VCAT notes that the applicant, now a young woman, was taken out of the care of her birth mother and placed into foster care when she was three weeks old,
She had limited contact with her birth mother, having seen her only on two occasions and having had limited correspondence with her by letter. Her mother passed away in 2017. The applicant does not know the name of her birth father. There is no name for her birth father listed on her birth certificate and her foster parents do not know the name of her birth father. Her birth mother did not tell her the name of her birth father. The applicant is not aware of any relatives or friends of her birth mother who may be able to tell her who they think her birth father is.
The applicant has made several freedom of information requests from the Department of Health and Human Services for information about her birth father. The document which is the subject of this proceeding came to light during the hearing of a previous application by the Tribunal. However, as the document was not part of the request which was the subject of the previous proceeding before the Tribunal, it was necessary for the applicant to make a further request for access to the document. Access was refused.
The document
This proceeding concerns one disputed document, created by a former staff member in the Department of Health and Human Services. The document records a discussion between the departmental staff member and one of the men named by the applicant’s birth mother as the applicant’s biological father.
The decision under review
On 8 December 2017, the respondent refused access to the document relying on s 33(1) of the Freedom of Information Act 1982 (Vic) (the Act). The Office of the Victorian Information Commissioner reviewed the decision and on 22 February 2018 also refused access to the document relying on s 33(1) of the Act.Section 33(1) provides that a document is an exempt document if its disclosure under the Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person). Section 33(9) provides that information relating to the personal affairs of any person includes information— (a) that identifies any person or discloses their address or location; or (b) from which any person's identity, address or location can reasonably be determined;
VCAT states
The applicant filed a witness statement which generally sets out the circumstances already referred to but enlightens the Tribunal by setting out in paragraph 7 her purposes in seeking the information from the Department. She states that her purposes are not limited to identifying her birth father. She states that she also has an interest in understanding who her birth mother considered to be her birth father, especially as she can no longer ask her now deceased birth mother.The Department stated that the applicant’s birth mother is recorded on the Department’s file as having named different men as the applicant’s birth father and that that it is not clear from the file that the applicant’s birth mother knew the identity of the applicant’s birth father. The Department has not been able to identify the applicant’s birth father. The document in dispute was made by a staff member, recording a discussion between the staff member and one of the men named by the birth mother as the applicant’s birth father. Communications of the type recorded in the document are treated confidentially by the Department; this was the case when the document was created in 1999 and continues to be the case today.
The Department stated that the document in dispute contains information
about four people who would be affected by its disclosure including the applicant and the applicant’s birth mother. Of the other two people whose information is in the document, one is identified by their first name and surname, and the other is identified by the first name only and by their relationship to the person named in full.The Department went on to state
that throughout the proceeding of the matter, various searches have been made.
A search of the White Pages reveals approximately 130 listings nationally of that surname (with 13 being listed in Victoria). Of those, approximately 15 were listed with the same first or second initial as the first initial of the first name of the person named in full in the document (excluding those listed with a title denoting a different gender). One of those people is listed with a Victorian address.
A search through Google using the full name (including a common contraction of the first name) on websites using a ‘.au’ domain reveals a couple of people with the person’s full name, one of whom is associated with the same suburb as the only Victorian White Pages listing referred to above.
A search of Linkedin for the full name ‘including the common contraction’ results in three people of that name registered with the site in Australia.
A search on Facebook reveals 100 users with the same name. Of those, four reveal locations in Australia – and of those, three are in Victoria. One of the Victorian locations is associated with the sole Victorian White Pages listing. ... Facebook might limit search results to 100. She also notes that not all the results revealed a location.
A search of Twitter reveals 24 users using the full name (including those with a common contraction of the name). It is not clear how many are based in Australia or Victoria.The Department noted that
the document also records a landline and mobile phone number, both apparently in relation to the person named in full. A Google search for the landline phone number reveals it is registered to a company. An ASIC historical company extract reveals that the person has not been a director or shareholder of the company.Unsurprisingly the Department indicated that it
is concerned that contacting people whose names or initials match those in the document has the real potential to intrude into the lives of those people and their families, and cause considerable concern, anxiety and distress for them and their families. Attached to Ms Hamilton’s statement [on behalf of the Department] were the Confidentiality Information Sheets 3 to 5 published by the National Statistical Service which show how the likelihood of confidential information being unmasked grows as the dataset to which the information relates shrinks. Ms Hamilton went on to state that the Department is concerned that the relatively small number of people locally bearing the full name (or first initial and surname of the person named in full in the document increases the likelihood of the applicant, or others) identifying the person to whom the document relates. This concern also relates to the lack of information clearly identifying which of those persons is the actual person to whom the applicant’s birth mother was referring increases the changes of misidentification (including as part of a process of elimination). The Department is also concerned that the risk of identification (and misidentification) giving rise to significant distress is increased given the possibility of people within one family (for example, father and son or nephew and uncle having the same name).VCAT notes steps taken by the Department to try to contact the named man
In response to a reference in the applicant’s material to the Department failing to try to make contact with person or persons by dialling either number identified in the document, a statement of evidence in reply dated 24 August 2018 was made by Ms Hamilton. Two telephone numbers were identified in the document, a landline and a mobile telephone number. The document identifies that the landline was used to contact the named man.
Ms Hamilton [on behalf of the Department] then proceeds to outline the steps taken to try to contact the named man: An officer of the Department rang the landline number and received a recorded message stating that the number was not connected. The officer used the landline number to perform an internet search. The search results included a website with free access to ‘reverse phonebook information’ (‘reverse phonebook website’). The officer used the reverse phonebook website to identify that the landline number had been connected to a business. The officer then used the online Australian Securities and Investments Commission (‘ASIC’) business registration database to search the name of the business identified by the reverse phonebook website. The search did not reveal any information assisting in identifying contact details for the named man. A separate search was conducted using the online version of the White Pages telephone directory. This search identified one person located in Victoria with details matching the surname and first initial of the named man. A separate search was conducted of the property titles database for the one person listed in the White Pages in Victoria with details matching the surname and first initial of the named man. The property titles search confirmed that the person identified in the White Pages search had the same first name and surname as the named man. The officer called the number listed next to that name in the White Pages search results and made carefully scripted enquiries to ascertain whether that person was the named man. The person contacted by the officer gave information during the phone call which satisfied the officer that the person was unlikely to be the named man, so the phone call was concluded. The document indicates that the landline was the contact number for the named man. It is not clear from the document whether the mobile number is for the named man or another affected person referred to in the document. The Department decided not to call the mobile telephone number to attempt to contact the named man. The Department believed that doing so would involve a significant risk of disclosing the personal affairs of the named man, the applicant and other affected persons.The Department submitted that
as a small number of persons with the name of the person named in full, and has also found that two people of that name live (or lived) in the same small community, it was then submitted that the small dataset, together with the common practice of names being shared within families meant that it is highly likely that, should the document be disclosed, any or all of the following will occur: The person named in full will be identified. The wrong person will be misidentified as the person named in full. The extremely sensitive information involved with the document will be disclosed to someone who is not the person named in full but who shares their name and who knows the person named in full. It was also submitted that the same risk exists for the third party named in the document through the same sequence.
It was further submitted that the evidence points to the person named in full as belonging to a very small group of people sharing the same surname and an even smaller group of people sharing either the full name or the first initial and surname. This group is quite possibly a family.VCAT concludes there is no public interest in the disclosure. In short, there is potential for disclosure to do great harm.
The question of whether disclosure would involve ‘unreasonable disclosure’ requires a balancing of competing interests. On the one hand it is obvious that the applicant has a legitimate and personal reason for seeking access to the information. As against this, the Tribunal must consider the right of a person whose privacy may be invaded by the disclosure of a document. I am satisfied that there exists a significant potential invasion of privacy, especially in relation to the person named in full an also the third party. In addition to the potential for invasion of privacy of persons named in the document, there is potential for damage to other persons should they be contacted either personally or via associated persons, in the course of the applicant making enquiries if she were to be given access to the document. This concern is exacerbated by the very sensitive nature of the information.
Even though the person named in full in the document has not been contacted in order to ascertain whether they consented to release of the information, I am satisfied that it is highly likely given the nature of the information that they would not wish to have it disclosed. I am also satisfied that the nature of the information and the environment on which it was obtained requires a high degree of confidentiality. This confidentiality has been preserved by the respondent for many years and with valid purpose. The reliability of the information contained in the document is untested.
The respondent has offered an alternative mechanism to assist the applicant in identifying her birth father as opposed to knowing who her mother may have named as the father. This mechanism employs a more sensitive and safer approach to the exercise. The existence of this offer, which remains open, has bearing on the assessment of whether disclosure would be unreasonable. The applicant has not yet accepted the offer.
I am satisfied that the information was obtained in confidence, rendering its disclosure more likely to be unreasonable.
I am also satisfied that the person named in full or the third party or a member of their family is likely to suffer stress, anxiety or embarrassment should the document be released. Such a consequence is also foreseeable in the case of a person who is misidentified as being the person named in full. I balance this against the applicant’s interest which is the desire to identify her birth father.A couple of years ago, in response to Pauline Hanson's recurrent attempt to resurrect the Australia Card - this time as a must-carry national ID card with biometric features - I suggested that it was time to once and for all kill off the zombie card, a proposal that should be dead, certainly smells that way but alas seems to creep out and make a lot of unintelligent noise every two years ago.
Hanson, the resolutely knownothing populist and publicity seeker, has now offered us the Human Services Amendment (Photographic Identification and Fraud Prevention) Bill 2019 (Cth), which seeks to amend the Human Services (Medicare) Act 1973 (Cth) to "require photographic identification on all Medicare cards to reduce fraudulent usage of Medicare cards".
The Bill does not acknowledge privacy or other human rights concerns and does not engage with whether the proposed scheme would be proportionate, effective and efficient.
The Bill proposes insertion in the Human Services (Medicare Act) 1973 (Cth) of the following sections
5. Section 41A Medicare card information
This section requires that a medicare card when issued must include “medicare card information.”
6. Section 41B Minister to be satisfied of a person’s eligibility and identity
Section 41B will ensure that the identity and eligibility of anyone issued with a medicare card is established before it is issued.
7. Section 41BA Payment obtained through fraud etc.
This section establishes that fraudulent use of another person’s medicare card or by impersonating a card holder to obtain a benefit or payment under the Human Services (Medicare Act) 1973 , the Health Insurance Act 1973 or the National Health Act 1953 , is subject to two years’ imprisonment and/or 50 penalty units. This offence is modelled on offences established by subsection 103(5) of the National Health Act 1953 which relate to obtaining pharmaceutical benefits by deception or fraud.
