Our reference: FOI 2015/17
17 December 2015
Mr Paul Miller
By email:
xxxx.xxxxxx@xxx.xxx.xx
CC:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Miller
FOI REQUEST – INTERNAL REVIEW DECISION – ACCESS REFUSED
I refer to your request for an internal review of a decision to refuse access to
documents under the
Freedom of Information Act 1982 (the FOI Act), which we
received on 17 November 2015.
You requested access to transcripts of hearings in an AAT matter. I have found four
documents in our possession that appear to fall within the scope of your request, being
transcripts of the proceedings in AAT cases 2012/1055 and 2013/5012, dated 8, 9, 10
and 18 December 2014.
As an officer authorised under the FOI Act to make decisions on access, including on
an internal review, I have considered your request, having regard to the FOI
Guidelines issued by the Australian Information Commissioner (in particular,
paragraphs 5.1 to 5.7 and 5.168 to 5.174 of those guidelines – see:
http://www.oaic.gov.au/freedom-of-information/foi-guidelines/).
Decision
I have decided to refuse access to the transcripts because I am satisfied they are
exempt documents at the present time: s.11A(4) of the FOI Act.
Section 46 of the FOI Act says a document is exempt if disclosing it would be contrary
to a direction or order made by a tribunal with the power to take evidence on oath. The
AAT is such a tribunal: s.40 of the
Administrative Appeals Tribunal Act 1975.
The AAT has made an order under s.35(3) of the AAT Act, which it was satisfied was
desirable because of the confidential nature of the matter (‘confidentiality order’). The
confidentiality order directs that evidence given in this matter can only be disclosed to
certain persons, except to the extent the information is contained in the AAT’s written
Reasons for Decision (item 3 of the order). I attach a copy of the order.
As you are not listed as a person to whom the evidence can be disclosed, the AAT has
not yet given a decision, and the contents of the transcripts appear to be in the nature
of evidence given before the AAT in this matter, disclosing them to you would be
contrary to the AAT’s confidentiality order. Accordingly they are exempt documents
under s.46 of the FOI Act.
Level 11, 83 Clarence Street
T: 02 9276 5000 or 1800 228 333
National Relay Service
SYDNEY NSW 2000
F: 02 9276 5599
www.relayservice.gov.au
GPO Box 1333 Sydney NSW 2001
E: xxx@xxx.xxx.xx
ABN 90 680 970 626
www.aat.gov.au
The Information Commissioner’s Guidelines suggest that even where a document is
exempt, an agency should consider allowing access to it where possible (paragraph
5.7 of the Guidelines). However, I have decided not to give you access to the
transcripts, because doing so would breach the confidentiality order, and s.62C of the
AAT Act makes it an offence to breach a confidentiality order – punishable by
imprisonment, a financial penalty, or both.
In your request for internal review, you suggest that the information contained in the
transcripts was formerly available to members of the public or others. Although that
may be so, that evidence is now the subject of a confidentiality order. The order does
not prevent the parties to the proceeding accessing the documents, so you may be
able to get the information you seek from the parties. Once the AAT makes its decision
on the case, information about the evidence may also be available in that decision.
Questions about this decision
If you have any questions, please email me at
xxxxx.xxxxxxxx@xxx.xxx.xx or contact
me on the number listed below, or telephone our national enquiry line on 1800 228
333.
Review rights and complaints
If you are dissatisfied with my decision, you may apply to the Information
Commissioner for review. An application for review by the Information Commissioner
must be made in writing within 60 days of the date of this letter, and be lodged in one
of the following ways:
online:
https://forms.business.gov.au/aba/oaic/foi-review-/
email:
xxxxxxxxx@xxxx.xxx.xx
post:
GPO Box 2999, Canberra ACT 2601
in person: Level 3, 175 Pitt Street, Sydney NSW
More information about Information Commissioner review is available on the Office of
the Australian Information Commissioner website. Go t
o www.oaic.gov.au/freedom-of-
information/foi-reviews.
If you have a complaint about the way we have processed your request for access
under the FOI Act you can ask the Commonwealth Ombudsman to investigate. You
can find more information on their websit
e www.ombudsman.gov.au or contact them
by telephone on 1300 362 072 or by email
at xxxxxxxxx@xxxxxxxxx.xxx.xx.
Yours sincerely
Jason Cabarrús
Authorised FOI Officer (EL2)
Telephone: 02 9276 5237
Attachment:
s.35(3) confidentiality order of 4 November 2015 in case no. 2012/1055, 2013/5012.
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