ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OAKEY v DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE (Administrative Review) [2017] ACAT 36

AT 37/2016

Catchwords: ADMINISTRATIVE REVIEW - Freedom of Information – statutory interpretation – personal information – unreasonable disclosure is a question of fact and degree – whether disclosure is to the public at large

Legislation cited: Freedom of Information Act 1989 (ACT) ss 2, 6, 10, 13, 38, 41, 42, 60, 62 Freedom of Information Act 1982 (Cth) ss 7, 11Coroners Act 2003 (Qld) ss 45, 51, 97

Cases cited: BA v Merit Protection Commissioner [2014] AlCmr 9Callejo and Department of Immigration and Citizenship [2010] AATA 244Chandra v Minister for Immigration and Ethnic Affairs [1984] AATA 437Cheney v Sydney West Area Health Service [2008] NSWADTAP 29Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 Collins v Department of Corrective Services [2010] NSWADT 39Department of Social Security v Dyrenfurth (1988) 80 ALR 533Gapsa v Department of Transport and Main Roads [2013] QICmr 25Law Society of the ACT v Treasury Directorate [2013] ACAT 36Marke v Victorian Police (2007) VSC 522Oakey v Director-General, Community Services Directorate [2016] ACAT 137Page v Metropolitan Transit Authority [1988] 2 VAR 243Re Gordon Peter Wiseman v the Commonwealth of Australia [1989] FCA 434Re Southland Coal Pty Ltd (receivers & managers appointed) (in liq) [2006] NSWSC 899Re Williams Registrar of Federal Court (1985) 8 ALD 219Telstra Corporation v Australis Media Holdings (1997) 41 NSWLR 147,Victoria Police v Marke [2008] VSCA 218

Walsh v Centrelink [2004] AATA 396

List of Texts/Papers cited: Douglas and Jones, Administrative Law (2002, 4th ed)

Tribunal: Presidential Member G McCarthySenior Member L Donohoe SC

Date of Orders: 11 May 2017Date of Reasons for Decision: 11 May 2017

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AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 37/2016

BETWEEN:

KATHERINE OAKEYApplicant

AND:

DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE

Respondent

TRIBUNAL: Presidential Member G McCarthySenior Member L Donohoe SC

DATE: 11 May 2017

ORDER

The Tribunal orders that:

1. The decision under review is confirmed in relation to those documents determined to be

exempt documents pursuant to sections 41 and 42 of the Freedom of Information Act

1989, save that the Tribunal notes that the respondent elected to release one of the

documents previously determined to be an exempt document.

The Tribunal notes:

2. The decision under review relates to the first of six tranches of documents that are the

subject of the applicant’s request for documents dated 24 March 2016 made under the

Freedom of Information Act 1989.

3. This decision and the Tribunal’s decision in Oakey v Director-General, Community

Services Directorate [2016] ACAT 137 relate to the Tribunal’s review of the

respondent’s decision concerning the first of the six tranches of documents.

………………………………..Presidential Member G McCarthy

Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

1. On 24 March 2016, the respondent received a request under the Freedom of Information

Act 1989 (the FOI Act) from the applicant for the following documents:

All CPS files, including CHYPS notes, all youth care files and regional Housing files, all copies of full documents. All documents pertaining to my deceased child Jakob Aaron Oakey dob 30. 6.97.

2. Jakob Oakey died in Hervey Bay in February 2016 due to a hyperglycaemic episode of

his type I diabetes.1

3. The request covered 49 files held by the respondent. For this reason, with the agreement

of the applicant, the respondent processed the request in tranches of 5 – 7 files at a time.

4. On 24 May 2016, a delegate of the respondent made a decision in relation to the first

tranche of documents, comprising six files. The delegate decided to exempt many of the

documents from release to the applicant pursuant to section 38 of the FOI Act dealing

with “sensitive information”, section 41 of the FOI Act dealing with personal

information and section 42 of the FOI Act dealing with documents exempt from

production on the grounds of legal professional privilege (the decision).

5. On 6 June 2016, the applicant applied to the respondent for internal review of the

decision where access had been refused wholly or in part.

6. By letter dated 13 June 2016, the Deputy Director-General, Community Services

Directorate, as an authorised delegate of the respondent informed the applicant of her

internal review decision to uphold the original decision. The respondent attached to her

letter a schedule identifying the documents in the files and whether they had been

released in full, or had not been released (wholly or in part) and (where documents had

not been released wholly or in part) the grounds for why the document, in each case,

was (wholly or in part) an exempt document (the internal review decision).

7. By application dated 6 July 2016, the applicant applied to the Tribunal for review of the

respondent’s internal review decision. By consent, the Tribunal heard the application in

two parts.

1 The Tribunal refers to the findings of the Central Coroner of the Coroners Court of Queensland, as sent to the applicant by letter dated 26 September 2016

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8. On 9 and 10 November 2016, the Tribunal conducted a hearing in relation to its review

of the internal review decision to the extent that it relates to documents determined to be

exempt documents pursuant to section 38 of the FOI Act.

9. On 2 December 2016, that Tribunal ordered that the decision under review was

confirmed in relation to those documents determined to be exempt documents pursuant

to section 38 of the FOI Act. On 5 December 2016, the Tribunal published its reasons

for decision.2

10. On 27 and 28 March 2017, the Tribunal conducted a hearing in relation to its review of

the internal review decision to the extent that it relates to documents determined to be

exempt documents pursuant to sections 41 and 42 of the FOI Act.

11. Mr A Oakey represented his daughter, the applicant. Dr D Jarvis of counsel represented

the respondent instructed by the office of the ACT Government Solicitor.

The Evidence

12. The applicant relied on the witness statements of Mr Alan Oakey dated 8 September

2016, 27 October 2016 and 28 February 2017, and the many attachments to each

statement.

13. Mr Oakey’s statements and the attachments to them were admitted without objection

although with the respondent’s observation, properly made, that much of their content

was (i) submission or argument rather than evidence concerning the nature and

circumstances of the late Jakob Oakey’s care and/or (ii) not relevant to the questions for

determination in this part of the proceeding.

14. Mr Oakey did not quarrel with the proposition that much written in his statements was

submission, rather than evidence, but the Tribunal accepts that it was nevertheless an

expedient manner in which to present the applicant’s case because it enabled the

Tribunal immediately to understand the alleged relevance of the evidence.

15. Mr Oakey also provided a detailed statement of facts and contentions dated

1 March 2017 that sets out his submissions on behalf the applicant. The Tribunal

appreciated the care with which the submissions were made. The Tribunal found them

helpful, and has considered them carefully when formulating its decision.

2 Oakey v Director-General, Community Services Directorate [2016] ACAT 137

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16. By way of evidence, the respondent relied upon the witness statements of

Ms Bernadette Mitcherson dated 18 October 2016 and 20 February 2017, although the

latter statement was more relevant for the purpose of determining whether the

documents in issue in the first tranche of documents are exempt from disclosure under

section 41 of the FOI Act.

17. Ms Mitcherson is the Deputy Director-General of the ACT Community Services

Directorate (CSD). On oath, Ms Mitcherson confirmed the truth of her witness

statements, admitted without objection, and was appropriately cross-examined in

relation to her evidence. Ms Mitcherson set out the basis for the respondent’s claim for

exemption of the documents pursuant to sections 6, 41 and/or 42 of the FOI Act.

18. Ms Mitcherson attached to her latter statement three schedules relating to the documents

in issue in the first tranche of documents and why they were claimed to be exempt

under sections 6, 41 and/or 42. Each entry in each schedule described the relevant

documents, whether exemption was claimed in full or in part and the reasons for the

claim.

19. The Tribunal accepted Ms Mitcherson’s evidence, although noting that many aspects of

the evidence were Ms Mitcherson’s opinions about matters that were for the Tribunal to

decide. The Tribunal refers to her evidence where relevant.

20. Dr Jarvis on behalf of the respondent similarly provided a comprehensive and helpful

statement of facts and contentions dated 20 February 2017, and the Tribunal has

similarly considered that statement when formulating its decision.

The role and powers of the Tribunal

21. The application was made pursuant to section 60 of the FOI Act, which permits an

application to be made to the Tribunal for review of a decision refusing to grant access

to a document in accordance with a request subject to certain exceptions that are not

presently relevant. The Tribunal’s role is in the nature of merits review. In other words,

the Tribunal has conducted its own inquiry into whether the documents are exempt

documents pursuant to sections 6, 41 and/or 42 of the FOI Act.3 There is no

presumption in favour of the respondent’s decision. The Tribunal’s role was to decide

whether the documents are exempt documents (wholly or in part) based on the material

before it.

3 Douglas and Jones, Administrative Law (2002, 4th ed) page 262

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22. The Tribunal’s role was confined to review of whether the documents are exempt

documents, wholly or in part. Unlike the decision maker (meaning the delegate of the

respondent in this case) who had a discretion under section 13 of the FOI Act to release

a document even where exempt, the Tribunal does not have that discretion.4

Consideration

23. Section 10 of the FOI Act provides:

10 Right of accessSubject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to—

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

24. Section 13 of the FOI Act provides:

13 Access to documents apart from ActNothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents) otherwise than as required by this Act where they can properly do so or are required by law to do so.

25. Part 4 of the FOI Act, comprised of sections 32 - 47A, sets out the different grounds

upon which a document is an exempt document. For deciding this part of the

application, section 41 (dealing with documents affecting personal privacy) and section

42 (dealing with documents that are subject to legal professional privilege) are relevant.

26. The Tribunal deals with each claim for exemption in turn.

Documents affecting personal privacy

27. Section 41 of the FOI Act provides:

41 Documents affecting personal privacy(1) A document is an exempt document if its disclosure under this Act would involve

the unreasonable disclosure of personal information about any person (including a deceased person).

(2) Subject to subsection (3), subsection (1) does not apply to a request by a person for access to a document only because of the inclusion in the document of matter relating to that person.

4 FOI Act, section 62(2)

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(3) Where—(a) a request is made to an agency or Minister for access to a document of the

agency, or an official document of the Minister, that contains information of a medical or psychiatric nature concerning the person making the request; and

(b) it appears to the principal officer of the agency, or to the Minister, as the case may be, that the disclosure of the information to that person might be prejudicial to the physical or mental health or wellbeing of that person;

the principal officer or Minister may direct that access to the document, so far as it contains that information, that would otherwise be given to that person is not to be given to that person but is to be given instead to a doctor to be nominated by that person.

28. Subject to the statutory exception in section 41(2) which is not relevant for our

purposes, in order for a document to be an exempt document under section 41(1) two

features need to exist:

(a) first, release of the document must “involve the disclosure of personal information

about any person (including a deceased person)”; and

(b) second, the disclosure must be “unreasonable”.

29. The Tribunal deals with each feature in turn.

Personal information

30. ‘Personal information’ is defined in the Dictionary to the FOI Act as follows:

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.

31. As the respondent noted, section 41 was amended in 2007 to refer to ‘personal

information’, rather than information about ‘personal affairs’, to achieve consistency

with the Freedom of Information Act 1982 (Cth) (the Commonwealth Act).5 The

amendment to the Commonwealth Act was, in turn, to achieve consistency with the

Privacy Act 1988 (Cth).

32. In BA v Merit Protection Commissioner6 the Australian Information Commissioner,

Professor John McMillan, said:

5 Explanatory memorandum to the Freedom of Information Amendment Bill 2006

6 [2014] AlCmr 9

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The amendment of s 41 in 1991 to apply to ‘personal information’ rather than ‘personal affairs’, left no room for the continuation of the distinction between work information and other personal information. The central issue became whether the identity of an individual is apparent or reasonably ascertainable from the information to which FOI access has been requested. Any information held by government that can identify a natural person became subject to both s 41 (later s47F) of the FOI Act and the Privacy Act. Examples given in the Guidelines that I have issued under s 93A of the FOI Act are ‘a person’s name, address, telephone number, date of birth, medical records, bank account details, taxation information and signature’.7

33. After discussing cases that have considered the change from ‘personal affairs’ to

‘personal information’, Professor McMillan said:

In summary, personal information can be information or an opinion of any kind, ranging from sensitive and confidential information to information that is publicly available from other sources. It can include vocational assessment and routine work information, as well is private or domestic information. Once it is resolved that the document contains information that reasonably identifies a person, the inquiry moves on to other issues.8

34. The Administrative Appeals Tribunal (Cth), per DP Forgie, made a similar observation

in Callejo v Department of Immigration and Citizenship9 stating that:

various views had been expressed as to whether information about “personal affairs” meant private information or information relating to a private affair or whether information related to vocational competence was, not on the face of it, capable of being part of the persons personal affairs.10

35. Referring to the legislative change to “personal information”, DP Forgie then said:

It is clear from the definition [of personal information] above, that any reference to the information’s being private is removed as is any distinction between a person’s professional, business or working life, and life beyond those matters. All that there need be is information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. There is no scope for an enquiry whether the information is true or not. Provided information is included in what is a “document” for the purposes of the FOI Act, it matters not how the information or opinion is recorded.11

7 BA v Merit Protection Commissioner [2014] AlCmr 9 at [51]8 BA v Merit Protection Commissioner [2014] AlCmr 9 at [57]9 [2010] AATA 24410 Callejo v Department of Immigration and Citizenship [2010] AATA 244 at

[65]11 [2010] NSWADT 39 at [66]

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36. For these reasons, the concern in earlier cases12 (when section 41 dealt with ‘personal

affairs’ )as to whether the information needs to be of ‘private concern’ in order to be

exempt from disclosure is no longer relevant.

37. The applicant submitted that not all ‘personal information’ as defined in the Dictionary

to the FOI Act is ‘personal information’ for the purposes of section 41(1). The applicant

referred to Collins v Department of Corrective Services13 where the NSW

Administrative Decisions Tribunal said “whether information will constitute ‘personal

affairs’ depends on the context in which it appears.” The applicant referred also to BA v

Merit Protection Commissioner where Professor McMillan said:

Two other suggested limitations on the phrase ‘personal information’ should also be noted. One is that information is only ‘about an individual’ (as required by s 4(1) of the FOI Act [which states the definition of personal information] if it says something about the individual. The other is that the person’s name is not of itself personal information.14

38. The Tribunal accepts that these limitations on what constitutes ‘personal information’

are also applicable for the purposes of section 41 of the FOI Act. However, for the

following reasons, the limitations do not cause any of the documents which the

respondent claims are exempt under section 41 not to be ‘personal information’ and

therefore not exempt.

39. The Tribunal has reviewed the documents and accepts the respondent’s submission that

every document discloses not just Jakob Oakey’s name or the name of another person

connected in some way with him but also personal information about Jakob Oakey or

that other person. In many cases, the documents disclose Jakob Oakey’s name and the

names of other persons and personal information about Jakob Oakey and those other

persons.

40. The Tribunal acknowledges also that not all information about a person is ‘personal’.

The Tribunal has had regard to Professor McMillan’s ‘summary’ observations as to

what constitutes personal information, per paragraph 33 above. However, having

considered each document, the Tribunal is satisfied that disclosure of the document

would disclose personal information about Jakob Oakey or other persons.

12 Department of Social Security v Dyrenfurth (1988) 80 ALR 533; Re Williams Registrar of Federal Court (1985) 8 ALD 219

13 [2010] NSWADT 39 at [64]14 BA v Merit Protection Commissioner [2014] AlCmr 9 at [54]

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41. It is problematic to explain why the information is personal, and why the document

containing the information is therefore exempt from disclosure, without to some degree

disclosing the information. However, in an effort to find a balance, the Tribunal has

opted for the manner of disclosure taken by the respondent that reflects information

already on the public record or information already known by the applicant that she can

and has made known to others generally.

42. Having reviewed the documents, the Tribunal agrees that the great majority of the

documents, particularly the documents described in the first schedule to

Ms Mitcherson’s statement as ‘Youthcare Notes’, are contemporaneous documents that

detail Jakob Oakey’s day-to-day personal and domestic activities, schooling, health and

lifestyle, interactions with other persons, thoughts and opinions on a wide range of

personal matters and details regarding his emotional state of mind as reflected on by

him or observed by others. Other documents, for example briefs to the relevant minister

and correspondence between third parties15 arising from correspondence from the

applicant, also contain personal information about Jakob Oakey. All the information

that the respondent claims is exempt under section 41, in the Tribunal’s view, is

personal information for the purposes of section 41.

43. Many of the documents concern Jakob Oakey’s diabetes. The Tribunal discloses that

fact because it is a matter of public record, stated in a report entitled ‘Coroner’s findings

and notice of completion of coronial investigation’ from the Central Coroner, Coroners

Court of Queensland, arising from her coronial investigation into Jakob Oakey’s death

that Jakob Oakey was a type I diabetic; “that he was not particularly diligent in

managing his diabetes”; that he had on previous occasions gone into a “hyperglycaemic

state”; that his death “was due to a hyperglycaemic episode of his type I diabetes”; and

that “in the circumstances his death [was] merely accidental, and simply due to his

mismanagement of his type I diabetes.”16

44. The respondent informed the Tribunal that there was no appeal from the coroner’s

findings. The applicant did not dispute that statement, and the Tribunal accepts it to be

so.

15 For example, correspondence from the Children and Young People Commissioner, ACT Human Rights Commission, to the respondent

16 Coroner's findings and notice of completion of coronial investigation dated 18 May 2016 conducted pursuant to sections 45, 51 and 97(2) of the Coroners Act 2003 (Qld). The document was sent tot he applicant under cover of a letter dated 26 September 2016

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45. Where these details regarding Jakob Oakey and his management of his diabetes are

known as a matter of public record, the Tribunal records its agreement with the

respondent (having reviewed the documents that the respondent claims are exempt from

production) that the documents record that the persons engaged by Youthcare in

Queensland to care for Jakob Oakey were “assiduous” in monitoring his blood glucose

levels; repeatedly advised him about the importance of ensuring that his blood glucose

levels were within acceptable tolerances; and repeatedly reminded him of the actions he

needed to take, whether by managing the kinds of foods and drinks he consumed or

taking appropriate quantities of insulin, to ensure his blood glucose levels were within

tolerance. The Youthcare notes record this kind of advice from Jakob Oakey’s carers to

him almost every day, and often with advice that he was not heeding the importance of

managing his diabetes.

46. That is not to be critical of Jakob Oakey. Dr Mitcherson gave unguarded but appropriate

oral evidence that Jakob Oakey had quite a good understanding of how to manage his

diabetes but was like many teenage boys who struggle with the daily discipline of doing

so because they “want to live their lives”. As a matter of experience, Dr Mitcherson’s

comments in this regard are persuasive.

47. Notwithstanding these details about Jakob Oakey, the applicant submitted that the

documents are not ‘personal information’ when the definition of personal information is

considered “in its context”. The applicant relied on the fact that he “had no choice”

about his involvement with the respondent or its equivalent, Youthcare, in Queensland

nor any control over the information that those agencies recorded about him. The

applicant relied on the fact that the information was recorded for the purpose of the

agency’s operations and not because the information concerned Jakob Oakey “as an

individual.” The applicant relied upon Colakovski v Australian Telecommunications

Corporation where Lockhart J said:

For myself I prefer the view that the “personal affairs” of a person within the meaning of ss 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. (emphasis added)17

48. The Tribunal rejects the submission. The fact that personal information is created and

kept for the purpose of an agency’s operations does not deprive it of its character as

‘personal information’. For example, medical records concerning a person, or in this

17 (1991) 100 ALR 111 at 118

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case the care records concerning Jakob Oakey whilst under the respondent’s care, are

plainly personal information about the subject person as an individual. The Tribunal

rejects the submission that the comments of Lockhart J regarding ‘personal affairs’ are

in some way qualified by the purpose for which the information was recorded.

49. For these reasons, and having reviewed all the documents, the Tribunal finds that all the

documents which the respondent claimed are exempt from disclosure pursuant to

section 41 of the FOI Act contain ‘personal information’ for the purposes of that

section.

Unreasonable disclosure

50. Where the Tribunal is satisfied that the documents all contain personal information, the

question then becomes whether disclosure of the information would be ‘unreasonable’.

51. Relying upon Wiseman v the Commonwealth18 the applicant submitted, and the Tribunal

accepts, that “whether or not disclosure [of the personal information] would be

‘unreasonable’ is a question of fact and degree which calls for a balancing of all the

legitimate interests involved.”

52. What those legitimate interests would be will vary from case to case. However as a

matter of general guidance the applicant relied upon Victoria Police v Marke19 where

Maxwell P said:

It follows that under s33(1), the question-the only question-for the decision-maker is whether the disclosure of the personal information to the applicant, which would occur by virtue of disclosure of the document ‘under this Act’, would be an unreasonable disclosure of that information. In the ordinary case, the decision-maker would need to consider for this purpose at least the following matters:

• the nature of the personal information;

• the sensitivity (past and present) of the personal information;

• any view about disclosure expressed by any person to whom the personal information relates;

• the relationship between the personal information and any other information in the document;

• how the personal information was obtained by the agency (whether voluntarily or involuntarily, and whether or not in confidence);

18 Re Gordon Peter Wiseman v the Commonwealth of Australia [1989] FCA 43419 [2008] VSCA 218 at [19]

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• whether and to what extent the personal information was already known to the applicant;

• the nature of any interest which the applicant can demonstrate in –

(i) the information in the document other than the personal information; or

(ii) the personal information.

53. These statements of principle are consistent with the views of other courts and tribunals

from time to time, save for the implication that disclosure to the applicant means

disclosure only to the applicant, which is addressed below.

54. Regarding the third and fifth dot points in Victoria Police v Marke, tribunals have

confirmed in other cases that the likelihood that the person concerned would not have

wished the information to be disclosed without their consent20 and the circumstances

under which information in a document was gathered21 are relevant factors when

deciding whether disclosure would be unreasonable.

55. In this case, both those factors count against disclosure of the documents.

56. Regarding the fifth dot point, as the parties agreed, Youthcare gathered and recorded

personal information about Jakob Oakey as a day-to-day record of his personal and

domestic circumstances because he was under the agency’s care. The information is

materially the same as information about many teenagers, both under and over the age

of 18, which would ordinarily never be recorded at all. Such personal information

would not ordinarily exist in government documents, and the exemption available under

section 41(1) counts against its disclosure for that reason.

57. Regarding the third dot point, it is also highly unlikely, at least, that Jakob Oakey would

have wished the information about him to be disclosed - especially to the applicant or

his immediate family.

58. On 19 August 2014, Jakob Oakey signed a letter stating:

To whom it may concern,

20 Re Williams v Registrar Federal Court [1984] 8 ALD 219 at 225; Chandra v Minister for Immigration and Ethnic Affairs [1984] AATA 437; Walsh v Centrelink [2004] AATA 396 at [15]; and Page v Metropolitan Transit Authority [1988] 2 VAR 243 at 245-246

21 Chandra v Minister for Immigration and Ethnic Affairs [1984] AATA 437; Law Society of the ACT v Treasury Directorate [2013] ACAT 36; Re Williams v Registrar Federal Court [1984] 8 ALD 219 at 222

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I Jakob Oakey do not wish for Care and Protection services to share information about me with my family. I understand that I am able to share information as required and if I wish any information to be passed on I will do so on my own accord. I wish for this to remain the case until such time as I inform Care and Protection Services otherwise.

Kind Regards,

Jakob Oakey

59. The Tribunal recognises the possibility that Jakob Oakey might have changed his mind

by 2016 but, as matters presently stand, his final stated wishes should be respected.

Those wishes are confirmed in a document produced in mid 2015 which reports that

“Jakob was happy that no one else in his family would have access to his information.”

Jakob Oakey’s wishes count against disclosure of the documents, especially to the

applicant.

60. These two matters are, of course, only some of the circumstances to be considered when

deciding whether disclosure would be unreasonable. In Page v Metropolitan Transit

Authority22 Jones J, President of the then Administrative Appeals Tribunal of Victoria,

put it this way:

What therefore has to be decided is whether disclosure of this information would be unreasonable. This requires a balancing of interests: the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by granting access to the information and the object of the Act to extend as far as possible the right of the community to have access to information in the possession of the Government or Agencies: Penhalluriack v Department of Labour and Industry (County Court, Lazarus J, 19 December 1983, p 45, unreported); Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257 at 259. More particularly, this balancing of interests requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. It is apparent that the purpose of s 33(1) of the Act is to prevent the unreasonable invasion of the privacy of third parties: Chandra's case (supra).

61. This passage was cited by Pagone AJA in Victoria Police v Marke, after which his

Honour said:

Counsel for the appellant relied upon this passage in support of the contention that it was not permissible for a decision-maker to take into account the possible extent of any disclosure contrary to the view adopted by Hansen J and consistent

22 [1988] 2 VAR 243 at [7]

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with the view initially adopted by VCAT. In my view, however, the passage does not support that contention. On the contrary, Judge Jones noted that the balancing of interests required ‘a consideration of all the circumstances’ including those specifically mentioned. I do not read the passage as narrowing the class of circumstances relevant for consideration. All that his Honour was doing was identifying some circumstances which he considered to be relevant to the statutory condition identified in s 33(1). Indeed, the inclusion as a relevant circumstance of ‘the interest that the applicant has in the information in question’ may logically include the use (including possibly subsequent dissemination) of the information.23

62. With reliance on Victoria Police v Marke, the applicant submitted that despite earlier

cases to the effect that disclosure of material under the FOI Act is to be treated as

disclosure to the public at large the Tribunal should not treat disclosure to the applicant

in that way. The applicant relied on the dicta of Maxwell P, who said, “disclosure to the

applicant does not involve - that is, entail or have as its necessary corollary - disclosure

by the applicant to any other person.”24 The applicant submitted that disclosure to the

applicant is not disclosure to the world, and that disclosure to her is not unreasonable,

where she is Jakob’s mother with a clear interest and a “moral right” to access

documents recording details about her son’s care, physical and mental health and the

circumstances leading up to his death.

63. The respondent submitted that the Tribunal should follow the decision of DP Forgie in

Callejo & Department of Immigration and Citizenship25 (Callejo) where she explained

why disclosure should be treated as disclosure to the ‘world at large’, although

explaining the phrase and its purpose in the following way:

This was intended to be understood more as an allegorical reference rather than a statement of literal truth. It was never thought that giving access to a document meant that it would be shown to the world, or at least to a considerable number of its inhabitants. The extent of its publication depends upon the applicant to access is given. What was thought was that, once access had been given to a document, the agency or Minister had no control over and could not limit the persons to whom the applicant chose to publish or disseminate it. The agency or Minister would have no means of knowing to whom it would be published or disseminated. Potentially, publication or dissemination could be to the world at large.26

23 [2008] VSCA 218 at [100]24 [2008] VSCA 218 at [28]25 Callejo & Department of Immigration and Citizenship [2010] AATA 244 at

[104] – [114]26 Callejo & Department of Immigration and Citizenship [2010] AATA 244 at

[116]

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64. The respondent also relied on the decision of the NSW Administrative Decisions

Tribunal in Cheney v Sydney West Area Health Service27 (Cheney) where the Tribunal

determined that it should not follow the views of Hansen J at first instance in Marke v

Victorian Police 28 (upheld on appeal in Victoria Police v Marke29) primarily because

the relevant object of the Freedom of Information Act (NSW) (the NSW Act) “refers to

the rights of the public in general, not to particular members of the public”, and that

there are “no constraints or mechanisms for the imposition of constraints on the

dissemination or distribution of information to which access is granted.”

65. The Tribunal in Cheney also noted:

In addition, if the approach of Hansen J in Marke v Victorian Police were followed the result would be that some applicants may be given access to documents while other applicants would not be granted access to the same documents. That situation leads to the conclusion that an applicant may need to give reasons for an FOI request and advise the agency of what he or she proposes to do with the documents. As we have said, there is no mechanism for an agency to assess the credibility of an applicant before reaching a decision as to whether or not disclosure would be unreasonable or whether the override [sic] discretion should be exercised.30

66. The Tribunal is not persuaded that it can distinguish Victoria Police v Marke for the

reasons that the Commonwealth and NSW tribunals did so in Callejo and Cheney.

67. In Callejo, DP Forgie said:

Although there are many similarities between the FOI Act and VicFOI, there is one major difference that immediately leads to my being able to distinguish the case of Marke. That is the presence of s 11(2) in the FOI Act and its absence in VicFOI. Its presence underlines the fact that, so far as the FOI Act is concerned, the right of access is a right common to all and exercisable by all.

68. Section 11(2) of the Freedom of Information Act 1982 (Cth) provides:

Subject to this Act, a person’s right of access is not affected by:

a. any reasons the person gives for seeking access; or

b. the agency’s or Minister’s belief as to what are his or her reasons for seeking access.

27 [2008] NSWADTAP 29 at [17] – [20]28 (2007) VSC 52229 [2008] VSCA 21830 [2008] NSWADTAP 29 at [20]

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69. Section 10 of the FOI Act, mirrors section 11(1) of the Commonwealth Act, but there

are no words the same or similar to section 11(1) of the Commonwealth Act in the FOI

Act.31

70. Regarding Cheney, the reasons for distinguishing Marke are not apposite. The Tribunal

in Cheney distinguished Marke primarily on the grounds that the objects under the NSW

Act are different from those under the Victorian Act. However the relevant object under

the Victorian Act32 is identical to the relevant object in section 2(1)(b) of the FOI Act.

71. Despite these observations, the Tribunal finds it unnecessary to decide whether to

follow or distinguish Victoria Police v Marke, as a matter of principle, because Victoria

Police v Marke is distinguishable on the facts.

72. The Court of Appeal in Victoria Police v Marke did not exclude the possibility or even

the probability that disclosure to an applicant would be disclosure at large. It merely

stated that disclosure of documents to an applicant does not have to be regarded as

disclosure to the public at large as a “necessary corollary”, when determining whether

disclosure would be ‘unreasonable’.

73. As Weinberg J observed in Victoria Police v Marke, “what amounts to an unreasonable

disclosure of someone’s personal affairs will necessarily vary from case to case.”33 His

Honour further observed, “the circumstances of this case are somewhat unusual” and

that whilst in “the vast majority of cases” a “worst-case scenario” of wide dissemination

can be assumed from the unconditional disclosure, there may be other cases which call

for different treatment - and that Victoria Police v Marke was one of those cases. His

Honour noted that Mr Marke had proffered assurances regarding limited dissemination

of the information contained in the documents. His Honour concluded:

[86] Disclosure to one individual, on a confidential basis, in circumstances where it can be established that wider dissemination is unlikely, may be a relevant consideration in determining the reasonableness of the material’s disclosure. It may well be less likely to be regarded as unreasonable than disclosure to someone who intends to disseminate widely....

31 The Tribunal here notes that the FOI Act will be repealed on 1 July 2017 upon commencement of the Freedom of Information Act 2016, s 111, and that the replacement Act will introduce a different statutory regime regarding access to documents

32 Quoted in Victoria Police v Marke at [17]33 [2008] VSCA 218 at [70]

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[88] The extent of possible dissemination of the material containing the information relating to the personal affairs of a person is capable, in an appropriate case such as the present, of being an important consideration bearing upon the resolution of that issue. For instance, information splashed across the front-page of a tabloid newspaper, which relates to a person’s personal affairs, will present a far greater assault on that person’s right to privacy than would be the case if the same information were to be disclosed to an individual, who promised to confine its use to the resolution of a discrete task, the aims of which were consistent with the objects of the FOI Act

74. Pagone AJA took a similar approach when he said:

[103] The loss of control of information in a document, potentially to the world at large, is an important consideration for any decision-maker asked to balance interests in application of s 33(1) of the Act. Ordinarily a decision-maker will need to bear in mind that disclosure to a person will mean that the decision-maker will have no further control in limiting disclosure of the information to any other person and, therefore, that it would be potentially available to the world at large. But, in my view, that may not always be the case.

75. In our view, Victoria Police v Marke is authority for no more than the proposition that

disclosure of documents to an applicant can ordinarily be treated as disclosure to the

public at large but that is not necessarily so in every case. Each case depends on its

facts.

76. It is not necessary for us to decide whether that proposition should be accepted for the

purpose of interpreting the FOI Act because in this case there is nothing to rebut the

assumption that unconditional disclosure will mean, potentially, disclosure to the world.

To the contrary, in this case there is evidence that wide dissemination is highly likely to

occur.

77. The Tribunal is satisfied that the applicant has established a website entitled “Jakob’s

Voice” described as an “Australia Wide campaign bringing awareness to the issues

within government child protective services in our states and territories.”

78. In October 2016, the applicant wrote on Facebook “I thought you may like to know why

Jakob’s Voice was started and why I am so passionate about bringing the government to

account and helping as many people as I can along the way.” The Tribunal received into

evidence numerous articles that the applicant has published on different websites highly

critical of government child protective services and which, in many cases, are simply

inaccurate or untrue. For example, on Facebook, the applicant wrote as a fact: “my son

is Jakob Oakey, he committed suicide” which is contrary to the findings of the

Queensland Coroner.

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79. The Tribunal is satisfied that the applicant has no intention of maintaining the

confidentiality of any documents produced to her, and Mr Oakey representing her was,

in our view, careful not to give any such assurance.

80. The likelihood of wide dissemination is supported by many of the grounds upon which

the applicant contended that disclosure is not unreasonable. For example, the applicant

submitted that the documents “hidden from public scrutiny” contain “clear evidence” of

“errors and failures” on the part of the various government agencies which led to “a

substantial risk to the child” and the “subsequent failure to remove the child from

harm’s way”. It is alleged the documents will “reveal a litany of misconduct” on the

part of government agencies including “giving false evidence to the Children’s Court”

and “misleading ACT Ministers responsible for child welfare and protection”. The

applicant submitted that she has an interest and moral right to know why her son “was

not removed from harm’s way” and that “the greater public interest in the welfare,

safety and protection of children overrides the public interest in the privacy of her son’s

personal information”. It was submitted that “child abuse thrives on secrecy, and the

mantra of privacy plays into the hands of those who abuse children or fail to care for the

welfare, safety and protection of children in their care.”

81. The Tribunal rejects the submission because it proceeds on a false factual basis. Whilst

the Tribunal expects the applicant might seek to construe the documents differently, the

Tribunal is not persuaded that any of the documents, individually or collectively, expose

or prove any kind of mismanagement or misconduct or provide even an arguable basis

for such a conclusion.

82. It is simply incorrect speculation for the applicant to submit that “there is clear evidence

on the CSD files that there have been errors and failures on the part of the [respondent]”

or that “there is sufficient evidence on the CSD files relating to Jakob to raise a

legitimate concern that secrecy provisions designed to protect children have been used

to protect the [respondent] from accountability”. The documents do no such thing. The

documents are numerous, but are little more than routine and unremarkable documents

recording personal information about Jakob Oakey’s daily life and his ongoing

difficulties in managing his diabetes despite the care he was given.

83. The Tribunal’s view about the documents is supported by the entries in Jakob Oakey’s

Leaving Care Plan signed by him and others on 5 May 2015, a month or so before his

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18th birthday, which record that Youth Care Hervey Bay (YCHB) “will continue to

provide supports to Jakob as he requests them post 18” and that Jakob “intends to

remain in his current placement [meaning a property leased by YCHB] following his

18th birthday.”34 Jakob Oakey’s choice to remain under the care of YCHB, when free to

leave as an adult over the age of 18, is inconsistent with the applicant’s claims of

failings and mismanagement on the part of Jakob Oakey’s carers with YCHB.

84. There is no countervailing public interest in disclosing the documents to anyone, save

perhaps to Jakob Oakey’s immediate family. However, disclosure to the immediate

family is unreasonable in circumstances where it would be contrary to Jakob Oakey’s

stated wishes; where the immediate family does not offer any promise or undertaking

not to disseminate the information to others who have no legitimate interest in the

documents; and where the applicant positively declares her intention to distribute

personal information about Jakob Oakey as widely as practicable and for purposes that

the documents do not support.

85. Mr Oakey submitted that in circumstances where Jakob Oakey was living in

Queensland under the statutory care of others, meaning the Queensland Department of

Child Safety, it was not correct or appropriate for the Queensland Coroner or now the

respondent to characterise the mismanagement of Jakob Oakey’s diabetes as “his”

mismanagement. Rather, he said, the mismanagement should be attributed to those

responsible for his care.

86. Mr Oakey relied on a report dated 3 November 2015 from Dr Chris Ryan, consultant

paediatrician, in which Dr Ryan stated that Jakob Oakey was “living in supervised

accommodation under the care of the Department of Child Safety. This proved very

difficult and both [name withheld] and I did a lot of work with the carers ensuring that

they supervised his blood sugars and carb counting but that seemed to be beyond

them.”35

87. The respondent submitted that, after reviewing the documents, the Tribunal should

make a finding that Dr Ryan’s opinion was “wrong”.

34 Leaving Care Plan signed and dated 5 May 2015, being annexure E to the witness statement of Alan Oakey dated 28 February 2017.

35 Dr Ryan’s report is annexure F to the witness statement of Alan Oakey dated 8 September 2016

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88. The Tribunal rejects the submission that Dr Ryan’s opinion was wrong. Rather,

Mr Oakey’s submission unfairly characterises the opinion. Having reviewed the

documents, it is apparent that Jakob Oakey’s carers were going to great lengths to help

him manage diabetes by actions such as checking his readings for him, reminding him

of the importance of keeping his blood sugar levels within acceptable tolerances and

taking him to health clinics to address imbalances, but that despite their best efforts (not

because of their lack of effort) Jakob Oakey repeatedly omitted to enter his blood sugar

levels or “count his carbs” among other things.

89. There are many and extensive entries in the subject records of the very considerable

efforts made by staff not only to encourage Jakob Oakey to monitor his blood glucose

and his diet, among other things, but to try to ensure that necessary health measures

were being taken. Implicit in the entries is a degree of frustration on the part of staff that

Jakob Oakey was indifferent to the management of his diabetes, despite the obvious fact

that he was well aware of how to manage it and the importance of doing so.

90. Dr Ryan was never called to give evidence in relation to his report or his opinion about

the supervision of Jakob Oakey’s carers, but the Tribunal is not satisfied from his report

that Dr Ryan intended any criticism of the carers. Rather, when the report is read as a

whole, it is apparent that he did not intend any criticism. He details how his efforts to

engage with Jakob Oakey, and the efforts of the other person referred to in the report

who (Mr Oakey said) was the diabetes educator at Hervey Bay Hospital, were also

largely unsuccessful. For example, Dr Ryan reports that Jakob Oakey’s last diabetic

screen was “unfortunately” over 18 months ago despite giving him forms every time

they saw him and that Jakob Oakey cancelled his last appointment. In the Tribunal’s

view, Dr Ryan was simply observing that Jakob Oakey’s carers were similarly unable to

persuade him about the importance of him managing his blood sugars and carb

counting, despite their efforts to do so.

91. The supervision must also be seen in its context. As Dr Ryan wrote in his report:

As Jacob [sic] is now 18 years of age and has cancelled the last appointment with me I think he should be treated in the adult world and I was hoping you [meaning the endocrinologist and general physician to whom Dr Ryan was writing] could see him.

92. The applicant also relied on warnings she gave to the respondent about placing Jakob

Oakey in the care of his father in Queensland in July 2011 and the “dangers of the

20

placement.” She contended that these warnings were ignored. It is not the Tribunal’s

function to express a view about such claims, but it does observe that these claims are

not borne out by the documents. They record careful consideration by officers of the

respondent about Jakob Oakey’s placement with his father, and review after 2011 about

the appropriateness of the placement.

93. The applicant relied on a decision of the Office of the Information Commissioner,

Queensland, in Gapsa v Department of Transport and Main Roads36 to submit that

disclosure would not be unreasonable because disclosure “could reasonably be expected

to enhance government’s accountability.” The applicant submitted that “secrecy is

potentially the antithesis of accountability as maladministration can be hidden from

public scrutiny.”

94. There are several difficulties with this submission. First, it draws on the provisions of a

different Act, the Right to Information Act 2009 (Qld), which bear no correlation to

section 41 of the FOI Act. Second, the comment was made in the context of providing

information about a government decision in order to improve an understanding about

the decision: that is not the purpose for which the applicant seeks the documents. Third,

the Tribunal cannot see a proper basis for concluding that disclosure would enhance the

government’s accountability because nothing in the documents reveals anything

untoward or improper.

95. That conclusion is supported by the coronial investigation. In her letter to the applicant

dated 26 September 2016, the Central Coroner of the Coroners Court of Queensland

said:

I do not propose to hold an inquest because the investigation has revealed sufficient information to enable me to make findings about Jakob Aaron Oakey’s death and there does not appear to be any prospect of making recommendations that would reduce the likelihood of similar deaths occurring in future or otherwise contribute to public health and safety or the administration of justice.

96. The Tribunal’s second concern with the applicant’s submission is that if, as the

applicant contended, the documents demonstrate (or arguably demonstrate)

mismanagement or misconduct on the part of the respondent or others responsible for

Jakob Oakey’s care, that circumstance does not give rise to a public interest in their

disclosure under the FOI Act. Rather, in the Tribunal’s view, it gives rise to a public

interest that the documents should not be released under the FOI Act to the world at 36 [2013] QICmr 25 at [16]

21

large but made available by proper means, if requested, to those with legislative

authority to investigate the alleged mismanagement or misconduct.

97. The applicant contended that “there is a fundamental public interest in ensuring that the

parens patriae jurisdiction of the Territory as set out in the Children and Young People

Act 2008 (the CYP Act) is properly exercised by the Territory and its agencies (and

their employees) to ensure the welfare, well-being, care, safety and protection of

children, young persons and others for whom the Territory has responsibility”. The

applicant also submitted that there is “a major public interest in ensuring that persons

who commit offences against the provisions of the CYP Act are held to account by

prosecution action where appropriate.” So be it, as a matter of principle, but the

applicant should take her claims to proper authorities with powers to investigate the

respondent’s conduct in an ordered and regulated manner. It would be for such

authorities to request further documents from the respondent, if they had proper cause to

do so, and to review them in a manner which preserves the confidentiality of the

documents during their investigation rather than having them released unconditionally

to the applicant and then to the public at large in an uncontrolled environment by

mechanisms such as publication on ‘Jakob’s Voice’.

98. The applicant relied upon Colakovski v Australian Telecommunications Corporation,37

where Lockhart J said that if documents contain information which could provide

valuable evidence or lead to evidence that would be useful in establishing the

commission of an offence under the law, that is a matter which may be taken into

account in determining whether the disclosure of the information would be

unreasonable. Again, so be it, but his Honour did not say that such features cause

disclosure not to be unreasonable. Rather, it was a consideration. The Court upheld the

decision-maker’s conclusion that that feature, in that case, did not justify disclosure. In

this case, however, the proposition is moot because the Tribunal is not persuaded that

the documents contain information which could provide valuable evidence or lead to

evidence that would be useful in establishing the commission of an offence under the

law.

99. The respondent submitted that disclosure of personal information is not ordinarily in the

public interest, and that the protection of personal information is inherently in the public

37 (1991) 100 ALR 111, 120

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interest. The respondent relied upon Chandra at [51] – [52] where DP Hall of the

Administrative Appeals Tribunal said:

[51] My reasons for so thinking are that s.41(1) makes it clear that it is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is "unreasonable" requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s.41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

[52] However, consistently with the stated object of the Act (see s.3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.

100. The respondent relied also on the statements of Lockhart J in Colakovski38 where his

Honour said:

The object of the Act, as expressed by s 3, is to give the “Australian community” the right of access to information in the possession of the Australian Government. What is “unreasonable” disclosure of information for purposes of s 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of “personal affairs” (s 41) and “business or professional affairs” (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in ss 41 and 43 are satisfied.

101. The Tribunal accepts these statements as matters of principle. For the reasons given, the

Tribunal is persuaded that the public interest lies in favour of preserving the

confidentiality of personal information about Jakob Oakey, and that disclosure would be

unreasonable.

Legal professional privilege

102. Section 42 provides:38 Colakovski v Australian Telecommunications Corporation (1991) 100 ALR

111, 120 - 121

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42 Documents subject to legal professional privilege(1) A document is an exempt document if it is of such a nature that it would be

privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document of the kind referred to in section 8 (1) is not an exempt document under subsection (1) of this section only because of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8 (1).

103. The respondent claimed that part of one document in the first tranche of documents now

in question is exempt from production under section 42 of the FOI Act because it

attracts legal professional privilege.

104. The respondent relied upon the evidence of Ms Mitcherson at paragraph 51 of her

witness statement dated 20 February 2017 in which she states that the document

“contains a summary description of the terms of a request by [the ACT Community

Services Directorate] for legal advice from the ACT Government Solicitor in

connection with” events concerning Jakob Oakey that occurred in 2012. Exemption

under section 42 is claimed only in relation to that part of the document.

105. The Tribunal has reviewed the document and accepts Ms Mitcherson’s characterisation

of the part of the document over which exemption under section 42 is claimed.

106. Whilst the relevant part of the document is not, itself, the terms of the request for legal

advice, it does record the content of the request and therefore attracts legal professional

privilege.39

107. The Tribunal has reviewed the document in relation to the respondent’s claim that the

other parts of the document are exempt from production under section 41 of the FOI

Act. The Tribunal agrees that those other parts of the document contain personal

information about Jakob Oakey that is personal information for the purposes of section

41 of the FOI Act, and that (for the reasons discussed above) disclosure of that

information would be unreasonable.

Health records

108. The respondent submitted that a document falling within the ambit of the applicant’s

request for documents is a health record within the meaning of the Health Records

39 Re Southland Coal Pty Ltd (receivers & managers appointed) (in liq) [2006] NSWSC 899 at [14]; Telstra Corporation v Australis Media Holdings (1997) 41 NSWLR 147, 149B

24

(Privacy and Access) Act 1997, and that the document is exempt from production under

the FOI Act for that reason, referring to section 6(2) of the FOI Act.

109. The Tribunal has reviewed the document and is satisfied that the document is exempt

from production under section 41 of the FOI Act and therefore has not considered the

additional claim that the document should not be produced by operation of section 6(2)

of the FOI Act.

Orders

110. For these reasons, the Tribunal will order that the decision under review be confirmed in

relation to those documents determined to be exempt documents pursuant to sections 41

and 42 of the FOI Act, save to note that the respondent elected to release one of the

documents previously determined to be an exempt document.

………………………………..Presidential Member G McCarthy

Delivered for and on behalf of the Tribunal

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HEARING DETAILS

FILE NUMBER: AT 37/2016

PARTIES, APPLICANT: Katherine Oakey

PARTIES, RESPONDENT: Director-General, Community Services Directorate

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Dr D Jarvis

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

TRIBUNAL MEMBERS: Presidential Member G McCarthy, Senior Member L Donohoe SC

DATES OF HEARING: 27-28 March 2017

26