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‘Q’ and Department of Human Services [2012] AICmr 30 (21 November 2012)

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Decision and reasons for decision of Privacy Commissioner, Timothy Pilgrim

Summary of case details
Applicant:

‘Q’

Respondent: Department of Human Services
Decision date: 21 November 2012
Application number: MR11/00162
Catchwords:

Freedom of information – Personal information relating to a third party — Whether disclosure of personal information unreasonable — (CTH) Freedom of Information Act 1982 s 47F

 

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

 Contents

 Summary

  1. I affirm the decision of the Department of Human Services (the Department) of 28 March 2011 to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act).

 Background

  1. On 17 December 2010, the applicant applied to the Department for access to following documents in relation to a named third party:
    • Details of the newstart allowance payments made to the third party
    • Information about a period during which the third party was employed and an overpayment was created in the applicant’s name
    • Benefit claim forms signed by both the applicant and the third party.
  2. On 13 January 2011, the Department released documents relating to the overpayment and the benefit claim forms signed by both the applicant and the third party. However the Department refused access to documents containing the third party’s employment information and newstart allowance payments. The Department decided these documents were exempt under s 47F of the FOI Act because they contained personal information about the third party and the third party objected to them being released. Furthermore, the Department considered release of personal information about the third party was not in the public interest.
  3. The applicant sought internal review of the Department’s decision not to grant full access to the documents requested and sought access to additional documents. By letter dated 28 March 2011, the Department affirmed its earlier decision and provided the applicant with access to additional documents.[1]
  4. On 31 May 2011, the applicant sought IC review of this decision under s 54L of the FOI Act.

 Decision under review

  1. The decision under review is the decision of the Department on 28 March 2011 to refuse the applicant’s request for documents.

 Personal privacy exemption (s 47F)

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

47F Public interest conditional exemptions - personal privacy

General rule

  1. (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).
  1. 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.’
  2. The applicant seeks employment information and newstart allowance payment details about a third party. The applicant is not authorised by, or acting on behalf of, the third party in doing so.
  3. In the IC review application, the applicant accepted this information is of a personal and private nature. I have not viewed the exempt documents; however based on the description provided by the Department, I am satisfied they contain personal information relating to the third party.
  4. The Australian Information Commissioner has issued Guidelines under s 93A of the FOI Act to which regard must be had for the purpose of performing a function, or exercising a power, under the FOI Act. The Guidelines explain:

    The personal privacy exemption is designed to prevent the unreasonable invasion of third parties’ privacy.[2] The test of ‘unreasonableness’ implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals. The test does not however amount to the public interest test of s 11A(5), which follows later in the decision making process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again when assessing the public interest balance.[3]

  5. I think that disclosure of the personal information in the documents the applicant seeks would be unreasonable. This information is not already well known, and is not otherwise publicly accessible.[4] There is a general expectation that information provided to the Department and payment information will be treated confidentially.[5]
  6. Although the applicant claims that some of the information in the exempt documents was shared throughout their relationship, the information relates only to the third party, is not publicly accessible and, as explained below, the third party objects to its release.

 Findings

  1. The documents the applicant seeks are conditionally exempt under s 47F of the FOI Act.

 The public interest test (s 11A(5))

  1. I have found that the documents subject to 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.[6] The Guidelines include a non-exhaustive list of further factors that favour access.[7] One of these factors is when release will ‘contribute to the administration of justice generally, including procedural fairness.’[8]
  3. The applicant made her FOI request in the context of legal proceedings, following the end of her relationship with the third party. The applicant states she needs the documents for these legal proceedings. I do not consider this factor favours access to the documents. Access to documents through FOI is not intended to replace the discovery process in courts and tribunals, which supervise the provision of documents to parties in matters before them.
  4. In her application for internal review, the applicant contended that the third party had authorised the Department to give her information about him. However when the Department consulted the third party under s 27A of the FOI Act, he did not consent to release of the exempt documents. The third party has continued to object to the release of the documents during this IC review. I consider that any authority previously granted by the third party has now been rescinded.
  5. The Guidelines also contain a non-exhaustive list of factors against disclosure.[9] Two factors are relevant to this review. These factors are when release of the information ‘could reasonably be expected to prejudice the protection of an individual’s right to privacy’ and when release ‘could reasonably be expected to prejudice the agency’s ability to obtain similar information in the future’.
  6. The applicant seeks employment information and details of payments made by the Department to the third party. This information is sensitive financial information and the applicant objects to it being released. In these circumstances the third party’s right to privacy weighs heavily against release, taking into account the sensitivity of the information.
  7. The Department can require applicants for benefits to provide personal information so their entitlement to a payment can be assessed. The Department states it obtained information about the third party’s previous employment using its formal powers under the Social Security (Administration) Act 1999. People provide personal information to the Department on the understanding that their privacy will be protected.
  8. Although the Department can rely on its formal powers to require information to be provided, this process will be made more difficult if people are concerned that sensitive personal information will later be disclosed in response to an FOI request. I consider that if the Department releases documents containing sensitive financial information, people will be less willing to provide this kind of information. This could reasonably be expected to prejudice the Department’s ability to obtain similar information in the future and this will make it difficult for the Department to conduct its business.
  9. I believe that, in the circumstances, giving the applicant access to the documents sought would be contrary to the public interest.

 Findings

  1. Giving the applicant access to the documents subject to 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 28 March 2011.

Timothy Pilgrim
Privacy Commissioner

21 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 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 applicant states she did not receive the decision until 1 April 2011.

[2] See Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437.

[3] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [6.126].

[4] See Guidelines [6.127].

[5] Section 204 of the Social Security (Administration) Act 1999 makes it an offence to disclose records when not authorised or required.

[6] 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.

[7] Guidelines [6.25].

[8] Guidelines [6.25(f)].

[9] Guidelines [6.29].