Sarchese and Secretary, Department of Agriculture, Fisheries and Forestry [2011] AATA 849 (30 November 2011)

Last Updated: 1 December 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 849

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/0110

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Amelio Sarchese

Applicant

And

Secretary, Department of Agriculture, Fisheries and Forestry

Respondent

DECISION

Tribunal

Senior Member A K Britton

Date 30 November 2011

Place Sydney

Decision

1. The decision to refuse to grant Mr Sarchese access to Documents 2, 3, 5, 6, 7, 9, 10, 11, 12 and 14 on the ground that they are exempt under s 45 of the Freedom of Information Act 1982 (Cth), is affirmed. 2. The decision to grant Mr Sarchese access to a copy of Document 1 after deleting under s 22 of the Freedom of Information Act 1982, those parts of paragraph 7, 8 and 9 on page 1 and paragraph 5 of page 2, described in the “Schedule of documents to which freedom of information exemptions relate” tendered by the Respondent in these proceedings (the Schedule), is affirmed. 3. The decision to grant Mr Sarchese access to a copy of Document 1 after deleting parts of paragraph 6 of page 2 as described in the Schedule, is set aside. In substitution of that decision, Mr Sarchese is granted access to a copy of Document 1 without that material being deleted. 4. The decision to grant Mr Sarchese access to a copy of Document 8 after deleting under s 22 of the Freedom of Information Act 1982, the names of persons as described in the Schedule, is affirmed. 5. The decision to grant Mr Sarchese access to Documents 13 and 15 after deleting from each document under s 22 of the Freedom of Information Act 1982, matter which the Secretary contended rendered each document exempt under s 40 of the Freedom of Information Act 1982 (Cth), as described in the Schedule, is set aside. In substitution of that decision, Mr Sarchese is granted access to a copy of each document without that material being deleted. 6. The decision to grant Mr Sarchese access to Documents 4, 13 and 15 after deleting from each document, material which the Secretary contended rendered each document exempt under s 41 of the Freedom of Information Act 1982 is remitted to the Secretary, under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth), for reconsideration after undertaking the consultative process prescribed by s 27A of the Freedom of Information Act 1982. 7. The decision not to grant Mr Sarchese access to the alleged “appraisal record completed on 17 May 2009 by [Mr Sarchese’s supervisor]” is remitted to the Secretary for further consideration after undertaking further enquiries and searches in relation to the alleged document.

.........................[sgd].....................
Senior Member A K Britton

CATCHWORDS

FREEDOM OF INFORMATION – request for access to investigation of workplace complaint documents –material obtained in confidence –whether disclosure of documents would found action for breach of confidence – personal information – consultative process prescribed bys 27A of FOI Act - requirement to take all reasonable steps to find document - decision under review affirmed in part

Freedom of Information Act 1982 (Cth) – ss 4, 22, 22(1), 24A, 27A, 40(1), 41, 41(1), 45, 61

Freedom of Information Amendment (Reform) Act 2010 (Cth)

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434

Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56

Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [No 2] (1987) 10 NSWLR 86

Chu v Telstra Corporation Limited (2005) 147 FCR 505; [2005] FCA 1730

Bienstein v Attorney-General and Another (2007) 162 FCR 405; [2007] FCA 1174

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45

REASONS FOR DECISION

30 November 2011

Senior Member A K Britton

1. These Reasons concern a request for documents made by Mr Amelio Sarchese under the Freedom of Information Act 1982 (Cth) (the FOI Act) to the Secretary of the Department of Agriculture, Fisheries and Forestry in November 2009. Mr Sarchese, a Commonwealth public servant, described the documents requested in the following terms:

The complete investigation file by Ms Wendy Hampton AQIS HR Manager “harassment and victimisation by Managers because of my union activity malicious and unprofessional comments written in my referee report”
The complete investigation file by Mr Simon Murnane “The process and outcome of the Expression of interest process initiated by the AQIS NSW Airport Restructure Working Group on 10 October 2008 for the filling of temporary vacancies”
My final appraisal record completed on the 17 May 2009 by my Supervisor Mr Franz Odermatt

2. The Secretary has granted Mr Sarchese access to 50 documents and decided not to grant access to the 15 documents set out in the “Schedule of documents to which freedom of information exemptions relate” tendered in these proceedings (the Schedule) on the grounds that they are “exempt” under the FOI Act. The Secretary claims that documents 1 (in part), 2, 3, 5, 6, 7, 9, 10, 11, 12, and 14 in the Schedule are exempt under s 45 (material obtained in confidence), or alternatively s 40(1) (adverse effect on management of personnel by an Agency); and document 8 is exempt under s 41 (unreasonable disclosure of personal information). In addition, the Secretary claims that one document does not exist and therefore access was not granted to Mr Sarchese. The Secretary no longer contends that documents 1 (in part), 4, 13 and 15 are exempt.
3. The issues to be determined are whether, as the Secretary contends, each disputed document is exempt under the FOI Act and, if so, whether it is possible to make a copy of each document with such deletions so it would not be an exempt document. The Secretary bears the burden of proving that the decisions made in relation to the requested documents were justified (s 61 of the FOI Act).
4. As Mr Sarchese’s request for documents was made prior to 1 November 2010, his request must be determined under the FOI Act as it existed prior to the amendment introduced by the Freedom of Information Amendment (Reform) Act 2010 (Cth). All references in these Reasons to “the FOI Act” are to the Act as it existed prior to that amendment.

BACKGROUND TO REQUEST FOR DOCUMENTS

5. To put the submissions made by the parties in context it is useful to sketch in the background to Mr Sarchese’s request.
6. In April 2009 Mr Sarchese complained to the Secretary that he had been harassed and victimised on account of his “union activity” by supervisors, Mr Andrew Christie and Ms Patricia Brown. Specifically, he alleged that they had made “malicious and unprofessional” comments in referee reports provided in relation to him. He contends that he was denied a promotional opportunity as a result of these alleged adverse comments.
7. Manager, Ms Wendy Hampton, was appointed to investigate Mr Sarchese’s complaints. She found them not to be substantiated and concluded:

(a) Mr Christie and Ms Brown did not afford the complainant an opportunity to comment on adverse content in their respective referee reports prior to finalising those reports;
(b) there was no evidentiary basis to the complainant’s allegations that the adverse referee reports were due to union activity, or were malicious, unprofessional or constituted harassment and victimisation;
(c) the complainant had acted vexatiously by escalating his complaints to management without making any attempt to resolve them with his immediate supervisors; and
(d) the allegations of harassment and victimisation were aimed at influencing Ms Brown and Mr Christie to change their referee comments, and were not advanced with the aim of resolving genuine concerns about the complainant’s work performance or addressing his perceptions of unfavourable treatment due to any involvement in union activities.

8. In investigating the complaints, Ms Hampton interviewed a number of people including Mr Sarchese, Mr Christie and Ms Brown. She claims that, as is her usual practice in conducting investigations of this type, she advised each interviewee prior to, and at the commencement of, the interview that any information they provided would remain confidential.
9. The disputed documents consist of summaries prepared by Ms Hampton of interviews conducted in the course of investigating Mr Sarchese’s complaint and documents provided by a number of interviewees.

ARE THE DOCUMENTS EXEMPT UNDER S 45?

10. The Secretary contends that 11 of the disputed documents are exempt in whole or part under s 45 of the FOI Act. Section 45(1) provides:

A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.

11. Of the 11 documents claimed, five consist of summaries of interviews conducted by Ms Hampton in the course of her investigation (Documents 1, 2, 3, 5 and 14). The balance consist of correspondence received by Ms Hampton from interviewees and staff of the Department, setting out their observations of, and/or opinions about, Mr Sarchese and those of their colleagues.
12. The question to be decided in relation to each disputed document is whether disclosure would found an action for “breach of confidence” by the persons interviewed by Ms Hampton. In Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434, Gummow J said (at 443) that an action for breach of confidence requires that the plaintiff:

(i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information: ... It may also be necessary, as Megarry J thought probably was the case (Coco v A N Clark (Engineers) Ltd (1969) RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff. [citations omitted]

Identify with specificity the information in question

13. In all cases the information provided to Ms Hampton about Mr Sarchese can be identified with specificity and not just in “global terms”.

Necessary quality of confidentiality

14. As noted, the information contained in the disputed documents relates to observations of and opinions about Mr Sarchese. There is nothing to indicate that it was common knowledge within the Department that the persons who provided that information had made those observations or held those opinions. Nor could the information be characterised as “trivial title-tattle” to which, as Gaudron J noted in Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 (at 461), no obligation of confidence attaches.
15. I am satisfied that the information contained in each disputed document was not in the public domain and has the necessary quality of confidentiality.

Received in such circumstances as to import an obligation of confidence

16. Ms Hampton’s claim that she advised all interviewees that any information they provided would be received in confidence is disputed by Mr Sarchese. He claims that Ms Hampton made no mention of confidentiality during interview. In support, he points to a list of questions prepared by Ms Hampton, apparently for use during interview that make no mention of confidentiality (Exhibit A1). In cross-examination, Ms Hampton explained that the question list was merely an aide memoire used to ensure that during questioning she covered all relevant issues. On her account, she also used a script which covered procedural matters such as the purpose of the interview, the role of the support person and confidentiality. A copy of that document was tendered in these proceedings. It stated:

2. Outline of the Interview Structure

• Confidentiality

You are required to treat this matter confidentially. Parties to an investigation are not to contact each other to discuss this matter, nor should you discuss this investigation with any non-relevant personnel.

17. Tendered in these proceedings was a copy of a letter sent by Ms Hampton to one of Mr Sarchese’s referees giving notice of the investigation and the forthcoming interview. She claims that she sent a letter in identical form to all interviewees prior to interview. It stated:

The parties involved in the complaint process have an obligation to make sure that the investigation process remains confidential. This means you should not discuss this matter with other employees in the workplace, other than your support person, if applicable.

18. While possible that in her interview with Mr Sarchese, Ms Hampton failed to make what she claims is her standard confidentiality announcement, I think it improbable that she failed to notify Mr Sarchese of the confidentiality requirement. While a copy of the letter claimed to have been sent to Mr Sarchese in advance of the interview was not tendered in these proceedings, he does not deny receiving a letter of that type. Furthermore, an email sent to Mr Sarchese by Ms Hampton after the interview is consistent with her claim that such a letter was sent:

Thank you for the additional information. However, I am a little concerned that despite my written and verbal request for confidentiality on this investigation, you are copying a number of people into your emails. For you information – I reiterate the information in my letter to you, dated 2 June 2009.
The parties involved in the complaint process have an obligation to make sure that the investigation process remains confidential. This means you should not discuss this matter with other employees in the workplace, other than your support person, if applicable.

19. An email to the Department’s FOI officer from an interviewee provides also corroborates Ms Hampton’s claim:

I do not want to release any of the documents you e-mailed to me, including the ... as I provided this information in confidence and was not aware that it would be released to other parties. If I had been aware that this “in confidence” was to be released, I would not have given the information at the interview.

20. Apart from that given by Mr Sarchese, there is no evidence to contradict Ms Hampton’s claim that she made plain to interviewees that the information they provided would remain confidential. The weight of evidence indicates that she did so. I am satisfied that the information contained in the disputed documents was received in such circumstances as to import an obligation of confidence.

Actual or threatened misuse of that information

21. As the information contained in each disputed document is subject to an obligation of confidentiality, granting access to Mr Sarchese under the FOI Act would be a misuse of that information.

Detriment to the interviewee

22. As noted by Gummow J in Corrs Pavey, there is some uncertainty as to whether the actual or threatened misuse of the information must be detrimental to the person who communicated the confidential information. Even if detriment is required to found an action for breach of confidence, it need not take the form of economic damage: see Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [No 2] (1987) 10 NSWLR 86.
23. In an email to the Department’s FOI officer, an interviewee set out the type of detriment she believed she would suffer if the information she had provided to Ms Hampton in confidence was to be disclosed.:

I am concerned that the names of supervisors and other colleagues I mentioned at interview, together with their comments given to me in confidence will be disclosed. I feel that the release of this information will be detrimental to my credibility as a Manager, and will impact on my work environment where I manage staff, give directions and resolve conflict on a regular basis. I feel that staff and managers will not trust me, nor will they trust my decision making. This will have a negative impact on my performance.

24. In my opinion, it is likely that each interviewee would suffer a detriment of the type described above if the disputed information was to be disclosed.

SUMMARY: S 45 EXEMPTION

25. I am satisfied the four (possibly five) elements of an action for breach of confidence are established in respect of each disputed document. Accordingly, each document is exempt under s 45 of the FOI Act.

DOCUMENTS TO WHICH MR SARCHESE WAS REFUSED ACCESS IN FULL

26. It remains to be decided whether the power conferred by s 22 of the FOI Act, to grant access to a document after making deletions to that document, can and should be exercised. Section 22 provides:

(1) Where:
(a) an agency or Minister decides:
(i) not to grant a request for access to a document on the ground that it is an exempt document; or
(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
(2) Where access is granted to a copy of a document in accordance with subsection (1):
(a) the applicant must be informed:
(i) that it is such a copy; and
(ii) of the ground for the deletions; and
(iii) if any matter deleted is exempt matter because of a provision of this Act – that the matter deleted is exempt matter because of that provision; and
(b) section 26 does not apply to the decision that the applicant is not entitled to access to the whole of the document unless the applicant requests the agency or Minister to furnish him or her with a notice in writing in accordance with that section.

27. The Secretary refused to grant access to the entirety of Documents 2, 3, 5, 6, 7, 9, 10, 11, 12 and 14. Having examined each document, I have formed the view that it would not be possible to make a copy of any of these documents with such deletions so that it is not an exempt document.

DOCUMENT TO WHICH MR SARCHESE WAS REFUSED ACCESS IN PART

28. The Secretary granted access to Document 1 after making deletions under s 22. Document 1 contains a summary of an interview with Mr Christie prepared by Ms Hampton. In broad terms, the deleted information relates to adverse comments said to be made by others to Mr Christie about aspects of Mr Sarchese’s conduct in the workplace. The Secretary no longer claims that the information identified in the Schedule — parts of paragraph 6 of page 2 of Document 1 — constitutes exempt matter”. .
29. Sometime after being interview by Ms Hampton, Mr Christie notified the Secretary that he was “happy for the information to be released concerning me”. The Secretary took that comment to mean that Mr Christie had no objection to the release of those parts of Document 1 that contained his observations of, or opinions about, Mr Sarchese but not the observations of, or opinions held by other people that he had disclosed to Ms Hamptom..
30. Mr Christie’s comments indicate that he has released the Secretary from the obligation to maintain confidentiality over the comments made by him during the interview with Ms Hampton, but not those he attributed to third parties.
31. I am satisfied that the deleted material constitutes “exempt matter”, in that it satisfies all elements necessary to found an action for breach of confidence.

IS DOCUMENT 8 EXEMPT UNDER S 41(1) OF THE FOI ACT?

32. Document 8 is an email from an officer of the Department setting out details of the alleged unauthorised absence from work of four members of staff, including Mr Sarchese. The disputed email was released to Mr Sarchese after the names of his three colleagues had been deleted under s 22 of the FOI Act.
33. Section 41(1) provides that a document is exempt if its disclosure under the FOI Act would involve the unreasonable disclosure of personal information about any person. There can be no argument that the disputed email contains “personal information” about persons other than Mr Sarchese, who can readily be identified from the document. The issue to be determined is whether the disclosure of that information would be unreasonable.
34. In determining whether disclosure would be unreasonable, all relevant factors must be taken into account including the nature of the information, any public interest in disclosure and the extent to which it is known — to persons other than the person to whom it relates — and, any possible harm or prejudice that might result from disclosure.
35. The disclosure of the deleted information in my view would be unreasonable because it would constitute an unnecessary intrusion into the privacy of the named employees in circumstances where they have not been given an opportunity to comment on the allegation that they were absent from work without authorisation.
36. For these reasons I affirm the decision to delete from Document 8 the names of Mr Sarchese’s colleagues.

DOCUMENTS WHICH COULD NOT BE FOUND OR DO NOT EXIST

37. Mr Sarchese requested a document described in the following terms:

My final appraisal record completed on the 17 May 2009 by my Supervisor Mr Franz Odermatt

38. The original decision–maker stated that that document did not exist but the issue was not addressed in subsequent decisions.
39. In these proceedings, it was stated that the reason Mr Sarchese was not granted access to this putative document was because it did not exist. In support, the Secretary pointed to an email from the Department’s FOI officer to Mr Sarchese’s supervisor requesting a copy of the “handwritten record ... of Mr Sarchese’s performance during your meeting on 17 May 2009”, and the supervisor’s reply, “I have no other document I can send you”.
40. Section 24A of the FOI Act provides that an agency may refuse a request for access if (a) all reasonable steps have been taken to find the document; and (b) the agency is satisfied that the document is in the agency's possession but does not exist. In Chu v Telstra Corporation Limited [2005] FCA 1730; (2005) 147 FCR 505, Finn J commented on the nature of the obligation imposed by s 24A (at 514):

A person requesting access to a document that has been in that agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question.

41. The Federal Court commented in Bienstein v Attorney-General and Another [2007] FCA 1174; (2007) 162 FCR 405 (at 418), that a refusal decision under s 24A is only possible if all reasonable steps have been taken to find the documents and the recipient of the request is satisfied either that the document cannot be found or that it does not exist.
42. Mr Sarchese asserts that he saw his supervisor make a note in the course of the performance appraisal meeting held on 17 May 2009. He apparently assumed that this was “an appraisal record”. He may be mistaken. The supervisor might not have made a note during the interview, or, alternatively, the note might have nothing to do with Mr Sarchese. Nonetheless, on the basis of the supervisor’s email, I could not be satisfied that all reasonable steps have been taken to locate the putative document . The supervisor’s comment “I have no other document I can send you” is capable of a number of meanings. He may have intended to convey that he made a handwritten appraisal record about Mr Sarchese, but that it has been destroyed or is no longer in his possession. Alternatively, he may have intended to convey that he had not created a document of that type.
43. Without further particulars, I could not be satisfied that all reasonable steps have been taken to find the document and/ or that it does not exist.
44. The Tribunal's power on review of a decision made under s 24A includes a power to require the agency to conduct further searches for the requested document: s 55(5). I have decided to remit this part of the decision to the Secretary to conduct further enquiries and searches in relation to the alleged “appraisal record completed on 17 May 2009 by [his supervisor]”.

DOCUMENTS FOR WHICH EXEMPTION NO LONGER PRESSED

45. The Secretary no longer presses the exemption originally claimed in relation to parts of Documents 4, 13 and 15 but has not made a decision to grant Mr Sarchese access to a copy of those documents without those deletions.

DOCUMENT 4

46. Document 4 is a “feedback log” prepared by one of Mr Sarchese’s supervisors. Mr Sarchese has been provided access to a copy of the log after the deletion of a single comment made by a supervisor. The Secretary originally contended that the comment made Document 4 exempt under s 41 of the FOI Act (unreasonable disclosure of personal information) but no longer presses that exemption.
47. While the Secretary bears the onus of establishing that the decision was justified, the Tribunal must nonetheless be satisfied that the document is not exempt and cannot simply rely on a “concession” made by the Secretary.
48. The deleted information is plainly “personal information”. The only issue is whether its disclosure would involve the unreasonable disclosure of that information.
49. There is little information to assist me to decide whether the release of Document 4 in unedited form would constitute unreasonable disclosure of the deleted personal information. In any event a decision to grant access to a copy of a document that contains “personal information” about a person cannot be made unless the decision-maker has given the subject person a reasonable opportunity of making submissions in support of a contention that the document or edited copy, so far as it contains personal information, is an exempt document under s 41: s 27A of the FOI Act. As this has not occurred it is not open to me to grant Mr Sarchese access to that document in unedited form, notwithstanding the Secretary’s opinion that the document is not exempt.

DOCUMENT 13 AND 15

50. Documents 13 and 15 each contain emails between Ms Hampton and a person she interviewed in the course of her investigation. The Secretary originally claimed that each document was exempt under ss 40 (operations of agencies) and 41. Mr Sarchese has been provided access to a copy of each document after deleting those parts of each document identified in the Schedule.
51. I agree with the Secretary’s view that neither document in unedited form is exempt under s 40 of the FOI Act.
52. My preliminary view is that the disclosure of the “personal information” contained in each document would not constitute “unreasonable disclosure”. However, until such time as the consultative process prescribed by s 27A of the FOI Act has been undertaken, a decision cannot be made to grant Mr Sarchese access to a copy of each document containing the subject personal information.

SCHEME OF THE FOI ACT

53. As Mr Sarchese correctly points out, the FOI Act creates a right of access to information held by the Commonwealth Government. Gleeson CJ and Kirby J commented in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 427:

The declared object of the FOI Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Commonwealth Government by creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests: s 3. We emphasise the repeated use of the word “right”.

54. Mr Sarchese referred in his submissions to the policy rationale underlying the FOI Act which include opening government activity to public scrutiny and enhancing greater transparency and accountability within government. Nonetheless, as Gleeson CJ and Kirby J pointed out in McKinnon, the right to access information contained in the FOI Act is not unqualified and is subject to exemptions. Those exemptions are not, as Mr Sarchese contends, trumped by an overriding “public interest” consideration.
55. Mr Sarchese has provided a great deal of material about the investigation into his complaints and has urged the Tribunal to draw different conclusions to those reached by Ms Hampton, in particular her ultimate conclusion that he was not victimised because of his union activity. The decision the subject of Mr Sarchese’s application to the AAT is the decision to refuse to grant access to various documents under the FOI Act. The merits or otherwise of the Secretary’s decision to adopt Ms Hampton’s findings is outside the scope of the decision the subject of Mr Sarchese’s application and therefore it is not within the Tribunal’s power to review that decision. I appreciate that Mr Sarchese has serious misgivings about Ms Hampton’s findings however I have not addressed that issue as it is not relevant to the issues raised by the decision under review.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed: ...............................[sgd]................................

Associate to Senior Member A K Britton

Date/s of Hearing 25 November 2011

Date of Decision 30 November 2011

Applicant self-represented

Solicitor for the Respondent Mr J Bird, Blake Dawson