LINDSAY BARTON v AUSTRALIAN CAPITAL TERRITORY
 (TERRITORY AND MUNICIPAL SERVICES)

[2011] ACTSC 94 (2 June 2011)

No. SC of 441 of 2010

Judge:	Ryan J
Supreme Court of the ACT
Date:	2 June 2011 

IN THE SUPREME COURT OF THE	)
	)	No. SC 441 of 2010
AUSTRALIAN CAPITAL TERRITORY	)	

BETWEEN:	LINDSAY BARTON

	Plaintiff

AND:	AUSTRALIAN CAPITAL TERRITORY (Territory and Municipal Services)

		Defendant

ORDER

Judge:	Ryan J
Date:	2 June 2011
Place:	Canberra

THE COURT ORDERS THAT:

1.	The Plaintiff’s appeal be dismissed.
2.	The Plaintiff pay the Defendant’s costs, including any reserved costs, such costs to be taxed in default of agreement.

IN THE SUPREME COURT OF THE	)
	)	No. SC 441 of 2010
AUSTRALIAN CAPITAL TERRITORY	)	

BETWEEN:	LINDSAY BARTON

	Plaintiff

AND:	AUSTRALIAN CAPITAL TERRITORY (Territory and Municipal Services)

		Defendant

REASONS FOR JUDGMENT
1.	On 6 July 2010, an application was filed in the Registry of this Court by the Plaintiff Lindsay Barton (“Plaintiff”), seeking orders that the Territory Services Division of Territory and Municipal Services in the ACT Government (“Defendant”) produce to the Court a copy of a two page email received by the department on 6 January 2010 concerning the Plaintiff (the “Email”).  Those orders were sought on the grounds that the Plaintiff had, or was likely to have, a cause of action against someone but was unable, after making his own reasonable enquiries, to identify the potential defendant without preliminary discovery.  
2.	On 23 August 2010, Registrar Glover dismissed the Plaintiff’s application.  By notice of appeal dated 26 August 2010, the Plaintiff appealed from the Registrar’s decision.  Before this Court, the Plaintiff sought production of a copy of the Email for his inspection and the right to copy it.
3.	The Defendant refuses to grant the Plaintiff access to the Email on public interest grounds.
Background
4.	On 1 February 2010, Rebecca Clark, a Delegate of the Road Transport Authority of the ACT, sent a letter to the Plaintiff which, in essence, informed him that the Defendant had received information indicating that the Plaintiff “may no longer comply with the required medical standards to hold a driver licence”.  In order to resolve the matter, the Plaintiff was requested to attend the Health For Industry office on 16 February 2010 for an examination which was to be reported to the Road Transport Authority.  The letter noted that the Plaintiff was required to fill out a Driver Licence Medical Form to take with him to the examination and pay a consultation fee of $95.00.  The letter informed the Plaintiff of the Road Transport Authority’s power, under ss 78(2)(c) and (d) of the Road Transport (Driver Licensing) Regulation 2000, to require a licence holder to undergo a medical examination to establish his or her fitness to drive, and to provide the Road Transport Authority with a report of that examination.  
5.	A letter dated 7 April 2010 was sent by the Plaintiff’s solicitor, Mr Bill Redpath, to the Defendant, relevant parts of which were as follows;
We act for Mr Lindsay Burton who, on 1 February 2010, received a letter from Ms Rebecca Clark, a delegate of the Road Transport Authority of the ACT, indicating that Road User Services had received information which indicated that Mr Burton “may no longer comply with the required medical standards to hold a driver’s licence”. …
This information was erroneous but it nevertheless required Mr Barton to attend an appointment with Health for Industry and to obtain a report form his General Practitioner, Dr Tim Watson.
We assume that Road User Services had some basis for putting our client through this inconvenience and cost and that he is therefore been the victim of a malicious and deliberately untrue campaign that has caused him inconvenience but has also been greatly damaging to his reputation.
Pursuant to the Freedom of Information Act 1989 our client seeks copy of all letters, file notes, Emails or other documents which form the basis of the information received by Road User Services and which led them to form a view that our client may no longer comply with the required medical standards.

6.	The aforementioned letter from Mr Redpath was responded to by way of a letter dated 5 May 2010 from Tom Elliott, Executive Director - Transport & Infrastructure Division, in the following terms;
I refer to your application received in this office on the 12th April 2010 in which you sought access under the ACT Freedom of Information Act 1989 (the Act) to:
•	All letters, file notes, emails or other documents which form the basis of the information received by Road User Services and which led them to form a view that our client (Mr Lindsay Barton) may no longer comply with the required medical standards to hold a driver’s licence.
I am the officer authorised under section 22 of the Act to make a decision in relation to your request.
Following a thorough search only one relevant document was located, although I have decided to exempt this document under the following section of the Freedom of Information Act:
Section 45 – Documents containing material obtained in confidence
1)	A document is an exempt document if its disclosure under this Act would constitute a breach of confidence.
…
If, in your opinion, you do not believe that all relevant documents in the possession of the Department have been released to you, my decision is appealable and you have a right to seek review under section 59 of the Act.  The review and appeal process provided for the Act is explained for your information at Attachment A.

7.	The “Attachment A” referred to in Mr Elliott’s letter of response was titled “Freedom of Information Act 1989 – Review and Appeal Process”.  This set out the process by which the Plaintiff could seek review of Mr Elliott’s decision noted at [6] of these reasons.  
8.	The Plaintiff’s solicitors responded by letter dated 28 May 2010 to the Chief Executive, Department of Territory & Municipal Services, as follows;
We act for Lindsay Barton and seek review of the decision of Mr Tom Elliott, Executive Director, Transport and Infrastructure Division, dated 5 May 2010 to not release email on the file.
We agree that this appears to be the only document that meets the Freedom of Information Act request.
We submit that the document is not a confidential document within the meaning of Section 45 of the ACT Freedom of Information Act 1989.
The email was unsolicited by the Department.
The email was not provided pursuant to any reporting or other compulsory obligation provided under any legislation.
The email does not arise out of any confidential relationship between the Department and the sender ie commercial or legal relationship.
As a result of the email, Mr Barton was required to attend at an appointment with Health for Industry which he was required to pay for and to obtain a report from his General Practitioner (which he was also required to pay for).  
In short, Mr Barton was put to some inconvenience and cost as a result of this communication. 
As it eventuated, there was no basis for the suggestions in the email as the doctors certified him as fit to continue to drive a motor vehicle.
As there is nothing “confidential” about this unsolicited email, it is only a matter of natural justice that Mr Barton is entitled to know who sent the email, the allegations contained in it and any evidence or other material in support of the allegations made in the email.
To allow this information to remain confidential would mean that any member of the public could be subject to scurrilous and false allegations with the perpetrator knowing that they would remain anonymous behind a veil of “confidentiality”.

9.	A letter dated 2 June 2010 was sent by Philip Perram, Territory Services Division, in response to Mr Repath’s letter of 28 May 2010, which set out the decision of the Defendant in relation to the Freedom of Information request (“the Decision”), the relevant parts of which recited;
2.	I am the officer authorised to make a decision in this matter.  I have reviewed the matter and have decided to substantially uphold the original decision, although my reasons differ from the original decision maker’s.  I have set out my reasons below.
…
Reasons for exemptions
7.	I have upheld the original decision not to release this document on two grounds.  First, its release would constitute a breach of confidence. Section 45 of the Act states:
A document is an exempt document if its disclosure under this Act would constitute a breach of confidence.
8.	The document in question is headed “strictly confidential” and the sender of the email stated that the email was not to be disclosed.  The provision of information to government in such circumstances gives rise to a legal obligation to maintain the confidentiality of the information. If the information were to be released, that would breach the terms of that confidentiality arrangement and thus the document’s release is exempted under section 45(1) of the Act.
9.	In addition to section 45 of the Act, the document is exempt on the basis that its release would be unreasonable disclosure of personal information. Subsection 41(1) of the Act relevantly provided:
A document is an exempt document if its disclosure under this Act would involve unreasonable disclosure of personal information about any person (including a deceased person).
10.	“Personal information” is defined by the Act to mean:
…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.
11.	Whilst it is obvious that the name of an individual easily identifies that individual, I also consider that the postal and email addresses of the complainant, their telephone number and the nature of the information forming their complaint also would enable another person to ascertain their identity and is thus personal information. 
12.	In deciding whether the disclosure of that information would be unreasonable I have taken into account the nature of the information that might be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without their consent and whether the information has any current relevance.
13.	Having regard to the stated object of the Act (see section 3 of the Act) I have also considered the public interest in releasing the information to you and weighed this against the public interest in protecting the privacy of the complainant.  I have also taken into account section 12 of the Human Rights Act 2004 which relevantly states:
Everyone has the right —
(a)	not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; …
14.	Section 12 of the Human Rights Act 2004 is relevant as subsection 30(1) of the Act states:
In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.
15.	With respect to the relevance of the information you have requested, I acknowledge that it is a matter of considerable importance to you.  However, it is clear from the text of the email that the person concerned did not wan their identity revealed without their consent. I consider this aspect most persuasive.
16.	As mentioned above, the document in question not only provides the name of the complainant, it also provides additional information that would identify that person. For this reason I decline to release this information in its entirety.
17.	I have also considered whether subsection 41(2) of the Act applies in this instance. That subsection states:
Subject to subsection (3), subsection [41](1) does not apply to a request by a person for access to a document only because of the inclusion in the document of matters relating to that person.
18.	Subsection 41(2) operates in circumstances where the document requested relates solely to the person requesting the document. However in this instance the information you seek is the personal information of the complainant. Therefore I consider that subsection 41(2) does not operate to override my decision to exempt the document from release under section 41(1). In any event, even if section 41(2) did override 41(1), the document would remain exempt from release under section 45 of the Act.
Appeal Rights
19.	Under the Act you have 28 days within which to seek a review of my decision by the Administrative Appeals Tribunal, should you wish to do so.  You also have the rights to refer the matter to the Ombudsman.

10.	Rather than exercise his appeal rights from the Decision, identified at par 19 of the Defendant’s letter set out at [9] of these reasons, the Plaintiff brought proceedings in this Court on the grounds referred to at [1] of these reasons.  
Submissions
11.	In his submissions for the Plaintiff, Mr Redpath sought to invoke Rule 650 of the Court Procedure Rules 2006 (the “Rules”) in relation to preliminary discovery.  That Rule provides, in essence, that where a person has, or is likely to have a cause of action against someone, but cannot ascertain the identity or whereabouts of the potential defendant sufficiently to start the proceeding, or make the claim for relief against that potential defendant, and someone else may have that information, the Court may order that the document or thing disclosing that information be produced for inspection by the person.  
12.	The Email was produced to the Court at the hearing by Ms Holly, who appeared for the Defendant.  In Mr Redpath’s submission, the Court should exercise its discretion to allow the Plaintiff to view that Email on the basis that, as the Plaintiff had been declared medically fit to retain his driver licence, the content of the Email which suggested otherwise was clearly “frivolous and vexatious”.  On that basis, it was submitted, there is a potential cause of action in defamation arising out of the content of the Email which the Plaintiff would be unable to commence without knowledge of the substance of the Email or the identity of the potential defendant against whom such a cause of action could be brought. 
13.	Mr Redpath directed the Court’s attention to sub-section 230(4) of the Road Transport (General) Act 1999, which, he noted, provides an indemnity to an individual who reports to the Road Transport Authority “in good faith” that someone is, or may be, unfit to drive, or that it may be “dangerous to allow someone else to hold, to be issued or have renewed, a driver licence or a variation of a driver licence”.  Thus, as Mr Redpath conceded, the matter comes down to a question of whether the Email was provided “in good faith”.  In Mr Redpath’s submission, it would be in the public interest for the contents and author of the Email to be disclosed where such a complaint has not been made in good faith.  
14.	In the Defendant’s submission, the public interest in maintaining the confidentiality of the Email outweighs that in disclosing it to the Plaintiff.  Ms Holley noted that a significant purpose in maintaining the confidentiality of complaints to the Road Traffic Authority is to protect the usual sources of complaints, which are often members of the family or friends of the person concerned.  Disclosure of the complainant’s identity, it was submitted, could have serious consequences for that person in his or her relationship with family and friends, if it became known that he or she had made such a complaint to the Road Traffic Authority, notwithstanding that it was not done from malice, but out of concern for that licence holder’s safety or wellbeing.   
15.	Ms Holley pointed to the decision the High Court in Sankey v Whitlam (1978) 142 CLR 1, per Gibb CJ at 38, and a decision of the Full Court of the Federal Court in Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at 237, in support of the notion that a balance must be struck between the public interest in protecting informers and encouraging future informers, and the public interest in discouraging malicious or vexatious reporting.  However, Ms Holley submitted, the striking of that balance is something which should be left to the Road Traffic Authority.  
16.	Thus, it was for the Road Traffic Authority to look at the Email and decide whether the communication was frivolous or malicious and, if so, reject it accordingly.  In the absence of such a rejection, it was a decision for the Road Traffic Authority whether or not to act on the information provided and, in either event, it was in the public interest to maintain the confidentiality of the author and the contents of the Email.  
17.	Although Mr Redpath contended that the authorities referred to by Ms Holley, as noted at [15] of these reasons, involved a different category of confidential document, he acknowledged the existence of a public interest in maintaining confidentiality in respect of complaints which have been made in good faith and are well founded.  As recounted at [12] above, Mr Redpath contended that as the Plaintiff was declared medically fit to retain his driver licence, the Email could not have been well founded or made in good faith. 
Conclusion  
18.	Having inspected for myself the Email which was produced to the Court, I consider that the identity of the author and the content of the Email should remain confidential.  I am not persuaded that the Email was communicated in bad faith or maliciously.  Therefore, in my view, the public interest in maintaining the confidentiality of the Email outweighs the competing interest in enabling the Plaintiff to pursue an action against the author.  
19.	I note that arguments were also addressed to the facility afforded by the Rules to obtain access to documents through discovery and inspection and whether s 230(4) of the Road Transport (General) Act 1999 not only provides a defence against a claim but also bars a cause of action so that an application for discovery must fail.  However, as I have come to the clear view that in the exercise of the Court’s discretion the public interest in preserving the confidentiality of the Email outweighs the public interest in facilitating the prosecution of private litigation.  I need not consider those arguments further. 
20.	For these reasons, the Plaintiff’s application is dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Donnell Ryan.

Associate:

Date:	2 June 2011

Counsel for the Plaintiff:	Mr M N Redpath
Solicitor for the Plaintiff:	Nicholl & Co
Counsel for the Defendant:	Ms L Holley
Solicitor for the Defendant:	ACT Government Solicitor
Date of hearing:	21 October 2010 
Date of judgment:	2 June 2011