Bachelard and Australian Federal Police (Freedom of information)
[2024] AATA 312
•29 February 2024
Bachelard and Australian Federal Police (Freedom of information) [2024] AATA 312 (29 February 2024)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2023/3445
Re:Michael Bachelard
APPLICANT
AndAustralian Federal Police
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:29 February 2024
Place:Melbourne
The decision under review is affirmed.
.....................[sgd]...................................................
Deputy President Britten-Jones
CATCHWORDS
FREEDOM OF INFORMATION - review of decision to refuse access to documents related to an investigation under Part V of the Australian Federal Police Act 1979 - claim that documents are exempt under s 37 of the Freedom of Information Act 1982 because documents would disclose the identity of confidential sources of information in relation to the enforcement or administration of the law - whether sources remain confidential - further exemptions under sections 47E and 47F - whether disclosure of documents would have a substantial adverse effect on management of personnel and operations of the Australian Federal Police - whether disclosure would involve unreasonable disclosure of personal information - whether disclosure is in or contrary to the public interest - whether parts of a document are irrelevant to the access request - decision affirmed
LEGISLATION
Freedom of Information Act 1982 (Cth)
Australian Federal Police Act 1979 (Cth)
Privacy Act 1988 (Cth)
CASES
Department of Health v Jephcott (1985) 8 FCR 85
Grant v Repatriation Commission [1999] FCA 1629; (1997) 57 ALD 1
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645
Re Dale and Australian Federal Police (1997) 47 ALD 417Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537
SECONDARY MATERIALS
Office of the Australian Information Commissioner, Freedom of Information Guidelines – Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth) (November 2023)
REASONS FOR DECISION
Deputy President Britten-Jones
29 February 2024
This is an application for review of a decision by the respondent to refuse access to the applicant to four documents relating to an investigation carried out under Part V of the Australian Federal Police Act 1979 (the AFP Act). Part V deals with professional standards and Australian Federal Police (AFP) conduct issues relating to persons employed by or associated with the AFP who are described and defined in the AFP Act as appointees.
The applicant is a very experienced journalist who was the Investigations Editor at The Age which published numerous articles about the allegations of war crimes that were made against Ben Roberts-Smith. These articles provide the background to the request for documents by the applicant.
The respondent has refused access in full to the four documents pursuant to the Freedom of Information Act 1982 (FOI Act).
The request and refusal for access
On 30 June 2021, the applicant made a request to the respondent for documents under the FOI Act in the following terms:
This is a request under the FOI Act for statements written by:
Neil Gaughan
Nigel Ryan
Andrew Colvin.
Concerning approaches made by Mick Keelty to the AFP in June 2018 concerning Ben Roberts-Smith.
This FOI is also seeking the final report by AFP professional standards about Mr Keelty’s interaction with serving members.
As the nature of Mr Keelty’s conduct in contacting various AFP members has already been widely canvassed in media reports which relied on a public statement by Mr Keelty, and as the Professional Standards inquiry (at least as per how it pertains to Mr Keelty’s conduct) is now complete, there is no reason why these documents should not be released…
On 26 November 2021, a delegate of the respondent made a decision on the access application (the Original Decision). In the statement of reasons, the delegate advised that searches were undertaken by Professional Standards Command and that four documents (the Four Documents) were identified, namely three statements and a Professional Standards Report arising from an internal investigation by the Professional Standards Investigation Unit of the AFP. Access to the Four Documents was refused.
On 7 December 2021, the applicant sought internal review of the Original Decision which was then affirmed on 19 December 2021.
On 3 May 2022, the applicant applied to the Office of the Australian Information Commissioner (OAIC) for IC review of the reviewable decision. The delegate of the IC exercised a discretion not to undertake a review of the application.
The applicant applied to the Tribunal for review on 16 May 2023 and the application was heard on 1 December 2023.
The affidavit evidence
The applicant relies upon an affidavit in his name which includes references to numerous media articles and to the reasons for judgment of Justice Besanko in the defamation proceedings in Roberts-Smith v Fairfax Publications Pty Ltd (No 41) [2023] FCA 555.
The respondent relies upon an affidavit of Jason Kennedy who held the position of Commander Professional Standards for the AFP.
There was no cross examination or any oral evidence at the hearing which proceeded by way of submissions on the written evidence which included the documents lodged by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
Background facts
There is no dispute with respect to the facts taken from the affidavits and their annexures as follows.
Mr Ben Roberts-Smith is a highly decorated soldier who served overseas including in Afghanistan. He became the subject of numerous allegations of war crimes which were published by media outlets including The Age. Roberts-Smith sued The Age for defamation in the Federal Court. Justice Besanko heard the case and found against Roberts-Smith by judgment dated 1 June 2023.
On 16 August 2020, The Age published an article which reported that:
(a)The Australian Federal Police’s war crimes investigation into former special forces soldier Ben Roberts-Smith was compromised after former AFP chief Mick Keelty was told secret details by serving police and then passed them on to Mr Roberts-Smith.
(b)The police watchdog, the Australian Commission for Law Enforcement Integrity, has confirmed Mr Keelty’s actions have resulted in an inquiry into “a potential corruption issue relating to the alleged release of information by an unknown AFP member to Mr Ben Roberts-Smith about an investigation into Mr Roberts-Smith”.
The article referred to “AFP Assistant Commissioner Neil Gaughan” and the “then-commissioner Andrew Colvin”.
The applicant said in his affidavit:
5. I am aware that it has been widely reported in the media, including by The Age, that the former Commissioner of the Australian Federal Police (AFP), Mick Keelty, disclosed confidential information received from AFP personnel to Roberts-Smith in around June 2018, at a time when Roberts-Smith was the subject of an AFP investigation (Keelty Disclosure).
…
10. I am aware that:
a. the Keelty Disclosure was the subject of an investigation by the PRS Professional Standards Unit (Investigation);
a. as part of that Investigation, Neil Gaughan, Andrew Colvin and Nigel Ryan provided statements to the ACLEI (AFP Statements);
b. the Investigation has now concluded; and
c. the PRS has prepared a report into its investigation (Report).
Commander Jason Kennedy said in his affidavit:
22. The Professional Standards Report is a report of an investigation conducted under Part V of the AFP Act. The report considers and makes findings of fact in relation to the AFP member’s conduct in a particular circumstance.
23. The Professional Standards Report is confidential. It is marked “Official: Sensitive” and “Strictly Private and Confidential”. Access to that report is restricted to those individuals who have a need to know only. It has not been publicly disclosed by the AFP.
…
25. Having reviewed Statements A, B and C, I confirm that they are statements by certain persons associated with or members of the AFP. The statements were provided for the purposes of the investigation into an alleged breach of the law and contain detailed information about the subject matter of that investigation. The content of the statements has not been publicly disclosed.
STATUTORY FRAMEWORK
Freedom of Information Act 1982
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General:[1]
…The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[1] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the FOI Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
To promote the objects in s 3(1)(b), s 11(1) provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the FOI Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
If a document is exempt, the agency is not required to provide the document.
DISCLOSURE OF A CONFIDENTIAL SOURCE – S 37 OF THE FOI ACT
Section 37 relevantly provides:
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source…
The FOI Guidelines,[2] with respect to exemptions, provides at [5.17]:
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
[2] The Tribunal is required by s 93A of the FOI Act to have regard to any guidelines issued by the Information Commissioner.
It follows that the use of the word “could” requires analysis of a reasonable expectation rather than the certainty of the relevant disclosure occurring.
The FOI Guidelines say in respect to s 37 of the FOI Act:
5.81 Section 37 concerns the investigative or compliance activities of an agency and the enforcement or administration of the law, including the protection of public safety. It is not concerned with an agency’s own obligations to comply with the law. The exemption applies, therefore, where an agency has a function connected with investigating breaches of the law, its enforcement or administration.
5.82 To be exempt under ss 37(1)(a) or 37(1)(b), the document in question should have a connection with the criminal law or the processes of upholding or enforcing civil law or administering a law. This is not confined to court action or court processes, but extends to the work of agencies in administering legislative schemes and requirements, monitoring compliance, and investigating breaches. The exemption does not depend on the nature of the document or the purpose for which it was brought into existence. A document will be exempt if its disclosure would or could reasonably be expected to have one or more of the consequences set out in the categories listed above at [5.79].
5.83 In applying this exemption, a decision maker should examine the circumstances surrounding the creation of the document and the possible consequences of its release. The adverse consequences need not result only from disclosure of a particular document. The decision maker may also consider whether disclosure, in combination with information already available to the applicant, would result in any of the specified consequences.
…
Disclosure of a confidential source
5.91 Section 37(1)(b) is intended to protect the identity of a confidential source of information connected with the administration or the enforcement of the law. It is the source, rather than the information, which is confidential. The exemption is not limited to particular instances in the same way as s 37(1)(a).
Section 37(1)(b) focuses attention on the impact of disclosure of the Four Documents. It is drafted in similar terms to s 33 of the FOI Act which was considered by Perry J in Secretary, Department of Prime Minister and Cabinet and Summers.[3] Her honour said at [34] that:
the criteria prescribed by s 33(a) and (b) do not turn upon an assessment of the reasonableness of the Department’s claims. Rather, they turn upon cause and effect which can reasonably be anticipated…
[3] [2019] AATA 5537 at [33]-[36] (some citations omitted).
The same can be said with respect to s 37(1)(b) namely that the criteria in the section turns upon cause and effect which can reasonably be anticipated. It follows that if it can reasonably be anticipated that the disclosure of the Four Documents would disclose the identity of a confidential source then the documents will be exempt from disclosure. The applicant contends that the requisite effect cannot be established because there is no confidential source of information. He says that the involvement of AFP personnel in the matters the subject of the Professional Standards Report is a matter of public record and that those persons who provided statements cannot sensibly be regarded as confidential sources.
McKenzie v Secretary, Department of Social Security,[4] considered a decision of the Tribunal to affirm a decision that the signature on a letter was exempt from disclosure under s 37(1)(b). Muirhead J said that:
[4] (1986) 65 ALR 645 at 649.
The essential questions which faced the tribunal were:-
(1) Was the letter in question a confidential source of information?
(2) If so was it properly classified as relating to the enforcement or administration of the law?
(3) Would its release in toto disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so?
In Re Dale and Australian Federal Police,[5] Deputy President McMahon said that the focus in s 37(1)(b) as to confidentiality is on the source and not the information:
... The paragraph applies the adjective “confidential” to the source, rather than to the information. Accordingly, it has application even if the information is old, out of date, or simply wrong. The paragraph is intended to protect the basis of confidentiality, which is essential to ensure the cooperation of sources of information. On the face of the documents, the sources are clearly confidential. It is not necessary, in considering a claim made under this paragraph, to examine the truth or even the reliability of the information attributed to the confidential source. The paragraph clearly supports the public policy that information given on the basis of confidence can be valuable in administration of the criminal law and that if this attribute of confidentiality cannot be guaranteed and subsequently enforced, then the whole mechanism is endangered. The purpose of the exemption is to preserve this assurance of confidentiality. Once the nature of the relationship is established, there is no more to be said.
[5] (1997) 47 ALD 417 at 420.
In Department of Health v Jephcott (1985) 8 FCR 85 (Jephcott), Forster J said that a source is confidential if the information was provided under an express or implied pledge of confidentiality. Keely J took a similar approach and accepted a submission that “a confidential source of information” in s 37(1)(b) means a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential.
The FOI Guidelines say at [5.99] that it is not essential that the confidential source provide the information under an express agreement and at [5.103] that if other disclosures already make it possible to determine who the source is, an agency cannot claim this exemption because the necessary quality of confidence is lost.
A Confidential Source of Information?
It follows from my above analysis that a source will be considered confidential under s 37(1)(b) if:
(a)the information was provided on the understanding, express or implied, that the identity of the source would remain confidential; and
(b)the identity of the source remains confidential and has not been publicly disclosed.
An Understanding of Confidentiality
Commander Kennedy provides comprehensive evidence in his affidavit about the regime of confidentiality that applies to investigations conducted under Part V of the AFP Act. There is a general secrecy provision in s 60A of the AFP Act that prohibits relevant AFP personnel from divulging or communicating any information obtained in the course of carrying out, performing or exercising a duty, function or power under the AFP Act. This broad provision would cover the information in the Four Documents including the identities of the statement providers. A more specific confidentiality obligation arises from the AFP Commissioner’s Order on professional standards[6] at clauses 8.14, 18.1 and 20. I find that there is a clear obligation that any information obtained when investigating or managing a complaint must be treated in confidence.
[6] Exhibit JK-1 to the affidavit of Commander Kennedy dated 27 October 2023.
The applicant contends that the respondent has failed to establish any obligation of confidentiality applicable to the identity of the source of information as opposed to the information itself. I reject this contention. This is a case where there is an express statutory obligation of confidentiality which extends to the identity of those who provided the three statements. Further, there is nothing in the confidentiality provisions which limit the obligations to the duration of any investigation.
With respect to the Professional Standards Report and three statements the subject of this application, Commander Kennedy deposes specifically that they arose from the Part V investigation, are confidential and have not been publicly disclosed. The confidentiality is consistent with the position expressed by the statement providers who did not consent to disclosure. Further, it is relevant that the respondent at all times has treated its sources as confidential and has not disclosed them. There is clearly speculation as to the identity of the sources but that does not undermine the understanding that the sources would remain confidential and have been treated that way by the respondent.
The Source Remains Confidential and has not been Publicly Disclosed
It is necessary to carefully examine the publicly available information and not merely accept the assertion made by the applicant in his affidavit that he is aware of the subject of the Professional Standards investigation and the identity of those who gave statements. In this case, the AFP has chosen to call evidence from Commander Jason Kennedy who held the position of Commander Professional Standards for the AFP. The AFP have followed a process consistent with what Davies J said in Jephcott at 91, namely:
In open session before the Tribunal, the agency would be entitled to call evidence that, if a document of that type existed, it would be an exempt document by virtue of s 37(1). The agency could rely upon the description of the document in the request for access and may be able to adduce evidence that documents of that type relate to the enforcement or administration of the law and are written and received in confidence.
In response to the applicant’s request for access to “the final report by AFP professional standards about Mr Keelty’s interaction with serving members”, Commander Kennedy deposes in his affidavit that there is a report of an investigation conducted under Part V of the AFP Act. He describes this report as the Professional Standards Report in his affidavit. In addition, Commander Kennedy confirms in his affidavit the existence of three statements by certain persons associated with, or members of, the AFP and given in the context of an investigation of a breach of the law. Besides deposing to the existence of the report and three related statements, Commander Kennedy does not disclose the contents of the report or the statements because the investigation conducted was subject to strict secrecy provisions.
The applicant relies upon reports in The Age on 16 August 2020 of public statements by Mr Keelty that he disclosed information from serving police about AFP activity to Mr Roberts-Smith and that it was AFP Assistant Commissioner Neil Gaughan who told him that three letters of complaint had been received by the AFP about Mr Roberts-Smith. Mr Keelty also said that prior to meeting Mr Roberts-Smith he had spoken to then AFP Commissioner Andrew Colvin who had agreed to the approach. The Age reported that the AFP declined to comment other than saying that in June 2018 it had referred the disclosures to the corruption watchdog, the Australian Commission for Law Enforcement Integrity (ACLEI).
The Age reported that:
ACLEI confirmed in a statement that the AFP had notified it on June 21, 2018, of allegations that Mr Roberts-Smith had been told sensitive information about the federal police’s interest in him. ACLEI said that a week later, on June 27 that year, former Integrity Commissioner Michael Griffin launched a joint covert investigation with the AFP into the alleged leak.
The Age reported that the ACLEI inquiry into serving police suspected of giving information to Mr Keelty led it to target former deputy commissioner Ramzi Jabbour who was suspended in March 2019 and then resigned months later over other alleged misconduct.
On 17 August 2020, The Age ran an editorial calling for a full public inquiry into how these disclosures occurred.
I have attempted in the previous paragraphs to collate the reported statements that reveal what has been publicly disclosed for the purpose of determining whether the sources remain confidential. As discussed above, s 37(1)(b) requires a focus on the source and whether it was and remains confidential, rather than on the confidentiality of the information provided by the source. Much of the material reported in The Age and otherwise publicly available relates to the more general information as opposed to the sources of the information. As for information relating to a reported investigation, I find for the following reasons that there was no publicly available information that Neil Gaughan, Andrew Colvin and Nigel Ryan had provided statements to any such investigation.
The applicant submits that “the involvement of AFP personnel in the matters the subject of the PRS Report is a matter of public record and has been reported widely”. In fact, what had been reported with respect to Neil Gaughan is Mr Keelty’s statement that he had spoken to Mr Gaughan, but this was never confirmed by Mr Gaughan or the AFP. On the basis of the unverified information from Mr Keelty, the applicant has assumed that Mr Gaughan would have been involved in an internal investigation by the AFP and further that he would have provided a statement. Neither the applicant nor the public had any knowledge of who had been involved in any such investigation which, as set out above, would have been conducted under strict confidentiality including as to the identity of those involved. The applicant’s awareness of these alleged facts was based upon supposition and deduction from what Mr Keelty had said, noting that not even Mr Keelty had said what the applicant now assumes. It cannot be said that this information was publicly known.
With respect to Andrew Colvin, what has been reported is Mr Keelty’s statement that he had spoken to Mr Colvin who had allegedly agreed that Mr Keelty could approach Mr Roberts-Smith. There was no confirmation from Mr Colvin or the AFP about this. Once again, the applicant has assumed that Mr Colvin would have been involved in the internal investigation by the AFP and further that he would have provided a statement. For the same reasons as above, it cannot be said that this information was publicly known.
As for Nigel Ryan, it would appear that the basis for the applicant’s assumption that he was involved is that Mr Ryan was, according to the applicant, “in charge of the professional standards at the AFP”. As to whether Mr Ryan provided a statement, there is no publicly available information.
By referring to the applicant’s assumptions about involvement of AFP personnel, I make no criticism of the applicant nor do I suggest that he was misleading in his affidavit, but I do consider it is important to ensure that my findings are based on known facts properly derived from the evidence before the Tribunal as opposed to assumed facts based on what an individual may have said.
On the basis of his supposition as to the authors of the statements, the applicant submits that they cannot be regarded as confidential sources because they are not informants or witnesses in need of protection. The reference to witnesses in need of protection is a reference to s 37(2A) which deems such persons to be a confidential source, but I consider that the meaning to be given to a confidential source is not so limited. On a plain reading of the provision, the ‘source’ of information is a reference to the provider or supplier of the information whether or not they fit into the narrower category of an informant or a witness in need of protection. The Macquarie dictionary definition of ‘source’ includes a book, statement or person supplying information. The definition should not be read down by reference to the deeming provision.
The Effect of Disclosure of the Three Statements
Having found that the providers of the three statements were “a confidential source of information”, it is not a significant further step to conclude that, if the statements were disclosed to the public, then they would disclose the existence or identity of that confidential source. I have had access to the statements each of which contains the name of the statement provider. It follows that if they were disclosed, the identity and existence of the confidential source would be revealed.
The Effect of Disclosure of the Professional Standards Report
I have had access to the Professional Standards Report. It reflects in part the contents of the three statements and it identifies those who made the statements together with others who were involved in the Part V investigation. It follows that if the report were disclosed, the identity and existence of confidential sources would be revealed.
Conclusion as to whether the documents are exempt
There can be no dispute that the third component of s 37(1)(b) is made out, namely that the confidential source is “in relation to the enforcement or administration of the law”. Commander Kennedy gave affidavit evidence that investigations into allegations of misconduct by AFP appointees are conducted under Part V of the AFP Act. I accept his evidence that the statements in question were given in the context of an investigation of a breach of the law.
I conclude that the Four Documents are exempt documents under s 37(1)(b) because if disclosed they would disclose the existence and identity of confidential sources of information.
DOCUMENTS AFFECTING OPERATIONAL CONDUCT – S 47E(C) AND (D)
Section 47E(c) and (d) relate to documents which disclose certain operations of agencies and provide:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency:
(d) have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.
The FOI Guidelines further advise on the meaning of ‘substantial adverse effect’ at [5.20]:
The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person’ [see Re Thies and Department of Aviation [1986] AATA 141 [24]). The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’ [see Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367 383].
(Footnotes included)
The phrase ‘could reasonably be expected’ requires more than a mere assumption or allegation that damage may occur. The Guidelines provide at [6.103]:
…The particulars of the predicted effect should be identified during the decision making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied upon, the relevant particulars and reasons should form part of the decision maker’s statement of reasons, if they can be included without disclosing exempt material (s 26, see Part 3).
Commander Kennedy gave affidavit evidence relevant to the impact of disclosure of these documents:
7. The confidentiality of information obtained by and for the purposes of PRS investigations is foundational and essential to the effective operation of the Command.
8. The Part V process is the primary way in which the AFP identifies and investigates allegations of misconduct by its appointees. Appointees hold a trusted position in the community and the integrity of those appointees is absolutely vital to the proper functioning of the AFP. By its very nature, the investigative process under Part V will require appointees to report on the behaviour or conduct of their colleagues. It is essential that those reports are done in a confidential manner, so as to ensure the frank and fulsome disclosure of information to PRS and participation in Part V processes.
…
14. In my experience, appointees are often required to provide information or evidence to the allocated investigator in order for the investigator to investigate the alleged conduct. In some cases, appointees participate on a voluntary basis. In other cases, appointees may be directed to participate in a PRS investigation under section 40VE of the AFP Act.
15. Under section 40VH of the AFP Act, it is an offence for an appointee to refuse or fail to comply with a direction. The offence is punishable by 6 months imprisonment.
16. Even when appointees provide information under direction, confidentiality is vital. The effect of the direction under section 40VE of the AFP Act is that the appointee the subject of the direction must provide information, even if the answer may incriminate them, make them liable for an offence or be contrary to the public interest.
17. Given the significant encroachment on the appointee’s rights, including a right to not incriminate themselves, the confidentiality provisions are critical to afford a level of protection to those appointees.
18. Additionally, the AFP’s position is that information concerning, or provided in response to, directions given under section 40VE of the AFP Act attracts public interest immunity and is not to be disclosed by the AFP either voluntarily or in response to compulsory processes.
19. Finally, in addition to disclosing the identity of those individuals who have participated in an investigation process, disclosure of that material may also reveal highly sensitive evidence. For example, often evidence is obtained about the particulars of the conduct the subject of the investigation and how that conduct has come to the attention of the attendee. If that information is disclosed, it may enable individuals to modify their behaviour so as to avoid attention. This could have a real and substantial impact on the efficient conduct of the AFP in terms of the effectiveness of the Part V process going forward.
With respect to the information in the statements and the Professional Standards Report, Commander Kennedy’s opinion is that, if released, it would have a real and material impact on appointees’ willingness to participate fully and frankly in the Part V investigative process.[7] This evidence is relevant to a consideration of s 47E(c) and (d) with respect to the statements and the Professional Standards Report, although I note that the respondent only relies upon ss 37(1)(b) and 47F and does not rely upon a possible exemption under s 47E(c) and (d) with respect to the statements. Nevertheless, I have considered the operation of ss 47E(c) and (d) with respect to the statements.
[7] Commander Kennedy affidavit at paragraphs 24b and 26c.
The Tribunal’s role is to undertake an inquisitorial review, and it is therefore not obliged to limit its consideration to the case as articulated by the parties. In Grant v Repatriation Commission [1999] FCA 1629; (1997) 57 ALD 1, the Full Court of the Federal Court explained, at 6:
18. An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant…
The statutory regime under Part V of the AFP Act and the evidence from Commander Kennedy as to the practice of the AFP’s Professional Standards Investigation Unit provide support for a finding that the management of personnel and the conduct of the AFP’s operations would be adversely affected by a failure to maintain confidentiality over the statements and the Professional Standards Report. The principal effect would be to discourage full and frank participation in any investigation. I have no doubt that members of the AFP participating in what amounts to a sensitive and confidential investigation about conduct of a fellow AFP member would be reluctant to participate fully with the utmost candour if their statement were to be made public. I consider this to be the case even if the member was under some obligation to participate because the extent of their participation and willingness to help would most likely be diminished. With respect to s 47E(c), there would be an impact on the management of personnel and in particular their discipline. With respect to s 47E(d), there would be an impact on the AFP’s proper and efficient conduct of operations relating to professional standards investigations under Part V of the AFP Act. I consider the impact to be a substantial adverse effect in terms of both s 47E(c) and (d) because of the negative impact arising from a breach of expected confidentiality which underpins the effective operations of command at the AFP. It follows that the documents are conditionally exempt under s 47E.
THE PERSONAL PRIVACY EXEMPTION IN S 47F
The respondent claims that the Four Documents are exempt from disclosure under s 47F.
Section 47F provides relevantly:
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
There is no express requirement in s 47F to establish special circumstances when considering whether disclosure of personal information would be unreasonable. The FOI Act does provide some guidance as to what is unreasonable in s 47F(2), which requires the agency or Minister to have regard to certain matters when determining whether disclosure would be unreasonable. Under s 93A(2) I must have regard to the guidelines issued by the Information Commissioner, but I am not bound by them because they are not legislative instruments.[8] Instead of applying a test based on special circumstances, I will determine the question of unreasonableness by having regard to the matters in s 47F(2) namely:
(a)the extent to which the information is well known;
(b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c)the availability of the information from publicly accessible sources; and
(d)any other matters that the agency or minister considers relevant.
[8] See Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 at [87].
Other matters that have been considered relevant include:[9]
(a)the nature, age and current relevance of the information;
(b)any detriment that disclosure may cause to the person to whom the information relates;
(c)any opposition to disclosure expressed or likely to be held by that person;
(d)the circumstances of an agency’s collection and use of the information;
(e)the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act;
(f)any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information; and
(g)whether disclosure of the information might advance the public interest in government transparency and integrity.
[9] FOI Guidelines at [6.143].
The respondent contends that:
67. Each of the Documents contains the personal information of persons other than the Applicant. The Documents broadly reveal information including the name, views, and opinions of third parties in connection with investigations undertaken in relation to a serious allegation made about a person. The context of this information was obtained in confidence from each of the individuals, for the purpose of, and in the context of, responding to an investigation into an AFP appointee’s conduct.
The applicant relies upon the definition in s 4(1) of the expression ‘personal information’, which provides that it has the same meaning as it does in the Privacy Act, namely:[10]
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(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.
[10] Privacy Act 1988 (Cth) s 6.
The applicant contends that the personal information sought to be protected by the respondent goes beyond the established categories of personal information. He says that opinions expressed about the conduct of a third party are not personal information of the person expressing the opinion. Further, the applicant contends that it is for the respondent to establish that the disclosure of the entirety of the Four Documents would involve unreasonable disclosure; and in circumstances where the names of persons involved in the investigation are publicly known because they have been reported, it would not be unreasonable to disclose them.
It is my view that the documents in question contain personal information that it would be unreasonable to disclose. There are names and titles and work details recorded in all the documents. There is also a considerable amount of information which if disclosed would identify the individuals involved. I accept the evidence of Commander Kennedy that the content of each statement is contextual so that the disclosure of any information within would reasonably identify the individual.[11] The content of the statements is reflected in the report and it follows that the report contains the same personal information which it would be unreasonable to disclose. The personal information in the report is intertwined with other information such that it cannot be meaningfully separated.
[11] Commander Kennedy affidavit at paragraph 26a.
I take into account that the respondent consulted the relevant third parties with respect to the disclosure of their personal information under s 27A of the FOI Act. In response, those persons objected to disclosure. This is a relevant factor that favours not granting access to the documents to the applicant. Further, as set out earlier in these reasons, the information in the statements and the report was provided on a confidential basis and has not been publicly disclosed. It is subject to a statutory regime of confidentiality which has been adhered to.
I have already found that there was no publicly available information that Neil Gaughan, Andrew Colvin and Nigel Ryan were involved in any investigation or had provided statements to any such investigation. Despite what is assumed as fact by the applicant, it cannot be said based on the publicly available information that the persons to whom the information relates are known to be associated with the matters dealt with in the documents.[12] Nor can it be said that the information is well known or is available from publicly accessible sources. To the contrary, the information in the documents has never been publicly released and is subject to a strict confidentiality regime. No public purpose would be achieved through release of the information, but rather, it would have an adverse effect on management of personnel and on AFP operations, as I have found above.
[12] FOI Guidelines at [6.140(b)].
In all of the above circumstances, it would be unreasonable to disclose the personal information in the statements and the report. The Four Documents are conditionally exempt under s 47F.
PUBLIC INTEREST
The respondent must give access to the conditionally exempt documents pursuant to s 11A(5), unless access would be contrary to the public interest. Disclosure of conditionally exempt documents is required unless in the particular circumstances and, at the time of the decision, there is, on balance, countervailing harm which offsets the inherent public interest of giving access.[13]
[13] FOI Guidelines at [6.7].
In working out whether access to a document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner under s 93A.[14]
[14] FOI Act ss 11B(5) and 93A(2)(b).
The FOI Guidelines note that the FOI Act does not list any factors weighing against disclosure:
6.20 …However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that harm may result from the disclosure of some types of documents in certain circumstances; for example, where disclosure could prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information. Such policy considerations are reflected in the application of public interest factors that may be relevant in a particular case.
6.21 Citing the specific harm defined in the applicable conditional exemption is not itself sufficient to conclude that disclosure would be contrary to the public interest. However, the harm is an important consideration that the decision maker must weigh when seeking to determine where the balance lies.
A non-exhaustive list of factors against the disclosure is provided in the FOI Guidelines. Those factors relevantly include:
Public interest factors against disclosure
(c) could reasonably be expected to prejudice security, law enforcement, public health or public safety
(g) could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency
(h) could reasonably be expected to prejudice an agency’s ability to obtain confidential information
(i) could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future
(n) could reasonably be expected to prejudice the management function of an agency
(footnotes omitted)
The factors in the paragraph immediately above weigh against disclosure in this matter. I have found that if the documents were disclosed it would have a substantial adverse effect on management of personnel and operations more generally. This likely harm is a public interest factor that weighs against disclosure for the reasons deposed to by Commander Kennedy as follows:
20. As a law enforcement agency, the integrity of the AFP, and the public’s confidence in the conduct of its appointees as being people who behave in a way that is lawful and ethical, is essential. It is for this reason that integrity is one of the AFP’s core values. Loss of public trust in the AFP would have a devastating impact on its ability to function effectively.
21. The AFP’s integrity framework, and the PRS unit which administers it, therefore plays a very important role in ensuring the AFP is able to function effectively.
Having identified the public interest in not disclosing the Four Documents, I must weigh that factor against those factors that favour granting access to the documents. Section 11B(3) provides a non-exhaustive list of factors that favour access:
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
The factors in ss 11B(3)(a) and (b) favour access. Disclosure of the documents would promote the objects of the FOI Act including by increasing public participation in Government processes and by increasing scrutiny of Government’s activities.
In working out whether access to a document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner under s 93A.[15] The FOI Guidelines consider further the four factors identified in s 11B(3) as favouring access:
6.18 For example, disclosure of a document that is conditionally exempt under s 47G(1)(a) might, in the particular circumstances, both inform debate on a matter of public importance, and promote effective oversight of public expenditure. These would be factors in favour of disclosure in the public interest. Similarly, it would be a rare case in which disclosure would not promote the objects of the FOI Act, including by increasing scrutiny, discussion, comment and review of the government’s activities.
[15] FOI Act ss 11B(5) and 93A(2)(b).
As to whether disclosure of the documents would inform debate on a matter of public importance, I would give this little weight in favour of access because, whilst there is significant debate and interest with respect to Mr Roberts-Smith, there is less interest in a concluded investigation relating to professional standards of AFP members.
In terms of weighing up the factors for and against granting access to these documents, I give greater weight to the need for confidentiality over these documents so as to maintain the effectiveness and integrity of future investigations under the AFP Act. I conclude that granting access to these documents would, on balance, be contrary to the public interest.
I conclude that the respondent’s alternative claims under s 47E(c) and (d) and 47F are made out and that the Four Documents are exempt from disclosure.
OUT OF SCOPE – S 22
Following from my finding that access should be refused to the Professional Standards Report, it is not necessary for me to consider the Respondent’s contention under s 22 of the FOI Act that parts of the Professional Standards Report are irrelevant and outside of the scope of the access request because they do not relate to the investigation of Mr Keelty’s conduct in respect of Roberts-Smith in June 2018. Nevertheless, I accept the Respondent’s contention that part of the Professional Standards Report deals with another topic that does not fall within the scope of the request by the applicant. Therefore, even if I am wrong about s 37(1)(b) and s 47F, and access to the Professional Standards Report should be given to the applicant, I would consider it reasonable to redact that irrelevant material.
Further with respect to s 22 of the FOI Act, there is no basis for redacting information in the statements (such as the identities of the authors or information tending to reveal their identities) because I accept the evidence of Commander Kennedy that the content of each statement is contextual so that the disclosure of any information within would reasonably identify the author or, I would add, could reasonably be expected to do so.
DECISION
The Four Documents are exempt from disclosure under ss 37(1)(b), 47E(c) and (d) and 47F. The public interest does not favour the disclosure of the documents. The decision under review is affirmed.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
.........................[sgd]...............................................
Associate
Dated: 29 February 2024
Date of hearing: 1 December 2023 Counsel for the Applicant: Edward Batrouney Advocate for the Respondent: Chantal Tipene Solicitors for the Respondent: Sparke Helmore Lawyers
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