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Administrative Appeals Tribunal of Australia |
Last Updated: 9 June 2022
Lim and Secretary, Department of Home Affairs (Freedom of information) [2022] AATA 1526 (1 June 2022)
Division: FREEDOM OF INFORMATION DIVISION
File Number(s): 2021/5490
Re: Thai Lim
APPLICANT
And Secretary, Department of Home Affairs
RESPONDENT
DECISION
Tribunal: Chris Puplick AM,
Senior Member
Date: 1 June 2022
Place: Sydney
The decision under review is affirmed.
..................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – OAIC declined to undertake review – FOI request pertains to material protected by Migration Act – no intention under FOI Act to undermine other privacy protections of other statutes – whether there is an unreasonable disclosure of personal information – no public interest for disclosure – public interest against disclosure – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Freedom of Information Act 1982 (Cth) ss 3(1), 4, 11, 11A, 11B, 47F, 54W
Migration Act 1958 (Cth) s 488
Privacy Act 1988 (Cth) s 6
SECONDARY MATERIALS
Australian Law Reform Commission, For Your Information (Report No 108(1), May 2008)
Office of the Australian Information Commissioner, FOI Guidelines: Part 6 – Conditional exemptions: <www.oaic.gov.au/freedom-of-information/foi-guidelines/part-6-conditional-exemptions>
Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and aspects of the Archives Bill 1978 (1979)
REASONS FOR DECISION
Chris Puplick AM, Senior
Member
1 June 2022
PRINCIPLES
1. The Australian Government, along with the governments of each of Australia’s States and Territories, hold a vast amount of information about every person who lives in this country, or who visits it. Indeed, most Australians would be amazed at the extent of that information held about them in various government data bases.
2. Most of the information gathered is gathered pursuant to statute and most statutes contain provisions related to the way in which the data gathered is to be stored, used, accessed and protected. In addition there are provisions in the Privacy Act 1988 (Cth) (the Privacy Act) which attempt to give an overall framework for the protection of personal privacy held by government departments and agencies.
3. In 2008 the Australian Law Reform Commission produced its three-volume report For Your Information which noted:
“As a recognised human right, privacy protection generally should take precedence over a range of other countervailing interests, such as cost and convenience. It is often the case, however, that privacy rights will clash with a range of other individual rights and collective interests...”[1]
4. In order to allow individuals to access information held in government data bases the Freedom of Information Act 1982 (Cth) (the FOI Act) was passed following a detailed report by a Senate Committee and lengthy parliamentary debate.
5. The first objective stated in the objectives clause (subsection 3(1)) of that legislation is:
to give the Australian community access to information held by the Government of the Commonwealth
6. This is not however an open-ended invitation for individuals to access all or any of the information held by the government and, as a result, the FOI Act provides that certain categories of information are “exempt”. This exemption may be almost absolute (for example certain types of national security information) or it may be “conditionally exempt” which means that it may still be released if there are compelling reasons to do so (such as release being in the public interest).
7. It is also important to note that section 11 of the FOI Act makes it clear that the decision-maker, in determining whether or not to grant access to a particular document must not have any regard for the reason given by an applicant for seeking that information:
11 Right of access(1) 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.
(2) 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.
THIS APPLICATION
8. On 4 September 2020 Mr Thai Lim (the Applicant) sought access to certain records related to a third party known to him. Those records related to this third party’s movement in and out of Australia.
9. On 30 September 2020, the Secretary, Department of Home Affairs (the Respondent) refused the Freedom of Information (FOI) request on the basis that the documents sought were exempt documents under section 47F of the FOI Act.
10. The Applicant sought a review of that decision on 29 October 2020 and in doing so modified his request to a narrower focus, namely the dates of the third party’s last port of entry or exit into Australia and the date of departure if the date of departure was after 31 December 2019.
11. On 9 December 2020, the Respondent affirmed its decision to refuse access to the information under section 47F of the FOI Act.
12. The Applicant then exercised his right to have that decision reviewed by the Office of the Information Commissioner, however, on 28 July 2021 the Commissioner exercised her discretion (pursuant to subsection 54W(b) of the FOI Act) not to undertake a further review of the application but to refer it directly to this Tribunal for review.
13. On 9 August 2021 the Applicant proceeded to request a review of the refusal decision in this Tribunal, and by consent of the parties, the matter was determined by the Tribunal on the papers.[2]
STATUTORY PROVISIONS
14. The information sought by the Applicant relates to the movement in and out of Australia by a third party and that third party has not consented to the release of that information.
15. Such movement records are subject to the provisions of a variety of sections of the Migration Act 1958 (Cth) (the Migration Act). Section 488 of that Act provides:
488 Tampering with movements records(1) A person must not:
(a) read; or
(b) examine; or
(c) reproduce by any means; or
(d) use; or
(e) disclose by any means;
any part of the movement records, otherwise than in accordance with an authority given under subsection (2).
Penalty: Imprisonment for 2 years.
16. Subsection (2) as referred to above allows movement records to be disclosed in a limited number of specified circumstances. Relevantly, because this FOI request is directed to the Secretary of the Department, who is an officer authorised by the Minister to do certain things, paragraph 488(2)(a) of the Migration Act provides:
(2) The Minister may:(a) authorise an officer to perform for the purposes of one or more of the following:
(i) this Act;(ii) the Family Law Act 1975;
(iii) a law relating to customs or excise;
(iv) a law relating to biosecurity risks (within the meaning of the Biosecurity Act 2015), quarantine or health;
(v) law enforcement;
(vi) the Education Services for Overseas Students Act 2000;
(vii) prescribed Commonwealth, State or Territory legislation;
one or more of the actions prohibited by subsection (1); or
17. It is noted that the Minister may proscribe another piece of Commonwealth legislation to have effect to facilitate the release of otherwise restricted information (sub-paragraph 488(2)(a)(vii)) but, to date, the Minister has not proscribed the FOI Act as such a piece of legislation.
18. There is no prohibition under the Migration Act for the supply of movement information to the person to whom that information relates. They (or their authorised agent) may request that personal movement record (pursuant to paragraph 488(2)(aa)). However, this provision does not extend to the provision of information about any third party.
19. It is not the intention or purpose of the FOI Act to undermine privacy protections which are embedded in other Commonwealth statutes.
20. In any event, even if the strictures of the Migration Act were not so comprehensive, the Applicant would have difficulty in overcoming the limitations imposed under the FOI Act itself.
21. Clearly the information sought about the third party is “personal information” about that individual. Section 4 of the FOI Act adopts as the definition of “personal information” the wording of section 6 of the Privacy Act, viz:
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
22. That definition then guides the operation of section 47F of the FOI Act which relevantly provides:
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
23. The term “unreasonable” is not defined in the Act and must be given its ordinary meaning, in this case, lacking a good reason. Applying that to the matters identified in subsection 47F(2), the Tribunal finds that the information in question is:
24. In relation to the provisions of paragraph 47F(2)(d) the decision-maker has also taken into account the need to protect the integrity of the records held by the Department in relation to movement records.
25. All of these considerations would mitigate against the release of this third-party information.
26. There is however a further matter to consider as subsection 11A(5) of the FOI Act provides:
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
27. The public interest test is a vital element in the FOI Act scheme as it recognises that, in certain circumstances, information ought to be provided which might otherwise be exempt, because a broader public interest is served by its disclosure.
28. The Senate Committee report which preceded the legislation made it clear that:
“(w)e are in favour of using the concept (public interest) because we believe that by doing so the Bill can require both the agency and the Tribunal to consider many factors favouring disclosure that might be otherwise ignored.”[3]
29. The question then arises as to whether there is a public interest in the Applicant having access to this information, or more accurately, whether its release would be contrary to the public interest.
30. Subsection 11B(3) of the FOI Act provides guidance as to what factors might favour granting access on public interest grounds:
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
31. Starting with the objectives of the Act:
3 Objects—general(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
3A Objects—information or documents otherwise accessible
Scope
(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.
Publication and access powers not limited
(2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:
(a) in the case of the power to publish the information or document—despite any restriction on the publication of the information or document under this Act; and
(b) in the case of the power to give access to the information or document—whether or not access to the information or document has been requested under section 15.
32. In addition, the Australian Information Commissioner has issued Guidelines which give assistance in determining what might constitute the “public interest”. These state, (citations omitted):
The public interest test6.4 There is a single public interest test to apply to each of the conditional exemptions. This public interest test is defined to include certain factors that must be taken into account where relevant, and some factors which must not be taken into account.
6.5 The public interest test is considered to be:
6.6 It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of particular interest or benefit to an individual or small group of people may also be a matter of general public interest.[4]
33. It may be argued that granting this request would promote the objectives of making access to information available, but this has to be weighed against other competing interests, in particular the third party’s right to privacy and the security of movement records.
34. There is no matter of public debate involved in this application; there is no reference to oversight of public expenditure and the information sought is not the personal information of the Applicant.
35. The information has no relevance or utility beyond that relating to matters between the Applicant and the third party.
36. On the other hand, there is an overwhelming public interest in not disturbing the elaborate protections provided under the Migration Act which safeguard the personal details of people travelling in and out of Australia.
37. The Tribunal itself has deliberately eschewed mention of the purpose for which the Applicant is seeking this information because, unless a public interest can be established for its release, the matter should be determined according to the principles underlying both the FOI Act and the Privacy Act and in accordance with the statutory provisions of the Migration Act which is not overridden by either of the former. In any event consideration of such a matter would be contrary to the principle clearly set out in paragraph 11(2)(a) of the FOI Act which provides that the reasons for seeking access are not to be considered when assessing an applicant’s right of access.
38. To the extent that the Applicant argues that the information may have some relevance in the settlement of civil proceedings in a court, while that in itself might suggest a public interest in support of the proper administration of justice, such an argument cannot be elevated to a matter of public interest beyond the realm of the two parties involved.
SUMMARY
39. The Applicant is well within his rights to make the application which he has, and the Tribunal acknowledges that access to this information does not appear to be otherwise available and the Applicant has a serious and legitimate personal interest in obtaining it.
40. However, the information sought is clearly personal information as defined by the FOI Act and is thus conditionally exempt because to disclose it would involve the unreasonable disclosure of a third party’s personal information without their consent.
41. No public interest has been established which would mitigate in favour of the release of the personal information of the third party.
42. A strong public interest exists in ensuring the security of the information held in the movement records and in supporting the limited access to those provided under the Migration Act. It would be clearly contrary to the public interest for this scheme to be subverted or undermined.
DECISION
43. The decision under review is affirmed.
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I certify that the preceding 43 (forty -three) paragraphs are a true
copy of the reasons for the decision herein of Chris Puplick
AM, Senior
Member
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....................................[sgd]....................................
Associate
Dated: 1 June 2022
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Date(s) of hearing:
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4 May 2022
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[1] Australian Law Reform Commission, For Your Information (Report No 108(1), May 2008) at 104.
[2] Administrative Appeals Tribunal Act 1975 (Cth) s 34J(1).
[3] Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and aspects of the Archives Bill 1978 (1979) at [5.23].
[4] Office of the Australian Information Commissioner, FOI Guidelines: Part 6 – Conditional exemptions: <www.oaic.gov.au/freedom-of-information/foi-guidelines/part-6-conditional-exemptions>.
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