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'H' and Attorney-General's Department [2013] AICmr 17 (1 March 2013)

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Decision and reasons for decision of Privacy Commissioner, Timothy Pilgrim

Summary of case details
Applicant:

'H'

Respondent: Attorney-General's Department
Decision date: 1 March 2013
Application number: MR11/00198, MR11/00199, MR11/00200, MR11/00201
Catchwords:

Freedom of information — Whether disclosure of personal information unreasonable — (CTH) Freedom of Information Act 1982 ss 11A(5), 47F, 55G

   Contents

 Summary

  1. I affirm the decision of the Attorney-General's Department (the Department) of 14 February 2012, to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act).

 Background

  1. Between 22 May and 24 June 2011 the applicant filed four requests with the Department seeking access to recommendation reports written by Authorised Television Series Assessors (Assessors) authorised by the Director of the Classification Board (the Board) with respect to four television series.
  2. On 21 June, 22 June and 6 July 2011, the Department partially released documents within the scope of these requests, refusing access to information disclosure of which it considered would involve the unreasonable disclosure of personal information under s 47F of the FOI Act.
  3. By email on 20 July 2011, the applicant sought IC review of these decisions under s 54L of the FOI Act.
  4. On 27 July 2011, the Department granted access to additional information contained in the reports released on 21 June, 22 June and 6 July 2011, including details of the entity seeking the classification decision.
  5. On 14 February 2012, following consultation and recommendations from the Office of the Australian Information Commissioner, the Department released additional information, including each of the Assessor's employer details and their position titles. Assessors' names were not released.

 Variation of access refusal decision

  1. The Department initially made decisions on the requests under review on 21 June, 22 June and 6 July 2011.
  2. The Department varied these access refusal decisions under s 55G(1) of the FOI Act on 27 July 2011 and, again, on 14 February 2012.[1]
  3. Section 55G(2) of the FOI Act states that if an agency varies an access refusal decision under s 55G(1), the Information Commissioner must deal with the IC review application as if it were an application for review of the varied decision.

 Decision under review

  1. The decision under review is the Department's varied decision of 14 February 2012 to refuse access to parts of documents requested by the applicant.

 Personal privacy exemption (s 47F)

  1. The key issue in this review is whether the names of the Assessors should be released to the applicant.
  2. 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).
  3. Section 4 of the FOI Act provides:

    ... 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.

  4. While the information refused is clearly personal information, for it to be conditionally exempt under s 47F, the disclosure must be unreasonable.
  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 explain that:

    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]

  6. The Department advises that the recommendation reports contain the subjective views and personal opinions of appropriately trained and authorised people and while the Board may be informed by the recommendation report, it retains responsibility for the classification decision. The Board is not bound to accept an Assessor's recommendations. The Board's decision is also subject to review by the Classification Review Board upon application by the Minister, the original applicant for classification, the publisher of the television series, or a person who is aggrieved by the decision.[4]

 Findings

  1. It is my view that disclosure of the personal information in the documents that the applicant seeks would be unreasonable. The information is not already well known, and is not otherwise publicly accessible. The Assessors are not public servants or government officials, and their reports contain recommendations only. The Board retains the final decision-making power.
  2. I find that the Assessors' names are personal information and the documents sought by the applicant are conditionally exempt under s 47F.

 The public interest test (s 11A(5))

  1. I have found that the parts of 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.[5] The Guidelines include a non-exhaustive list of further factors that favour access.[6] None of these factors is applicable to this IC review.
  3. The applicant argues there is a public interest in identifying any commonality of authorship in the various Assessors' recommendation reports. While release of the Assessors' names may inform debate on a matter of public importance[7] by identifying commonality in authorship of the recommendations put to the Board, as the Board is ultimately the decision maker, and not the Assessor, I am not convinced this factor carries significant weight in assessing the public interest for disclosure in this IC review.
  4. The Guidelines also discuss factors against disclosure.[8] One of these factors is whether disclosure 'could reasonably be expected to prejudice the protection of an individual's right to privacy'.[9] I give this consideration significant weight in this case. As the Department pointed out, 'to expose [the Assessors] to the possibility of others in the community being able to contact them and contest and dispute their professional judgements is contrary to the public interest. It is not considered fair to expose them to that possible scenario – especially in an area where emotions and feelings can run high'.

 Findings

  1. I find that giving the applicant access to the names of the Assessors 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 14 February 2012.

Timothy Pilgrim
Privacy Commissioner

1 March 2013

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] Section 55G(1) of theFOIAct states, in part, that an agency may vary (or set aside and substitute) an access refusal decision (the original decision) in relation to a request at any time during anICreview of the access refusal decision if it has the effect of giving access to a document in accordance with the request.

[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 (2010) [6.126].

[4] See www.classification.gov.au/Applyforclassification/Pages/HowtoapplyforreviewofClassificationBoarddecisions.aspx.

[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] See s 11B(3)(b) of the FOI Act.

[8] Guidelines [6.29].

[9] Guidelines [6.29], paragraph (a).

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