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Tribunal: Senior Member Chris Puplick AM

The Office of the Australian Information Commissioner (OAIC) made a decision to grant only limited access to certain documents of the Department of Immigration and Border Protection (the Department) which relate to visas granted personally by the Minister. On 3 April 2018, the Administrative Appeals Tribunal affirmed the decision.

The applicant originally sought access to “Ministerial submissions involving individuals that were seeking to work in Australia as a nanny or Au Pair.” The Department identified two documents that met the criteria and gave the applicant partial access while withholding other parts on “personal privacy” grounds. The applicant was dissatisfied and asked the OAIC to review the decision. On review, the OAIC made a decision to grant the applicant access to the two documents, but determined that certain aspects were exempt under section 47F of the Freedom of Information Act (FOI Act). These included the visa documents and the personal details of the individuals applying for the visas and certain paragraphs in the documents.

The applicant then applied to the Tribunal to review the decision made under the FOI Act. In their submission, the applicant narrowed the list of information they requested to the following:

  • the length of time that a (visa) applicant has resided in Australia
  • the occupation of the visa applicants
  • particulars of (visa) applicant's discussions with Australian border officers
  • precise personal information obtained during interviews by Australian border officers relating to (visa) applicants' work status or volunteer work status
  • particulars of the (visa) applicant's personal financial affairs
  • the geographic area in which (visa) applicants live in Australia.

Section 47F of the FOI Act conditionally exempts information from disclosure in certain circumstances because its disclosure would be contrary to the public interest due to the unreasonable disclosure of personal information. To determine whether this applied, section 47F provides certain matters the Tribunal must consider in coming to its decision. The relevant matters to this decision were whether:

  • the information sought was personal information, meaning it was conditionally exempt
  • disclosure would be unreasonable, in the sense of it being contrary to the public interest.

The Tribunal first considered whether the information was personal information. Section 6 of the Privacy Act 1988 defines personal information as information or an opinion about an identified individual, or an individual who is “reasonably identifiable”. After looking at the six items the applicant wanted to extract from the documents, the Tribunal concluded that if the information sought was granted it would be possible and practical for the applicant, or any other person, to identify the individuals. The Tribunal concluded that the individuals were “reasonably identifiable”.                                                                

The Tribunal also considered the issue of re-identification stating that it does not take much to turn anonymised data into identifiable information. The Tribunal noted new guidelines:  De-identification and the Privacy Act, which broadly provide that an individual is reasonably identifiable where it is technically possible for re-identification to occur and there is a reasonable likelihood of re-identification occurring. The Tribunal concluded that it was technically possible for the visa grantees to be re-identified from the collection of associated material sought by the applicant, and the whole purpose of the application would be irrelevant were it not the applicant’s specific intention to do so.

The Tribunal then considered whether disclosure was contrary to the public interest, deeming disclosure unreasonable. The Tribunal acknowledged that determining what is unreasonable is a matter of judgement and balance, where legitimate interests of full disclosure on the one hand may contend with privacy protection on the other. Section 11B provides guidance about how to deal with conditionally exempt documents to determine if their release would be, on balance, contrary to the public interest. In applying section 11B, the Tribunal noted the principle that the protection of personal privacy is assumed to be the default position so the onus lies with the applicant to demonstrate that the public interest is so strong and compelling that it negates this paramountcy. The Tribunal concluded that the applicant had failed to do so.

The applicant’s submission was that the release of the information would inform the public as to how the ministerial discretion was exercised in this case and that would absolutely advance the public interest in government transparency and integrity. 

The Tribunal characterised this submission as mere speculation and stated it was no basis for the application to succeed on public interest grounds. The Tribunal noted that the relevant legislation already provided for ministerial decisions in these cases to be reported at regular intervals to the Parliament.  Therefore, the Tribunal found that granting access would in fact be contrary to the public interest and affirmed the decision of the OAIC.

Read the full written decision on Austlii.