Albanese and Chief Executive Officer of the Australian Customs Service
[2006] AATA 783
•13 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 783
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/264
GENERAL ADMINISTRATIVE DIVISION ) Re CESARE ALBANESE Applicant
And
CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS SERVICE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date13 September 2006
PlaceCanberra
Decision The decision under review is affirmed.
..............................................
Mr S. Webb, Member
CATCHWORDS
FREEDOM OF INFORMATION – exempt documents – legal professional privilege – real harm – unreasonable disclosure of personal information – exposure of confidential informant – damage to Commonwealth State relations – communications in confidence – decision affirmed
Freedom of Information Act 1982 ss 3, 9, 11, 15, 22, 33, 36, 37, 41, 42, 54, 55, 58, 59, 61, 63, 64
Administrative Appeals Tribunal Act 1975 s 35
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services (1992) 111 ALR 1
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Commissioner of AFP v Propend Finance Pty Ltd (1997) 188 CLR 501
Waterford v Commonwealth (1987) 163 CLR 54
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237
Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53
Grant v Downs (1976) 135 CLR 674
Pearse v Pearse (1846) 63 ER 950
Mann v Carnell (1999) 201 CLR 1
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Re Dale and Australian Federal Police (1997) 47 ALD 417
REASONS FOR DECISION
13 September 2006 Mr S. Webb, Member 1. Cesare Albanese was an employee of the Australian Customs Service (“Customs”). He was working in a joint targeting team with the Australian Federal Police when his security clearance was suddenly withdrawn as a result of allegations of wrong doing. The allegations were not substantiated on investigation. Mr Albanese claimed and was ultimately awarded compensation following review of his case by the Tribunal (differently constituted). Subsequently he applied for access to information concerning him in the possession of Customs. In successive searches a body of documents were identified as within the scope of Mr Albanese’s request. Certain documents were released. Exemptions were claimed by Customs in relation to 79 documents or parts thereof and access was refused. The exemptions claimed were upheld on internal review. Mr Albanese is seeking review of Customs’ decision to refuse to release those documents.
2. The 79 documents in question were provided to the Tribunal pursuant to s.64 of the Freedom of Information Act 1982 (“the Act”). Orders restricting access to and release of these documents were given pursuant to s.63 of the Act and s.35 of the Administrative Appeals Tribunal Act 1975.
3. The Tribunal directed that further searches be undertaken for additional documents identified by Mr Albanese during the hearing. Additional documents were identified during the searches. However only two of these were created prior to the date of Mr Albanese’s request (Documents 80 and 81).
4. The onus is on Customs to establish that the exemptions are justified (s.61).
scope of review
5. A preliminary issue arose concerning the scope of Mr Albanese’s request, which can shortly be dealt with. Mr Albanese asserts that his request includes all documents concerning him up to and including 24 May 2005, the date of the internal review of the decision made by the primary decision-maker. I do not agree.
6. The Act creates legal rights of access to information that is in the possession of the Commonwealth (for example see s.3 and s.11). Provision is made under s.15 of the Act for a person to request access to a document. On receipt of such a request all reasonable steps must be taken to notify the applicant of a decision within a specified time. If the person is dissatisfied with the decision, he or she may request an internal review of that decision pursuant to s.54. If dissatisfied with the internal review decision application may be made to the Tribunal for review of that decision pursuant to s.55. Once jurisdiction is enlivened the Tribunal must proceed to review the decision under attack and decide whether it was the correct or preferable decision. For that purpose the Tribunal exercises the powers and discretions under the Act that were conferred upon the person who made the decision under review, with the exception that the Tribunal cannot release material that is exempt under the Act (s.58). The powers of the Tribunal are for the purpose of reviewing decisions and may not be exercised at large (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589). In that exercise the Tribunal will have regard to all of the evidence before it and is not limited to the evidence that was before the primary decision maker, but must address the same question that was before the primary decision maker (Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services (1992) 111 ALR 1 at par 11).
7. Plainly enough the question before the person who made the internal review decision was whether the primary decision to refuse access to certain documents, in whole or in part, was the correct or preferable decision. It was for the agency (the primary decision maker) to conduct appropriate searches and identify all of the documents that were within the scope of Mr Albanese’s request and then, considering the various heads of exemption from release under the Act, to decide if there were grounds to refuse access to any document, with or without deletions pursuant to s.22. Essentially the scope of the request is defined by its terms and the date on which it was made. Delay in the processing of a request for access to information is not a reason to broaden the scope of the request or the matters decided by the primary decision-maker.
8. Mr Albanese’s requests were broad in their terms and concerned all documents (as described) relating to him “which have been created, modified or otherwise dealt with by the Australian Customs Service since 1 January 2001”. His requests were made on 31 March 2004 and 2 April 2004. The requests had present effect, consistent with s.15 of the Act, on the dates on which they were lodged with Customs. It can be seen, therefore, that the documents that are within the terms of the request are those in existence and in the possession of Customs on the date the request was made. It cannot be said that a document was in existence or in the possession of Customs when the request for access was made if that document had not been brought into existence at that time. It follows that the scope of Mr Albanese’s request for access to documents is confined to the period from 1 January 2001 to 2 April 2004. Documents brought into existence after that date are not relevant to this review, but may be the subject of a further request for access by Mr Albanese. Any such request must be determined by Customs on the merits at the time.
exemptions from release
9. Mr Albanese contests the exemptions claimed by Customs in the following categories:
(a)Legal professional privilege: documents 37-64, 67-71, 73-77 and 79-81;
(b)Personal information: documents 1-30, 36, 65, 66, 72 and 78;
(c)Law enforcement: confidential informants: documents 9-11, 13-22 and 24;
(d)Law enforcement: prejudice an investigation: documents 9-24 and 31-35;
(e)Harm to Commonwealth State relations: documents 9-10 and 12-14.
However, Mr Albanese’s lay representative, Mr Peter Bennett, let it be known plainly enough during the hearing that Mr Albanese was not interested in obtaining access to information about third parties, or that may enable a confidential source to be identified, or that may compromise an investigation.
S.42 - Legal professional privilege: documents 37-64, 67-71, 73-77 and 79-81
10. Mr Albanese challenged the decision to exempt documents 37-64, 67-71, 73-77 and 79-81 from release on the grounds of legal professional privilege. Mr Bennett asserted that the documents claimed to be exempt should be released in whole or in part because:
(a)they are within the meaning of s.9 of the Act concerning agency usage of documents that are not exempt from release (“the section 9 issue”);
(b)the Tribunal has power to review the decision to claim legal professional privilege pursuant to s.58 and must do so. Furthermore, pursuant to the ‘Brazil direction’ and the Freedom of Information Memorandum number 98 the privilege should not be claimed if no real harm will result from the release of the documents (“the section 58 issue”);
(c)privilege has been waived as a result of the subject matter having been communicated to a third party (“the waiver issue”);
(d)copies of the documents could be made with deletions (“the section 22 issue”).
11. Legal professional privilege attaches to confidential communications between a lawyer and his or her client and attaches to material that was brought into existence for the dominant purpose of obtaining or providing legal advice or services or for use in litigation (see The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 at pars [9] and [10]; Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at 54). It matters not that the material is a collection or a collation of documents, including copies of documents, as long as the material was collected or collated, or copied, for the dominant purpose of legal advice or use in pending litigation (Commissioner of AFP v Propend Finance Pty Ltd (1997) 188 CLR 501 at 553).
12. Documents 37, 41-44, 48-52, 54-62, 64, 67, 68, 70-73, 75 and 77 are written communications between Customs and the Australian Government Solicitor (“AGS”) that were brought into existence for the dominant purpose of obtaining or providing legal advice in relation to a claim for compensation by Mr Albanese and related proceedings in the Tribunal.
13. Documents 38, 39 and 74 are emails in which a Customs officer has forwarded written communications from AGS (which are subject to privilege) to another Customs officer. These communications are between two Customs officers who were involved in managing Mr Albanese’s case and dealing with AGS in that regard. The confidentiality that is protected by privilege is that of Customs to seek legal advice in relation to proceedings initiated by Mr Albanese against Comcare. Forwarding privileged communications from one Customs officer to another in relation to those proceedings is not inconsistent with the confidence protected. I am satisfied that the documents are within the solicitor-client relationship then existing between AGS and Customs. I note that Document 39 has been copied with deletions for release to Mr Albanese.
14. Documents 40 and 69 are draft letters prepared by AGS on instruction by Customs.
15. Documents 45 and 46 are letters between Comcare and Customs concerning certain information in relation to Mr Albanese’s claim for compensation. The information was sought in confidence and provided in the context of legal proceedings in the Tribunal concerning Mr Albanese’s compensation claim against Comcare. Documents 47, 53 and 76 are communications between Comcare’s solicitor and Customs concerning similar information for the purpose of legal proceedings between Comcare and Mr Albanese.
16. Document 63 and 79 tabulate notes concerning the contents of Customs files S01/10558 and S02/10117. The notes were prepared by Customs for the purpose of instructing AGS in relation to proceedings commenced in the Tribunal by Mr Albanese in relation to his compensation claim against Comcare.
17. Documents 80 and 81 are notes of interview with a potential witness that were prepared by Ms Sarah Court, AGS solicitor to Customs for the purpose of providing confidential advice to Customs and for use in Mr Albanese’s compensation proceedings.
18. I accept that at all relevant times there was a solicitor-client relationship between AGS and Customs (see Waterford v Commonwealth (1987) 163 CLR 54). AGS lawyers provided independent legal services and confidential advice to Customs officers under legal services contracts (which were not in evidence), and provided such confidential advice and services in relation to Mr Albanese’s compensation claim in February 2002. Confidential communications and materials that were generated within the solicitor-client relationship by Customs officers and AGS lawyers for the dominant purpose of obtaining or providing legal advice or for use in relation to Mr Albanese’s compensation litigation were protected under legal professional privilege.
19. Comcare instructed and was represented by Sparke Helmore solicitors in litigation arising from Mr Albanese’s claim. Comcare and Sparke Helmore communicated with Customs and AGS in confidence concerning Mr Albanese’s compensation proceedings. The nature of those communications concerned the discovery of information. The communications were confidential and were for the dominant purpose of obtaining or providing legal advice in relation to the legal proceedings, or to obtain information for use in those proceedings. The communications and related materials were subject to legal professional privilege.
20. That being so, I am satisfied that documents 37-64, 67-71, 73-77 and 79-81 would be privileged from production in legal proceedings and were subject to legal professional privilege at the time of their creation. A document that is protected from production by privilege is exempt from release under the Act. However, it is necessary to consider other factors and issues raised by Mr Albanese.
the section 9 issue
21. Mr Albanese asserted in general terms that some or all of the documents 37-64, 67-71, 73-77 and 79-81 are within the terms of subs 9(1) of the Act and are not exempt from release pursuant to section 42 on the grounds of legal professional privilege.
22. As will appear I do not agree.
23. A document of the kind referred to in subs 9(1) is one that is provided for the use of, or is used by, agency personnel when making decisions or recommendations under an Act or scheme administered by the agency. Such documents are required to be made available for inspection and purchase by members of the public, and information about them is to be published pursuant to subs 9(2). A document that is required to be published pursuant to subs 9(1) of the Act is not an exempt document under subs 42(2). Thus, it is necessary to consider the documents claimed to be exempt from release pursuant to s 42 and identify any document of the kind referred to in subs 9(1) (see discussion by Emmett J in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 at pars [39]-[43]).
24. I am satisfied that documents 37-64, 67-71, 73-77 and 79 are not within the terms of subs 9(1). There is no evidence that any of the documents claimed to be exempt are documents that have been or are required to be published pursuant to s.9 of the Act. The documents listed in Customs Section 9 Statement in 2004 (as handed up by Mr Bennett) are of a qualitatively different kind than the documents claimed to be exempt pursuant to s 42 of the Act in these proceedings. There is no evidence that any of the documents in question have been provided to or have been relied upon generally by Customs personnel when making decisions or recommendations under any enactment or scheme concerning the rights or obligations of persons that is administered by Customs. Customs does not administer the Commonwealth workers compensation scheme under the Safety, Rehabilitation and Compensation Act 1988. Mr Albanese’s compensation claim and related proceedings were prosecuted under that enactment. The documents are specific in character and were brought into existence in the context of those legal proceedings.
25. It follows that the documents are not within the terms of s.9 and are not excluded from the legal professional privilege exemption claimed pursuant to s.42 of the Act.
the section 58 issue
26. Mr Albanese asserted that the Tribunal has power under s.58 of the Act to review any decision made by Customs when making the primary decision. Thus it was said that the Tribunal has power to review the decision to claim legal professional privilege as well as to review the decision to refuse access on that basis. As will appear, I do not agree.
27. Mr Albanese’s proceedings in the Tribunal are under the Act. The powers of the Tribunal are set out at s.58. The powers conferred on the Tribunal by subs 58(1) are subject to the other provisions of s.58. Tribunal is bound by subs 58(2) and does not have the power to grant access to documents that are exempt under the Act. Thus it can be seen that the Tribunal does not have power to grant access to documents if an agency has made a discretionary decision not to grant access because the documents are exempt. Considering s.55 it is clear that the decision by an agency to refuse to grant access to a document is a decision that is within the power of the Tribunal to review once jurisdiction is enlivened. The terms of subs 58(1) are broad and may include decisions that are ancillary to requests for access to information under the Act. Under the Act the Tribunal exercises the powers of the person who made the decision that is under review. Section 58 does not expand those powers. Thus the Tribunal does not have power to review a preliminary decision by an agency to claim privilege without reviewing the decision under review, and thereby testing the merit or validity of the claim (Bennett v Chief Executive Officer of the Australian Customs Service (supra) at paragraphs [71]-[72]; Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53 at paragraph [52]).
28. The decision under review in these proceedings is the decision of the internal review officer to refuse to grant access to certain documents. The internal review officer exercised power under subs 45(2) to make a fresh decision on 24 May 2005, having reviewed the primary decision under challenge. Mr Albanese’s application is for review of the internal review decision (T1). That is consistent with subs 55(2) of the Act. The decision to claim privilege in relation to certain documents was preliminary to the primary decision; it was certainly not a decision made by the internal review officer when reviewing the primary decision. His task was to test the validity and merit of the primary decision to refuse access to certain documents on review. That is what he did. The claim of privilege was not a decision for the internal review officer to make afresh. The internal review decision was to refuse access to certain documents under various heads of exemption, including legal professional privilege. The function of the Tribunal is thus confined and does not extend to reviewing the preliminary decision to assert privilege in a manner that is distinct and separate from reviewing the validity and merit of the claim.
29. Mr Albanese asserted that the ‘Brazil Direction’ and Freedom of Information Memorandum 98 (“Memorandum 98”) must be applied, whereby legal professional privilege is not to be asserted unless real harm would result from the disclosure of the information. He contended that the documents are no longer sufficiently sensitive to warrant exemption from release and the matters to which they relate have been dealt with, and no real harm will result if they are released. Thus, Mr Albanese submitted that legal professional privilege exemption should not be asserted.
30. The ‘Brazil Direction’ to which Mr Albanese refers is a direction issued by Mr P. Brazil on 2 March 1986. At the time Mr Brazil was Secretary of the Commonwealth Attorney-General’s Department. The Direction relevantly states “Where a client agency wishes to assert a claim of legal professional privilege in respect of a document which has no apparent sensitivity, the attention of the client agency should be drawn to the Cabinet decision [in June 1985 that agencies should not claim exemption for documents which have no particular sensitivity]. The client should be advised that legal professional privilege should be waived unless some real harm would result from release of the documents.” Memorandum 98 addresses the Direction at par 13.2.4 and states:
“By the terms of the Cabinet decision in March 1986, agencies are not to assert legal professional privilege unless real harm would result from disclosure of the information… The phrase real harm distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency.”
31. Legal professional privilege is a rule of law. It is an expression of the public interest in the administration of justice by encouraging full and frank disclosure of information by the client to his or her legal advisor (see Grant v Downs (1976) 135 CLR 674). The decision to assert privilege was a matter for Customs that is not before the Tribunal in these proceedings. The function of the Tribunal is to review the validity and merit of the decision to refuse to grant access to certain documents within the scope of Mr Albanese’s request under the Act.
32. The Brazil Direction and Memorandum 98 are policy documents for the assistance of agencies that lack legal force and are not binding on the Tribunal under the Act. Nevertheless, in so far as they are relevant the Tribunal should have proper regard to them and apply the policy set out unless there is good reason not to. The issue of ‘real harm’ is but one factor to be considered when deciding whether to refuse access on the grounds of legal professional privilege (Bennett v Chief Executive Office of the Australian Customs Service (supra) at par [49]).
33. I am satisfied that real harm would probably be done if the confidential communications between Customs and AGS were to be released. While the communications and materials in issue are not especially sensitive or harmful to Customs in themselves, as a result of the particular contents, real harm is likely to be done to Customs if the confidence of Customs officers when obtaining legal advice in preparation for litigation is broken and the confidential communications and materials that were generated for the purpose of legal advice and representation in litigation are exposed to public scrutiny. Were that to occur it could reasonably be expected that Customs officers in the future may be less inclined to seek independent legal services and advice, and may be reticent or circumspect when disclosing relevant information in that context. Such changes would be likely to cause substantial prejudice to Customs in the conduct of its affairs. Thus, it is probable that real harm would be done to Customs if such circumstances were to occur. In those circumstances it is appropriate to maintain the confidentiality of the communications and materials in question.
34. The importance of maintaining an appropriate degree of confidentiality and independence in client–solicitor relationships is recognised in the long entrenched principle of legal professional privilege (Grant v Downs (supra) at 685; Pearse v Pearse (1846) 63 ER 950 at 957). That is highlighted in sharp relief when government agencies are engaged in disputation at law with individual citizens. There are strong reasons for government agencies to obtain independent expert legal services and advice in preparation for or anticipation of such litigation, not least in relation to administrative decisions concerning a person’s rights or entitlements (Waterford v Commonwealth of Australia (supra) at 64). Obtaining such independent legal advice can be expected to promote a proper application of the law, especially in relation to issues of natural justice, procedural fairness and individual rights, and to enhance the quality of administrative decisions. It stands counter to arbitrary or capricious decision making contrary to law and encourages full and frank disclosure of relevant circumstances. The public administration of justice is promoted thereby. Those considerations weigh heavily against releasing the confidential communications and materials concerning Mr Albanese’s compensation litigation that would otherwise be protected.
35. Thus I am satisfied that the documents in question are protected from release by legal professional privilege and Mr Albanese’s propositions concerning the assertion of privilege and the policy documents to which he has drawn attention must fail.
36. Of course, there are powerful reasons to limit the scope of the privilege and in certain circumstances privilege may be waived or foregone. In litigation concerning an administrative decision by an agency of the Commonwealth in relation to the rights or entitlements of a citizen, the administration of justice is also promoted by making available for public scrutiny information relevant to the decision-making process. However, it is for a client to waive legal professional privilege. That has not expressly occurred in relation to the documents in question. Whether implied waiver has occurred is a matter for consideration.
the waiver issue
37. Mr Albanese asserted that legal professional privilege was waived by Customs when certain documents under privilege were provided to a third party.
38. Waiver of privilege may occur in circumstances in which a document or legal advice has been disclosed to a third party if the disclosure is inconsistent with the confidentiality protected by the privilege (Mann v Carnell (1999) 201 CLR 1 at 13).
39. Having carefully considered the communications and materials in issue and Mr Albanese’s submissions concerning disclosure to third parties, I am satisfied that the communications and materials that were subject to privilege were not disclosed to third parties with any intention of forgiving the protection afforded by privilege. Furthermore I am satisfied that any such disclosure was not inconsistent with the confidentiality protected by privilege. As I understand Mr Albanese’s submission, privileged communications and material were disclosed to officers of Customs, officers of Comcare and Comcare’s solicitor. Disclosure of protected information and legal advice to Customs officers was within the solicitor-client relationship that applied to the corpus of Customs. To the extent that there was disclosure of protected communications or materials to Comcare and Comcare’s solicitor, such disclosure was made in confidence and in relation to litigation involving Comcare and Mr Albanese. Those disclosures are not inconsistent with the privilege asserted over the communications and materials in question.
40. It follows that I am satisfied that no implied waiver of privilege has occurred.
the section 22 issue
41. Mr Albanese submitted that the s.42 exemption was subject to s.22, to the extent that privileged parts of the documents in question could be separated from content that is not protected by privilege, and the document could be copied for release with exempt material deleted.
42. Legal professional privilege may apply to only part of a document (Waterford v Commonwealth of Australia (supra) at 85-86, for example). The test for privilege is purposive, concerning the dominant purpose for which a document was brought into existence. Thus if a severable part of a document does not satisfy the dominant purpose test, that part is not exempt. If the document can be copied with exempt material deleted, the remaining part must be released pursuant to s.22.
43. Document 39 has been released with deletions. I am satisfied that the deletions to document 39 are exempt from release as they satisfy the dominant purpose test and are protected by legal professional privilege.
44. Customs suggested that deletions could be made to documents 38 and 74, but if so, nothing of substance would remain. However, I am not persuaded that deletions of exempt material can be made from those documents as the documents in their entirety are protected by privilege in my opinion. It is true that each document was forwarded by one Customs officer to another, both of whom were involved dealing with AGS and Comcare in relation to Mr Albanese’s compensation litigation and related legal advisings. Those communications in their entirety were brought into existence for the purpose of obtaining or providing legal advice concerning Mr Albanese’s litigation. They satisfy the dominant purpose test. They are within the ambit of the solicitor-client relationship between Customs and AGS and are protected by privilege.
45. I have carefully considered all of the contested documents to which access has been refused on the grounds of privilege and I am satisfied that no further deletions can be made.
s.41 - Personal information: documents 1-30, 36, 65, 66, 72 and 78
46. Mr Albanese let it be known during the hearing that he was not interested in pursuing the release of personal information of people not related to his case. I note that Mr Albanese’s request for access to information is specific to “personal information directly concerning me” (T3 and T4).
47. Customs submitted that documents 1-30, 36, 65, 66, 72 and 78 contain personal information that it would be unreasonable to disclose.
48. A document is exempt from release if disclosure under the Act would involve the unreasonable disclosure of personal information concerning persons other than the person requesting access (s.41). The term ‘personal information’ is broadly defined. The question of whether disclosure would be unreasonable requires consideration of all the circumstances of each case. It is a balancing exercise in which all legitimate interests must be considered, including the public interest in release of government information and the public interest in the privacy of a third party (Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429).
49. Documents 1-8 contain telephone records and the names, telephone numbers, address and other information of a number of people including Mr Albanese. Copies of these documents have been released with deletions. The deleted information includes the names, telephone numbers, addresses and other personal information of persons other than Mr Albanese that would permit them to be identified. This is personal information within the meaning of the Act. I am satisfied that the deleted information is not information requested by Mr Albanese and, in any event, disclosure of that information would not be reasonable. This information is police intelligence information concerning individuals. Public release of the information could be expected to compromise the confidentiality of the police intelligence. It would also be an unreasonable invasion of the privacy of the individuals thus able to be identified. Those interests weigh heavily in favour of exempting the information from release. The public interest in disclosure of information held by Customs does not outweigh those considerations. That material, I am satisfied, is exempt from release.
50. Documents 9-26, 29, 30 and 78 contain intelligence information about persons who have been the subject of investigations by police (including the Internal Affairs Unit) or the National Crime Authority (“NCA”) (presently the Australian Crime Commission). Copies of these documents have been released with deletions. The information that has been deleted includes the names and other identifying information of persons in the context of allegations of wrong-doing, misconduct or criminal activity. This is personal information of great sensitivity. I am satisfied that release of the information would not be reasonable. Substantially, the deleted information is confidential police or NCA intelligence that in all likelihood would be exempt from release pursuant to paragraphs 37(2)(b) or (c) of the Act. The public interest in fighting crime is served by protecting the integrity of law enforcement operations and intelligence, and maintaining the confidentiality of sensitive information. Furthermore, it is important to protect against the unreasonable invasion of the privacy of persons who are named and against whom allegations of wrong-doing or misconduct are made. Against those factors Mr Albanese’s interest in accessing information about his case and the public interest in the full disclosure of information held by the government must be weighed. The information is not in the public domain. It is sensitive, even though investigations may not be presently active, and was obtained with an expectation of confidentiality. There is no evidence the allegations set out are proven. I am satisfied that it is unreasonable to disclose the deleted personal information in documents 9-26, 29, 30 and 78, and find that information is exempt from release pursuant to subs 41(1) of the Act.
51. Documents 27, 28, 65, 66 and 72 contain information about personnel issues in relation to Mr Albanese and other Customs officers (one in particular). Copies of these documents have been released with deletions. The deleted information concerns security issues in relation to a particular Customs officer, including Australian Bureau of Criminal Investigation (“ABCI”) clearances to access the Australian Criminal Intelligence Database (“ACID”). It includes the names of Customs officers and information about ACID clearances and related matters, as well as information concerning work locations. The deleted information is personal information of persons other than Mr Albanese. The public interest in protecting their privacy weighs heavily in the balance, even though they are in public employment as officers of the Commonwealth.
52. The information is some years old (dating from 2002). There is no evidence that the allegations contained in the documents are proved or presently under investigation. It is difficult to assess the present sensitivity of the information. Customs has not obtained the views of those identified concerning release of the information. Nevertheless, if the information is released it is released to the world at large. The release of unsubstantiated allegations against identified persons is in all probability an unreasonable invasion of their privacy, and contrary to the public interest in that regard. Thus I am satisfied that the deletions made to documents 27, 28, 65, 66 and 72 are exempt pursuant to subs 41(1) as release of that personal information would be unreasonable in the circumstances.
53. Furthermore, even though issues concerning subs 37(2) were not ventilated in these proceedings, it appears to me that refusal of access under that head of exemption may be warranted. Disclosure of operational information about ABCI security arrangements and ACID clearances may prejudice methods or procedures for preventing or detecting illegal activity and the protection of public safety. That is especially so when disclosure may divulge security and intelligence information and may prejudice border control and related security activities, although that has not been established.
54. Nevertheless, Mr Albanese confirmed that he is only interested in obtaining access to information that is directly related to him (see Transcript, 19 May 2006, pp61-63). The information in these documents concerns the personal information of other persons.
55. Before moving on, Customs’ failure to inform those whose personal information was at risk of disclosure in these proceedings must not pass without comment. There is a mandatory obligation on an agency to take all reasonable steps to inform a person of proceedings in this Tribunal under the Act if the personal information of that person is in issue: subs 59A(3). Failure to comply with that obligation may result in a person being denied an opportunity to inform the Tribunal of their views concerning disclosure of their personal information, and may result in delay and additional costs. Furthermore, the Tribunal is then denied the benefit of the person’s evidence when considering relevant factors and balancing the various interests to decide the issue. Even though the views of the person may not be determinative of the matter, the agency concerned is obliged to take all reasonable steps to ensure the person has that opportunity.
56. There may be cases in which an agency may resist informing a person of such proceedings on the grounds that to do so would reveal the existence of confidential records containing their personal information that were otherwise not known to the person, the disclosure of which may prejudice law enforcement or public safety. In such cases it could be expected that access may be refused in the particular circumstances on grounds other than privacy, under s.37 if law enforcement activities may be prejudiced or under s.33A if the information was communicated in confidence between a State and the Commonwealth or under s.36 if internal working documents may be released contrary to the public interest for example. These are matters for agencies to consider on the facts of each case, and especially when asserting exemptions under s.41 of the Act.
s.37 - Law enforcement – confidential informants: documents 9-11, 13-22 and 24
57. I have found that parts of documents 9-11, 13-22 and 24 are exempt from release on the grounds of unreasonable disclosure of personal information. The deleted information includes the allegations made by a confidential informant who is named and otherwise identified. Disclosure of such information is not subject to a test of public interest but must be considered pursuant to subparagraph 37(1)(b). I am satisfied that the deleted material in those documents is exempt from release on the grounds that disclosure may reasonably be expected to reveal the existence or identity of a confidential source of information. It matters not that the information may be somewhat old or out of date, and may not be the subject of present investigation (Re Dale and Australian Federal Police (1997) 47 ALD 417 at 420). It is sufficient that the information may lead to exposure of a confidential source to refuse access pursuant to subparagraph 37(1)(b) of the Act. I so find.
s.37 - Law enforcement – prejudice an investigation: documents 9-24 and 31-35
58. Customs submitted that parts of documents 9-24 and 31-35 are exempt from release pursuant to subparagraph 37(1)(a) of the Act on the grounds that prejudice to the conduct of an investigation is to be avoided. However, it was conceded during the hearing that the exemption is not made out in the absence of an ongoing or present investigation and the point was not pressed. Nevertheless, I have found that those parts of the documents are exempt from release under other heads of exemption under the Act.
59. The deleted parts of documents 9-24 and 31-35 contain operational information relating to particular investigations and targets that are not presently on-going. Nonetheless I accept that releasing the information will disclose methods or procedures for investigating and dealing with criminal activity that may prejudice the effectiveness of those methods or procedures in the future. That is a sufficient ground for exempting the information from release pursuant to paragraph 37(2)(b) of the Act. Furthermore, I am satisfied that releasing this information will divulge operational information that may be expected to prejudice the maintenance of lawful methods for the protection of public safety and may enable a confidential source to be identified. Those are sufficient grounds to exempt release of the particular information pursuant to subparagraphs 37(2)(c) and 37(1)(b) of the Act respectively. I so find.
60. I note that deleted parts of documents 9-24 are also exempt from release on the grounds of personal privacy pursuant to subs 41(1) of the Act.
s.33A - Harm to Commonwealth State relations: documents 9-10 and 12-14
61. Mr Albanese contested that parts of documents 9, 10 and 12-14 are exempt from disclosure pursuant to s.33A on the grounds that the information was communicated to a Commonwealth authority in confidence by the Victoria Police, and that disclosure of the information could reasonably be expected to damage relations between the Commonwealth and the State of Victoria.
62. If disclosure would or could reasonably be expected to damage relations between the Commonwealth and a State, or if disclosure would divulge information communicated in confidence by the Commonwealth or a State then access may be refused pursuant to subs 33A(1). The exemption is subject to a public interest test.
63. The information in question is intelligence information obtained by the Victoria Police that was provided to a Commonwealth authority for investigation purposes under an expectation of strict confidentiality. The Victoria Police were consulted about and opposed the possible release of the information. I accept that release of the information may reasonably be expected to result in damage to relations between the agencies concerned. Disclosure may prejudice the future sharing between the Commonwealth and a State of confidential and sensitive intelligence information obtained from confidential informants in relation to possible criminal activity. Furthermore I accept that disclosure would divulge information that was communicated in confidence by a State to the Commonwealth.
64. There is a powerful public interest in facilitating and enhancing information sharing between Commonwealth and State law enforcement agencies in relation to possible criminal activity. However, Mr Albanese’s interest and the public interest in the administration of justice and the disclosure of information held by government agencies must be considered. Mr Albanese stated that he did not seek information that would compromise the intelligence arrangements of Commonwealth or State agencies. He has been provided with access to parts of the documents in question. However, it is difficult to see how the administration of justice would be served by disclosing the particular information over which exemption is claimed under s.33A. The information in question is not proven, nor is it the subject of present investigation (although that may change in the future). As with other information in this case, the particular information is but a small component of stored intelligence that is accumulated over time and is maintained as a resource, in the background, for the purposes of future investigations. It seems to me that the public interest in the administration of justice is best served by maintaining the integrity of that resource and by protecting the confidentiality of information that was provided to the Commonwealth by the State of Victoria.
65. Balancing all the factors and the various interests I am satisfied that the deleted information in documents 9, 10 and 12-14 is exempt from release pursuant to s.33A of the Act. In any event, the particular information is exempt from release under other heads of exemption under the Act.
conclusion
66. I am reasonably satisfied that the decision to refuse access to the 81 specified documents, in whole or in part (as specified above) is the correct or preferable decision in the circumstances, and the documents in questions are exempt from release under the Act.
67. The decision under review is affirmed.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: Peter Edwards .....................................................................................
AssociateDate of Hearing 19 May 2006
Date of Decision 13 September 2006
Representative for the Applicant Peter Bennett
Solicitor for the Respondent Roger Northcote
13
0