Dawson-Wells v Office of the Information Commissioner Amanda Flynn Charity Ltd [2013] QCATA 160

CITATION: Dawson-Wells v Office of the Information Commissioner Amanda Flynn Charity Ltd [2013] QCATA 160 PARTIES: Dr Narelle Dawson-Wells (Applicant) V Office of the Information Commissioner Amanda Flynn Charity Ltd (Respondents) APPLICATION NUMBER: APL485-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr Charles Brabazon QC, Judicial Member DELIVERED ON: 28 May 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Give leave to extend time for Dr Dawson-Wells to appeal the decision of the Information Commissioner’s delegate, dated 19 October 2011. 2. Dismiss her appeal. 3. Direct that the “information in issue” referred to in that decision be made available to the Amanda Flynn Charity Ltd. CATCHWORDS: APPEAL – GENERAL ADMINISTRATIVE REVIEW – RIGHT TO INFORMATION – DISCLOSURE – where application for access to various documents about applicant‟s employment – where held disclosure would not be contrary to the public interest – where applicant seeks to appeal that decision Right to Information Act 2009 (Qld), s 10, s 47, Schedule 3 -- 1 of 5 -- 2 Sheridan and South Burnett Regional Council and Others (Unreported, Queensland Information Commissioner, 9 April 2009) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Dr Narelle Dawson-Wells worked in a Brisbane office for seven days. She was employed by Mr Peter Flynn, a property developer, or by a related company, Amanda Flynn Charity Pty Ltd. [2] She says that Mr Flynn sexually assaulted her – in the boardroom, and in the car park. She went to the police. There was a committal hearing. He was committed for trial. There was a five day trial. It ended when the prosecutor asked for the return of the indictment. [3] Since then, other litigation based on her accusations has continued. In this case, there is controversy about the application of the Right to Information Act 2009. That is, Dr Dawson-Wells has worked for the Crime and Misconduct Commission. The Charity wants access to documents about her, held by the CMC. She objects to their disclosure. [4] On 19 October 2011 the Information Commissioner published a decision in response to an external review application, made by the Charity. In substance, the Commissioner made these findings, while reviewing an earlier decision of the CMC, which denied access to some documents about Dr Dawson-Wells: (a) The decision of the CMC should be varied. (b) Disclosure of the information would not be contrary to the public interest s 49 of the RTI Act. (c) The information is not exempt information – s 10(1)(d) – Schedule 3 of the RTI Act. [5] Those findings were made because the Information Commissioner reached some conclusions about the impact of the disclosure on Dr Dawson-Wells: (a) The information concerned her work at the CMC – it was “routine personal work information.” That is, it was personal information, within the meaning of the RTI Act – but information only about her routine work at the CMC. (b) Disclosure of such routine matters is not contrary to the public interest – indeed, it promotes the accountability of the CMC‟s work. -- 2 of 5 -- 3 (c) Any factor in favour of non-disclosure should be given little or no weight. (d) Dr Dawson-Wells made submissions about harassment – presumably harassment by Mr Flynn – “the nature of these submissions is highly sensitive and cannot be set out in these reasons”. (e) Attention was paid to Sheridan‟s case – where it was said that the question of whether disclosing information could reasonably be expected to result in a serious act of harassment or intimidation should be considered objectively, in light of all relevant information (unreported, Qld information Commissioner 9/4/09). [6] The final conclusion was, “I am not satisfied in the circumstances of this review that the decision or the information could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.” Therefore, the information could be disclosed. [7] Dr Dawson-Wells has appealed against that decision, on three grounds. First, she says that the decision maker misapprehended ss 47 and 49 of the RTI Act, by “treating the „public interest‟ as though it were a rule with the same implications in all circumstances and in every agency of the public sector, rather than a principle which needs to be applied in all the circumstances of the case.” [8] She relies on the statutory powers given to the Supreme Court by the Judicial Review Act 1991(Qld). In this case, it is necessary for this Tribunal to apply the RTI – it has no power to act under the Judicial Review Act 1991. [9] In this case, the key principles of the RTI Act are these: (a) The Act should be administered with a pro-disclosure basis – s 39(2). (b) “The agency should decide to give access to the document unless giving access would on balance, be contrary to the public interest” – s44(1). (c) It is Parliament‟s intention that grounds for refusal are to be interpreted narrowly, and that access to a document may be given even if there is a ground for referral – s47(2). (d) The agency must decide to give access to a document unless disclosure would on balance, be contrary to the public interest – s49(1). (e) Information is exempt information if its disclosure could reasonably be expected to … result in a person being subjected to a serious act of harassment or intimidation – s10(11)(d). -- 3 of 5 -- 4 [10] It is apparent that the decision maker was sensitive to Dr Dawson-Wells position. Disclosure was limited to her “routine personal work information” at the CMC. That is, other personal information, not arising from her CMC work, would be protected. [11] In fact, she had the benefit of that protection. Her submissions about the details of any harassment while working for the Flynn interests, were not revealed. Indeed, nothing beyond her usual work at the CMC was revealed. [12] Her second ground of appeal depends on the risk of harassment by Mr Flynn. [13] There was no suggestion that she had suffered or been threatened with harassment since leaving Mr Flynn‟s office. It is not surprising that the conclusion was that “… disclosure of the information in issue could not reasonably be expected to result in her being subjected to a serious act of harassment or intimidation.” [14] Therefore, there is no substance to her second ground of appeal. [15] The third ground of appeal is a complaint that “the delegate erred in failing to take into account or give proper weight to Information Privacy Principles, and other requirements of that Act.” [16] In paragraph 19 of the reasons, there is recognition that, “a factor favouring non-disclosure will arise if disclosure of the information could reasonably be expected to prejudice the protection of an individual‟s right to privacy.” Then follows a reference to s 12 of the Information Privacy Act 2009 – the Act that came into force at the same time as the RTI Act. [17] In this case, the information sought has little or nothing to do with Dr Dawson-Well‟s private affairs. Nor does it mean, for example, that the confidential concerns of the CMC will be disclosed – see the RTI Act in schedule 1, part 3, schedule 3, part 10. [18] Dr Dawson-Well‟s made it clear that she was opposed to the release of any information about her to the Charity. There is no reason to accept that there should be such a total refusal of the Charity‟s application. [19] This appeal is made long after the usual time limit. However, there was only faint opposition to its being heard, out of time. It is appropriate to extend time, to allow the appeal to be heard. [20] These are the appropriate orders: (a) Give leave to extend time for Dr Dawson-Wells to appeal the decision of the Information Commissioner‟s delegate, dated 19 October 2011. (b) Dismiss her appeal. -- 4 of 5 -- 5 (c) Direct that the “information in issue” referred to in that decision be made available to the Amanda Flynn Charity Ltd. -- 5 of 5 --