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TRIBUNAL: Deputy President B W Rayment

The Administrative Appeals Tribunal (AAT) affirmed a reviewable decision by the Australian Securities and Investments Commission (the Agency) not to disclose conditionally exempt documents which remained in contention by the applicant.

The Agency had provided only partial access to documents requested by the applicant under the Freedom of Information Act 1982 (the Act) stating that several documents were conditionally exempt under the Act and their disclosure would impact on the proper and efficient conduct of the Agency.

The documents which were sought by the applicant related to the progress of a complaint made by an Agency staff member alleging that the applicant was guilty of bullying and harassment. The Agency had subsequently found that the complaint had no substance, dismissed the matter, and informed the applicant that it had done so. However, the applicant came to form the belief that the Agency was conducting an investigation on her and that they were denying the existence of such an investigation.

During the review, a representative for the Agency suggested that a significant factor in this dispute is the use of the broader meaning of that the word ‘investigation’. This term can be used to cover a spectrum of activities and can include a preliminary consideration of whether a complaint is worth investigation. When this happens, the subject of the complaint is not informed that the Agency is considering whether they will investigate the complaint. If the Agency had taken the view the applicant deserved to be investigated, she would have been informed of the details of the complaint, any evidence in support of it and be asked to provide her version of the facts. In the Agency’s view, the applicant was accorded procedural fairness since the decision to investigate had not been taken.

The applicant claimed that it was her view that procedural fairness was denied to her and the public interest aspect should be considered in her favour.

The AAT agreed with the Agency’s view that disclosing these conditionally exempt documents would:

  • be contrary the public interest as the contents do not have any bearing upon the matter
  • not confirm or suggest that there was any misconduct by the Agency.

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