Australian Broadcasting Corporation and Commonwealth Ombudsman  AICmr 11 (26 April 2012)
Decision and reasons for decision of
Freedom of Information Commissioner, Dr James Popple
|Applicant:||Australian Broadcasting Corporation|
|Decision date:||26 April 2012|
Freedom of information — Request for access to documents relating to an investigation by the Commonwealth Ombudsman — Whether material obtained in confidence — Whether documents exempt from release — (CTH) Freedom of Information Act 1982 s 45 — (CTH) Ombudsman Act 1976 ss 8, 35
Freedom of information — Request for access to documents relating to an investigation by the Commonwealth Ombudsman — Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether documents conditionally exempt from release — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47E(d) — (CTH) Ombudsman Act 1976 ss 5, 8, 35
1. I affirm the decision of the Commonwealth Ombudsman (the Ombudsman) of 24 March 2011 to refuse access to the documents requested under the Freedom of Information Act 1982 (the FOI Act) on the basis that those documents are exempt under s 45 of the FOI Act. The documents are also exempt under s 47E of the FOI Act.
2. Mr James Panichi is a journalist with the Australian Broadcasting Corporation (ABC) Radio National. In a letter dated 20 January 2011, Mr Panichi applied to the Ombudsman, on behalf of the ABC, seeking access to:
... all documents in the possession of the Ombudsman obtained from the Australian Sports Commission (ASC), the Australian Institute of Sport (AIS) and Cycling Australia since 2003 pertaining to the case of [a named bicycle designer].
In particular, I am seeking the 1999 ‘Official Supplier/Sponsor Agreement' involving Cycling Australia, the Australian Institute of Sport [and two named companies].
I am also interested in obtaining all correspondence and documentation you have obtained surrounding that document and all documentation referring to the provision of track bicycles to the Australian Olympic team in the lead-up to the 2000 Olympic Games, including letters from lawyers and correspondence between the Australian Institute of Sport and the Australian Sports Commission.
3. The Ombudsman identified 44 documents as falling within the scope of the ABC's request. On 27 January 2011, in accordance with s 16 of the FOI Act, the Ombudsman transferred the FOI request to the Australian Sports Commission (the ASC) in respect of 13 of those 44 documents. Presumably this was because the Ombudsman was of the view that the subject matter of those 13 documents was more closely connected with the functions of the ASC than with those of the Ombudsman (s 16(1)(b)).
4. On 24 March 2011, the Ombudsman refused access to the remaining 31 documents sought on the basis that they were exempt under s 45 of the FOI Act.
5. By letter dated 28 March 2011, the ABC sought IC review of this decision under s 54L of the FOI Act.
6. The decision under review is the decision of the Ombudsman on 24 March 2011 to refuse the ABC's request in relation to the 31 documents remaining after the request had been transferred to the ASC in respect of 13 of the requested documents.
7. Section 45(1) of the FOI Act provides that ‘[a]document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency, the Commonwealth or Norfolk Island), for breach of confidence'.
8. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines explain that the exemption under s 45 of the FOI Act is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.
9. A breach of confidence is the failure of a recipient to keep confidential, information that has been communicated in circumstances giving rise to the obligation of confidence. The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.
10. The Guidelines explain that, to found an action for breach of confidence—for s 45 to apply—the following five criteria must be satisfied:
- the information must be specifically identified
- it must have the necessary quality of confidentiality
- it must have been communicated and received on the basis of a mutual understanding of confidence
- it must have been disclosed or threatened to be disclosed, without authority, and
- unauthorised disclosure of the information has or will cause detriment.
I have examined the documents that the ABC sought. All five criteria are satisfied in this case.
11. The 31 documents have been specifically identified. They contain information provided by a third party in support of their request that the Ombudsman investigate the actions of two Commonwealth agencies (the ASC and the AIS), correspondence between the Ombudsman and the third party about the complaint, and correspondence between the Ombudsman and the ASC.
12. The Guidelines explain that, for information to have the quality of confidentiality, it must be secret or only known to a limited group; information that is common knowledge or in the public domain will not have the quality of confidentiality.
13. The information in question in this case concerns the private business dealings of several people. It has not been communicated publicly. It was provided to the Ombudsman in the context of the Ombudsman conducting an investigation and performing its function of scrutinising the actions of government agencies.
14. I am satisfied that the information in the documents sought has the necessary quality of confidentiality.
15. For the information to have been communicated and received on the basis of a mutual understanding of confidence, the agency needs to have understood and accepted an obligation of confidence.
16. In this case, the third party repeatedly specified that the information they provided was to be kept confidential, and Ombudsman officers repeatedly assured the third party that confidentiality would be maintained.
17. I am satisfied that the information in the documents sought was communicated and received on the basis of a mutual understanding of confidence between the third party and the Ombudsman, and for the purposes of the Ombudsman investigation.
18. The Guidelines explain that the scope of the confidential relationship will often need to be considered to ascertain whether disclosure is authorised. For example, an agency may advise a person about the people to whom the agency would usually disclose information provided to it. The law may require disclosure to other parties in the performance of an agency's functions, which will amount to authorised use and/or disclosure. And, a person providing confidential information to an agency may specifically permit the agency to divulge the information to a limited group.
19. Section 8(2) of the Ombudsman Act 1976 provides that ‘an investigation under this Act shall be conducted in private and, subject to this Act, in such manner as the Ombudsman thinks fit'. Section 35 provides that Ombudsman officers are to observe confidentiality with respect to information disclosed or obtained under the Act.
20. In response to the ABC's FOI request in this case, the Ombudsman consulted the third party. The third party expressly did not give permission for the Ombudsman to disclose to the ABC the information contained in the documents sought.
21. I am satisfied that the Ombudsman Act does not provide authority for the disclosure, to the ABC, of the information contained in the documents sought by the ABC in this case. In fact, the Ombudsman Act precludes that disclosure.
22. I must now consider whether unauthorised disclosure of the information in the documents sought would cause detriment. As the Guidelines explain, the Administrative Appeals Tribunal (AAT) has applied this element in numerous cases, but it is not certain whether it must be established. The uncertainty arises because of an argument that an equitable breach of confidence operates upon the conscience (to respect the confidence) and not on the basis of damage caused. The Guidelines say that, despite this uncertainty, it would be prudent to assume that establishing detriment is necessary.
23. In any event, detriment is not difficult to establish. The High Court has said that ‘[i]t may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism'. And the AAT has said that ‘the detriment may be the disclosure itself in circumstances in which the disclosure is neither consented to nor otherwise justified. That disclosure may be accompanied by embarrassment, distress or the like or by tangible loss or it may simply be unconscionable.'
24. In the decision under review, the Ombudsman stated—and I accept—that the Ombudsman's investigation involves a personal matter, and that disclosure of information from this process would result in a level of embarrassment and discomfort for the third party.
25. I am satisfied that unauthorised disclosure of the information contained in the documents sought by the ABC in this case would cause detriment to the third party.
26. I find that the disclosure of the documents sought by the ABC would found an action, by the third party, for breach of confidence. Accordingly, those documents are exempt under s 45(1) of the FOI Act.
27. Because the documents sought by the ABC are exempt under s 45, it is not necessary for me to consider the possible application of any other exemptions under the FOI Act. However, those documents are also conditionally exempt under s 47E of the FOI Act.
28. Section 47E of the FOI Act relevantly provides that ‘[a] document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to ... (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency'. A central function of the Ombudsman is the investigation of complaints about the administrative actions of departments and agencies. As noted in  above, the Ombudsman Act establishes a framework within which those investigations are conducted in private, and information disclosed or obtained under the Act is treated confidentially.
29. In this case, the third party provided information to the Ombudsman on the understanding that it would be used in an investigation, but not disclosed. Disclosure, under the FOI Act, of information provided to the Ombudsman by complainants in such circumstances would affect the willingness of people to make complaints to the Ombudsman in the future. That would have a substantial adverse effect on the proper and efficient conduct of the Ombudsman's operations. Accordingly, the documents sought by the ABC are conditionally exempt under s 47E(d).
30. I have found that the documents that are the subject of this IC review are conditionally exempt under s 47E(d) of the FOI Act. Section 11A(5) provides that, if a document is conditionally exempt, it must be disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest'.
31. Section 11B(3) of the FOI Act lists factors that favour access when applying the public interest test. None of those factors is applicable to this IC review.
32. The Guidelines include a non-exhaustive list of further factors that favour disclosure. Having regard to that list, I consider that there is only one factor that favours disclosure in this IC review: disclosure would increase transparency in Ombudsman investigations.
33. The Guidelines also include a non-exhaustive list of factors against disclosure. One of those factors is that disclosure ‘could reasonably be expected to prejudice the conduct of investigations, audits or reviews by the Ombudsman or Auditor-General'. This reflects the fact that, as noted above, the Ombudsman Act establishes a framework within which the Ombudsman's investigations are conducted in private, and information disclosed or obtained under the Act is treated confidentially.
34. In balancing these factors—for and against disclosure—I give the greatest weight in this IC review to the factors against disclosure, especially given the legislative framework of the Ombudsman Act.
35. Giving the ABC access to the documents sought (which I have found to be conditionally exempt under s 47E(d) of the FOI Act) would, on balance, be contrary to the public interest for the purposes of s 11A(5).
36. Under s 55K of the FOI Act, I affirm the Ombudsman's decision of 24 March 2011.
Dr James Popple
Freedom of Information Commissioner
26 April 2012
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 Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (2010), [5.135].
 Guidelines [5.138]; Coco v AN Clark (Engineers) Ltd (1969) 86 RPC 41.
 Guidelines [5.138]; Re Petroulias and Commissioner of Taxation  AATA 333; (2006) 62 ATR 1175.
 Guidelines [5.139].
 Guidelines [5.142].
 Guidelines [5.144]; Re Harts Pty Ltd and Tax Agents' Board (Qld) (1994) 36 ALD 403; 30 ATR 1135.
 Guidelines [5.147]–[5.148].
 Guidelines [5.151].
 Re Callejo and Department of Immigration and Citizenship  AATA 244; Petroulias and Commissioner of Taxation  AATA 333; (2006) 62 ATR 1175.
 Re Callejo and Department of Immigration and Citizenship  AATA 244 discussing Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health (1989) 89 ALR 366.
 Guidelines [5.151]. See also Re 'B' and Brisbane North Regional Health Authority  QICmr 1; (1994) 1 QAR 279, where the Queensland Information Commissioner decided that it was ‘probably necessary, and certainly prudent, to apply [the corresponding provision of the Freedom of Information Act 1992 (Qld)] on the basis that it must be established that detriment is likely to be occasioned' (at ).
 Commonwealth v John Fairfax & Sons Ltd  HCA 44; (1980) 147 CLR 39 per Mason J, .
 Callejo and Department of Immigration and Citizenship  AATA 244 per Forgie DP, .
 See Ombudsman Act 1976, s 5.
 These are whether access to the document would promote the objects of the FOI Act; inform debate on a matter of public importance; promote effective oversight of public expenditure; or allow a person to access his or her own personal information.
 Guidelines [6.25].
 See also Carver and Fair Work Ombudsman  AICmr 5, . The principal factor favouring disclosure in that IC review was the importance of transparency in investigations of the work-related conduct of public officials.
 Guidelines [6.29].
 See  and  above.