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Richard Rudd gets his FOI via the Information Commissioner

On 11th December 2013, the following decision was made by the Australian Information Commissioner. This has very specific information which shows us all the degree to which CASA will go to “prove it’s case”.

In the following, the paragragh:

On 4 August 2008, the charge against Mr Rudd was struck out in the Mareeba Magistrates’ Court because of discrepancies and inaccuracies in the evidence provided by the CASA officers.

bears particular relevace.

The matter of Anderson should be viewed with this as well, where Anderson has been to the Local Court, Supreme Court, AAT and now Federal Court:

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Australian Information Commissioner

Rudd and  Civil Aviation Safety  Authority [2013] AICmr 87 (11 December 2013)

Last Updated: 17 December 2013

Rudd and  Civil Aviation Safety  Authority [2013] AICmr 87 (11 December 2013)

Decision and reasons for decision of
Privacy Commissioner, Timothy Pilgrim

Applicant:
Richard Rudd
Respondent:
 Civil Aviation Safety  Authority
Decision date:
11 December 2013
Application number:
MR12/00120
Catchwords:
Freedom of Information — Whether disclosure would have a substantial or adverse effect on the management or assessment of personnel — Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether documents contain personal information — Whether disclosure of personal information would be unreasonable — Whether disclosure would be contrary to the public interest— (CTH) Freedom of Information Act 1982 ss 11A(5), 22, 47E, 47F

Contents

Summary

  1. I set aside the access refusal decision of the  Civil Aviation Safety  Authority (CASA) of 5 January 2012 (as varied) and substitute my decision, under ss 11A(5) and 22 of the Freedom of Information Act 1982 (the FOI Act), granting access to the document, modified by deletions.

Background

  1. In July 2007, the applicant, Mr Richard Rudd, was present at Mareeba Airport, Queensland, when three Senior Airworthiness Inspectors (AWIs) from CASA allegedly observed Mr Rudd performing what they believed to be unauthorised and non-permitted maintenance on his aircraft. Unauthorised and non-permitted maintenance carried out on an aircraft is in breach of Regulation 42ZC(1) of the Civil Aviation Regulations 1988 (the Regulations).
  2. Mr Rudd was subsequently issued with an Aviation Infringement Notice for the alleged maintenance, however the notice did not specify the type of maintenance Mr Rudd was said to have performed.
  3. On 16 August 2007, Mr Rudd lodged a complaint with the CASA Industry Complaints Commissioner (ICC) about the Aviation Infringement Notice and requested information about the alleged maintenance.
  4. In 2008, CASA completed an investigation of Mr Rudd’s alleged breach of the Regulations and recommended that Mr Rudd be prosecuted for breach of reg 42ZC(1) of the Regulations.
  5. On 4 August 2008, the charge against Mr Rudd was struck out in the Mareeba Magistrates’ Court because of discrepancies and inaccuracies in the evidence provided by the CASA officers.
  6. In December 2008, the ICC provided CASA with his report into Mr Rudd’s complaint and alleged criminal misconduct by the CASA officers regarding their prosecution of Mr Rudd (ICC report).
  7. Mr Rudd made allegations to CASA of inappropriate conduct by the AWIs under the CASA Code of Conduct in relation to their inspection of his aircraft. In 2009, CASA engaged aCkTiF Solutions to conduct an investigation into Mr Rudd’s allegations.
  8. As part of its investigation, aCkTif interviewed a number of witnesses, including both CASA officers and individuals who had direct knowledge of the incident. In June 2009, aCkTiF Solutions provided CASA with its investigation report, which included a factual summary of the events, detail of the CASA investigation, evidence gathered, the identities and extracts of statements made by witnesses and findings and recommendations (aCkTiF report).
  9. On 4 and 6 December 2011, Mr Rudd applied to CASA for access to the ICC report and the aCkTiF Solutions report.
  10. On 5 January 2012, CASA wrote to Mr Rudd providing its reasons for decision and identifying two documents, the ICC report and aCkTiF report, that it said fell within the scope of Mr Rudd’s request. CASA decided to release edited copies of the reports to the applicant.[1] In making its decision, CASA relied upon the personal privacy exemption (s 47F) and the certain operations of agencies exemption (s 47E).
  11. On 3 April 2012, the applicant sought IC review of CASA’s decision to refuse access to the aCkTiF report under s 54L of the FOI Act.
  12. On 18 December 2012, CASA varied its decision under s 55G of the FOI Act and released further parts of the aCkTiF report to Mr Rudd.[2]

Decision under review

  1. The decision under review is the decision of CASA on 5 January 2012 (as varied on 18 December 2012) to refuse Mr Rudd access to the aCkTiF report.

Certain operations of agencies exemption (s 47E)

  1. Section 47E(d) of the FOI Act relevantly provides:

Public interest conditional exemptions — certain operations of agencies

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

  1. In its original decision, CASA applied s 47E(d) to the aCkTiF report. CASA said that if witnesses became aware that the information they provided to an investigator could be disclosed to third parties, then this may result in witnesses to future investigations either not cooperating with investigators or not being as candid with the investigator as they may ordinarily be.
  2. CASA advised that this would, or could reasonably be expected to, have a substantial adverse effect on CASA’s operations as CASA would be impaired in conducting future investigations, including Code of Conduct investigations. In particular, CASA said that such investigations are necessary to enable it to ensure that its officers meet expected standards of behaviour and possess adequate knowledge and attributes to discharge their role as inspectors.
  3. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines explain that, for s 47E to apply:

An agency cannot merely assert that an effect would occur following disclosure. The particulars of the predicted effect and the reasons behind the identification of those particulars should be articulated during the decision making process. Those particulars should also indicate whether the effect could reasonably be expected to occur.[3]

  1. In Carver and Fair Work Ombudsman [2011] AICmr 5 at [22] the FOI Commissioner noted that:

As assertion that an APS employee has breached the APS Code of Conduct is a serious allegation. When undertaking a Code of Conduct investigation of one of its employees, an agency can be expected to create documents that include evidence about that employee’s conduct taken from that employee, from other employees and (possibly) from people outside the agency. It is obviously beneficial for an agency’s management and assessment of its personnel that the evidence it collects in such investigations is as frank as possible. Anyone providing that evidence would expect that, subject to applicable natural justice principles, details of that evidence will not be widely disclosed. Disclosure of such evidence could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations which, in turn, would have a substantial adverse effect on the management or assessment of the agency’s personnel.

  1. I consider that CASA’s investigation of potential breaches of the CASA Code of Conduct are similar in nature to an agency’s investigations of potential breaches of the APS Code of Conduct: the same principles apply in relation to both types of investigation when deciding whether documents are conditionally exempt under s 47E(d).
  2. I have considered the application of s 47E(d) to an unedited copy of the aCkTiF report. The report includes the identity of witnesses interviewed, detailed summaries and excerpts of witness statements, information about the investigation process and evidence considered for the purposes of the investigation. I consider this information to be conditionally exempt under s 47E(d) because its disclosure could reasonably be expected to affect the willingness of both CASA employees and third party witnesses to provide evidence for future Code of Conduct investigations – by CASA or by other agencies.
  3. I also consider the disclosure of information about the investigation process and material considered for the purposes of the investigation may impair CASA in undertaking future investigations and have a substantial and adverse effect on the proper and efficient conduct of CASA’s operations.
  4. However, I do not consider the following information to be conditionally exempt under s 47E(d):
    • factual information (such as the location of the airport where the incident occurred)
    • information about the outcome of the prosecution of Mr Rudd
    • information already in the possession of Mr Rudd (for example, the Code of Conduct investigation into the CASA officers Mr Rudd complained about and the identity of these officers)
    • information supplied to CASA by Mr Rudd
    • general information about the aCkTiF report (such as the terms of reference and general information about the investigation plan)
    • information about the findings and recommendations of the investigator.
  5. Mr Rudd has full knowledge of much of this information and its disclosure could not reasonably be expected to have a substantial and adverse effect on the proper and efficient conduct of any future Code of Conduct or other investigations. Further, I do not think that general information about the scope of the investigation and the findings and recommendations of the investigator would impair CASA in the proper and efficient conduct of future investigations or the willingness of people to provide evidence in future investigations. On the contrary, to the extent that such information demonstrates that an investigation has been properly undertaken, disclosure will improve general confidence in an agency’s capacity to conduct future investigations.

Findings

  1. The following paragraphs of the aCkTiF report are conditionally exempt under s 47E(d): 15-16, 20, 24-34, 47-53, 55-87, 98 (sub-paragraphs 5-20, 22-23 and 27-31),[4] 100-113, 126, 130-131, 134-157 and 161-273.
  2. The following paragraphs of the aCkTiF report are not conditionally exempt under s 47E(d): 14, 17-19, 21-23, 46, 54, 88-97, 98 (sub-paragraphs 1-4, 21, 24-26 and 32), 99, 115-119, 124-125, 127-129, 132-133, 158-160 and 274.

Personal privacy exemption (s 47F)

  1. CASA also found that the aCkTiF report was exempt under s 47F because it contains personal information of witnesses to the investigation.
  2. I have not considered the application of s 47F to the material in the aCkTiF report that I have already found to be conditionally exempt under s 47E(d). I have considered the application of s 47F to the remaining material in the aCkTiF report.
  3. Section 47F of the FOI Act provides:

General Rule

(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

  1. Section 4 provides that personal information means ‘information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.
  2. The Guidelines explain that:

The personal privacy exemption is designed to prevent the unreasonable invasion of third parties’ privacy. The test of ‘unreasonableness’ implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals. The test does not however amount to the public interest test of s 11A(5), which follows later in the decision making process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again when assessing the public interest balance. [5]

  1. Some information in the report, such as the terms of reference for the investigation and investigation plan, does not contain personal information and is not conditionally exempt under s 47F.
  2. CASA also exempted the names of CASA employees in relation to their usual responsibilities, the names of the CASA employees under investigation,[6] information about Mr Rudd and his aircraft, and general findings of the investigation. This information is personal information; however, I do not consider its disclosure would be unreasonable.
  3. As Mr Rudd is aware of the identity of the CASA officers against whom he made a complaint and information about himself and the aircraft he owned, it would not be unreasonable to disclose this information. Further, the information about other CASA employees where this information reveals only that those officers were performing their public duties is not unreasonable to disclose. I also do not consider it unreasonable to disclose the findings of the investigator as this information provides a general summary of the issues identified by the investigator and recommendations of future action and does not disclose personal information.
  4. However, I do consider the prior work history of two of the CASA officers under investigation is personal information, the disclosure of which would be unreasonable. This information is not relevant to the officers’ current duties or to the aCkTiF investigation.

Findings

  1. Paragraphs 90 and 93 are conditionally exempt under s 47F.
  2. Paragraphs 14, 17-19, 21-23, 46, 54, 88-89, 91-92, 94-97, 98 (sub-paragraphs 1-4, 21, 24-26 and 32), 99, 115-119, 124-125, 127-129, 132-133, 158-160 and 274 are not conditionally exempt under s 47F.

The public interest test (s 11A(5))

  1. I have found that parts of the aCkTiF report that is the subject of this IC review are conditionally exempt under ss 47E and 47F of the FOI Act.[7] Section 11A(5) provides that, if a document is conditionally exempt, it must be disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest’. As the Guidelines explain, ‘[t]he pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure’.[8]
  2. Of the factors favouring disclosure set out in s 11B(3), one is relevant to this IC review: promoting the objects of the FOI Act. As in Carver, the principal factor favouring disclosure in this IC review is the importance of transparency in investigations of work-related conduct of public officials.[9]
  3. Against these factors must be balanced the factors against disclosure. The FOI Act does not specify any factors against disclosure, but the Guidelines include a non-exhaustive list of such factors.[10] Of those factors listed in the Guidelines, the ones relevant to this IC review are that disclosure could reasonably be expected to:
    • prejudice the protection of an individual’s right to privacy
    • prejudice an agency’s ability to obtain confidential information
    • prejudice an agency’s ability to obtain similar information in the future
    • prejudice the management function of an agency.
  4. I think that all of these factors against disclosure should be weighted heavily in this case. In particular, disclosure would cause significant harm if it prejudiced CASA’s capacity to undertake future Code of Conduct investigations and reduce the willingness of witnesses to participate in those investigations.

Findings

  1. Giving Mr Rudd access to the parts of the aCkTiF report that I have found conditionally exempt under ss 47E and 47F would, on balance, be contrary to the public interest.

Disclosure log

  1. CASA is required, by s 11C of the FOI Act, to publish on its website, to the public generally, information that has been released in response to each FOI request, subject to some exceptions. This publication is known as a ‘disclosure log’.[11]
  2. One of the exceptions to this requirement to publish is where the documents in question contain ‘personal information about any person, if it would be unreasonable to publish the information’ (s 11C(1)(a)). Parts of the aCkTiF report, which I have decided are not exempt from disclosure, contain personal information of the applicant and the CASA employees under investigation.
  3. It is for CASA to decide whether these documents should be published on the disclosure log. The test that the Department has to apply (whether it is unreasonable to publish the information on a website to the public generally) is different to the test that I have applied in this IC review (whether it would be unreasonable to disclose that information to the applicant).

Decision

  1. Under s 55K of the FOI Act, I set aside CASA’s decision of 5 January 2012 (as varied) and decide, in substitution for that decision that:
    • paragraphs 15-16, 20, 24-34, 47-53, 55-87, 98 (sub-paragraphs 5-20, 22-23 and 27-31), 100-113, 126, 130-131, 134-157 and 161-273 are exempt under s 47E(d)
    • paragraphs 90 and 93 are exempt under s 47F
    • paragraphs 14, 17-19, 21-23, 46, 54, 88-89, 91-92, 94-97, 98 (sub-paragraphs 1-4, 21, 24-26 and 32), 99, 115-119, 124-125, 127-129, 132-133, 158-160 and 274 are not exempt under the FOI Act.

Timothy Pilgrim
Privacy Commissioner

11 December 2013

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. The current application fee is $816, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT’s website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] In its original decision, CASA released paragraph 114 of the aCkTiF report to Mr Rudd.

[2] In its revised decision, CASA released paragraphs 1-13, 35-45 and 120-123 to Mr Rudd.

[3] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [6.94].

[4] For the purposes of this IC review, I have taken sub-paragraph 1 of paragraph 98 of the aCkTiF report to be the sub-paragraph commencing ‘In the investigator’s view…’.

[5] Guidelines [6.127].

[6] CASA advised that it did not undertake any third party consultation in this matter. Two of the officers under investigation were no longer employees of CASA at the time of the FOI request and CASA did not have their contact details.

[7] Paragraphs 15-16, 20, 24-34, 47-53, 55-87, 90, 93, 98 (sub-paragraphs 5-20, 22-23 and 27-31), 100-113, 126, 130-131, 134-157 and 161-273.

[8] Guidelines [6.12].

[9] Carver and Fair Work Ombudsman [2011] AICmr5, [41].

[10] Guidelines

[11] See Guidelines, part 14.


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