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'L' and Australian Human Rights Commission [2012] AICmr 21 (15 August 2012)

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Decision and reasons for decision of Freedom of Information Commissioner, Dr James Popple

Summary of case details
Applicant: 'L'
Respondent: Australian Human Rights Commission
Decision date: 15 August 2012
Application number: MR11/00113, MR11/00148
Catchwords:

Freedom of information — Certain operations of agencies — 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 1982ss 11A(5), 47E(d)

 Contents

 Summary

1. I affirm the decisions of the Australian Human Rights Commission (the Commission) of 4 May 2011 and ‘May 2011'[1] to refuse access to the documents requested under the Freedom of Information Act 1982 (the FOI Act).

 Background

2. On 14 February 2011, the applicant made a request under the FOI Act for documents related to complaints lodged with the Commission. On 15 March 2011, the Commission released a number of documents to the applicant and advised that one document identified to be within the scope of the request was exempt under s 47E(d). On 11 April 2011, the applicant sought an internal review of the Commission's decision. On 4 May 2011, the Commission upheld the original decision to refuse access to the document under s 47E(d).

3. On 11 April 2011, the applicant made a further request under the FOI Act for additional documents related to complaints lodged with the Commission. On 6 May 2011, the Commission released a number of documents to the applicant and advised that two documents identified to be within the scope of the request were exempt under s 47E(d). On 6 May 2011, the applicant sought an internal review of the Commission's decision. On an unspecified date in May 2011, the Commission made a revised decision to grant the applicant access to one of the previously withheld documents, noting that one document remained exempt under s 47E(d).

4. On 17 and 26 May 2011, respectively, the applicant sought IC review of these two decisions under s 54L of the FOI Act.

 Decisions under review

5. The decisions under review are the decisions of the Commission of 4 May 2011 and ‘May 2011' to refuse the applicant's request.

 Certain operations of agencies exemption (s 47E)

6. The two documents within the scope of the IC review contain information related to a conciliation process undertaken by the Commission in an attempt to resolve a complaint made by the applicant. The documents contain evidence of discussions between a representative of the respondent to the applicant's complaint before the Commission, and the conciliation officer handling the applicant's complaint.

7. 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'.

8. The Commission has a statutory function to investigate and conciliate complaints of unlawful discrimination or breaches of human rights.[2] The Commission's conciliation process involves conciliators engaging in private discussions with all parties to a complaint. The process involves frank and open discussions about the dispute and prospects for resolution. The parties to the conciliation process are advised that their discussions with the Commission will remain confidential, unless there is an agreement to disclose particular information to the other party.[3]

9. The Commission cited several cases in support of its claim that documents that form part of its conciliation process are exempt from disclosure under s 47E. In one of these cases, Lynch v Human Rights and Equal Opportunity Commission[4] [1991] AATA 390, Deputy President Bannon said:

I do not believe that frank discussions are likely to take place [during conciliation] between people and government officials if they believe that the contents of those discussions would be disclosed ...

 Findings

10. In this case, the documents contain information provided to the Commission during the conciliation of a complaint made by the applicant. Disclosure, under the FOI Act, of information provided to the Commission by parties to conciliation in such circumstances would undermine the confidential nature of its conciliations and affect the willingness of people to engage in an open and frank manner during the conciliation process in the future. That would have a substantial adverse effect on the proper and efficient conduct of the Commission's operations. Accordingly, the documents sought by the applicant are conditionally exempt under s 47E(d).

 The public interest test (s 11A(5))

11. I have found that both of the documents that are the subject of this IC review are conditionally exempt under s 47E 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'.

12. Subsection 11B(3) of the FOI Act lists factors that favour access when applying the public interest test.[5] 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 include a non-exhaustive list of further factors that favour access.[6] I have reviewed the two documents. I find that the only factor favouring access is that providing the documents to the applicant would allow the applicant access to their personal information.

13. The Guidelines also include a non-exhaustive list of factors against disclosure.[7] The factors that are relevant to this IC review are that disclosure:

  • could reasonably be expected to prejudice an agency's ability to obtain confidential information, and
  • could reasonably be expected to prejudice an agency's ability to obtain similar information in the future.

14. The Commission's complaint-handling function is an important one. It relies on the willingness of participants to be open and frank during the conciliation process. In balancing the factors for and against disclosure, I give the greatest weight in this IC review to the factors against disclosure.

 Findings

15. Giving the applicant access to the two documents would, on balance, be contrary to the public interest.

 Other exemptions

16. I note that the documents may also be exempt under s 45 of the FOI Act as they contain material obtained in confidence. The Commission did not mention s 45 in its decisions. Because of the view I have come to on the application of s 47E, it is not necessary for me to consider the possible application of s 45.

 Decision

17. Under s 55K of the FOI Act, I affirm the Commission's decisions of 4 May 2011 and ‘May 2011'.

 

James Popple
Freedom of Information Commissioner

15 August 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 $816, 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] The Commission omitted to put a precise date on its internal review decision relating to the applicant's second FOI request.

[2] Australian Human Rights Commission Act 1986, ss 11(1)(aa), 11(1)(f)(i), 31(b)(i) and 46PF(1).

[3] See, for example, www.hreoc.gov.au/complaints_information/complainants.html. See also Australian Human Rights Commission Act 1986, s 46PS which provides that a report that the President of the Commission provides to the Federal Court or the Federal Magistrates Court, on a complaint that has been terminated under s 46PH, cannot include anything said or done in the course of conciliation proceedings.

[4] The Human Rights and Equal Opportunity Commission was renamed the Australian Human Rights Commission on 5 August 2009 when what is now the Australian Human Rights Commission Act 1986 was amended by item 38 of Schedule 3 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009.

[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.

[6] Guidelines, [6.25].

[7] Guidelines, [6.29].