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'N' and the Bureau of Meteorology [2013] AICmr 26 (14 March 2013)

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Decision and reasons for decision of Acting Freedom of Information Commissioner, Toni Pirani

Summary of case details
Applicant:

'N'

Respondent: Bureau of Meteorology
Decision date: 14 March 2013
Application number: MR11/00248
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

Background

Decision under review

Personal privacy exemption (s 47F)

The public interest test (s 11A(5))

Decision

 

 Summary

  1. I affirm the decision of the Bureau of Meteorology (the Bureau) of 3 June 2011 to refuse access to parts of the documents requested by the applicant under the Freedom of Information Act 1982 (the FOI Act).

 Background

  1. On 4 April 2011, the applicant applied to the Bureau for access to details of allegations made against him including the identity of the persons who made the allegations and whether the Bureau reported these details to any agencies, including the Australian Federal Police or the relevant State Police.
  2. On 3 June 2011, the Bureau advised the applicant that it had identified seven documents within the scope of the applicant's request. The Bureau provided the applicant access to three documents in full. The remaining four documents were released to the applicant with material deleted on the basis that it was exempt under s 47F (personal privacy). The deleted material includes the names and email addresses of the people who made the allegations to the Bureau. One further deletion includes other information that could potentially be used to identify one of the complainants.
  3. On 6 August 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 Bureau's decision of 3 June 2011 to refuse the applicant full access to four documents.

 Personal privacy exemption (s 47F)

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

    Public interest conditional exemptions—personal privacy

    General rule

    1. 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 Bureau submits the deleted information is personal information. The applicant does not dispute this. The information is not well known and is not otherwise publicly accessible. I agree the deleted material is personal information.
  4. 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. On the question of whether disclosure of personal information would be unreasonable, the Guidelines say:

    The personal privacy exemption is designed to prevent the unreasonable invasion of third parties' privacy.[1] 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.[2]

  5. The Bureau attempted to consult with the people who made the allegations. Its attempts were unsuccessful. Having reviewed the documents in which the allegations were made, I am satisfied that one complainant made the allegation with a reasonable expectation that they be treated in confidence and that their personal information not be disclosed. In these circumstances, I consider disclosure of their personal information would be unreasonable.
  6. The other complainant did not ask for the information to be treated confidentially. As the Bureau has been unable to consult with this complainant and given the nature of the information, in my view, disclosure of this personal information would also be unreasonable.

 Findings

  1. I find that the names, email addresses and other identifying information about the people who made allegations to the Bureau are conditionally exempt under s 47F.

 The public interest test (s 11A(5))

  1. I have found that the documents 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.[3] One of those factors is applicable to this IC review: promoting the objects of the FOI Act.
  3. The Guidelines include a non-exhaustive list of further factors that favour access.[4] Two of those factors are applicable to this IC review: the administration of justice generally, including procedural fairness, and the contribution to the administration of justice for a person.
  4. In considering these factors it is important to note that the Bureau has provided the applicant with the full details of the allegations made. The only information that has been withheld is information that would identify the complainants. Disclosure of this identifying information would not further contribute to the administration of justice or procedural fairness for the applicant as they have already been provided with full details of the allegations.
  5. The applicant has stated that the allegations are false and the applicant should have the right to defend themselves against the allegations. In Fahey v NSW Office of Liquor Gaming and Racing [2012] NSWADT 181, Isenberg N found that under the NSW legislation there is a public interest in disclosing the identity of persons who make false complaints.[5]
  6. I am not convinced that the substance of a complaint should always be a factor to consider when weighing the public interest. Such a consideration would require FOI decision makers to conduct their own investigations about whether particular allegations have substance. There is an inherent difficulty in assessing, in the context of an FOI request that may be made a long time after the allegations were made, whether a complaint or allegation is false.
  7. In this case there was no investigation by the Bureau as to the substance of the allegations, other than asking the applicant about them. The applicant denied the allegations and no further action was taken.
  8. The Guidelines also include a non-exhaustive list of factors against disclosure.[6] Two of those factors are applicable to this IC review: could reasonably be expected to prejudice the protection of an individual's right to privacy, and could reasonably be expected to prejudice an agency's ability to obtain similar information in the future. I note that the Bureau also suggested as a factor against disclosure ensuring that free and frank reports about its activities, its employees and their interaction with the public continues to occur.
  9. I believe the consideration of the public interest needs to be appropriately balanced and often lies in protecting the anonymity of people who make complaints. This factor is closely linked to the ability of an agency to obtain such information in the future.
  10. In balancing the factors for and against disclosure, I give greater weight in this IC review to the factors against disclosure.

 Findings

  1. Giving the applicant access to identifying information about the people who made the allegations to the Bureau 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 3 June 2011.

Toni Pirani
Acting Freedom of Information Commissioner

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

[2]Guidelines [6.126].

[3] 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.

[4]Guidelines [6.25].

[5] At [30].

[6]Guidelines, [6.29].