Tribunal: Deputy President John Sosso
This review was about a freedom of information (FOI) application relating to the controversy surrounding the legality of the Essendon Football Club’s (EFC) supplements program and, in particular, the associated drug tests undertaken by players.
The matter has a long and detailed history beginning on 22 June 2016 when the applicant, Mr Francis, requested from Australian Sports Anti-Doping Authority (ASADA) a range of information from the drug tests undertaken by the 34 Essendon players between 25 August 2011 and September 2012 who were subsequently found guilty of being administered Thymosin Beta-4.[1]
ASADA and the AFL objected to the release of the information and the Australian Information Commissioner (AIC) upheld the decision after Mr Francis requested a review. Mr Francis then applied to the AAT for a review of this decision but he narrowed the scope of his request to the dates on which six named Essendon players were tested, whom Mr Francis named.
The aim of the Freedom of Information Act (FOI Act) is, among other things, to give the Australian community access to information held by the Government to facilitate and promote public access to information and to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.[2]
ASADA argued that the documents were exempt under the FOI Act for three different reasons. The reason that the AAT primarily focused on, and that ultimately formed the basis of its decision, was that disclosure of the documents would found an action by a person for breach of confidence.[3]
In relation to this point, ASADA’s submission was that the disclosure of the information would breach ASADA’s obligation of confidence for various reasons. First, ASADA had a statutory obligation not to disclose them,[4] at the times the dates were collected. Second, there were contracts in place between ASADA and the AFL ensuring that the dates comprised information that was subject to the contractual confidentiality clauses. Third, ASADA submitted that it has at all times held out that information obtained through anti-doping activities will not be disclosed. In particular, ASADA has made representations to the AFL and to players that it will not disclose such information. Lastly, The AFL has not consented to the disclosure of the dates and such disclosure is inconsistent with both the AFL’s expectations and ASADA’s assurances.
Mr Francis submitted that the documents were not confidential information. He contended that Cl 14.4 of the Code stated that Anti-doping organisations may publish reports showing the names of each athlete tested and the date of each testing. He also stated that as a matter of practicality, it is impossible to keep all the testing dates confidential. To support this, Mr Francis used examples such as that after a match many people gather in rooms with the players and would be aware that a player was being drug tested. Mr Francis also submitted that some of the drug tested players’ names and test dates were published in Chip Le Grand’s book The Straight Dope, a transcript from a hearing before the Court of Arbitration for Sport panel as well as in numerous newspaper article and blogs. To date, fifteenplayers’ names and dates of testing have been published and an additional thirteen players who were not tested have also been named.
In its decision, the AAT considered five criteria provided in the FOI Guidelines issued by Information Commissioner.[5] The issue for the AAT primarily lay with two criteria; whether the information had the necessary quality of confidentiality and whether it must have been communicated and received on the basis of a mutual understanding of confidence.
The AAT concluded that it was clear that the dates had not entered into the public domain. They are not a matter of public knowledge. There are a relatively small number of people who have had access to this information, but, as will be discussed below, that access is covered by a veil of strict confidentiality born from statutory, contractual and equitable sources.
It is clear from the above that the information sought was communicated and received on the basis of a mutual understanding of confidence. ASADA was acutely aware, and accepted, that the information it received from the EFC players was veiled with the strictest of confidence. The actions of ASADA highlight that it accepted the obligation of confidence and they maintained that obligation throughout the proceedings. The obligation was not a vague one, or to be inferred by the circumstances. Rather, it was explicitly accepted and articulated in the Privacy Notice and the terms of the Doping Control Notification Form. The requirement of confidentiality is also set out expressly in the Act and in the Code. In short, there are numerous mutually reinforcing mechanisms that were designed to ensure that the confidentiality of the players when undergoing anti-doping tests would be respected, subject to disclosure in the event of a proved doping violation.
The AAT concluded that the material in issue was exempt from disclosure and affirmed the decision under review.
Read the full decision on AustLII.
[1] The full decision explains this history in detail between paragraphs 1 and 34
[2] Section 3 of the Freedom of Information Act 1982
[3] Section 45 of the Freedom of Information Act 1982
[4] Section 72 of the Australian Sports Anti-Doping Authority Act 2006 as it was at the time the tests were taken
[5] Paragraph 5.159 of the FOI Guidelines