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'I' and Attorney-General's Department [2013] AICmr 18 (1 March 2013)

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Decision and reasons for decision of Privacy Commissioner, Timothy Pilgrim

Summary of case details
Applicant:

'I'

Respondent: Attorney-General's Department
Decision date: 1 March 2013
Application number: MR11/00161
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 set aside the decision of the Attorney-General's Department (the Department) of 4 August 2011, to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act).

 Background

  1. On 17 May 2011, the applicant applied to the Department for access to a number of documents, including a list of Authorised Television Series Assessors (Assessors) currently authorised by the Director of the Classification Board (the Board).
  2. The Department did not make a decision in relation to this request within the statutory timeframe and was taken, under s 15AC of the FOI Act, to have made a decision refusing access to the documents on 16 June 2011.
  3. By email on 16 June 2011, the applicant sought IC review of the Department's deemed refusal under s 54L of the FOI Act.
  4. By letter dated 27 June 2011, the Department advised the applicant of its intention to refuse his request under s 24 of the FOI Act on the basis that processing it would substantially and unreasonably divert resources from its other operations.
  5. On 11 July 2011 the applicant refined the scope of his request. He said:

    ... I would be content to receive access to the two essential parts of my request (see directly below), as soon as possible, while clarifying the other subsidiary aspects of my request (see further below) with you in the meantime.

    The two essential parts of my original request were (1) a list of the current ATSA assessors currently registered by the Director, including for which organisations they work, and (2) a list of the ATSA films/DVDs classified by the Classification Board since 1 January 2009 to present.

  6. On 4 August 2011, the Department advised that the list sought by the applicant in part 1 of his request was an exempt document under s 47F of the FOI Act because it was composed entirely of personal information that would be unreasonable to release. In relation to part 2, the Department released a list of all the films and DVDs classified under the ATSA scheme between 1 January 2009 and 27 July 2011.

 Variation of access refusal decision

  1. The Department was deemed to have refused the applicant's FOI request because it did not make a decision by the close of business on 16 June 2011.[1]
  2. On 4 August 2011, the Department made a decision on the request. Because this decision gave access to a document in accordance with the request, it is a varied decision under s 55G(1) of the FOI Act.[2]

 Decision under review

  1. The decision under review is the Department's varied decision of 4 August 2011 to refuse access to documents requested by the applicant.

 The documents under review

  1. The Department identified nine documents as relevant to the applicant's request. It is my view that only two documents are subject to this IC review.
  2. The Department gave the applicant a list of ATSA films and DVDs classified by the Classification Board, as requested in part 2 of his revised request. This list is document one on the schedule of nine documents. This document is not subject to IC review.
  3. Documents 2, 3 and 5 contain lists of matters 'awaiting assignment' or lists of past and revoked Assessors. Document 6 appears to be a blank document. These documents do not contain material falling within the scope of the applicant's request and are not therefore subject to IC review.
  4. Documents 8 and 9 contain information extracted from the Department's databases from which the list of ATSA films and DVDs was prepared. These documents are not subject to IC review.
  5. Only documents 4 and 7 contain lists of current Assessors. These are the two documents I am considering in this IC review.

 Personal privacy exemption (s 47F)

  1. Document 4 contains Assessor's names, their employers' names, postal and email addresses, phone numbers, including mobile phone numbers, dates of initial training courses, dates of receipt and completion of assignments and brief notes regarding the currency of the Assessors' status. Document 7 contains the names of 43 Assessors,[3] including their date of accreditation and the date of expiry.
  2. On 23 February 2012 the Department said it no longer claimed an exemption in relation to the particulars of the Assessors' employers, including their addresses. However, the Department did not make a revised decision and has not yet given the applicant this information.
  3. While the applicant agreed, in correspondence with this office, that this IC review would only consider whether the names of the Assessors are exempt, I will also consider whether information about the Assessors' employers, including their addresses is also exempt.
  4. 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).
  5. 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.

  6. While the names of the Assessors are clearly personal information, for them to be conditionally exempt under s 47F, their disclosure must be unreasonable.
  7. 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.[4] 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.[5]

  8. The Department advises that Assessors prepare reports making recommendations in relation to the classification of films and DVDs. These reports contain the subjective views and personal opinions of Assessors and while the Board may be informed by their recommendations, 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.[6]

 Findings

  1. It is my view that disclosure of the names of the Assessors would be unreasonable. This 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, as well as other personal details such as their postal and email addresses and phone numbers, are personal information and that this information is conditionally exempt under s 47F of the FOI Act.
  3. I do not consider that disclosure of the employers' names and details (including addresses) would allow the identity of the Assessors to reasonably be ascertained. This information is not conditionally exempt under s 47F.

 The public interest test (s 11A(5))

  1. I have found that parts of the documents subject to 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] None of these factors is applicable to this IC review.
  3. The applicant argues that there is a public interest in identifying any commonality of authorship in the various Assessors' recommendation reports. Whilst the release of the Assessors' names may inform debate on a matter of public importance[9] 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 that this factor carries significant weight in assessing the public interest for disclosure in this IC review.
  4. The Guidelines also discuss factors against disclosure.[10] One of these factors is whether disclosure 'could reasonably be expected to prejudice the protection of an individual's right to privacy'.[11] 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, and other personal information about them, would, on balance, be contrary to the public interest.

 Decision

  1. Under s 55K of the FOI Act, I set aside the Department's decision of 4 August 2011. The requested documents should be provided to the applicant, edited under s 22 by removing the names of the Assessors and other personal information about them, under s 47F of the FOI Act. However, the particulars of the Assessors' employers, including their addresses, are not exempt under the FOI Act and should be included in the edited copy.

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] See s 15AC(3) of the FOI Act. The OAIC granted the Department an extension of time under s 15AC(5) of the FOI Act until 17 July 2011. Because the Department did not make a decision by 17 July 2011, the deemed refusal of 16 June 2011 applies (see s 15AC(8)).

[2] Section 55G(1) of the FOI Act 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 an IC review of the access refusal decision if it has the effect of giving access to a document in accordance with the request.

[3] There are three more Assessors listed in document 7 than there are in document 4. These four Assessors were registered after July 2011.

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

[5] 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].

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

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

[10] Guidelines [6.29].

[11] Guidelines [6.29], paragraph (a).