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'B' and Department of Immigration and Citizenship [2013] AICmr 9 (18 February 2013)

Decision and reasons for decision of Privacy Commissioner, Timothy Pilgrim

Summary of case details
Applicant:

'B'

Respondent: Department of Immigration and Citizenship
Decision date: 18 February 2013
Application number: MR11/00251
Catchwords:

Freedom of information — Whether material obtained in confidence — (CTH) Freedom of Information Act 1982 s 45

  Contents

 Summary

  1. I affirm the decision of the Department of Immigration and Citizenship (the Department) dated 14 October 2011 to refuse the applicant access under the Freedom of Information Act 1982 (the FOI Act) to documents on the basis that those documents are exempt under s 45 of the FOI Act.

 Background

  1. On 25 July 2011, the applicant applied to the Department for access to any false information which may or may not have been given to the Department about him, in the course of his ex-partner's visa application process.[1]
  2. On 24 August 2011, the Department advised the applicant that it was refusing access to all documents within the scope of the request[2] as they contained the personal information of a third party and are exempt under s 47F (personal privacy) of the FOI Act.
  3. On 30 August 2011, the applicant sought Information Commissioner review (IC review) of this decision under s 54N of the FOI Act.
  4. On 15 September 2011, the applicant sought internal review of the Department's decision on the basis that he requested access to information about himself only, and not the information of any other person.
  5. On 14 October 2011, the Department upheld the primary decision made to refuse access to the documents, but instead relied on s 22 (irrelevant material)[3] and s 45 (material obtained in confidence)[4] of the FOI Act.
  6. On 8 January 2012, the applicant made submissions contending that the Department had wrongly applied s 45.

 Decision under review

  1. The decision under review is the internal review decision of the Department on 14 October 2011 to refuse the applicant's request.

 Material obtained in confidence exemption (s 45)

  1. Subsection 45(1) of the FOI Act provides that '[a]document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency, the Commonwealth or Norfolk Island), for breach of confidence'.
  2. The Australian Information Commissioner has issued Guidelines under s 93A of the FOI Act 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 exemption under s 45 is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.[5]
  3. A breach of confidence is the failure of a recipient to keep confidential, information that has been communicated in circumstances giving rise to the obligation of confidence.[6] The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.[7]
  4. The Guidelines explain that to found an action for breach of confidence (for s 45 to apply), the following five criteria must be satisfied:
    • the information must be specifically identified
    • it must have the necessary quality of confidentiality
    • it must have been communicated and received on the basis of a mutual understanding of confidence
    • it must have been disclosed or threatened to be disclosed, without authority, and
    • unauthorised disclosure of the information has or will cause detriment.[8]
  5. I have examined the documents sought by the applicant and all five criteria are satisfied in this case. My reasons for reaching this view are set out as follows.

 Specifically identified

  1. The documents have been specifically identified, and are within the scope of the applicant's request. They contain information provided by a third party to the Department on a form in which the Department stated that the information provided was given and received on the understanding that it would be treated in confidence.

 Quality of confidentiality

  1. For information to have the quality of confidentiality, it must be secret or only known to a limited group; information that is common knowledge or in the public domain will not have the quality of confidentiality.[9]
  2. The documents in question contain information provided by a third party to the Department. While the information may, at least to some extent, be known to persons beyond the author, I am satisfied that it is not information that is common or public knowledge. It is information provided to the Department in the context of the assessment of a visa application, and on the understanding of confidence.
  3. Immigration matters following the dissolution of a relationship belong to the individual, and therefore, I am satisfied that the information in the documents sought has the necessary quality of confidentiality.

 Mutual understanding of confidence

  1. For the information to have been communicated and received on the basis of a mutual understanding of confidence, both the author of the information and the Department need to have understood and accepted an obligation of confidence.[10]
  2. In this case, there was an explicit understanding between the Department and the third party, that the information was given and received on the understanding that it will be treated in confidence.
  3. I also note the decision of the Administrative Appeals Tribunal (AAT) in Re Callejo and Department of Immigration and Citizenship [2010] AATA 244. In that case, the AAT determined that documents related to a third party's visa application had been received by the Department in confidence and disclosure of such documents to the applicant would result in a breach of confidence.
  4. Therefore, I am satisfied that the information in the documents sought was communicated and received on the basis of a mutual understanding of confidence between the third party and the Department for the purposes of the visa application assessment process only.

 Unauthorised disclosure or threatened disclosure

  1. The Guidelines explain that the scope of the confidential relationship will often need to be considered to ascertain whether disclosure is authorised. For example, the law may require disclosure to other parties in the performance of an agency's functions, which will amount to authorised use and/or disclosure. In addition, a person providing confidential information to an agency may specifically permit the agency to divulge the information to a limited group.[11]
  2. I am satisfied that, given the information was provided by the third party to the Department on the understanding of confidence and the third party has not consented to its disclosure, the disclosure of this information would be unauthorised.

 Detriment

  1. I must now consider whether unauthorised disclosure of the information in the documents sought would cause detriment. As the Guidelines explain, the AAT has applied this element in numerous cases, but it is not certain whether it must be established.[12] The Guidelines say that, despite this uncertainty, it would be prudent to assume that establishing detriment is necessary.[13]
  2. In the decision under review, the Department stated, and I accept, that the assessment of the third party's visa application involves a personal matter. The disclosure is neither consented to, nor otherwise justified. I consider that disclosure would represent a detriment to the author of the documents as its revelation would expose to the public matters that are private to that person. It would reveal to the public matters deeply personal to the author and others.[14]
  3. I am satisfied that the disclosure of the documents sought by the applicant in this case would cause detriment to the third party.

 Findings

  1. I find that disclosure of the documents sought by the applicant would found an action by a third party for a breach of confidence and the documents are exempt under s 45 of the FOI Act.

 Decision

  1. Under s 55K of the FOI Act, I affirm the Department's decision of 14 October 2011.

Timothy Pilgrim
Privacy Commissioner

18 February 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] For the purposes of processing the applicant's FOI request and in this IC review, the applicant's request for 'false information' has been interpreted to mean any information.

[2] Folios 41, 48–50, 62–63, 74–78 from the Departmental file.

[3] Folios 41 and 62.

[4] Folios 48–50, 63 and 74–78.

[5] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [5.135].

[6] Guidelines, [5.138]. See also Coco v AN Clark (Engineers) Ltd (1969) 86 RPC 41.

[7] Guidelines, [5.138]. See also Re Petroulias and Others and Commissioner of Taxation [2006] AATA 333.

[8] Guidelines, [5.139].

[9] Guidelines, [5.142], Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434.

[10] Guidelines, [5.144].

[11] Guidelines, [5.147-5.148].

[12] Guidelines, [5.151].

[13] Guidelines, [5.151].

[14] Callejo and Department of Immigration and Citizenship [2010] AATA 244, [215].