Recent Cases: Commonwealth
'XB' and Cancer Australia (Freedom of Information) [2021] AlCmr 15
The applicant is a former employee of Cancer Australia and lodged a claim for workers compensation with Comcare. The applicant applied to Cancer Australia for 11 amendments and 2 annotations to information contained in 2 documents that relate to the applicant’s Comcare claim.
Cancer Australia decided to make 2 of the amendments, but refused the remaining 9 on the basis that the related information is not incomplete, incorrect, out of date or misleading. They also refused to make the 2 annotations on the basis that it considered the applicant’s statement provided under s 51A(c) of the FOI Act to be defamatory.
The applicant sought IC review of the Cancer Australia’s decision.
Requested amendment 1
The applicant did suffer an injury or illness; however, the Commissioner was not satisfied that the applicant notified Cancer Australia of the injury or illness – as opposed to an incident. Neither party had made submissions on the consequences of amending or not amending the answer. The Commissioner affirmed the part of Cancer Australia’s decision to refuse to amend the answer.
Requested amendment 2
Cancer Australia submits that the nature of the information and the circumstances in which it was provided do not support the amendment and more importantly, nor do the consequences of amendment, which would be minimal. The Commissioner explains that the FOI guidelines explain that once it is determined that a record of personal information is incorrect and there is information that is more likely to be correct, they should take into consideration the consequences of the amendment being made and the amendment not being made. The Commissioner was satisfied that the correct or preferable decision is to make the amendment.
Requested amendment 3
Commissioner was not satisfied that the content of the email is evidence, of itself, that the answer ‘no’ was incorrect. Neither party has made a submission on the consequences of amending or not amending the answer and such the record of the opinion was incorrect. The commissioner affirmed the decision of the respondent.
Requested amendment 4
The commissioner was satisfied that the evidence discloses that there is no category of ‘workplace injury leave’ in Cancer Australia’s enterprise agreement and that ‘personal leave’ is appropriate in these circumstances and, accordingly, they were not satisfied that the leave report is incorrect. The annotation was not found to be irrelevant, defamatory or unnecessarily voluminous and, accordingly, the annotation must be made following the unsuccessful application for amendment. Cancer Australia’s decision to refuse to amend the leave report is set aside.
Requested amendment 5
Same reasons as above, the decision to set aside the respondent’s decision to refuse to amend.
Requested amendment 6
The tax invoice suggests that the appointment with the doctor was for the purpose of a s 36 assessment, and the applicant did not attend the appointment. The commissioner considered that neither party had made submissions on the consequences of amending the record in relation to the reason that a s 36 assessment was not completed and thus the commissioner was not satisfied that the rehabilitation program form is incorrect in stating that a s 36 assessment was not completed for the reason ‘did not attend schedule appointment’. The Cancer Australia’s decision to refuse to amend its reason given in the form is affirmed.
HELD:
The decision of Cancer Australia was substituted and made the 2 annotations that the applicant requested in their application, 2 amendments that the applicant requested and another annotation as requested by the applicant. Otherwise, the remained of Cancer Australia’s decision is affirmed.
Rex Patrick and Department of Industry, Science Energy and Resources (Freedom of information) [2021] AlCmr 14
The applicant applied to the Department for access to documents under the FOI Act. The department notified the applicant of its decision to impose a charge under s 29(1) of the FOI Act. The department advised the applicant it had identified one document consisting of 64 pages as being within the scope of the FOI request. The department decided to grant access in part to the document. In making its decision, the department relied on the deliberative processes’ exemption, the certain operations of agencies exemption and the personal privacy exemption.
The applicant sought IC review of the Department’s decision.
Deliberative Matter – s 47C
The material that the Department contends is exempt under s 47C as it is apparent that the material was provided to the Minister to inform his decision-making regarding land nominations. The material is not purely factual or operational information and the relevant material contains deliberations in the form of opinions, advice and recommendations. The relevant material is deliberative matter for the purpose of s47C.
Public interest – s 11A(5)
A document is conditionally exempt it must be disclosed ‘unless access to the document at that time would, in the circumstances and on balance, be contrary to public interest’. The Commissioner found that the relevant material is considered relevant to the public interest factors as disclosure could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future and disclosure could reasonably be expected to prejudice community consultation and the quality of the Department’s assessment of that consultation when briefing a Minister.
This is because the consultation process is open to public scrutiny and the frankness with which members of the community engaged with the Department would be substantially compromised. These entities may be unwilling to engage with the department in the future and this would substantially hinder the departments capacity to engage with the community and in turn, reduce the capacity of the department to advise on decisions of public importance
Certain operations of agencies exemption – s 47E(d)
The department argued that they are responsible for providing advice and recommendations and the minister is responsible for making a final determination on the issue and the document is part of this consultation process. Since the document provides a number of details of the department’s consultation with the community stakeholders, it is unclear on the face of the documents whether those consulted intended to have their comments and identities made public. They argued that it would likely damage the department’s capacity to engage with relevant stakeholders.
The Commissioner states that the expression ‘the conduct of the operations of an agency’ is capable of extending to the way in which an agency discharges or performs any of its functions. They accepted that community consultations is part of the Department’s operations.
Substantial adverse effect – s 47(d)
The department relied on the fostering strong working relationships between the department and the minister to be able to conduct consultative processes. The department considers that opening this consultative process to public scrutiny would affect the willingness of the Minister to engage effectively with the department and would have substantial adverse impact on the operation of the department in that it would hinder the department’s ability to provide frank and fearless advice in matters of great national importance.
The Commissioner was stratified that the disclosure of some but not all of those folio’s could damage the departments capacity to engage with relevant community stakeholders in the future. The material that identifies the views of these community stakeholders were to be disclosed in circumstances where they were not so advised that it could reasonably be expected to substantially affect the department’s capacity to properly and efficiently carry out similar consultations in the future.
HELD:
The commissioner set aside the decision of the department and found that some folios were conditionally exempt under s 47C and s 47E(d)