIC under s 36 of the Privacy Act. Following an unsuccessful attempt at a resolution through conciliation, on 17 December 2021 the Information Commissioner determined that the Agency had interfered with the complainant’s privacy, in breach of Australian Privacy Principle 6 (“APP 6”), by disclosing their personal information on its Disclosure Log. The complainant was awarded $5000 in compensation for non-economic loss. Of interest, the Information Commissioner noted that in 2020, the complainant’s original email was treated as a public interest disclosure by the Agency.
Facts
The complainant sought review by the Australian Administrative Tribunal (“Tribunal”) of the Information Commissioner decision of 17 December 2021 (in the decision, the complainant is identified as NCKK (“applicant”)). The applicant sought review asserting that the compensation amount ordered to be paid was insufficient. The applicant provided evidence of the impact upon him and his wife, including legal expenses, travel expenses in relation to his FOI request and the personal impact upon him and his family.
The Tribunal reiterated that the award of compensation must be restrained, but not minimal, and must compensate the applicant for the consequences to him of the privacy breach.
The Tribunal found difficulty in identifying the link between the extra hurt suffered by the applicant and the privacy breach involved in disclosing the complainant’s email on the Disclosure Log.
The Tribunal reviewed the claims being made and noted that neither the application fee of the FOI request, nor the application for legal aid, resulted in the breach of privacy on the Disclosure Log. Given that the expenditure was incurred before the privacy breach, it could not have been included in the award of compensation by the Information Commissioner. Similarly, the applicant’s claim for damage suffered by his wife being recoverable by him was not accepted. This was because the applicant’s wife had not made her own case, nor had she provided proof that her privacy had been breached.
Decision
The Tribunal determined that a restrained, but not minimal, amount of compensation for the privacy breach from the disclosure of the personal information in the Disclosure Log was no less than $10,000. The applicant was awarded $10,000.