Beesley v Australian Federal Police
[2001] FCA 836
•15 JUNE 2001
FEDERAL COURT OF AUSTRALIA
Beesley v Australian Federal Police
[2001] FCA 836FREEDOM OF INFORMATION – access to documents – electronic information stored on a database – where joint right of access to database held by Commonwealth agency – whether this right of access amounted to “possession of information” – proper meaning of “possession” – whether physical possession necessary – application of concept of constructive possession.
Freedom of Information Act 1982 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)Re Sullivan v Department of Industry, Science and Technology (1996) 23 AAR 59 distinguished
Information Commissioner for Western Australia v Ministry of Justice [2001] WASC 3 distinguished
Victorian Public Service Board v Wright (1986) 64 ALR 206 followed
Re Guide Dog Owners’ & Friends Association and Commissioner for Corporate Affairs (1988) 2 VAR 405 followed
Re Mildenhall and Department of Premier and Cabinet (No 2) (1995) 8 VAR 478 followedTERENCE FRANCIS BEESLEY v AUSTRALIAN FEDERAL POLICE
N 1341 OF 2000
JUDGE: BEAUMONT J
DATE: 15 JUNE 2001
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1341 OF 2000
BETWEEN:
TERENCE FRANCIS BEESLEY
APPLICANTAND:
AUSTRALIAN FEDERAL POLICE
RESPONDENTJUDGE:
BEAUMONT J
DATE OF ORDER:
15 JUNE 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The Tribunal’s decision be set aside.
3.The mater be remitted to the Tribunal for reconsideration in accordance with these reasons.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1341 OF 2000
BETWEEN:
TERENCE FRANCIS BEESLEY
APPLICANTAND:
AUSTRALIAN FEDERAL POLICE
RESPONDENT
JUDGE:
BEAUMONT J
DATE:
15 JUNE 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”), affirming a decision of the Australian Federal Police (“the AFP”), refusing access to files about the applicant. The appeal raises important questions as to the meaning and operation of the Freedom of Information Act 1982 (Cth) (“the FOI Act”).
By letter to the Commissioner of the AFP, dated 30 July 1999, the applicant sought, pursuant to the FOI Act:
“… access to my files and personal documents which includes but is not limited to: -
Files relating to any dealings between your Department and any other Department or Authority – state, federal. For example, NSW Police Department, Australian Taxation Office (Personnel Section), Australian Security Intelligence Organisation, state and/or Federal Public Service Boards;
Files relating to any dealings between your Department and any private enterprise organisations such as Mayne Nickless Ltd - Cash Carrying and Security Services Division.”
By letter to the applicant, dated 20 October 1999, the AFP stated:
“I refer to your letter dated 19 September 1999 requesting an internal review pursuant to the Freedom of Information Act 1982, of the advice that there is no record of the name Terence Francis Beesley, born 29 April 1942.
The Commissioner of the Australian Federal Police, being the principal officer of that organisation has authorised me to review the determination of Federal Agent C Drewett. In doing so I have considered the information in your request for an internal review.
In F/A Drewett's response to your request, dated 31 August 1999, reasons for his decision to refuse your request for access to documents on the grounds that no documents could be located or do not exist were explained and referenced to sections of the Freedom of Information Act.
I have considered all the information provided and caused further searches to be made of Criminal History, Archives and the Australian Federal Police computer system using a name index facility, which records the names of all persons recorded by this agency, and an electronic mail request to all members of the Australian Federal Police. Again these searches failed to locate any documentation in relation to your request.
I believe that the decision of F/A Drewett to refuse your request for access to documents on the grounds that no documents could be located or do not exist was correct.”
By application to the Tribunal, dated 2 February 2000, the applicant applied for review of the AFP's decision.
In its statement, dated 2 March 2000, under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), the AFP's officer referred to its letter, dated 20 October 1999, and then stated the reasons for its decision were as follows:
“The Respondent [the AFP] is satisfied that the Applicant is not recorded on Australian Federal Police indices and that documents could either not be located or do not exist.
In making my decision, I relied on the following sections of the Freedom of Information Act 1982:
Section 24A states:
An agency or Minister may refuse a request for access to a document if:
(a)all reasonable steps have been taken to find the document; and
(b)the agency or Minister is satisfied that the document:
(i)is in the agency’s or Minister's possession but cannot be
found; or
(ii) does not exist.”
As has been noted, the Tribunal affirmed the AFP's decision. The applicant now appeals to this Court from that decision. The applicant is unrepresented but his notice of appeal should, I think, be taken to be an appeal on a question of law under s 44(1) of the AAT Act.
THE STATUTORY SCHEME
In order to understand the statutory context of the appeal, it will be necessary to refer to the material provisions of the FOI Act as follows:
Access to documents is dealt with by Part III of the Act (ss 11 – 31).
Section 11 provides for a right of access. Section 11(1) provides:
“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)….”
“Document of an agency” means –
“… a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency;” (s 4(1))
There is no statutory definition of “possession” in s 4(1) and “document” includes:
“(a) any of, or any part of any of, the following things:
(i)any paper or other material on which there is writing;
(ii)…
(iii)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(iv)any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
(v)any article on which information has been stored or recorded, either mechanically or electronically;
(vi)any other record of information; or
…
but does not include:
(d)library material maintained for reference purposes; or
(e)…” (s 4(1)).
Section 15 provides for requests for access. Section 15(2) provides that:
“The request must
(a)be in writing; and
(b)provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, … to identify it.”
Section 15(3) provides that –
“…it is the duty of the agency to take reasonable steps to assist the person making the request to make it in a manner that complies with [s 15(3)].
The transfer of requests is dealt with by s 16. Section 16(1) provides that:
“16(1) Where a request is made to an agency for access to a document and:
(a)the document is not in the possession of that agency but is, to the knowledge of that agency, in the possession of another agency;
…
the agency to which the request is made, may, with the agreement of the other agency, transfer the request to the other agency.”
Section 17, which deals with requests involving computers, provides:
“17(1) Where:
(a)a request (including a request of the kind described in subsection 24(1)) is made in accordance with the requirements of subsection 15(2) to an agency;
(b)it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and
(ba)it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and
(c)the agency could produce a written document containing the information in discrete form by:
(i)the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or
(ii)the making of a transcript from a sound recording held in the agency:
the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.
(2)An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.”
Section 24(1) relevantly provides:
“24(1)The agency .... dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency ... is satisfied that the work involved in processing the request:
(a)In the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations;
…”
Section 18 deals with access to documents and provides:
“18(1) Subject to this Act, where:
(a)a request is made in accordance with the requirements of subsection 15(2) by a person to an agency … for access to a document of the agency …; and
(b)any charge that, under the regulations, is required to be paid before access is granted has been paid;
the person shall be given access to the document in accordance with this Act.”
Forms of access are provided for by s 20(1) relevantly as follows:
“20(1)Access to a document may be given to a person in one or more of the following forms:
(a)a reasonable opportunity to inspect the document;
(b)provision by the agency ... of a copy of the document;
(c)in the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images;
(d)in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency ... of a written transcript of the words recorded or contained in the document.”
Subject to s 20(3) and to s 22, where the applicant has requested access in a particular form, access shall be given in that form (s 20(2)).
Section 20(3) provides that:
“20(3) If the giving of access in the form requested by the applicant:
(a)would interfere unreasonably with the operations of the agency …;
(b)would be detrimental to the preservation of the document or, having regard to the physical nature of the document, would not be appropriate; or
…
access in that form may be refused and access given in another form.”
Section 22 deals with the deletion of exempt matter or irrelevant material.
Section 24A provides that an agency may refuse a request for access if (a) all reasonable steps have been taken to find the document; and (b) the agency is satisfied that the document is in the agency’s possession but cannot be found; or (c) does not exist.
THE TRIBUNAL'S JURISDICTION AND POWERS
As has been noted, the applicant applied to the Tribunal, pursuant to s 55 of the FOI Act, for review of the decision to refuse access.
Section 55(5) of the FOI Act provides that:
“The Tribunal’s power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency … to conduct further searches for the document.”
Section 61(1) provides that:
“… in proceedings [in the Tribunal] … the agency … has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.”
THE PROCEEDINGS IN THE TRIBUNAL
Before the Tribunal, the AFP relied upon an affidavit sworn on 2 November 2000 by Curtis Drewett, the Federal Agent of the AFP, relevantly as follows:
“ …
(4)Prior to 1 January 1999, information held by the AFP was stored electronically on a computer system known as ‘MNIFTY’ (Master Names Indexing Facility). MNIFTY allowed AFP information holdings to be searched using a person's name and/or date of birth. The system also allowed you to search phonetically for a person’s name to cater for any variations in spelling.
(5)The only information that was not stored on MNIFTY was Intelligence and Interpol information. The National Operations area of the AFP conducted checks for information held within those areas.
(6)Since 1 January 1999, the AFP’s computer records systems have merged into a system, which is known as ‘PROMIS’ (Police Realtime Online Management Information System). As with the previous MNIFTY system, PROMIS allows AFP information holdings to be searched using a person's name and/or date of birth.
(7)Upon receiving a request for information under the Act, a member of the FOI team conducts an initial name search of PROMIS. In the event of a positive result, the system identifies the whereabouts of any documents held in the applicant’s name.
(8)Once it is identified that the AFP holds material in relation to that subject, the area or areas holding the material is or are requested to provide a copy of the document to the FOI area.
(9)In this particular matter, I am the officer in Freedom of Information who made the original search of PROMIS using the full name and date of birth provided by the Applicant. That search did not identify any person with that name and date of birth as being recorded with the AFP. That led me to believe that there were no documents held by the AFP that relate to the Applicant.
(10)However, to be certain, I also caused searches to be made by the Regional Operations Coordination Centre, Eastern Region (the Region in which the Applicant resides) and the National Operations Coordination Centre (‘NATOPS’). A copy of the [negative] response provided by each of those two areas is at Annexure ‘CD1’.
(11)On 31 August 1999, I advised the Applicant that no documents in his name are held by the AFP and, accordingly, that I was refusing his request for access under section 24A(b)(ii) of the Act (refer T7).
(12)From records held within my area, I am aware that, in a letter dated 19 September 1999 (refer T8), the Applicant sought an internal review of my initial decision. In that letter, he also provided information regarding an incident alleged by him to have occurred near the Australian National University ‘around 1988’.
(13)Thereafter, on 23 September 1999, Ms Letitia Abela made further inquiries with NATOPS and the Special Intelligence and Diplomatic Liaison, Internal Investigation (II) and Internal Security and Audit (ISA) areas requesting that they search their internal, restricted databases for any reference to the Applicant. From responses received from those areas (copies at Annexure ‘CD2’), I believe that those searches also proved negative.
(14)On the same date, an electronic mail message was circulated to request all members and staff members of the AFP to make a search of notebooks, diaries, files or other documents in their possession for any mention of the Applicant. A copy of that message is at Annexure ‘CD3’. No responses to that message were received.
(15)On 4 October 1999, Federal Agent Karen Beck directed searches of the ‘Intell2’ system and the ‘criminal collation unit’. Information that was held on the ‘Intell2’ system and within the ‘crime collation unit; now forms part of the PROMIS database and cannot be accessed separately. In addition, on 5 October 1999, the Criminal History Team was requested to conduct a search for any documents relating to the Applicant. A negative response was received, a copy of which is at Annexure ‘CD4’.
(16)If the applicant had been spoken to by a member or members of the AFP at the ANU in 1988 and his personal particulars noted at the time, notebooks carried by that member or members would have been archived within the AFP's Archives Unit. In 1988 alone, the number of notebooks archived would be numbered in the thousands. Without knowing the name or number of the member making a particular entry, to conduct a search for a single entry within that year would be an unreasonable diversion of the AFP’s resources.
(17)In carrying out the destruction policy of the National Archives of Australia, notebooks are only retained for 10 years, then being subject to destruction orders. Notebooks of 1988 were destroyed on 12 January 2000. A copy of the destruction order is at Annexure ‘CD5’.
(18)I believe that all reasonable steps have been taken to locate any documents in the possession of the AFP that may relate to the Applicant and that such documents either do not exist or cannot be found.”
The AFP also relied upon the affidavit of Karin Elizabeth Beck, another AFP Federal Agent, sworn on 2 November 2000, relevantly as follows:
“…
(4)On 19 September 1999 the Applicant sought an internal review of that decision under section 54 of the Act. On 20 October 1999, I advised the applicant of my decision at internal review. A copy of that letter is at T8.
(5)In conducting that review, I re-examined the original decision of 31 August 1999, having regard to the following factors in particular:
(a)the steps already instituted to locate any documents relating to the Applicant which may be held on AFP files and computer databases;
(b)the information provided by the Applicant to assist with the location of such documents; and
(c)any other searches which might reasonably be undertaken in an attempt to locate any relevant documents.
(6)In consequence thereof, on 4 October 1999, I directed that the following areas be searched for any record relating to an incident alleged by the Applicant to have occurred in the vicinity of the Australian National University ‘around 1988’:
(a)the Criminal Collation Records Unit; and
(b)the ‘Intell2’ record system (a system no longer in use).
A copy of that direction is at annexure ‘KEB-A’.
(7)I believe that all reasonable steps have been taken to locate any documents in the possession of the AFP that may relate to the Applicant and that such documents either do not exist or cannot be found.”
In the course of her cross-examination by the applicant, Ms Beck gave the following evidence:
“Ma’am, you have there indicated that you are knowledgable of the variety of activities conducted by the Australian Federal Police. Are you aware of the law enforcement access network?‑‑‑I am, yes.
What is it exactly?‑‑‑As far as I am aware it is a joint access computer system which is shared by all or other law enforcement agencies including the AFP.
How does the AFP access data on this...a joint access network?‑‑‑Well, it is a network that can be jointly accessed, yes.
How does the AFP access data on this network?‑‑‑I don't know.
So you have never been able to use?‑‑‑I have [sic] access to that data so I don't know how we access it.
What are the other type of joint access networks in the AFP?--- - Do we have?
Yes?‑‑‑I believe we have joint access with, in certain areas, with Australian Customs Service.
I was thinking in terms of computer systems, ma’am?‑‑‑That is what I'm talking about as well.
So you have a variety of databases that you share with law enforcement access agencies throughout Australia?‑‑‑Certain areas, yes, we do.”
THE TRIBUNAL’S REASONS
The Tribunal (constituted by Senior Member M.D. Allen) commenced its reasons by referring to the provisions of s 24A and s 24 of the FOI Act.
The Tribunal then described the evidence before it and said:
“Agent [Drewett] was also asked about a system called LEAN, Law Enforcement Access Network. He stated that he knew nothing about that system although Agent Beck did know of the system as she said it was a joint access computer system shared by all law enforcement agencies. She herself did not know how to access it.
I might say that the applicant has himself a knowledge of the particular systems, as he says in his submissions the NEPI was established under the auspices of the Australian Police Ministers Council it oversees the functions of the national crime records. [A]mongst its functions, it has a similar management structure to the Australian Bureau of Criminal Intelligence. He also states the manager of LEAN is the Federal Justice Office [sic] it is overseen by a panel of five agencies: Australian Tax Office; Australian Federal Police; Department of Social Security; Department of Defence; Department of Education & Training. It is administered by the Attorney-General's Department which drew up a memorandum of understanding rather than any formal agreement between data providers and user agencies. I have already said that Agent [Drewett] said that the applicant's name was not on the NEPI system.”
The Tribunal stated that the question for it was –
“… whether if the [AFP has] access to the LEAN system, any information held by that system becomes a document of the [AFP] as it can access it.”
After referring to the inclusive definition of “document” in s (4)(1) of the FOI Act, the Tribunal cited the provisions of s (17) and said:
“In other words, as I interpret [s 17] ... if information appears on a computer screen being material that can be downloaded then there is a duty to do so. However, to be a document in terms of [s 4(1)] the document must be a document of an agency which in turn is defined as a document in the possession of an agency whether created in the agency or received.
The applicant has cited several cases from property law as to what may be regarded as in the possession of an agency but those cases are not apposite in FOI matters. What constitutes possession for the purposes of the Freedom of Information Act was discussed by Senior Member (Bayne) in the case of Re Sullivan v Department of Industry, Science and Technology and Anor (1996) 23 AAR 59 ... , approved and followed by Deputy President McMahon in Treeectric Pty Ltd and Energy Research and Development Corporation, unreported AAT decision number 11890 on 15 May 1997.”
The Tribunal cited the following observations in Sullivan (at 67):
“... [T]he meaning to be given to the definition of ‘document of an agency’ should be one which would occur to the ordinary Australian. On this basis the word ‘possession’ means physical possession. An agency is in possession of a document if it holds that document. The Macquarie Dictionary gives its meaning of the word ‘possession’ [as] ‘actual holding or occupancy either with or without rights of ownership’. Whether this is how lawyers would indeed approach the matter is less to the point than the dictionary reflects the view that a non lawyer would hold. To pursue further the Macquarie Dictionary understandings there are two definitions of the word ‘hold’ which seem appropriate in this context. The first definition offered is ‘to have or to keep in the hand, keep fast, grasp’, the fifth definition of it is 'to keep in custody, detain.’ Thus, I conclude that the document is in the ‘possession’ of an agency if the agency has physical possession of those documents.”
The Tribunal concluded that –
“... the fact that the [AFP] can access the LEAN system does not result in it being in possession of a document. It is only if the information on the computer screen is reduced to printed form or transferred into the computerised database held by the [AFP] that the [AFP] can be said to be in possession.”
The Tribunal went on to hold that because there was no evidence that the AFP knew that any documents were in the possession of another agency, s 16(1)(a) did not apply.
In affirming the decision under review the Tribunal said that it was –
“... affirmatively satisfied that to require the [AFP] to undertake any more searches in regard to documents which may or may not exist regarding the applicant would substantially and unreasonably divert the resources of the agency from its other operations ... (and was) further... affirmatively satisfied that all reasonable steps have been taken to find the documents requested by the applicant.”
THE ARGUMENTS ON THE APPEAL
Although the applicant was unrepresented on the appeal, the Court has had the benefit of extensive written and oral submissions from counsel for the AFP, and a written submission from counsel acting independently, pursuant to a request made by the Registry, with the parties’ agreement.
In essence, the AFP’s submission is that no question of any error of law arises here, since the issue for the Tribunal was one of fact only – that is, whether a relevant “document” was in the AFP’s “possession”, there being no basis for suggesting that the Tribunal misconstrued either of the words “document” or “possession”. In this connection, the AFP relies not only upon Sullivan, but upon the recent decision of Wheeler J in Information Commissioner for Western Australia v Ministry of Justice [2001] WASC 3. It will be convenient to refer now to the context and the reasoning in those cases.
Re Sullivan v Department of Industry, Science and Technology (1996) 23 AAR 59
In Sullivan, a request under the FOI Act for access referred to documents concerning the affairs of an investment company established by government. The documents had been organised in departmental files and kept in its records management system and, subsequently, in its legal services division. On the argument of a preliminary question against a complicated procedural background, Senior Member Bayne held first that a document was in the “possession” of an agency, if it simply had physical possession of the document, and it was not necessary to consider technical notions borrowed from the law of discovery, such as those of “custody” or “power”; and secondly that at the time of the request, the documents specified in the request should be characterised as “documents of an agency” within s 4(1), since they were in the agency's possession by reason of their being on its premises and had been “received in” the agency within that provision.
Bayne SM said (at 64 – 65) that in the definition of “document of an agency”, the ordinary meaning should be applied so that “possession” be taken to mean “physical possession”, and that account must be taken of the definition's words of limitation, that is that the document must be “created in” or “received in” the agency; and that these were issues of fact.
Bayne SM then (at 65 – 67) addressed, and rejected, a submission by the agency that mere physical possession was insufficient and that an applicant had to show that the agency had a legal right to possession, an argument not raised here. It was in this context that the Tribunal made the observations at 67 (above) citing and applying the dictionary definitions in rejecting a narrower construction of the word “possession” in this context. Bayne SM went on (at 67 – 68) to distinguish the American decisions in this area as a jurisprudence derived from legislation which was differently expressed in several respects. Specifically, the Federal United States of America legislation employs only the concept of “agency records”. Bayne SM said (at 68):
“This may explain why the USA Supreme Court has stated a two part test to determine what constitutes an ‘agency record’. It must be shown that the document is (1) either created or obtained by an agency, and (2) under agency control at the time of the request for access; see US Department of Justice v Tax Analysts 492 US 136 144-145 (1989). The notion of an ‘agency record’ suggests that it is relevant to explore in what capacity an agency holds a document. In contrast our Act speaks only of an agency having possession of a document.”
Bayne SM said (at 68 – 69) that problems would arise if either “a control” or “constructive possession” (that is to say, entitlement to access) test were adopted. He referred to the definition in s 4(1) of “official document of a minister” as follows:
“[A] Minister shall be deemed to be in possession of a document that has passed from his possession if he is entitled to access to the document and the document is not a document of an agency.” (Emphasis added)
Bayne SM said (at 69):
“This suggests that for the purposes of the definition of ‘document of an agency’, an agency is not in possession of a document notwithstanding that it is entitled to access to that document. Yet, if a control test were to be imported into this definition, that would suggest that in this situation the agency was in possession of the document.”
Bayne SM referred (at 69 – 70) to the decision of a Full Court of this Court, Black CJ, Sweeney and Lee JJ in Loughnan v Altman (1992) 39 FCR 90; 16 AAR 488. There the document in issue was an unrevised and ex tempore transcript of reasons for judgment delivered by a Family Court judge. The request had been addressed to an agency, Auscript, which “held a copy”. However, s 5 of the FOI Act relevantly provides that the Act “does not apply to any request for access to a document of the Court ...” (Emphasis added).
Bayne SM said (at 69):
“The Federal Court did not comment directly on the definition of ‘document of an agency’ in s 4 but remarks that it did make on the way to approach the phrase ‘document of the Court’ in s 5 of the Act suggested that it would take an approach to the word ‘possession’ in the s 4 definition which would favour a wide meaning to be given to that word.
The Court said that the definition of ‘document of an agency’ with its focus on possession, conforms readily to the overall policy of the FOI Act to grant, subject to the Act, a general right of access ...’ (at 492)”
In contrast, the Court had noted earlier that s 5 was a provision which excluded from the Act, documents which would otherwise have fallen within its ambit, and the Court noted that the objects of the Act, as stated in s 3, recognised that exceptions and exemptions from the operation of the Act were designed to protect essential public interests (at 492). Then, after referring to the definition of “document of an agency” as just stated, the Court said that:
“… considerations pointing in the opposite direction apply when what is being considered is not a provision that facilitates a general right of access within the scheme of the Act but, as here, an exclusion of the Act from its application to requests for documents conforming to a particular description, an exclusion introduced for reasons of the public interest. (at 492)”
The Court then said that “in such circumstances, we do not consider it correct to introduce to the interpretation of the exclusionary provision in s 5 notions derived from the definition of different expressions in s 4 (at 492-493)”. Bayne SM went on to say (at 69–70):
“The [Full] Court also said (at 493):
‘The word ‘of’ in the general sense in which it is used in s 5 is not, as a matter of ordinary usage, limited to expressing physical possession. It may readily describe other connections between a person, or an aggregate of persons, and a thing, and for the reasons we have given we do not think it correct to confine the word to possession by reference to the definition of ‘document of an agency’ in s 4(1). Moreover, the purpose of the exclusionary provision in s 5 is not advanced by giving a narrow meaning to the word ‘of’. On the contrary, a narrow meaning equating ‘of’ with possession would lead to results which, having regard to the evident purpose of the exclusion, would be foreign to the policy expressed by it.
We consider that the expression ‘a document of a court’ in s 5 of the FOI Act has a significantly wider meaning than possession and we therefore conclude that the learned President was in error in determining that the unrevised transcript to which access was sought was not a document ‘of the Family Court’ for the reason that it was in possession of Auscript.
I think that it may be gathered from this analysis by the Full Federal Court that their Honours were of the view that the word ‘possession’ in the definition of ‘document of an agency’ meant simply physical possession and, furthermore that this approach conformed to the policy of the Act. Thus understood, the analysis provides support for the reasoning that I adopt in this decision.”
Information Commissioner for Western Australia v Ministry of Justice (2001) WASC 3
A prisoner sought access to a psychological report and a community corrections report. Access was denied by the Ministry of Justice, contending that these were not documents of the Ministry but documents of the Parole Board, an exempt agency under the Freedom of Information Act 1992 (WA) (“the WA FOI Act”).
Before Wheeler J was a question in the stated case in these terms:
“Are the two documents located with the respondent and to which the complainant seeks access in the possession or under the control of the respondent for the purposes of the definition of ‘documents of an agency’ in clause 4(1) of the Glossary in Schedule 2 to the Act?”
Clause 4, set out in par 10 of her Honour’s reasons, relevantly reads as follows:
“4(1) … [A] reference to a document of an agency is a reference to a document in the possession or under the control of the agency including a document to which the agency is entitled to access and a document that is in the possession of or under the control of an officer of the agency in his or her capacity as such officer.
…
(3)A document in the possession or under the control of an agency on behalf of or as an agency for –
(a)the Commonwealth and other State or a Territory;
...
is not a document of the agency.”
Wheeler J considered the statutory scheme including the provisions of s 15, dealing with the transfer to another agency of an access application, and said (of s 15) at par 15 of her reasons:
“15.Although other interpretations may be open, it appears to me that the drafter of this provision assumed that for an agency to ‘hold’ documents may be sufficient for the documents to be documents of that agency. It appears to me that s 15 assumes that the documents with which it deals are documents to which the agency, holding those documents would otherwise have to give access, were it not for the provisions of s 15. If it were not so, it would not be necessary to make any legislative provision, for example, for documents which one agency merely ‘holds’ but which were received from and relate to the functions of some other agency. Rather, it could be left to the agency simply to deny access on the basis that the documents were not its documents. It is also, I think, of significance that subsection (8) does not require (or, read with subsection (1), permit) the return of documents received from an exempt agency to that agency; rather, the purpose of the notification provision appears to be simply so that the exempt agency may intervene if it wishes in order to suggest what should be done with the documents and to make its particular views or needs known.
16.It is important to note that the structure of the Act is that, as Hasluck J noted in Minister for Transport v Edwards [2000] WASCA 349 at (53), the Act is not concerned with ownership or authorship of a document, nor with the entitlement to exclusive possession. So, although agencies may be exempt, documents do not remain forever exempt on the basis of their agency of origin or the agency with which they have the closest connection; once they leave an exempt agency, they fall to be dealt with under Schedule 1 of the Act which defines what constitutes ‘exempt matter’ and if they do not fall within that definition then they are no longer protected.
17.For the sake of completeness, I should note that under c l5, of Schedule 1, a matter is exempt on the basis of its agency of origin if it was created by a limited number of agencies, including the Bureau of Criminal Intelligence or a Commonwealth Security agency. The Parole Board does not fall into this category.
The provisions of subclause (3) of cl 4, of the glossary illustrate the point already made that the Act is not concerned with which agency has the closest or the ultimate right to possess or control. If it were otherwise, it would not be necessary to provide expressly that a document in the possession of an agency on behalf [or] as agent for another is not a document of that agency.”
Her Honour then turned to the meaning of “possession” and said (at pars 19-20):
“19.It is against that statutory background that I turn to the submissions, upon which both applicant and respondent placed emphasis, that the expression ‘in possession’ is to be given its ordinary or natural meaning. The difficulty with this submission is that in its ordinary or natural meaning the expression is susceptible of a variety of shades of meaning. Depending on whether one turns to the Shorter Oxford Dictionary, the Concise Oxford Dictionary, or the Macquarie Dictionary, different shades of meaning will be given as the primary meaning. In each case, however, the range of meanings extends from a rather narrow meaning of a power of control similar to lawful ownership at one extreme, through to simply the act or state of actually holding something at another.
20.It is my view that the various statutory provisions to which I have referred indicate that the better view is that an agency is in possession of documents so as to make them documents of the agency, when the agency actually physically holds those documents. It may be that mere transient physical custody will not suffice. There may arise sometimes questions of knowledge or of intention. For example, there may be inadvertent delivery of documents to an agency, or documents may be presented to an agency for the purpose of inspection (as for example when a person presents their birth certificate for the purpose of identification) in circumstances where it is plainly not intended that the document form any part of the records of the agency. These are questions which do not arise in the present case, however.”
Wheeler J went on to consider the approach to be taken in the interpretation of FOI legislation, observing (at 21):
“I do not think it is necessary in determining this question to consider whether the interpretation of the Act generally should be approached by leaning towards a wide interpretation of the access provisions or whether, as Anderson J suggested in Police Force of Western Australia v Kelly (1997) 17 WAR 9 at 12, the Act balances competing public interests in allowing and denying access to government records, so that the ordinary meaning of the words and the subject matter of the Act show where the line is to be drawn. I do note, however, that in relation to the somewhat different objects provision of the Victorian Freedom of Information Act, the High Court in Victorian Public Service Board v Wright (1986) 64 ALR 206) suggested (at 212) that it was proper to give to the relevant provisions of the Act ‘a construction which would further, rather than hinder, free access to information.’ This case does not appear to have been cited to Anderson J in Police Force of Western Australia v Kelly. It would, if accepted as a proper way to view the objects and [principle] sections of the Act, be a further reason for adopting the construction which I have in any event preferred.”
Her Honour then expressed her conclusion as follows:
“22.In relation to the documents which are to be found in the blue file, it may be that the Parole Board retains ownership of them, and it is clearly the case that as between the Parole Board and the respondent the Parole Board is regarded by each of them as having the superior right of possession, or the ultimate right of control, of the blue file. However, the documents in the blue file are documents in the physical possession of the respondent, which certain of its officers are entitled to use, in accordance with directions given by it, for its purposes. I express no opinion on the question of whether those documents are not only in the possession of the respondent but are also to be regarded as under its control. However, the degree of control which is able to be exercised, together with the physical holding of the blue files by the respondent in the same place as certain of its records, is in my view sufficient to constitute the documents contained therein, ‘documents of’ the respondent for the purpose of cl 4(1) of the glossary in Schedule 2 to the Act.”
CONCLUSIONS ON THE APPEAL
It will be recalled that the essential steps taken in the reasoning of Allen SM here, were:
·The force or effect of s 17 is that if information appears on a computer screen being material that can be downloaded then there is a duty to do so.
·However, to be a “document” within the meaning of s 4(1) the article or material must be a “document of an agency” which is in turn defined as a document “in the possession” of an agency whether created in the agency or received by it.
·The observations of Bayne SM in Sullivan as to the meaning of “possession” as “physical possession” (that is, an actual holding with or without ownership rights) should be adopted here.
·The mere fact that the AFP can access the LEAN system does not mean that the AFP is in possession of a document; it is only if the information on the computer screen is reduced to printed form or transferred into the AFP’s database that the AFP can be said to be “in possession”.
With respect, I have difficulty accepting the logic of this process of reasoning. Moreover, I cannot accept that either Sullivan or Information Commission of Western Australia bears directly upon the present case. Their context was far removed from this and those decisions could not be decisive of the present case. In any event, neither case stands for a narrow interpretation of the legislation. If anything, their approach is to the contrary. In truth the instant context is free from authority although several commentators have recognised aspects of the issues that now arise.
For instance, in a paper, “FOI Access to Electronic Records”, submitted to the “Australian Archives ‘Playing For Keeps’ Conference” (1994), Madeleine Campbell, dealing with “Problems for Agencies”, specifically under a heading “Searching”, wrote:
“Another issue that may arise is: whether an agency that ordinarily has computer access to databases held by other Commonwealth or State agencies, or private organisations, is required to search those databases. This situation may arise, for example, from information sharing arrangements. In most cases the FOI Act will not apply to such information, because its operation is limited to documents (including computer disks or tapes) in the possession of agencies subject to the FOI Act. For example, on-line access by a Commonwealth law enforcement agency to databases of State and Territory law enforcement agencies would not lead to a right of access under the Commonwealth FOI Act to those other databases. However, where an agency has provided another person or body with computerised data, for example under an ‘out‑sourcing’ agreement relating to certain tasks or functions of the agency, and has an immediate right of access to that data, whether by on-line access or by obtaining computer disks or tapes, then the data would be subject to FOI access on the basis of the agency's right to possession (or constructive possession). [Emphasis added]
A further instance is where an agency shares its computer facilities with an outside person or agency not subject to the FOI Act, for example a consultant or a contracted service provider. If the information provided by that organisation is available to officers of the agency in the course of their duties, it would be subject to FOI access as being in the possession of the agency. The outcome in a particular case will depend on the form of any agreement with an outside organisation and the actual dealings between the agency and the organisation in relation to such matters.” (Emphasis added)
This issue was also addressed in the Joint Report by the Australian Law Reform Commission and the Administrative Review Council entitled “Open Government: A Review of the federal Freedom of Information Act 1982”, Report No. 77 published in 1995. Dealing with the topic “Documents ‘in the possession of’ an agency” the Report stated (at 80):
“The FOI Act provides access to documents in the possession of an agency, whether or not they were created in that agency… In determining whether a document is in the possession of an agency, relevant considerations are the purposes for which it was created, the capacity in which it is handled by official and, most particularly, whether the agency is in a position to exercise control over it. Even if documents are not in the physical possession of an agency they will be subject to an FOI request made to that agency if it has a right to immediate physical possession10. It was suggested to the Review that documents that are accessible to an agency on public access electronic networks such as the Internet are in its possession and therefore accessible under the FOI Act. The Review does not consider that information is in the possession of an agency merely because the agency may access that information via a link to another agency's computer system or the Internet11. To suggest that it is would be like arguing that every book in a public library is in the possession of a person with borrowing rights. If an agency has downloaded information from a computer network, that information is clearly in its possession for the purpose of the FOI Act. Until it is downloaded, however, it remains merely accessible to the agency, not in its possession.” (Emphasis added)
In footnotes 10 and 11 the following is stated:
“10. This is known as constructive possession. See new FOI memo 19 para 3.16 and M Campbell "FOI Access to Electronic Records in S. Yorke (ed) "Playing For Keeps" Australian Archives Canberra 1995, 188, 190. If an agency contracts out its electronic information management requirements, the terms of the contract should ensure that the agency retains control over the information.” (Emphasis added)
11.This view is supported in submissions. See, eg, Australia Post Submission 44; Australian Consumers’ Association Submission 55; Dept of Defence Submission 76; Dept of Employment, Education and Training Submission 60; Litigation Law Practice Committee, Law Society of NSW Submission 91.”
The examples given of the public library and the Internet are, of course, far removed from the present context. It is clear that the definition of “document” provided in s 4 is not intended to be exhaustive. It merely identifies some of the things or matters which fall within the term. It is, however, evident, as independent counsel submitted, from the things and matters that are specified in the s 4(1) definition that the term was intended to have a broad meaning. Relevantly, the definition picks up any article on which information has been stored or recorded, either mechanically or electronically, and this would incorporate computer tapes or disks.
It will be noted further that this inclusive definition extends to “any record of information” and, taken literally, this would extend to any record of electronic information not recorded on a tape or a disk but which was otherwise stored on the database of a computer.
As I followed the arguments before me, it does not appear to be in dispute that any record of information which fell within the terms of the access request which has, in fact, been downloaded by the AFP from LEAN, or any other database and stored in hard disks or file servers in the AFP’s physical possession, should be treated as a “document” of the AFP for the purposes of s 4.
The issue between the parties is, as independent counsel observed, one of law, and it is, in essence, whether the AFP should be regarded to be in possession of electronic information stored in the LEAN database in the following circumstances. That is to say, where the AFP has a right, along with other agencies, to access that data base which is managed by the Department of Justice where the actual terms of the right of access of the AFP to that data base have not been, to this point, fully or properly explored in the evidence before the Tribunal. In particular, the relevant memorandum of understanding governing the access was not before the Tribunal; and there appeared to be no evidence on the question whether or not the AFP had in fact exercised its right of access or downloaded any information from LEAN which would answer the description of the request for access.
As independent counsel pointed out, the real question for the Court is whether the relevant information now sought may be properly characterised as information which is “a document” in the “possession” of the AFP within the meaning of s 4. This, in turn, depends upon the proper meaning to be attributed to the concept of “possession” in this statutory context. Specifically, the question arises whether a document as defined in s 4 may qualify for the characterisation as one in the “possession” of an agency only if (as the AFP argument proceeded and as the Tribunal appeared to hold) the agency has actual physical possession of the document.
It is true, as counsel for the AFP pointed out in his written and oral submissions, that the decisions in both Sullivan and in Information Commissioner for Western Australia are consistent with an outcome that if an agency does have actual physical possession, the definition of “possession” in s 4(1) will be satisfied. However, as has been seen and as independent counsel observed, in both those cases the issue of the meaning of “possession” arose in the context of the question of whether the legislation applied to a document which happened to be in the physical possession of one agency although it actually belonged to or was controlled by another agency. It was in that sense that (as I have already said) both Bayne SM and Wheeler J adopt a broader, rather than a narrower, approach to the legislation.
In this way, the approach taken in each of those cases was consistent with the promotion rather than the impeding of access to information, consistently with the object of FOI legislation encouraged by the observations of the High Court in Victorian Public Service Board v Wright, mentioned above. However, it is also pertinent to observe, as independent counsel noted, that a general approach of this kind must nonetheless be supported by the express terms of the relevant statutory provision.
As I have already said, neither the decision in Sullivan nor in Information Commissioner for Western Australia was concerned with a context similar to the present. Both involved access to information in written form and there was no suggestion in either case of access to electronic information. In that important sense, both decisions may be distinguished for present purposes. Nor was it necessary in either case to consider in any depth the concept of “constructive possession” for the purposes of FOI legislation.
However, that concept has, as independent counsel pointed out, been upheld as appropriate in two Victorian decisions. In Re Guide Dog Owners’ & Friends Association and Commissioner for Corporate Affairs (1988) 2 VAR 405, the President of the Victorian Tribunal, Jones J, said (at 408):
“In my view, having regard to the scheme and objects of the Act, possession embraces legal or constructive possession: that is a right and power to deal with the document in question. It is not confined to actual or physical possession.”
That decision was followed by M.F. Macnamara (Deputy President) in Re Mildenhall and Department of Premier and Cabinet (No 2) (1995) 8 VAR 478 at 481. It was there held that, for the purposes of the definition of “document of an agency” within s 5(1) of the Victorian FOI Act, a document that is not in the actual physical possession of an agency is “in the possession of the agency” where the agency has an immediate right to possession of the document. The context of Mildenhall was a hard disk containing or recording the original data of the results of a survey conducted by a company at the request of State Cabinet pursuant to an agreement between the company and the Department. It was held that the terms of that agreement were apt to create a right in the Department to immediate possession of the hard disk.
In rejecting the application of the concept of “constructive possession” for the purposes of s 4, Bayne SM in Re Sullivan was much influenced by the provisions of the s 4(1) definition in their application to an “official document of a Minister”. But taken literally, those provisions are severable from the position of a Minister; and, as independent counsel pointed out, the Explanatory Memorandum to the Freedom of Information Bill 1981, make it clear that the position of the Minister (and with it the special aspect of individual ministerial responsibility) has no counterpart in the context of the position of the agency itself; and, for that reason, throws no light on the question whether the concept of “constructive possession” may be applied to agency documents.
Reliance was also placed by Bayne SM upon the words of limitation in the statutory definition, in particular the requirement that the document must be “received” in an agency. However, I agree with the submission of independent counsel that it is but a small step to regard this limitation as satisfied where there is a right to immediately receive a document, even if there is not actual (but notional) receipt at the relevant time.
In my opinion, the concept of “constructive possession” in the sense explained by Jones J in Re Guide Dog Owners and Friends Association is apposite in the present context. Its application of course, is another matter.
As I have said, on the approach it took, the Tribunal did not need to address the question which is, as the commentator Madeline Campbell has noted, whether the terms of access actually provided rights of access to data, so that the data would be subject to FOI access on the basis of the agency’s right to possession (i.e. as constructive possession). That question was simply not explored in any real sense by the Tribunal and for that reason alone, in my opinion, the matter must be remitted to the Tribunal.
For completeness, I should add that I agree with the submission of independent counsel that s 17 does not have any free-standing operation in the present context; that is to say, whilst this provision is clearly a deeming provision, it is limited in its terms to operate where there has been a written document produced by an agency as a consequence of a valid request having been made for access to information in electronic form, and the FOI applicant does not desire the information to be provided on a computer tape or computer disk. In other words, the deeming provision in s 17 does not operate to deem the electronic information, the subject of a request, to be, by force of the section, in the possession of the agency. At the same time, the concept of “constructive possession” may produce that result, but only by application of that concept rather than by virtue of the operation of s 17.
In summary then, in my opinion, the Tribunal erred by failing to address the relevant legal question, that is to say, whether the AFP had an immediate right to the possession of the articles or materials the subject of the applicant’s request.
ORDERS
Accordingly, I make the following orders
1.The appeal be allowed.
2.The Tribunal’s decision be set aside.
3.The matter be remitted to the Tribunal for reconsideration in accordance with these reasons.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate:
Dated: 9 July 2001
Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 April 2001 and 5 June 2001 Date of Judgment: 15 June 2001
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