Yao and Department of Immigration and Citizenship [2010] AATA 1082 (20 December 2010)

Last Updated: 28 March 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1082

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/3686

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Qing Qang Yao

Applicant

And

Department of Immigration and Citizenship

Respondent

DECISION

Tribunal

Senior Member A K Britton

Date 20 December 2010

Place Sydney

Decision

The decision under review is affirmed.

...........................................
Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – exemption where document contains personal information relating to another person – provision of redacted copy of documents.

Freedom of Information Act 1982 — ss 22, 41

REASONS FOR DECISION

20 December 2010

Senior Member A K Britton

1. Mr Yao applies to the Tribunal for review of a decision made by the Department of Immigration and Citizenship to refuse access, in unredacted form, to a document requested under the Freedom of Information Act 1982 (Cth). In his initiating request Mr Yao sought three things: first, a fax he sent to the Department on 19 August 2009; second, material deleted from a printout of a computer screen displaying information about the Department’s Integrated Client Service Environment (ICSE) database that had been previously provided to him; and third, the return of all original documents used to support his sponsorship application in relation to his mother.
2. After discussion with the Department, Mr Yao’s request was refined to relate only to point 2 — that is, the decision to release the document found at page 43 of the T documents — which I will refer to as the “subject document” — and the matter proceeded to be determined on internal review on that basis. As noted, the decision-maker identified one document that fell within the scope of Mr Yao’s request, namely the subject document. It was provided to Mr Yao with deletions, having been found that the document was exempt under section 41(1) of the Freedom of Information Act.
3. A further issue was raised today which I have discussed with the parties regarding whether or not the true nature of the original request encompassed the adequacy of the search undertaken by the respondent. That is, whether the respondent failed to make appropriate searches in respect of so-called sub-documents relating to the subject document. That issue was not raised by Mr Yao in his original request, and having reviewed the correspondence between the parties it could not be said that it has been raised at any stage in the review process in respect of this matter, though I understand that Mr Yao has raised that particular issue in respect of another matter that is also now before the Tribunal. So I proceed on the basis that the sole issue that I am required to determine is whether the decision to release the subject document with deletions was the correct and preferable decision.
4. Section 41(1) of the FOI Act provides that a document is exempt if its disclosure under the Act would involve the unreasonable disclosure of ‘personal information’ about any person including a deceased person.
5. “Personal information” is defined to mean information or an opinion, including information forming part of a database, whether true or not and whether recorded in material form or not, about an individual whose identity is apparent or can reasonably be ascertained from the information or the opinion. In deciding whether the subject document can be released to Mr Yao without deletions, I must decide the following matters. First, is the subject document exempt under section 41(1) of the Act? This requires me to ask, “Does it contain information of a sort that is “personal information”, that is, information or an opinion, whether true or not and whether recorded in a material form or not, about a person?”. Second, if so, is the identity of the person or persons apparent, or reasonably ascertainable, from the document. If I conclude that the document contains “personal information” it is then necessary to decide whether its disclosure under the Act would involve the unreasonable disclosure of personal information.
6. Subject to section 41(3), section 41(1) does not apply if the “personal information” in the subject document relates only to Mr Yao: section 41(2). Mr Yao believes that the deleted information relates solely to him. In his statement of facts, issues and contentions provided to the Tribunal today, he sets out the basis for that belief. He states he clearly remembers, when he inspected the computer screen at the Department’s Parramatta offices in June of this year, that all names under the column “Client Name” were “Yao Yin Wan” — his name; that all dates under the “Date of Birth” column were 8/3/1971 — his date of birth; all content under the column “Sex” was male and all countries under the column “Birth Country” were China.
7. I have advised him before giving these formal reasons that I have inspected the subject document and found that it contains information about another person. He has put to me this morning that he believes, therefore, that the document must have been tampered with, or, is a more recent version of the document that he inspected. The respondent bears, of course, the onus that any decision it makes it justified. There might be any number of explanations for the apparent discrepancy between what Mr Yao saw or believes he saw, and the document in its current form.
8. On what is before me, I am satisfied, however, that the subject document includes material that relates to a person other than Mr Yao, and that that information constitutes “personal information” for the purpose of the Act. I can identify no public interest, or any other interest, which would enable me to conclude that disclosure of that information would not in all the circumstances, be unreasonable. And for that reason I am satisfied that the document is an exempt document under s 41 of the Act.
9. Having found the subject document to be exempt, it is now necessary to decide whether it is possible to make a copy of it from which “exempt matter“ has been deleted in accordance with s 22 of the Act — that is, to make a redacted copy of the document. Having decided the document is an exempt document, I do not have the power to grant access to the document so far as it contains exempt matter can be released.
10. “Exempt matter” is defined to mean, “Matter the inclusion of which in a document causes the document to be an exempt document”. Providing I am satisfied it is reasonably practicable to make those deletions, the document must be released in redacted form unless it is apparent from Mr Yao’s request that he would not wish to have access to such a copy: s 22(1)(c) of the Act. The subject document is one page in length and there is nothing to indicate, nor is it suggested, that it is not reasonably practicable to make deletions, nor has Mr Yao indicated he does not wish to have access to the subject document in redacted form. Having examined the material, I conclude that the matter deleted constitutes exempt matter as defined by section 4 of the Act. I am also satisfied that the deletions made by the respondent include only exempt matter.
11. I therefore have concluded that the decision made by the respondent Secretary to release the subject document to Mr Yao with the deletions that were made, was the correct decision, and I therefore must affirm the decision under review.
    

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

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

Associate to Senior Member Britton

Date of Hearing: 20 December 2010

Date of Decision: 20 December 2010

Date Written Reasons delivered: 25 February 2011

The Applicant was self-represented

Solicitor for the Respondent: Clayton Utz