Walsh and Chairman, Centrelink

[2004] AATA 396

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 396

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/6

GENERAL ADMINISTRATIVE DIVISION		)
Re		COLIN LESLIE WALSH

Applicant

And CHAIRMAN, CENTRELINK

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date20 April 2004

PlaceSydney

Decision The decision under review is affirmed.

[sgd] M J Sassella

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – non-disclosure of document containing personal information relating to a third person – third person had not authorised Applicant to see information in document – forged signature of applicant on document – identities of individuals ascertainable by inspection of document – no public interest in disclosure of document

Freedom of Information Act 1982 ss 4(1), 20(1)(a), 41(1)

Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257

REASONS FOR DECISION

20 April 2004 Michael Sassella, Senior Member           

RESULT

The tribunal has decided that disclosure of the disputed document would involve the unreasonable disclosure of personal information about an unidentified third person.  The decision by Centrelink was therefore the correct decision.

BACKGROUND

1. Colin Leslie Walsh (“the applicant”) approached Centrelink on 7 November 2003 seeking access to a document he believed was held by Centrelink. It was described as a “document lodged at Nowra Centrelink in relation to matter involving Linda and signed in my name by someone else”. The Chairman, Centrelink (“the respondent”) is responsible for Centrelink and its decision-making. An authorised officer in Centrelink refused Mr Walsh access under s 41(1) of the Freedom of Information Act 1982 (“the FOI Act”)[1]. Section 41(1) provides that a document is exempt if its disclosure would involve the unreasonable disclosure of personal information about any person. The decision-maker pointed to specific matters relating to the decision:

·     The document contained personal information relating to another person.

·     The other person would not expect his or her personal information to be released publicly.

·     The other person had not authorised Mr Walsh to see information about his or her personal affairs.

[1] decision was reviewed by a more senior Centrelink officer and was not altered.  This decision-maker wrote that:

·     The information in the exempt document is personal information relating to another person.

·     This other person has clearly indicated that “he” does not agree to you having access to the document.  (This had the effect of alerting Mr Walsh that the third person was male.)

·     She had seen nothing that authorised Mr Walsh to see the information concerned.

The decision-maker proceeded to explain:

“I am satisfied that all the information provided to Centrelink concerns his own personal affairs.  In this regard, Centrelink requires a claimant for a Social Security payment to provide all information that could be relevant to the determination of his or her claim.

“In this case, the information was provided in response to Centrelink’s requirements.  Accordingly, I have decided that to release the information to you which the provider wishes to protect, and which you are not authorised to receive, would be unreasonable in the circumstances, particularly as you have stated that the document was not signed by you. …”

3.      In a letter to the Ombudsman Mr Walsh wrote that “it is purported that I lodged a document with the Centrelink office in Nowra regarding the affairs of Linda Jane Land and William Peter O’Reilly”.  He said that the document was neither completed nor signed by him.  He requested a copy so that he could commence “legal action”. 

ISSUES

4.      “Personal information” is “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” (FOI Act, s 4(1)). 

5.      The Commonwealth Attorney-General Department’s FOI Memorandum No 98 (“the Memorandum”)[2], chapter 12, is helpful in identifying the relevant issues:

(a)Does the information relate to a natural person?

(b)Does the information say something about the individual?

(c)Is the individual’s identity known or reasonably ascertainable using the information in the document?

(d)Would disclosure of the personal information be unreasonable?

[2] ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(a) Does the information relate to a natural person?

6.      A copy of the disputed document was provided to the tribunal.  The information relates to a natural person[3].  In fact, there is information in the document relating to three natural persons.  An expurgated version of the document was given to Mr Walsh at the hearing showing, as I understood it, the address of the Centrelink office and the base of the document bearing a name in block letters, a signature, a phone number and a date.  The signature read “Colin Walsh”, as did the name in block letters.  The deleted material referred to the affairs of two persons.  Mr Walsh understood one of these to be Ms L Land who accompanied him to the hearing and gave evidence.  It would be inappropriate for me to confirm the correctness of that supposition or to identify the other person referred to in the deleted material.  Ms Land confirmed advice Mr Walsh had given the tribunal that she had no objection to Mr Walsh seeing any document that referred to her.  Assuming that Ms Land is one

of the two persons implicated in the document, her consent would be helpful but is not decisive in favour of granting access in the situation where yet another is involved.

[3] A “natural person” is a flesh and blood individual and not a corporation or other non-human entity.

(b) Does the information say something about the individual?

7.      The information in the disputed document does say something about the individuals involved.  This is meant to convey that the information does more than simply identify the person or persons.  It speaks about aspects of their affairs. 

(c) Is the individual’s identity known or reasonably ascertainable using the information in the document?

8.      As noted earlier, three individuals are referred to in the document.  Two are mentioned by name, one being Mr Walsh.  The identity of the third would be reasonably clear from aspects of the surrounding information.

(d) Would disclosure of the personal information be unreasonable?

9. Mr Walsh told me that he had read s 41(1) of the FOI Act and that he understood it. However, he said he has an interest in seeing the document because it purports to emanate from him and to bear his signature. He queried why he cannot see the document as it affects him.

10.     Ms Land was confident that the document referred also to her and she confirmed that she consents to Mr Walsh seeing it.  Even if Ms Land is referred to in the document, there is still another person who can be identified from the document’s contents who has been contacted by Centrelink and has distinctly said he does not consent to Mr Walsh accessing the document.

11. Centrelink was prepared to grant access to the document in a two-stage process. It was prepared to have him look at the signature on the document and state whether or not it is his own signature. If he recognised the signature as his own Centrelink undertook to allow him to inspect but not copy the document. I note that “a reasonable opportunity to inspect [a] document” is a legitimate form of access under s 20(1)(a) of the FOI Act. At the hearing Mr Walsh declared the signature not to be his. My view was that it closely resembled the signature on Mr Walsh’s form of application to the tribunal for review of the Centrelink decision. Mr Walsh suggested that his signature is easy to forge, that a certain Mr W O’Reilly, Ms Land’s former de facto partner, had copied his signature onto the document from an affidavit Mr Walsh had sworn on 7 August 2003.

12.     I make the following observations regarding the signature on the disputed document:

(a)The signature on the disputed document resembles that on Mr Walsh’s application for review and somewhat less like that on the affidavit.

(b)There is a rearward facing tail in the last upper stroke of the capital “W” in “Walsh” in the signatures on the tribunal document and the affidavit that does not appear in the signature on the disputed document.

(c)The block letter text on the disputed document, and the numerals, do not resemble the same elements on the disputed document.

I admit to not being a handwriting expert but I have seen enough to convince me on the balance of probabilities that the disputed document was not signed by Mr Walsh and I so find.

13.     I find that there is no clear evidence that Mr O’Reilly or the person identified in the disputed document, if it not be Mr O’Reilly, actually completed the document, although Mr Walsh and Ms Land believe, possibly with reason, that Mr O’Reilly did execute the disputed document. 

14.     I find further that disclosure of the material in the disputed document would involve disclosure of information about a third person who has objected to such disclosure.

15.     I find that there is no public interest in disclosure of the document.  Mr Lozynsky advised me that no administrative action detrimental to either Ms Land or Mr Walsh occurred as a consequence of Centrelink’s receipt of this document.  I note that the document, on its terms, compelled a response and expressly indicated that the information would be treated as confidential by Centrelink.  I think it perfectly possible that certain of the material in the document may have been false.  That, however, is not enough to make it reasonable to defer the interest of a third party in preventing the unreasonable invasion of his privacy, as the tribunal put one formulation of the “reasonableness” criterion in its discussion in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257.  In Chandra the tribunal said that the public interest may favour the disclosure of certain information that might appear covered by s 41(1). However, I see no broader public interest that would be served by disclosure in this case.

16. I find that s 41(1) of the FOI Act applies to the disputed document and that Mr Walsh should not be granted access to the document.

CONCLUSION

17.     The tribunal has decided that disclosure of the disputed document would involve the unreasonable disclosure of personal information about an unidentified third person.  The decision by Centrelink was therefore the correct decision.

DECISION

18.     The decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .....................................................................................
  Associate

Date of hearing  19 April 2004
Date of decision  20 April 2004
Advocate for the applicant        Self-represented

Advocate for the respondent     Mr G Lozynsky, Centrelink Service Recovery Team