Freedom of Information Decision Released with Personal Details Redacted

The Tribunal varied the decision under review so that the report is to be released to the applicant with the deletion of references to the applicant’s personal circumstances and place of residence, balancing the public interest in transparency with the protection of personal privacy.

CITATION: [NAME] v Land and Property Management Authority [2010] NSWADT 243

DIVISION: General Division

APPLICANT [NAME] PARTIES: RESPONDENT Land and Property Management Authority

FILE NUMBER: 103066

HEARING DATES: On the paper

SUBMISSIONS CLOSED: 17 June 2010

DATE OF DECISION: 13 October 2010

BEFORE: Molony P - Judicial Member

CATCHWORDS: Freedom of Information Act - [NAME] to documents - personal affairs - - if practicable to give [NAME] with exempt material deleted

LEGISLATION CITED : Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997

Re [NAME] and the Minister for Immigration and Ethnic Affairs (1984) 6 ALD N257 [NAME] -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 CASES CITED: Department of Education and Training v [NAME]) [2009] NSWADTAP 33 Handicapped Children's Centre (NSW) v Department of Ageing, Disability and Homecare [2003] NSWADT 116 [NAME] v Casino Control Authority [2003] NSWADT 165 Dawson v Health Care Complaints Commission [1999] NSWADT 57

APPLICANT In person REPRESENTATION: RESPONDENT [NAME], solicitor

ORDERS: The Tribunal varies the decision under review so that 30 days from the publication of these reasons the report is to be released to the [NAME] Applicant with the deletion of references to [NAME], her separation, her personal circumstances, and her place of residence.

REASONS FOR DECISION

Background 1 On 3 November 2009 the Land and Property Management Authority ([NAME]) received an application for [NAME] to information under the Freedom of Information Act 1989 from [NAME]. [NAME] identified a Department of Lands report, dated February 2007, entitled Report concerning complaint made to ICAC by [[NAME]] about the alleged conduct of [NAME] a former senior officer of the Department (the report) as responsive to that request.

2 Because the report contained information in relation to [NAME]'s personal affairs, [NAME] consulted [NAME] as to whether she considered that the document should be exempt under the personal affairs exemption in Clause 6 of the Schedule 1 to the Act. This consultation is required by s 31(2) of the Act. [NAME] objected to the release of information relating to her personal affairs. Her objection was communicated by phone, and was not in writing.

3 On 10 December 2009 [NAME] advised [NAME] in writing that it had determined to release the report. On 23 December 2009 [NAME] sought an internal review of that decision. On 19 January 2010 the decision to release the report without deletions was confirmed in internal review.

4 On 17 March 2010 [NAME] filed an application with the Tribunal seeking to review that decision. In a letter accompanying her application to the Tribunal [NAME]'s questioned why [NAME] now wanted the report. She alleged her life had been threatened by [NAME]'s son and that "the matter" is subject to ongoing investigations by Police and ICAC. She alleged that a named person from [NAME]'s property had set her 'up' resulting in her property being raided by Police, and her being charged with unlicensed firearms offences. These were dismissed. She said that she feared for her life, "if they obtain information concerning my property."

5 At a planning meeting held on 5 May 2010 I determined, with the concurrence of the parties, that the issues for determination could be adequately determined in the absence of the parties, on the papers. I made directions for the filing of submissions by both parties before I determined to decide the issues on the papers. These reasons relate to that determination.

Issues

6 Clause 6 of Schedule 1 of the Freedom of Information Act 1989 provides the personal affairs exemption – Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for [NAME] to the document is being made.

7 In this case there is no dispute that the report contains information concerning [NAME]'s personal affairs. It also contains information in relation to a number of other persons, including [NAME], over the period 1972 to the date of the report. The issue for determination is whether disclosure of the information relating to [NAME]'s personal affairs would be unreasonable.

8 Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: [NAME] v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

9 In considering a review of a determination under the Freedom of Information Act 1989 "the burden of establishing that the determination is justified lies on the agency": s 61.

Submissions 10 In submissions [NAME] argued that the Tribunal that there were eleven factors which the Tribunal should take into account in determining whether or not release of the report would involve the unreasonable disclosure of information concerning the personal affairs of [NAME]. These were that – a)"There are no facts in this matter upon which the Tribunal could rely in support of a decision that disclosure would be unreasonable." [NAME] made the point that the allegations contained in [NAME]'s letter accompanying her review application are "unsupported and unsubstantiated." b)The report concerns land transaction about a property in which [NAME] has an interest from 1972 to 2007. Public records relating to transactions are available by searching the Torrens Register. The report contains details of the investigation into allegations made by [NAME] and reveals the investigators conclusions for finding that the allegations were unsubstantiated. It does not reveal conclusions which would have an adverse impact on [NAME]. c)There is nothing about the manner in which [NAME] obtained the report which would make its disclosure unreasonable. d)Disclosure would not have any impact on the affairs of Government, e)The issues in canvassed in the report are past and not of current relevance. The report also discusses unregistered transactions for which there is no documentation, and which are no longer of relevance to [NAME] or any other person. f)[NAME] has a real interest in the report and disclosure would meet a public interest. His application is not for the purpose of idle curiosity. g)Release will not damage [NAME]'s person, reputation or property. h)[NAME] does not have a significant relationship with [NAME]. As a result any harm to that relationship is not such as to make disclosure of the information relating to her personal affairs unreasonable. i)[NAME] has a legitimate interest in the contents of the report. j)There is no evidence that [NAME]'s motives in seeking the report are illegal, malicious or not otherwise in the public interest. k)Much of the information is already available in public records.

11 In her submissions [NAME] said that a police raid on her home and her subsequent Court appearance in early 2008 was the direct result of [NAME]'s sworn allegation against her. The charges against her were dismissed.

Consideration 12 In Re [NAME] and the Minister for Immigration and Ethnic Affairs (1984) 6 ALD N257 at N259 the [NAME] said 51 … Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of all the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties. 52 However, consistently with the stated object of the Act (see s 3); it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting [NAME] to the document.

13 In [NAME] -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 the President having reviewed the authorities concerning the assessment of whether disclosure would be unreasonable concluded, at [48-50]: 48 The FOI Act sets a standard which is to apply as between citizens and government. Decisions to grant [NAME] under FOI should, to use an American expression, ordinarily be facially neutral. The theory, at least, is that once [NAME] is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. But some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re [NAME] (No 2) (1985) 7 ALD 425 at 438-9; and generally [NAME], Annotated Freedom of Information Act New South Wales (1997), 313. 49 … 50 For the reasons given, I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else's personal records, and under which agencies can make varying calculuses as to the 'reasonableness' of disclosure in that way. …

14 In Department of Education and Training v [NAME]) [2009] NSWADTAP 33 the Appeal Panel, following the decision of the [ADDRESS] of Appeal in Marke v Victoria Police [2007] VSC 522, acknowledged that – 49…, the FOI decision-maker (agency or review tribunal) must not, uncritically, exclude from its consideration matters pressed by the applicant personal to the applicant such as the purpose of the application and promises of limited use. As the [ADDRESS] noted, that does not mean that the decision-maker must give effect to the applicant's plea. The decision-maker may form a negative view as to the likelihood that the promise will be kept, and the attributes of the applicant may militate against acceptance of the promise. [ADDRESS] gave the following illustrations of this point: the applicant who is a political activist, a journalist or a member of parliament, all of whom might reasonably be assumed to be likely to seek maximum publicity for the material released.

15 In this case there is no direct evidence of [NAME]'s motives for seeking [NAME] to the report. The fact that the report concerns an investigation into allegations made against him, which dismissed those allegations, points to good reasons which might explain why he now seeks a copy of the report. [NAME] has made allegations with respect to [NAME]'s motivations in seeking [NAME] to the report, suggesting improper motives, there is no evidence to support her allegations. Due to the state of the evidence regarding [NAME]'s actual motivations for seeking [NAME] to the report, despite the assertions in [NAME]'s submissions, I will approach the consideration of the issue on a facially neutral basis, remembering that release under the Freedom of Information Act 1989 is release to the world.

16 In opposing [NAME] has framed her objections in a manner which makes it apparent that she objects to disclosure of the whole of the report to [NAME], not just information relating to her personal affairs. Insofar as her objections extend beyond matters relating to her personal affairs, the Tribunal does not have jurisdiction to address them in this review, which is confined to a consideration of the release of information relating to her personal affairs under clause 6. This is so as the Tribunal's consideration, on a review initiated by a third party such as [NAME] , is limited to the ground upon which the third party was consulted under Division 2 of Part 3 of the Freedom of Information Act 1989: see Handicapped Children's Centre (NSW) v Department of Ageing, Disability and Homecare [2003] NSWADT 116 and [NAME] v Casino Control Authority [2003] NSWADT 165. These relate to documents concerning intergovernmental affairs (s 30), personal affairs (s 31), business affairs (s 32) and the conduct of research (s32). In [NAME]'s case only personal affairs is relevant.

17 While the fact that [NAME] objects to release is a factor to be taken into account in assessing whether release would be unreasonable, the fact that her objection is to the global release of the report (rather than personal affairs information alone) does not assist in determining her objection: see Dawson v Health Care Complaints Commission [1999] NSWADT 57. So to does the fact that she has not produced any evidence, apart from allegations, that she would be prejudiced by release.

18 In the case of the report only a small potion relates to matters concerning [NAME]'s personal affairs and my consideration is confined to them. They relate to allegations made by [NAME], relevant details of her past personal circumstances as they relate to her ownership of land, including personal information relating to her marriage and subsequent property settlement, and details of her residence.

19 I accept [NAME]'s submission that the report relates to matters which are past. The report was completed some three years ago. It involved serious allegations of fraudulent behaviour made by [NAME] against [NAME] in his capacity as a then senior officer of the Department of Lands, including interference with the public registers of land ownership. Given the seriousness of the allegations of fraudulent conduct by [NAME], in the performance of his duties as a senior officer of the Department, and the fact that the report exonerated him, there are public interest considerations which point to the desirability of the report being released. Foremost of these are the public interest in the accountability of the Department, and the public interest in the transparency of its operations.

20 While the report did not accept the allegations made by [NAME], it concluded that they were, in part, founded on a misunderstanding of law on her part. The report made strong criticisms of the quality and nature of the evidence she relied on to support her allegations. I do not agree with [NAME] that if released this would not expose her to potential harm, in the sense of criticism of her complaints.

21 I do agree that some of the personal information relating to [NAME] is available by searching public records and registers in a focussed manner, and is already in the public domain to.

22 On balance I conclude that it would be unreasonable to release the personal information that would expose details of [NAME]'s identity, her marriage and subsequent property settlement, and her present residence.

23 Section 25(4) of the Freedom of Information Act 1989 provides: An agency shall not refuse [NAME] to an exempt document (including a restricted document that is the subject of a Ministerial certificate): (a) if it is practicable to give [NAME] to a copy of the document from which the exempt matter has been deleted, and (b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given [NAME] to such a copy.

24 In my view the report can be readily and practicably be redacted under s 25(4) (by deleting references to [NAME] , her separation, her personal circumstances and her place of residence) without depriving the report of its coherence. This will result in the public interest in the release of the substance of the report being satisfied, while ensuring the protection of information relating to [NAME]'s personal affairs.

25 As exposure of [NAME]'s identity in these reasons could have the effect of exposing the personal information which [NAME] seeks to protect, I have directed that this decision be anonymised so as not to expose her identity.

Conclusion 26 As a result I vary the decision under review so that 30 days from the publication of these reasons the report is to be released to the [NAME] Applicant with the deletion of references to [NAME], her marriage and subsequent property settlement, her personal circumstances and her place of residence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.