Professional Documents
Culture Documents
Respondent:
Decision date:
3 May 2016
Application number:
MR16/00031
Catchwords:
Decision
1.
Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside
the decision of the Department of the Prime Minister and Cabinet (the
Department) of 2 October 2015, to refuse access to documents requested
under the FOI Act. I substitute my decision that the documents are not
exempt.
2.
The Department must now give Senator the Hon. Penny Wong a copy of the
documents edited under s 22 of the FOI Act only to delete material irrelevant
to the request.
Scope of IC review
3.
On 2 April 2015, Senator Wong applied to the Department for access to:
Invoices and receipts dated in the period 9 February to 1 April 2015 related to
the purchase of alcohol for the Prime Minister and/or his guests.
[The] request includes invoices and receipts from wholesale and retail grocery
and liquor stores and excludes duplicate documents.
4.
decision, the Department relied on the personal privacy exemption (s 47F) and
the irrelevant material provision (s 22) of the FOI Act.1
5.
6.
7.
On 26 February 2016, the Department notified the former Prime Minister, the
Hon. Tony Abbott MP of the Information Commissioner (IC) review under s 54P
of the FOI Act.2 On 20 April 2016, and at the request of the Department, the
OAIC wrote to the former Prime Minister inviting his submissions.
8.
The Departments finding that certain material is irrelevant to the request (s 22) is not in
contention in this IC review.
Section 54P provides that where an agency decides not to give access to a document to which a
consultation requirement applies, and an application is made for IC review of that decision, the
agency must notify the affected third party.
Generally, see Office of the Australian Information Commissioner, Guidelines issued by the
Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 at
[6.113]-[6.142]; Alex Cuthbertson and Department of Immigration and Border Protection [2016]
AICmr 20; Maurice Blackburn Lawyers and Department of Immigration and Border Protection
[2015] AICmr 85; HV and Department of Finance [2015] AICmr 84; HT and the Australian
Human Rights Commission [2015] AICmr 82; HQ and Department of Defence [2015] AICmr 79;
11.
In its reasons for its internal review decision the Department said:
release of the specific alcohol brands would not be appropriate. I consider that
this material contains the personal preferences of the former Prime Minister, the
Hon Tony Abbott MP, and it is not possible to discern whether individual
purchases were for personal or official consumption.
12.
A document is conditionally exempt if its disclosure under the FOI Act would
involve the unreasonable disclosure of personal information about any person
(including a deceased person).4
Personal Information
13.
Section 4 of the FOI Act provides that personal information has the same
meaning as in the Privacy Act 1988. Section 6 of the Privacy Act provides that:
personal information means information or an opinion about an identified
individual, or an individual who is reasonably identifiable:
14.
(a)
(b)
may be opinion
HK and Department of Defence [2015] AICmr 72 and FG and National Archives of Australia
[2015] AICmr 26.
Section 47F(1) of the FOI Act.
15.
The Department is not contending that the former Prime Minister patronised
the retail outlets and made the relevant alcohol purchases in person. Rather,
the Departments decision to exempt the alcohol brand information is based
on its view that the former Prime Ministers personal preferences for alcohol
brands are identifiable from the alcohol brands that were purchased.
16.
There is nothing before me that indicates that the former Prime Minister had
any involvement with the alcohol purchases. While it apparent that someone
purchased alcohol and that the purchases were likely made for official Prime
Ministerial functions, this does not, in my view, establish that the former Prime
Ministers personal preferences influenced the purchases.
17.
While it is possible that the purchaser had knowledge of the former Prime
Ministers alcohol preferences, it is equally likely that an assistant was simply
tasked with making purchases of alcohol suitable for Prime Ministerial
functions. A further likely alternative scenario is that a junior assistant was
tasked with purchasing the alcohol simply based on the preferences of
someone other than the former Prime Minister.
18.
19.
5
6
7
8
Guidelines [6.116].
Jonathan Laird and Department of Defence [2014] AICmr 144.
HT and the Australian Human Rights Commission [2015] AICmr 82.
Under s 55D of the FOI Act, the Department has the onus of establishing that its decision is
justified, or that I should give a decision adverse to the IC review applicant.
Had I found the contrary, that the receipts/invoices contained the personal
information of the former Prime Minister, I would have to decide whether
disclosure in response to Senator Wongs FOI request would be unreasonable.
21.
any detriment that disclosure may cause to the person to whom the
information relates
the fact that the FOI Act does not control or restrict any subsequent
use or dissemination of information released under the FOI Act.
22.
23.
In that regard, the Department did not formally consult with the former Prime
Minister under s 27A.9 However, the Department did inform the former Prime
Minister, through his Office, of the original FOI request. There is nothing
before that indicates that the former Prime Minister might have held any
objections to disclosure at that time. Additionally, as I discussed above at [7],
the Department gave the former Prime Minister notice of this IC review,10 and
the OAIC wrote to the former Prime Minister inviting his submissions. The
former Prime Minister did not respond to that invitation, nor was he under any
obligation to respond. For the reason that the former Prime Minister has not
raised any apparent objections to Senator Wongs request, I am satisfied that
the former Prime Minister does not hold any opposition to disclosure of the
receipts/invoices.
10
As the former Prime Minster was not formally consulted under s 27A of the FOI Act, and it does
not appear to me that might reasonably wish to make an exemption contention. He is not an
affected third party to this review.
Under s 54P of the FOI Act, although it was not required to do so as it had not formally consulted
the former Prime Minister under s 27A of the FOI Act.
24.
25.
In AK, the former Australian Information Commissioner also said that there
was no material in the documents in that case that appeared to be uniquely
private or sensitive personal information.12
26.
27.
Had I not already found that the receipts/invoices do not contain personal
information, I would be satisfied that disclosure of the receipts/invoices in this
case would not be unreasonable for the purposes of s 47F(1).
28.
The receipts/invoices are not conditionally exempt. As I have found that the
receipts/invoices are not conditionally exempt, it is unnecessary for me to
consider whether giving Senator Wong access to the receipts/invoices would
be contrary to the public interest for the purposes of 11A(5).
Timothy Pilgrim
Acting Australian Information Commissioner
3 May 2016
Review rights
If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the
FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides
independent merits review of administrative decisions and has power to set aside, vary, or affirm an
IC review decision.
An application to the AAT must be made within 28 days of the day on which the applicant is given the
IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may
be payable when lodging an application for review to the AAT. Further information is available on the
AATs website (www.aat.gov.au) or by telephoning 1300 366 700.
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