Dykstra and Centrelink [2002] AATA 659 (2 August 2002)

Last Updated: 7 August 2002

CATCHWORDS - FREEDOM OF INFORMATION - access refused - whether documents exempt - whether disclosure would or could reasonably be expected to endanger any person's life or physical safety - whether access should be deferred for appeal period - decision set aside.

Administrative Appeals Tribunal Act 1975 - s 44

Freedom of Information Act 1982 - ss 21, 37(1)(c)

Social Security (Administration) Act 1999 - s 207

Attorney-General's Department v Cockcroft (1986) 64 ALR 97

Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163

Re Toren and Secretary, Department of Immigration and Ethnic Affairs (unreported, 8 March, 1995, Decision No. 10058)

DECISIONS AND REASONS FOR DECISION [2002] AATA 659

ADMINISTRATIVE APPEALS TRIBUNAL )

) S2000/426

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT DYKSTRA

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 2 August, 2002

Place Adelaide

Decision The Tribunal:

1. sets aside the decision of the respondent dated 29 August, 2000; and

2. substitutes a decision that:

(1) documents M4, M10 and M11 are not exempt pursuant to s. 37(1)(c) of the Freedom of Information Act 1982; and

(2) access to those documents be deferred until 3 September, 2002.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 2 November, 2000, the applicant, Mr Robert Dykstra, applied for review of a decision of the respondent, Centrelink, dated 29 August, 2000. That decision granted Mr Dykstra access to 15 documents on his Disability Support Pension file and eight documents (M1-M3 and M5-M9) in the medical envelope. Copies of those documents were sent to him. The decision also refused access to three documents marked M4, M10 and M11 in the medical envelope and did so according to s. 37(1)(c) of the Freedom of Information Act 1982 ("FOI Act"). In so far as it refused Mr Dykstra access to those three documents, it was affirmed by a subsequent decision of a delegate of the principal officer of Centrelink.

2. Although notice of the hearing was sent to Mr Dykstra, he did not attend. Centrelink was represented by its advocate, Mr Underwood. Regard was had to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("FOI Act") and to the documents for which Centrelink has claimed exemption. No oral evidence was given in support of either Mr Dykstra or Centrelink's case.

THE ISSUE

3. The issue in this case is whether disclosure of M4, M10 and M11, or any one or more of them, would, or could reasonably be expected to, endanger the life of physical safety of any person.

BACKGROUND

4. I find that Mr Dykstra, who was born on 2 September, 1958, receives a disability support pension ("DSP") under the Social Security Act 1991. Payments under that legislation are administered by Centrelink. In June, 2000, Mr Dykstra's DSP was cancelled but his eligibility for a DSP was reviewed by Centrelink. As a consequence, Centrelink referred him to Health Services Australia ("HSA") for a psychological assessment and, on 28 June, 2000, he attended an appointment with a psychologist, Mr Sladden. Mr Sladden wrote a report following his appointment with Mr Dykstra. On 24 July, a note of a conversation was prepared by an officer of

Centrelink. Subsequently, on 27 July, 2000, he wrote a further one page letter to Centrelink.

5. On 6 July, 2000, Mr Dykstra requested Centrelink for access to all documents that were comprised in his DSP file (T documents, pages 66-68). He was granted access to all documents but the report of Mr Sladden (M4), the note of the conversation prepared by an officer of Centrelink on 24 July, 2000 (M10) and a one page letter by Mr Sladden to Centrelink (M11).

LEGISLATIVE FRAMEWORK

6. Section 11(1) of the FOI Act provides that:

"Subject 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."

7. It is clear from the terms in which the right is couched that it is a qualified right. The first qualification is that it is a right to have access to certain documents but the word "document" is defined in very broad terms in s. 4(1). The words "Subject to this Act" appear in s. 11 for a person's right is qualified by other provisions of the FOI Act. Those sections include ss. 12 and 13 (excluding access to certain categories of documents), 24 (permitting certain workload factors to be taken into account in refusing a request) and 24A (permitting a request to be refused if a requested document cannot be found or does not exist). None is relevant in this case. Apart from these qualifications, s. 11 is explicit in its terms that, in so far as a document of an agency is concerned, the right of access is not to every document in its possession. It is only to a document in its possession that is not an "exempt document". In so far as an agency is concerned, an "exempt document" is a document that is exempt by virtue of a provision of Part IV of the FOI Act (s. 4(1)).

8. Only one section in Part IV is relevant in this case and that is s. 37(1)(c). It provides:

"A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a) ...

(b) ...

(c) endanger the life or physical safety of any person."

9. The opening words of s. 37(1)(c), "would, or could reasonably be expected to", have been considered in cases such as Attorney-General's Department v Cockcroft (1986) 64 ALR 97 (Bowen CJ, Sheppard and Beaumont JJ). Bowen CJ and Beaumont J said in considering the same expression used in sub-paragraph 43(1)(c)(ii):

"In our opinion, in the present context, the words 'could reasonably be expected to prejudice the future supply of information' were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Gibbs CJ and Mason J." (page 106)

10. In that case, Sheppard J said of the same issue:

"What is required is that the decision-maker act reasonably. For the document to be exempt his conduct must be taken to be that of the reasonable man. But then comes the difficulty. So acting, the decision-maker must expect that disclosure of the document could prejudice the future supply of information. In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied on a balance of probablities that the production of the document will in fact prejudice the future supply of information." (page 112)

11. Cockcroft's case was considered in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 (Davies, Wilcox and Einfeld JJ) when the Full Court explained the approach adopted by the majority in Cockcroft:

"Their Honours did not suggest ... that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the specified consequence would occur. Their Honours specifically rejected that approach, saying that the words 'could reasonably be expected' meant what they said. The practical application of their Honours' view will not necessarily lead to a result different from that proposed by Sheppard J." (page 176)

12. In an earlier decision of Re Toren and Secretary, Department of Immigration and Ethnic Affairs (unreported, 8 March, 1995, Decision No. 10058), I set out a passage from the Freedom of Information Handbook prepared by the Attorney-General's Department regarding s. 37(1)(c):

"29. In considering any of the elements of s. 37, the decision maker must look at the likelihood of the particular harm or prejudice which could occur if the document was to be released. Exemption under s. 37 can be only claimed where there is a real expectation of harm or prejudice. There must be realistic grounds for the expectation based on available evidence. Section 37 exemptions are not subject to the 'public interest' test....Decision makers should adopt a conservative approach in deciding whether to release documents which could prejudice the physical safety or a person and should not hesitate to apply this exemption if there is real evidence of potential danger (see paragraph 6.4.2)."

13. The Freedom of Information Handbook provides usual guidance but I must start with the words of s. 37(1)(c) as interpreted by the Federal Court. When I do that, the question I must ask myself is whether disclosure of the three documents, or any one of them, would or could reasonably be expected to endanger the life or physical safety of any person. The focus of the question must be upon the consequence of disclosure of the documents and not upon consequences apart from that disclosure.

14. In considering the question, I must also bear in mind that, in the context of this case, Centrelink has "... the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant" (s. 61(1)). In meeting its onus, Centrelink has chosen to rely on the written material in the T documents and in the documents for which exemption is claimed. Although I found in my earlier decision in this case that s. 207 of the Social Security (Administration) Act 1999 does not preclude employees of Health Services Australia from being required to give evidence in these proceedings, none has been called to give evidence. Similarly, no officers of Centrelink have been called.

15. The case causes a conundrum. Mr Underwood has couched Centrelink's case in terms of there being a reasonable expectation that the life or physical safety of Mr Sladden, Mr Gates, a psychologist who may explain to Mr Dykstra the contents of Mr Sladden's report, a staff member of Health Services Australia or an officer of Centrelink will be endangered if the documents are disclosed to Mr Dykstra under the Act. Mr Underwood stated that Centrelink wanted to maintain the safety of Mr Sladden and Mr Gates rather than endangering them by calling them to give evidence. I do not for a moment doubt that Mr Underwood has concerns about the future actions of Mr Dykstra should he be given access to the documents or that officers of Centrelink and HSA may share those concerns. Without wishing to belittle their concerns in any way, s. 37(1)(c) requires me to have regard not to what people fear but what would or could reasonably be expected to result from the disclosure of the documents under the Act. That brings me to the other element of the conundrum. I am faced with limited evidence on which to form a view of the danger or otherwise to their safety. Mr Underwood urged me to take a conservative approach but a conservative approach has to have regard to the clear statement by Parliament in s. 61 that Centrelink carries the onus of proof.

16. What is the evidence in this case? Having considered a number of preliminary matters in this matter and having seen and heard Mr Dykstra in those matters, I find that he is, as Mr Underwood submitted, a large man. He is a very imposing man. Although he usually begins his exchanges civilly, he then moves to using a lot of language that could be described as inappropriate for the setting. As proceedings continue, he moves to offensive language. He addresses individuals in an offensive manner and uses insulting and abusive language in his criticisms of others. His criticisms are not confined to matters relating to his dealings with individuals but extend to derogatory criticisms relating to what he perceives to be their background and heritage.

17. Mr Dykstra's letters to the Tribunal reflect the same language and the same thought patterns. Mr Underwood referred me to several passages on pages 8, 9, 11, 12, 14, 17, 20, 22 and 23 of the T documents. All of those pages form part of a 24 page letter that accompanied Mr Dykstra's application and another four page document. Taken in their context, the first two passages written in or about November, 2000 seem to be challenging Mr Sladden and Mr Gates to attend the Tribunal and to put their views on the table. That on page 12 is derogatory of the characters of those connected with mental health services in Western Australia and expresses Mr Dykstra's views of their heritage and his perception of their motives in confining him in a hospital. The meaning of the final paragraph on page 14 is unclear but seems to suggest that Mr Dykstra has contemplated instituting proceedings alleging medical negligence against some unspecified persons. A passage at page 17 refers to Mr Dykstra's having recorded his conversation with Mr Sladden (a statement repeated at paragraph 2) and then asks Mr Sladden whether he has a problem with that. He then expresses an uncomplimentary view about Mr Sladden.

18. At page 20 of his letter, Mr Dykstra writes, in part:

"I did not know Gates and had only one letter from him. I wanted to see what his face looked like (remember Gates I said to him I only want to give this letter for information to you and see what your face looked like

We had a brief discussion about Centrelink and how they could sem me to HSA when they did not have a contract with me. He slithered out in front of me and re opened the security door

If such an open threat was made to Gates with all the other notes and acquisitions published across Australia by Centrelink and given Gates contact with Sladden how could Gates make not make some kind of mental health complaint to the police Why Gates

I bet that cross you minds in their HSA you filthy ...

If a police complaint were to be made it would have finalised the mental health matter conclusively

No in fact this is a thought disorder of Gates mind

The only way this could have come to being is in a orgastrational way to shaw up this abuse myperson and was and was orgastrated priour to the finalization of the Centrelink letter to [illegible]. (T documents, pages 20-21)

19. At the end of page 21, Mr Dykstra continued:

"These three persons Zadow Gates and Sladden orgastrated the contents of this decision letter with the pretance I would not go to the tribunal with this matter as they are full on with the Tribunal and no mention of the Ombudsmans Office

Bad luck

'Bad luck' Zadow makes for good reading two

White boy don't ever deliberately stand in front of me

this is only a thret by them and I would put to the Tribunal the following 'which standes'

If I were some ware doing my thing

and haveing the bastedising happening to me which I have made notes of in this letter

and Sladden or Gates walk up to me and delberatly stood in front of me I would have to feel thretened or intimadated

Now now what part these have played in my life and the notion I can not get legal assistance to put to rest this matter and the other above I would then have the entire criminal code and hospital procedure codes at my disposal It is they who aproched me they so I got to protect myself 'I singled out Sladden' so in this position I have a number of choices But I have unfinish business with Sladden and Centrelink

So I could walk away and be in the exact same position I was in before Sladden stood in front of me

I would hit Sladden any number of times

If I were to hit Sladden on one or more occasions I would then bring into operations the criminal code A court case would be conveened or incarsaration in a mental health hospital would then take effect in the court Sladden would need to give evidence in the case a mental health jail was effected Sladden would be locked into a court case

How coule they deliberately standing in front of me be a thret from me to them Is this then only a consion no its not it deliberately write by me to tempt them and now I believe it has worked more than one way to skin a cat Sladden

But you first have to kill the cat

Its best to give a dog enough rope the way I see it

So as my first comment in this letter states I will be bring a claim of perverting the corse of justice and other legal proceddings against HSA abd Centrelink and Staff

The Tribunal has to keep in mind I have nothing to hide nothing

If I were hiding anything would I write these letters

I have never had an investigation into any of my complaint and only a couple exist in this letter

..." (T documents, pages 21-24)

20. Other passages in Mr Dykstra's letter are critical of the Tribunal because, among other reasons, he considers that it "represents the racist communist religouse cult of Englands networks of occupation" (T documents, page 6) but he goes on to explain that "... in equalness you all have to understand the presents of the British crown and all the lies that make up its authority is just as distaistfull to ..." him (T documents, page 7).

21. Mr Dykstra's letter also reveals what use he thinks has been made of the documents to which he has been refused access and why he wants them:

"... have been used by Centrelink to defame me repress me and affect by actions by Centrelink out standing court cases which are at a sine di state in Western Australia ...

It will be claimed in a court of Western Australia and most possible South Australia that Health Services Australia are instigating action to prevent the course of justice or court action aginst counter parts in Western Australia and New South Wales

Health Services Australia are a later part in this matter and do not make up the beginning of this action

Centrelink or Social Security as it was in the first instance has coruply decieved me out of a sum of money $17,000 odd by action's of the Department of Social Security 1992 which is not finalised as yet involving three other parties one Gregory Motten lawyer working for the Law Society of Western Australia Keven Prunty of Pruse/Motten lawyers and solicitors Western Australia which Greg Motten was a principal partner

Stevan Blythe in conjunction a barrister named Doors or similar and Social Security

A workers compensation claim which began in 1988 to which the department of social security placed me on a sickness benifet allowance

Whilst on this workers compensation work related injury I was in need of prescription medication

This medication was an hallucinagen medication and along with other factors

I have a psychosis Medical evidance is available to prove this fact

Due to the actions of the mental health authorities and others of Western Australia an ilegal incarsuation into a mental health hospital accurred to which I want to take legal action with because of this pending action both the mental health workers and the political officers of Attorny General State Premier officeDirector of Public Prosecutions and Governor of the filthy Brits of Western Australia sore fit to again incarsurate me to a mental health hospital ..." (T documents, pages 10-12)

22. Mr Dykstra's reasons for wanting access to the documents are not relevant in determining whether or not he is entitled to access to them under the FOI Act. His language and behaviour, which at best can be described as intemperate and inappropriate, are not reasons in themselves for denying him that to which he is entitled under the FOI Act. Such language and behaviour are relevant in relation to the manner in which the Tribunal conducts its proceedings. Generally, they are not tolerated but, in this case, I have taken the view that they are not adopted "for show" as it were but are a consequence of his mental health.

23. His language and behaviour are relevant in assessing any danger that may be caused to others by his being granted access to documents under the FOI Act. I have omitted from these passages one description that could be described as offensive. I have not reproduced others that contain such language. For all that, the passages do show Mr Dykstra's pre-occupation with what he considers to be a proper claim against Western Australian authorities and what he considers to be the role that Health Services Australia and Centrelink have played in assisting those authorities in some manner. He exhibits a pre-occupation with Mr Sladden and Mr Gates. Mr Dykstra exhibits a very high level of frustration not only with them but with all authority figures. He warns them not to stand in front of him deliberately for, if they did, he would have to feel threatened or intimidated. In a later part of the letter, he questions how their standing in front of him could be seen as his threatening them. Mr Dykstra contemplates what would happen were he to hit Mr Sladden. He states that he could do that any number of times. For all that, it does not seem to me to be a threat to actually hit Mr Sladden. He is considering on paper the consequences of such an action and how those consequences would achieve his wider purposes.

24. Despite the high level of frustration that Mr Dykstra has shown both in his correspondence with the Tribunal and in his oral communications whether at directions hearings or otherwise, he has never attempted to cause any person any physical harm. He has never made a move towards Mr Underwood or towards any member or staff member of the Tribunal. On one occasion, he punched a pillar in the Tribunal and damaged it but at no time has he attempted to harm a person while on Tribunal premises.

25. Mr Underwood pointed to the fact that Mr Dykstra has been convicted of assault in the past. A report from the Western Australian Police Service shows that Mr Dykstra has appeared in court on some 18 occasions between 1970 and 1993 and has a number of convictions. In so far as offences against the person are concerned, he was convicted of assault occasioning bodily harm on 8 March, 1977, assault of a public officer on 19 October, 1982 and 19 February, 1993 and common assault on 11 October, 1993. Other offences for which he was convicted included alcohol related driving offences, speeding, disorderly conduct, refusals to give name and address, possession of cannabis and resisting arrest. The report does not give any background to the offences. So, for example, there is no evidence of the other people involved, the circumstances in which they occurred and whether Mr Dykstra was receiving any form of treatment at the time that he committed them. There is no evidence of his having been convicted of any offences in the past eight or nine years.

26. Mr Underwood asked me to have regard to the material in the documents for which exemption has been claimed. I have done that but I must observe that they are now two years old and are based on events at that time. In so far as Mr Sladden is exercising his professional judgement, I have not had the advantage of hearing what his opinion would be in light of Mr Dykstra's behaviour since those events. In particular, I have not had the advantage of hearing what he would think of Mr Dykstra's not making any threatening move at all in the past two years despite his frustration at not having access to the documents and his firmly held beliefs that certain people have done the wrong thing by him.

27. In the absence of evidence, what Mr Dykstra's future actions may be if given access to the three documents remains in the realm of speculation. Mr Underwood submitted that access to the documents could trigger a response in Mr Dykstra that would lead to his endangering the life or physical safety of another person. There is indirect evidence but, as I said, it is not up to date and does not take into account Mr Dykstra's behaviour over the past two years.

28. Decisions of this nature are not easy. Mr Underwood submitted that the test is whether the risk of danger to others is so high if there were to be disclosure of the three documents that it outweighs Mr Dykstra's legal right to access under the FOI Act. As I have said, I think that the test is a little different from that and Centrelink has the burden of establishing that the test for their exemption is met. Having regard to Mr Dykstra's penchant for abusive language, the context in which it is used, the concerns of officers of Centrelink and of HSA and particularly his lack of any physical action to carry out any threat that may appear in his written correspondence (and it is difficult to know whether there is any such threat) or oral statements and his not having done so despite his being frustrated by being refused access and his being deeply unhappy with those he perceives as being in positions of authority, I have concluded that the disclosure of documents would not, or could not reasonably be expected to, endanger the life or physical safety of any person. Furthermore, there is nothing to indicate that Mr Dykstra could harm himself were he to be given access to the documents. He is aware of at least one diagnosis made in Western Australia regarding his mental health and has made reference to it in the letter accompanying his application for review. Although he is clearly unhappy with mental health authorities in Western Australia and their treatment of him, his understanding of that treatment, whether right or wrong in objective terms, has not led him to harm himself.

29. It follows that I do not consider that documents M4, M10 and M11 are exempt under s. 37(1)(c) of the FOI Act. Centrelink has the right to lodge an appeal to the Federal Court under s. 44(2) of the Administrative Appeals Tribunal Act 1975 within 28 days of its being furnished with a copy of this decision or within any further time allowed by that Court. Deferral of access until Centrelink has considered its position and pursued its right to appeal if it wishes ensures that its rights are not, for all practical purposes, rendered nugatory by the release of the documents. Deferral of access for that period is, therefore, in the public interest and I will defer the provision of access to the documents to Mr Dykstra until 3 September, 2002. For the reasons I have given, I:

1. set aside the decision of the respondent dated 29 August, 2000; and

2. substitute a decision that:

(1) documents M4, M10 and M11 are not exempt pursuant to s. 37(1)(c) of the Freedom of Information Act 1982; and

(2) access to those documents be deferred until 3 September, 2002.

I certify that the twenty-nine preceding paragraphs are a true copy of the reasons for the decision herein of

Miss S A Forgie (Deputy President),

Signed: .........................................

Paul Paczkowski Associate

Dates of Hearing 26 July, 2002

Date of Decision 2 August, 2002

Applicant no appearance

Advocate for the Respondent Mr Underwood, Centrelink