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Penny Wong and Department of the Prime

Minister and Cabinet (No 2) [2016] AICmr 27


(3 May 2016)
Decision and reasons for decision of
Acting Australian Information Commissioner, Timothy Pilgrim
Applicant:

Senator the Hon. Penny Wong

Respondent:

Department of the Prime Minister and Cabinet

Decision date:

3 May 2016

Application number:

MR16/00031

Catchwords:

Freedom of Information Whether information is


personal information (CTH) Freedom of
Information Act 1982 s 47F

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.

On 2 October 2015, the Department advised Senator Wong that it had


identified 13 documents falling within the scope of the request. The
Department gave Senator Wong access to the documents in part. In making its

decision, the Department relied on the personal privacy exemption (s 47F) and
the irrelevant material provision (s 22) of the FOI Act.1
5.

On 22 October 2015, Senator Wong sought internal review of the


Departments decision. On 25 November 2015, the Department decided to
give Senator Wong access to additional material in each of the 13 documents,
specifically the names of the outlets from which the alcohol was purchased.

6.

On 18 January 2016, Senator Wong sought IC review of the Departments


decision under s 54L of the FOI Act.

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.

In making my decision, I have had regard to the following:

the Departments original decision and reasons for decision

the Departments internal review decision and reasons for decision

the FOI Act, in particular ss 27A, 47F, 54P, 55D

the Guidelines issued by the Australian Information Commissioner


under s 93A of the FOI Act to which regard must be had in performing
a function or exercising a power under the FOI Act, in particular
paragraphs [6.113][6.156]

relevant case law, in particular FG and National Archives of Australia


[2015] AICmr 26 and AK and Department of Finance and
Deregulation [2013] AICmr 64

the documents at issue, and

the parties submissions.

Personal privacy conditional exemption (s 47F)


9.

As discussed in the Guidelines and in IC review cases,3 the main requirements


of this public interest conditional exemption are that a document contains

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;

personal information; disclosure in response to the applicants FOI request


would be unreasonable (s 47F (1)); and it would be contrary to the public
interest to release the material at the time of the decision (s 11A(5)).
10.

The documents at issue in this IC review are receipts/invoices related to the


purchases of alcohol made at a liquor outlet and independent grocery stores.
The Department decided that the brands of alcohol recorded on the
receipts/invoices are exempt under s 47F.

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)

whether the information or opinion is true or not; and

(b)

whether the information or opinion is recorded in a material form or not.

In relation to personal information the Guidelines explain:


... In other words, personal information:

identifies, or could identify, a person

says something about a person

may be opinion

may form part of a database

may be true or untrue

relates to a natural person5

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.

In previous IC review cases I have had to consider the question of whether


unidentified/deidentified information relating to a person is personal
information for the purposes of s 47F. For example, DNA sequencing data
taken from the remains of a deceased sailor;6 and an applicants complaint
made to the Australian Human Rights Commission.7 In those cases and others,
a key issue is whether the relevant individual is identifiable. In the present
case, the scope of the request is essentially for documents relating to alcohol
purchased for Prime Ministerial functions. If it had been shown that the former
Prime Minister had directed the purchases in accordance with his personal
preferences, then I accept that the alcohol brands could be the personal
information of the former Prime Minster. However, in the present
circumstances, I think any connection between the purchase decision and the
personal preferences of the former Prime Minister, if there is a connection, is
too remote.

19.

I am not satisfied that the former Prime Ministers personal preferences


influenced the relevant alcohol purchases, either directly or indirectly.
Therefore, the alcohol brands recorded in the receipts/invoices is not
information about the former Prime Minister, and therefore is not the
personal information of the former Prime Minister for the purposes of s 47F(1).
Additionally, the Department has not established that its decision is justified or
that I should give a decision adverse to Senator Wong for the purposes of
s 55D.8

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.

Whether disclosure would be unreasonable


20.

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.

In FG and National Archives of Australia [2015] AICmr 26, the former


Australian Information Commissioner summarised the matters that may
potentially be relevant to whether disclosure of personal information would be
unreasonable. These include:

the nature, age and current relevance of the information

whether the information is well known or available from other public


sources

any detriment that disclosure may cause to the person to whom the
information relates

any opposition to disclosure expressed or likely to be held by that


person

whether disclosure of the information might advance the public


interest in government transparency and integrity

the fact that the FOI Act does not control or restrict any subsequent
use or dissemination of information released under the FOI Act.

22.

In this IC review, a key matter that would be relevant to the disclosure of


personal information would be any opposition to disclosure expressed by the
former Prime Minster.

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.

In relation to unreasonable disclosure of personal information and


parliamentary entitlements more generally, in AK and Department of Finance
and Deregulation [2013] AICmr 64, the former Australian Information
Commissioner said:
Members of Parliament would be aware that their enjoyment of Parliamentary
entitlements must comply with relevant rules or guidelines, and that this will be
independently scrutinised. Members would, I am satisfied, have an expectation
that this scrutiny may extend to public scrutiny, either in response to a request
made under the FOI Act or through the proactive release of information by a
government agency.11

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.

I am satisfied that the Commissioners observations in AK apply equally to this


IC review.

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.

11
12

AK and Department of Finance and Deregulation [2013] AICmr 64 [22].


AK and Department of Finance and Deregulation [2013] AICmr 64 [24].