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‘I’ and Australian National University [2012] AICmr 12 (26 April 2012)

Decision and reasons for decision of
Privacy Commissioner, Timothy Pilgrim 

Summary of case details
Applicant: ‘I'
Respondent: Australian National University
Decision date: 26 April 2012
Application number: MR11/00218
Catchwords:

Freedom of information — Documents affecting enforcement of law and protection of public safety — (CTH) Freedom of Information Act 198237

Freedom of information — Public interest conditional exemptions — personal information — (CTH) Freedom of Information Act 198247F

 

Contents

 Summary

1. Under s 55K of the Freedom of Information 1982 (FOI Act), I set aside the Australian National University's (ANU) decision of 4 August 2011 and decide, in substitution for that decision, that the 11 documents that are the subject of this IC review are exempt, but edited copies (with information removed that would identify the individuals sending or receiving the emails) should be released to the applicant under s 22 of the FOI Act.

 Background

2. On 4 June 2011, the Canberra Times reported death threats had been sent to climate change scientists at the ANU. This incident was covered by other media outlets in the following days.

3. On 5 June 2011, the applicant made a freedom of information request to the ANU. The scope of this request was determined by the ANU to be:

  1. ... emails, transcripts of telephone calls or messages that contain abuse, threats to kill and/or threats of harm to the recipient
  2. ... sent to [six named staff or representatives] of the Climate Change Institute
  3. ... within the last six months.

4. On 4 August 2011, the ANU advised the applicant 11 documents had been identified as being within the scope of the request.[1] The 11 documents were determined to be exempt under ss 37(1)(c) and 47F of the FOI Act.

5. On 5 August 2011, the applicant sought IC review of this decision under s 54L of the FOI Act. The applicant subsequently confirmed that he sought access to the substance of the documents and did not press for the release of personal information about the people who sent or received the emails or were referred to in calls or messages.

6. Therefore the scope of this review is the material in the 11 documents except for names, email addresses and phone numbers of the individuals contained within them.

 Decision under review

7. The decision under review is the decision of the ANU of 4 August 2011 to refuse the applicant access to 11 documents relevant to the applicant's request.

 Documents affecting enforcement of law and protection of public safety (s 37)

8. Section 37(1)(c) of the FOI Act provides:

37 Documents affecting enforcement of law and protection of public safety

(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

...

(c) endanger the life or physical safety of any person.

9. The Australian Information Commissioner has issued Guidelines under s 93A of the FOI Act to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines[2] explain:

Endanger the life or physical safety of any person

5.94 Under s 37(1)(c) a document is exempt if its disclosure would, or could reasonably be expected to, make a person a potential target of violence by another individual or group. This exemption requires a reasonable apprehension of danger which will turn on the facts of each particular case. For example, the disclosure of the name of an officer connected with an investigation about threats made by the applicant will not be sufficient.[3] A reasonable apprehension does not mean the risk has to be substantial, but evidence is necessary. For instance, intemperate language and previous bad behaviour, without more, does not necessarily support a reasonable apprehension.[4]

5.95 Some illustrations of the application of the exemption in the Commonwealth, Queensland and Victoria include the following:

  • A reasonable apprehension was shown in Re Ford and Child Support Registrar. [5] In this case, a third party gave extensive evidence about her fear if the FOI applicant was given access to documents. The third party had been the main prosecution witness during the FOI applicant's criminal trial for which he was still in jail. She said he had written threatening letters to her and her friends and she was scared of him. The AAT found that there was a real and objective apprehension of harm and upheld the exemption.
  • The Queensland Information Commissioner, in considering a similar provision in Queensland's former Freedom of Information Act 1992,[6] found that a threat of litigation against a person is not harassment which endangers a person's life or physical safety.[7]
  • The exemption was not satisfied under the corresponding provision in the Victorian Freedom of Information Act 1982, where evidence was produced that one of several institutions where animal experiments were conducted had received a bomb threat. It was held that danger to lives or physical safety was only considered to be a possibility, not a real chance.[8]

10. Having inspected the documents, I have determined that 10 of the documents, in the form of emails, do not contain threats to kill or threats of harm. These documents contain abuse in the sense that they contain insulting and offensive language.

11. One document, again in the form of an email, contains a recollection of an exchange which occurred during an off-campus event sponsored by members of the Climate Change Institute and other governmental agencies. The ANU responded to the conduct and comments described in the email as a security threat.

12. The ANU engaged a consultant to undertake an assessment ‘to determine the risk posed to the university and to Climate Change Institute (CCI) staff by the release of threatening and abusive information into the public domain as a result of the [FOI] request'. The ANU referred to the results of this assessment in deciding that the documents were exempt under s 37(1)(c).

 Findings

13. The consultant's assessment relies on the existence of ‘threatening and abusive information communicated to the Climate Change Institute' in assessing whether release of the documents would cause danger to the life or physical safety of the recipients. As 10 emails do not contain threats of harm against the recipients or the ANU, I consider this report cannot be relied upon to determine whether release of the documents would cause the harm identified in the report. It is not clear from the report whether the emails were viewed by the consultant.

14. I give separate consideration to the email describing a participant's behaviour and comments at the off-campus event which the ANU regarded as threatening. In my view, the exchange as described in the email could be regarded as intimidating and at its highest perhaps alluding to a threat. In its reasons for decision, the ANU stated that it did not report this incident to the AFP because the incident occurred off-campus and it is incumbent upon people who are directly involved in an incident to make a first person report to the police. The ANU advised that University security encouraged the staff member to report the incident to police. I consider the danger to life or physical safety in this case to be only a possibility, not a real chance.

15. The question is how release of the documents could reasonably be expected to endanger the life or physical safety of any person. In other words, the question is whether release of the documents could be expected to create the risk, not whether the documents reflect an existing credible threat. Even if the threats were highly credible, the question would be how release of the documents would add to the expected threat.

16. In my view, there is a risk that release of the documents could lead to further insulting or offensive communication being directed at ANU personnel or expressed through social media. However, there is no evidence to suggest disclosure would, or could reasonably be expected to, endanger the life or physical safety of any person.

17. Therefore I consider that the 11 documents are not exempt under s 37(1)(c).

 Personal privacy exemption (s 47F)

18. Section 47F(1) of the FOI Act provides:

47F Public interest conditional exemptions—personal privacy

General rule

(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

19. Section 4 of the FOI Act provides that personal information means ‘information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.'

20. In submissions for this review, the ANU stated that ‘the entirety of the identified documents contain or consist primarily of personal information because the information they contain says something about the recipient.'

 Findings

21. I agree that the documents in their entirety contain information and/or opinions about individuals—both those sending and receiving the documents. However, the scope of material that the applicant is seeking in this review excludes information that would make the identity of the individuals sending or receiving the emails reasonably identifiable. Without identifying information, such as names, phone numbers and email addresses, I do not consider the material within the scope of the review is personal information. In my opinion the identity of the senders and recipients of the emails would not be apparent or reasonably ascertainable from the remaining information in the documents. Therefore the 11 documents without information identifying individuals are not exempt under s 47F.

 Decision

22. Under s 55K of the FOI Act, I set aside the ANU's decision of 4 August 2011 and decide, in substitution for that decision, that the 11 documents that are the subject of this IC review are exempt, but edited copies (with information removed that would identify the individuals sending or receiving the emails) should be released to the applicant under s 22 of the FOI Act.

Timothy Pilgrim
Privacy Commissioner

26 April 2012

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $777, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] Correspondence from the ANU to the Office of the Australian Information Commissioner indicates that emails and records of calls containing abuse were not generally retained before the FOI request.

[2] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (2010) [5.94]–[5.95].

[3] Re Boehm and Department of Industry Technology and Commerce [1985] AATA 60.

[4] Re Dykstra and Centrelink [2002] AATA 659.

[5] Re Ford and Child Support Registrar [2006] AATA 283.

[6] Now replaced by the Right to Information Act 2009.

[7] Re Murphy and Queensland Treasury [1995] QICmr 23.

[8] Re Binnie and Department of Agriculture and Rural Affairs (1987) VAR 361.