Skip to main content
Skip to secondary navigation
Menu
Australian Government - Office of the Australian Information Commissioner - Home

Autism Aspergers Advocacy Australia and Department of Families, Housing, Community Services and Indigenous Affairs [2012] AICmr 28 (12 November 2012)

pdfPrintable version512.26 KB

Decision and reasons for decision of Privacy Commissioner, Timothy Pilgrim

Summary of case details
Applicant: Autism Aspergers Advocacy Australia
Respondent: Department of Families, Housing, Community Services and Indigenous Affairs
Decision date: 12 November 2012
Application number: MR11/00228
Catchwords:

Freedom of information — Whether disclosure of personal information unreasonable — (CTH) Freedom of Information Act 1982s 47F

 

Freedom of information — Public interest test — Personal information relating to a third party — (CTH) Freedom of Information Act 1982ss 11A(5), 11B

 

Contents

 Summary

  1. I affirm the decision of the Department of Families, Housing, Community Services and Indigenous Affairs (the Department) of 1 August 2011 to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act) relating to third parties.

 Background

  1. On 15 February 2011, Mr Bob Buckley on behalf of Autism Aspergers Advocacy Australia (the applicant), applied to Centrelink for the following statistical data for Carers Allowance care receivers reported with Asperger's Disorder and Autistic Disorder:
    • Carer Allowance Child Carees by medical condition, age, gender and State
    • Carer Allowance Adult Carees by medical condition, age, gender and State.
  2. On 13 May 2011, the applicant received the information requested with data values less than 20 replaced with the text ‘<20'.
  3. On 3 June 2011, the applicant applied to Centrelink for the following statistical data of cells of ‘20 or fewer' for Carers Allowance care receivers reported with Asperger's Disorder and Autistic Disorder:
    • Carer Allowance Child Carees by medical condition, age, gender and State
    • Carer Allowance Adult Carees by medical condition, age, gender and State.
  4. On 23 June 2011, Centrelink transferred the request to the Department.
  5. On 1 August 2011, the Department advised the applicant that the parts of the documents with data of 20 or fewer were exempt under s 47F of the FOI Act and that disclosure was not in the public interest.
  6. By letter dated 10 August 2011, the applicant sought Information Commissioner review (IC review) of this decision under s 54N of the FOI Act.

 Decision under review

  1. The decision under review is the decision of the Department of 1 August 2011 to refuse the applicant's request. 

 Personal privacy exemption (s 47F)

  1. 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).

  2. Section 4 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'.
  3. 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:

    In the Commonwealth FOI jurisdiction, the Information Commissioner suggests that generally, the individual's identity needs to be reasonably ascertainable by the applicant. The ability of an applicant to reasonably ascertain an individual's identity will depend on the context and circumstances.[1]

    In other words, it depends on whether it is practically possible for an applicant to link pieces of information to identify an individual. If the agency or minister is aware of relevant information that the applicant has (or could easily obtain) to ascertain the individual's identity, this is to be taken into consideration. An agency or minister must not, however, seek information from the applicant about what other information they have or could obtain.

    The Information Commissioner suggests that, where an agency or minister is unaware of the other information the applicant may have, the question to be asked is what other information a reasonable member of the public would be able to access.

    In certain circumstances, however, it may be appropriate to consider whether the individual's identity may be ascertainable by the world at large. This may be appropriate where the applicant is a journalist or interest group, for example.[2]

  4. The applicant has advised that he seeks information regarding persons in receipt of a government benefit, caring for children with Asperger's Disorder or Autistic Disorder, through which he hopes to identify how many children have those disabilities.
  5. The Department has declined to provide statistical data when the number of Carer Allowance Child Carees in any data set is less than 20. It has done so on the basis that it believes it is reasonable to expect that the applicant would be able to identify those individuals and also know whether they are or are not receiving benefits.
  6. The applicant contests this. He states the data only provides information about individuals whose carers are claiming a benefit and this does not equate to everyone with such a disability. Further, the amount of information requested is insufficient to identify individuals and there is no indication he wants to do so. He notes even if there was sufficient data to enable the identification of individuals, to do so would be inappropriate. His interest is only in how many people have Asperger's Disorder and Autistic Disorder for the purpose of presenting prevalence data.
  7. I consider that if the identity of benefit recipients could reasonably be identified, it would be unreasonable for the material to be released unless it is in the public interest to do so. Therefore, the issues for me to determine are:
    • whether the information requested is personal information in that the identity of persons could be reasonably ascertained and
    • if so, whether it is in the public interest to release the information.

 Could the identity of the person be reasonably ascertained?

  1. I must consider whether, in data sets of less than 20, individuals can be identified by the applicant or ‘by the world at large'. It is important to note that it is irrelevant whether the applicant would, or would not, seek to do such a thing. Section 4 highlights that the relevant issue is whether the identity of an individual is apparent, or can reasonably be ascertained.
  2. The nature of the information is related to a specific group in the community. The applicant notes in his ‘Autism/ASD diagnosis rates in Australia'[3] paper that in 2006 the diagnosis rates in Australia for an autism spectrum disorder (ASD) is around 1% of the population. The availability of information on the internet and increased social networking means that the scope for information to identify people needs to be given serious consideration.
  3. Autism Aspergers Advocacy Australia is an organisation that advocates nationally in Australia on behalf of people with an autism spectrum disorder, including Asperger's Disorder and Pervasive Developmental Disorder not otherwise specified. Autism Aspergers Advocacy Australia operates a website which provides information and assistance to the parents of children with an autism spectrum disorder, including a forum for people with an interest in the field to communicate with each other.[4]
  4. It would be reasonable to expect persons involved in such a network would have access to information, including personal information, concerning a number of Australian individuals with these disabilities.
  5. On 22 September 2006, Centrelink, the Department of Employment and Workplace Relations, Department of Education, Science and Training and the Department of Families, Community Services and Indigenous Affairs signed a Protocol for the Release of Social Security Information (the Protocol). Under the Protocol, where the cell value for numbers of customers receiving social security payments contain numbers between 0 and 19 inclusive it will show the value ‘<20'. The basis for this decision is to prevent individuals being identified, and to cover the requirement to protect personal privacy.[5]
  6. The Australian Bureau of Statistics (ABS) regularly publishes numerical data. It recently published a summary of results from its Survey of Disability, Ageing and Carers (SDAC), last carried out in 2009.[6] However this data relates to broad categories of information and is not as specific as the information being sought by the applicant. The numerical data cells provided in the SDAC tables are generally presented as estimates in figures of thousands. Individuals' ages are presented in grouped categories and are not broken down to figures as small as being considered in this decision. Therefore, the information is not already well known, and is not otherwise publicly accessible.
  7. Taking into account the fact the policy position in the protocol and the fact that payment information disaggregated to numbers less than 20 is not released elsewhere, I find it reasonable to expect the provision of the information to the applicant could allow the identity of individuals to be ascertained.

 Findings

  1. The information sought is personal information and it would be unreasonable to release it; the documents the applicant seeks are conditionally exempt under s 47F.

 The public interest test (s 11A(5))

  1. I have found that the documents that are the subject of this IC review are conditionally exempt under s 47F 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'.
  2. Section 11B(3) of the FOI Act lists factors that favour access when applying the public interest test.[7] The Guidelines include a non-exhaustive list of further factors that favour access.[8] I find two factors favouring disclosure. Firstly promotion of the objects of the FOI Act, being to give access to information held by government, promotes Australia's representative democracy by increasing scrutiny, discussion, comment and review of government activities and increasing recognition that information held by government is to be managed for public purposes and is a national resource. Secondly, there may be some benefit to the understanding of the prevalence of those caring for people with Asperger's Disorder and Autism Disorder and provision of support and services from the release of the information.
  3. These factors must be balanced with the factors against disclosure. The FOI Act does not specify any factors against disclosure, but the Guidelines include a non-exhaustive list of such factors.[9] Of those factors listed in the Guidelines, the one relevant to this IC review is that disclosure could reasonably be expected to prejudice the protection of an individual's right to privacy. An individual's right to privacy weighs heavily in this case taking into account the sensitivity of the information. Furthermore, it is not just one person whose privacy is being protected but many.

 Findings

  1. It is my view that, in the circumstances, giving the applicant access to the documents the subject of this IC review would, on balance, be contrary to the public interest.

 Decision

  1. Under s 55K of the FOI Act, I affirm the Department's decision of 1 August 2011.

 

Timothy Pilgrim
Privacy Commissioner

12 November 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 AATmust 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 theAAT. 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] See Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108, 2008, [6.54].

[2] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [6.120]–[6.123].

[3] See http://autism.anu.edu.au/pdf_files/buckley_submit2.pdf.

[4] See http://a4.org.au/a4/.

[5] Senate Standing Committee on Finance and Public Administration, Parliament of Australia, Answers to Questions on Notice: Department of Human Services and Agencies, Supplementary Budget Estimates 2006–07 Question HS 31, 31 October 2006.

[6] See www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4430.0Main+Features12009?OpenDocument.

[7] 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.

[8]Guidelines [6.25].

[9]Guidelines [6.29].