Bradford and Australian Federal Police (Freedom of information) - [2021] AATA 3984

Bradford and Australian Federal Police (Freedom of information) [2021] AATA 3984 (25 October 2021)
Division: FREEDOM OF INFORMATION DIVISION
File Numbers: 2019/6997
2020/1903

Re:Adrian Bradford
APPLICANT

AndAustralian Federal Police
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:25 October 2021
Place:Perth

The Tribunal has made specific decisions relating to each of the exemptions claimed by the AFP in relation to each document as set out in the reasons for decision and summarised in the Schedule. The Tribunal decides:
Decision 1: The decision of the AFP dated 20 June 2017 is varied to find that the document CT3 is not exempt in full, with the name of the passenger being exempt under s 47F of the Freedom of Information Act 1982 (WA) (FOI Act).
Decision 2: The decision of the AFP dated 21 August 2018 is affirmed.
Decision 3: The decision of the AFP dated 12 October 2018 is affirmed.
Decision 4: The decision of the AFP dated 11 October 2018 is affirmed.
Decision 5: The decision of the AFP dated 27 March 2018 is varied to find that document CT31 (being a duplicate of CT12) is not exempt under s 38, but is exempt in full by operation of a combination of sections of the FOI Act.
Decision 6: The decision of the AFP dated 27 September 2019 is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
FREEDOM OF INFORMATION – Australian Information Commissioner decided not to review (FOI Act s 54W) – whether documents are exempt because information would or could prejudice an investigation or the enforcement or proper administration of the law (FOI Act s 37(1)(a)) – whether disclosure would or could disclose the existence or identity of confidential sources (FOI Act s 37(1)(b)) – whether disclosure would or could endanger any person (FOI Act s 37(1)(c)) – whether disclosure of information would or could prejudice fair trial of a person or impartial adjudication of a particular case (FOI Act s 37(2)(a)) – whether disclosure would or could be expected to disclose lawful methods or procedures for preventing, detecting, investigating (FOI Act s 37(2)(b)) – whether secrecy provisions apply to documents (FOI Act s 38) – whether documents subject to legal professional privilege (FOI Act s 42) – whether disclosure of document would or could be expected to cause damage to relations between the Commonwealth and a State (FOI Act s 47B(a)) – whether disclosure of documents would involve unreasonable disclosure of personal information (FOI Act s 47F) – whether disclosure is in the public interest – two reviewable decisions varied – four reviewable decisions affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 35(2), 35(5)
Director of Public Prosecutions Act 1993 (Cth) s 6
Director of Public Prosecutions Act Regulations 2019 (Cth) reg 6(1)(e)
Evidence Act 1995 (Cth)
Freedom of Information Act 1982 (Cth) ss 4, 11, 11(2), 11(2)(a), 11A, 11A(5), 11B, 11B(4), 22(1(a)(ii), 24A, 24AB(2), 31B(a), 37, 37(1)(a), 37(1)(b), 37(1)(c), 37(2)(a), 37(2)(b), 37(3), 38, 38(1)(b)(ii), 42, 47B, 47B(a), 47B(b), 47F, 54D(2)(a), 54W(b), 57A(1)(b), 63, 93A, sch 3
New South Wales Crime Commission Act 1985 (NSW) ss 27A, 29
Privacy Act 1988 (Cth) s 4
Surveillance Devices Act 2004 (Cth)
Telecommunications (Interception and Access) Act 1979 (Cth) s 63
CASES
'AF' and Department of Immigration and Citizenship [2013] AICmr 54
Re Anderson and Australian Federal Police [1986] AATA 79
Attorney General’s Department v Cockcroft (1986) 10 FCR 180; [1986] FCA 35
‘BD’ and Australian Federal Police [2014] AICmr 13
Bradford and Australian Federal Police [2016] AATA 775
Commonwealth of Australia v Dutton (2000) 102 FCR 168
Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24
Dale v Australia Federal Police (1997) 47 ALD 417
Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138
Diamond and Australian Curriculum, Assessment and Reporting Authority [2013] AICmr 57
Re Doulman and CEO of Customs [2003] AATA 883
‘FG’ and National Archives of Australia [2015] AICmr 26
Grant v Downs (1976) 135 CLR 674
Hamden and Department of Human Services [2013] AICmr 41
‘HU’ and Australian Federal Police [2015] AICmr 83
Hunt and Australian Federal Police [2013] AICmr 66
‘JV’ and Australian Federal Police [2016] AICmr 72
JY v Commissioner for Police, NSW Police [2008] NSWADT 306
Lobo v Department of Immigration [2010] AATA 583
ReLobo and Department of Immigration and Citizenship [2011] AATA 705
Noonan and Australian Securities and Investments Commission [2000] AATA 492
Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719
Rae v Commissioner of Police [2020] NSWCATAD 189
Re Rees and Australian Federal Police (1999) ALD 686
Rudd and Civil Aviation Safety Authority [2013] AICmr 56
Scott v Avery (1856) 5 HLC Cas 811
Waterford v Commonwealth of Australia (1987) 163 CLR 54
SECONDARY MATERIALS
Administrative Appeals Tribunal, ‘Freedom of Information Practice Direction’ (30 June 2015) para 2.3, 2.4
Office of the Australian Information Commissioner, FOI Guidelines (combined June 2020) part 5, part 6, paras 5.18, 5.80, 5.81, 5.82, 5.83, 5.84, 5.85, 5.86, 5.87, 5.88, 5.91, 5.108, 5.111, 5.127, 6.4, 6.5, 6.6, 6.8, 6.19, 6.19(b)(ii), 6.22(b), 6.32, 6.33, 6.34, 6.35, 6.36, 6.37, 6.38, 6.41, 6.142, 6.143, 6.153, 6.154, 6.161
Westlaw AU, The Laws of Australia (online at 7 October 2021) 13 Dispute Resolution ’13.7 Arbitration’ [13.7.1600]
REASONS FOR DECISION
Deputy President Boyle
25 October 2021
THE APPLICATIONS
Application 2019/6997

By application filed in the Tribunal on 25 October 2019, the Applicant seeks review of five decisions of the Respondent (AFP) that documents requested by the Applicant were wholly or partially exempt from production under the Freedom of Information Act 1982 (Cth) (FOI Act).
Application 2020/1903
By application filed in the Tribunal on 1 April 2020, the Applicant seeks review a decision of the AFP that a document requested by the Applicant was wholly exempt from production under the FOI Act.
The Applicant had sought review by the Information Commissioner (IC) of the decisions the subject of both applications. By letters dated 30 September 2019 (Decisions 1–5) and 31 March 2020 (Decision 6), the IC advised that under s 54W(b) of the FOI Act, she had decided not to undertake reviews of the decisions. Applications for review were thereafter filed in the Tribunal under s 57A(1)(b) of the FOI Act.
Pursuant to orders made on 3 June 2020, the two applications were programmed and heard together.
BACKGROUND
The five decisions the subject of application 2019/6997 relate to five access applications made by the Applicant under the FOI Act. The five FOI access applications and decisions were as follows:
(a)8 May 2017 – (FOI Request 1);[1] decision dated 20 June 2017 (Decision 1);[2]
(b)1 January 2018 – (FOI Request 2);[3] decision dated 21 August 2018 (Decision 2);[4]
(c)4 May 2018 – (FOI Request 3);[5] decision dated 12 October 2018 (Decision 3);[6]
(d)29 August 2018 – (FOI Request 4);[7] decision dated 11 October 2018 (Decision 4);[8] and
(e)26 November 2018 – (FOI Request 5);[9] decision dated 27 March 2018 (Decision 5).[10]
[1] R6, T3.
[2] R6, T5.
[3] R6, T15.
[4] R6, T19.
[5] R6, T24.
[6] R6, T30.
[7] R6, T33.
[8] R6, T35.
[9] R6, T39.
[10] R6, T43.
The decision the subject of 2020/1903 was made by the AFP on 27 September 2019 (Decision 6)[11] and related to a request dated 8 May 2019 (FOI Request 6).[12]
[11] R8, T7.
[12] R8, T1/7.
FOI Request 1
FOI Request 1 sought access to five categories of documents (identified as items A to E) relating to AFP Operation Rhodium.[13] Other documents relating to Operation Rhodium had previously been released to the Applicant as a result of prior FOI requests. By its decision dated 20 June 2017, the AFP decided:
(a)documentation sought by items A and B of the Applicant’s request (being for clearer copies of documents previously released to the Applicant) did not exist;
(b)five documents relating to item C were released to the Applicant; and
(c)documentation relating to items D and E were exempt in full and no other documentation existed in relation to items D and E.
[13] In some contexts referred to as Operation Mocha or Operation Mocha/Rhodium.
On 2 July 2017 the Applicant applied for internal review of Decision 1, in respect of items C and D only[14] and amended the scope of the request for review on 15 November 2017.[15]
[14] R6, T6.
[15] R6, T7.
Item C of FOI Request 1 was as follows:
In CRM / 2015 / 504 folios 14 and 128 mention police seizure 2974706 / 01, a red suitcase with black trimming. Could I please have as much documentation about this item sent to me, including a full description of locks and handles, weight and dimensions. If photographs are available, I would like those too. If documents exist which describe its purpose to Operation Rhodium / Mocha, that is also requested. If documents exist as to which flight this suitcase was on, then those documents are also requested.
Item D of FOI Request 1 was as follows:
In CRM 2015 / 504 folios 115, 118, 120, 122 pertain to police seizure ids 2973744 / 01 to 2973744 / 04 respectively. Could I have as much documentation about these items sent to me, including dimensions and a full description including photographs. If there are documents stating why it was broken into four pieces, then that is also requested.
Item E of FOI Request 1 was as follows:
In CRM 2015 / 504 folio 34 pertains to police seizure 3032367 / 02, a Qantas Baggage system ‘AAA’ for 8^th October 2004. I believe there are 5 pages. I would like all pages please.
On 1 August 2017 the AFP was deemed to have made a decision to refuse the Applicant’s request when it did not make an internal review decision.[16]
[16] FOI Act s 54D(2)(a); R6, T7.
On 28 January 2018 the Applicant applied for IC review of the deemed decision.[17]
[17] R6, T9.
The Applicant sought review by the IC of the decision in relation to items C and E of FOI Request 1 only.[18]
[18] R6, T12.
On 27 September 2019 an officer of the AFP emailed photographs to the Applicant (in relation to item C of FOI Request 1).[19]
[19] R6, T14.
On 1 October 2019 the Applicant withdrew item C from the IC review request,[20] leaving the redactions made to item E, being the five pages relating to police seizure 3032367 / 02, a Qantas Baggage System “AAA” for 8 October 2004, and the sufficiency of searches conducted in relation to item E, as the only issue for review in relation to FOI Request 1.
[20] R6, 1.7.
FOI Request 2
On 1 January 2018 the Applicant submitted FOI Request 2.[21]
[21] R6, T15.
On 21 August 2018 an officer of the AFP made Decision 2 and released 98 folios with redactions to the Applicant on the basis that the redacted information contained information that was exempt and conditionally exempt under the FOI Act.[22]
[22] R6, T19.
On 10 September 2018 the Applicant applied for IC review of Decision 2,[23] folios 49–97 only,[24] being:
(a)the Court Report on the Examination of Items Relating to Operation Rhodium; and
(b)the Statement of Federal Agent Kelly Mansfield.
[23] R6, T20.
[24] R6, T19/587–635.
On 29 October 2018 the Applicant wrote to the Office of the IC and again confirmed the scope of his request for IC review was limited to the documents referred to in [19(a)] and [19(b)] above.[25] The redactions applied to these items and the witness statements referred to in documents produced by the AFP[26] are the only issues for review in relation to FOI Request 2.
[25] R6, T22.
[26] See R6, T22.
FOI Request 3
On 4 May 2018 the Applicant submitted FOI Request 3. On 12 May 2018 the Applicant extended the scope of FOI Request 3.[27]
[27] R6, T26.
On 17 July 2018 an officer of the AFP issued the Applicant with a notice under s 24AB(2) of the FOI Act of an intention to refuse to grant the Applicant access to the documents sought under FOI Request 3.[28]
[28] R6, T27.
On 20 July 2018, in response to the notice issued under s24AB(2), the Applicant revised the scope of FOI Request 3.[29]
[29] R6, T28.
On 20 August 2018 an officer of the AFP advised the Applicant that the AFP would process the revised request, save for item 6, which the AFP considered would constitute a substantial and unreasonable diversion of the AFP’s resources.[30]
[30] R6, T29.
On 25 August 2018 the Applicant revised item 6 of FOI Request 3, to “document(s) which summarises McDonald’s involvement in the drug syndicate, how he was recruited, and how much he was paid”.[31]
[31] R6, T29/724.
Decision 3 was made on 12 October 2018. The matters in dispute in respect of this decision are redactions made to:
(a)six warrants;
(b)five affidavits;
(c)two statements;
(d)two joint task force letters;
(e)16 other documents; and
(f)Documents which summarise McDonald’s involvement in the drug syndicate, how he was recruited and how much he was paid.
FOI Request 4
On 29 August 2018 the Applicant submitted FOI Request 4.[32]
[32] R6, T34.
On 11 October 2018, an officer of the AFP made Decision 4, and determined that in respect to items (1) to (6) of FOI Request 4, the only documentation held were three witness statements dated July 2005 which were found to be previously exempt from release by the AFP’s decision CRM 2016/340 (item 4). The AFP affirmed this previous decision in Decision 4 in respect to items (1) to (6).[33]
[33] R6, T35.
In respect to item (7) of FOI Request 4, the AFP determined that no documents were held.[34]
[34] R6, T35.
On 18 February 2019 the Applicant sought an IC review of Decision 4. The Applicant confirmed the AFP’s decision in relation to items (1) to (6) only (and not item (7)) where the subject of the IC review. Accordingly, the redactions applied to item 4 (see [28] above) are the only issues for review in relation to FOI Request 4.
FOI Request 5
On 26 November 2018 the Applicant submitted FOI Request 5, Part A and Part B.
On 13 December 2018, the AFP sent the Applicant a s 24AB(2) Notice of an intention to refuse to grant the Applicant access to the documents sought.[35]
[35] R6, T40.
On 20 December 2018, in response to the s 24AB(2) Notice, the Applicant withdrew Part B of the FOI Request 5.[36]
[36] R6, T41.
On 27 March 2019 the AFP made Decision 5 in respect to Part A of FOI Request 5, relating to 141 folios (or nine documents) which had been identified as coming within the scope of Request 5. The AFP determined to release some of the nine documents so identified with redactions, on the basis that the redacted information contained information that was exempt and conditionally exempt under the FOI Act. Access to the balance of the documents was refused in full.
On 15 April 2019 the Applicant requested internal review of Decision 5.[37]
[37] R6, T44.
The AFP undertook an internal review, and on 28 May 2019, affirmed Decision 5.[38]
[38] R6, T46.
The Applicant sought review of Decision 5 by the IC in relation to five documents.[39]
[39] Being documents numbered 2, 3, 5, 6 and 9 as identified in the schedule to Decision 5.
Redactions made to some of the documents are the only issues for review in relation to FOI Request 5. Details of these documents are set out in Schedule to these reasons for decision.
FOI Request 6
On 8 May 2019 the Applicant made FOI Request 6 for information held by the AFP in relation to Operation Rhodium.[40]
[40] R8, T3.
The scope of FOI Request 6 was varied on 12 July 2019 (in relation to item 3 of the FOI Request 6).[41]
[41] R8, T5.
On 27 September 2019 the AFP made Decision 6 in relation to FOI Request 6.[42]
[42] R8, T7.
By Decision 6 the AFP identified one document that came within the scope of FOI Request 6. Access to that document was refused, in full, under ss 37(1)(a) and 37(2)(a) of the FOI Act.
On 7 October 2019 the Applicant applied to the IC for review of Decision 6.[43]
[43] R8, T8.
On 31 March 2020 the IC advised that she had decided under s 54W(b) of the FOI Act not to review Decision 6.[44]
[44] R8, T11.
THE ISSUES
The Applicant’s Statement of Facts, Issues and Contentions (ASFIC) filed in the Tribunal on 23 June 2020 addressed both applications 2019/6997 and 2020/1903. At para 7 of the ASFIC the Applicant sets out what he contends are the issues for determination. A number of the “issues” listed by the Applicant are not matters for determination by the Tribunal and misunderstand the function of the Tribunal in reviewing a decision. For instance, one of the “issues” identified by the Applicant is resolution of “inconsistencies between earlier IC review decisions and a prior AAT decision”. Another “issue” identified by the Applicant was “[t]o resolve the tautology created by s 22(1)(a)(ii) in decision 3”. That is not the role of the Tribunal. The role of the Tribunal, standing in the shoes of the original decision-maker (in this case, the AFP), is to make its own determination as to whether the exemptions to the production of documents claimed by the AFP are correct. A supplementary issue for determination by the Tribunal is whether adequate searches were undertaken by the AFP to locate documents coming within the scope of the requests.
The AFP’s Statement of Facts, Issues and Contentions filed in application 2019/6997 (RSFIC19) (incorrectly numbered 2020/6997), identified the issues for determination in that application as follows:
(a)whether the AFP has taken all reasonable steps to find documents coming within the scope of the Applicant’s access applications, in accordance with s 24A of the FOI Act;
(b)whether the documents the AFP has determined to be exempt under sub-ss 37(1)(a)–(c), sub-ss 37(2)(a)–(b) and s 42 of the FOI Act are exempt under those provisions; and
(c)whether the documents the AFP has determined to be exempt under ss 47B and 47F of the FOI Act are conditionally exempt and if so, whether giving the Applicant access to conditionally exempt information at this time would, on balance, be contrary to the public interest.
The AFP’s Statement of Facts, Issues and Contentions filed on 16 June 2020 in application 2020/1903 (RSFIC20), identified the issues for determination in that application as being the same as those identified by the AFP in RSFIC19 (incorrectly referred to throughout RSFIC20 as application 2020/6997).
I agree that the issues identified by the AFP in RSFIC19 as set out in [46] above are the issues for determination in the applications. The proceedings, including the hearing, proceeded on the basis of those being the issues to be determined.
LEGAL FRAMEWORK
Section 11 of the FOI Act provides:
(1)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.
(2)Subject to this Act, a person's right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency's or Minister's belief as to what are his or her reasons for seeking access.
Section 11A of the FOI Act relevantly provides:
…
(4)The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
(5)The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Section 11B of the FOI Act provides:
Scope
(1)This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2)This section does not limit subsection 11A(5).
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.
Irrelevant factors
(4)The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.
Guidelines
(5)In working out whether access to the 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 for the purposes of this subsection under section 93A.

Section 4 of the FOI Act defines “exempt document” as, amongst other things, “(a) a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)…”
Section 24A of the FOI Act relevantly provides:
(1)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.
Section 31B relevantly 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).
…
(Original emphasis.)
Section 37 of the FOI Act relevantly provides:
(1)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
(b)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or
(c)endanger the life or physical safety of any person.
(2)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)prejudice the fair trial of a person or the impartial adjudication of a particular case;
(b)disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or
(c)prejudice the maintenance or enforcement of lawful methods for the protection of public safety.
(2A)For the purposes of paragraph (1)(b), a person is taken to be a confidential source of information in relation to the enforcement or administration of the law if the person is receiving, or has received, protection under a program conducted under the auspices of the Australian Federal Police, or the police force of a State or Territory, for the protection of:
(a)witnesses; or
(b)people who, because of their relationship to, or association with, a witness need, or may need, such protection; or
(c)any other people who, for any other reason, need or may need, such protection.
(3)In this section, law means law of the Commonwealth or of a State or Territory.
(Original emphasis.)
Section 38 of the FOI Act relevantly provides:
(1)Subject to subsection (1A), a document is an exempt document if:
(a)disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment or a Norfolk Island law; and
(b)either:
(i)that provision is specified in Schedule 3; or
(ii)this section is expressly applied to the document, or information, by that provision, or by another provision of that enactment or a law or any other enactment or Norfolk Island law.
(1A)A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment or law concerned or any other enactment or Norfolk Island law.
Section 93A of the FOI Act provides:
(1)The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.
…
(2)For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions:
(a)paragraph 9A(b) (information publication scheme);
(b)subsection 11B(5) (public interest factors);
(c)subsection 15(5A) (decisions on requests).
(3) Guidelines are not legislative instruments.
Pursuant to s 93A of the FOI Act, the IC has issued the FOI Guidelines.[45] Part 5 of the FOI Guidelines sets out guidance in relation to the exemption in s 37 of the FOI Act. Part 5 of the FOI Guidelines relevantly provides as follows:
[45] Office of the Australian Information Commissioner, FOI Guidelines (combined June 2020).
5.81Section 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 or its enforcement or administration.
5.82To 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. [Footnote omitted.] 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].
5.83In 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.
…
Reasonable expectation
5.85In the context of s 37, as elsewhere in the FOI Act, the mere risk or possibility of prejudice to an investigation is not a sufficient basis for a reasonable expectation of prejudice. However, the use of the word ‘could’ in the reasonable expectation qualification, as distinct from ‘would’, is less stringent. The reasonable expectation refers to activities that might reasonably be expected to have occurred, be presently occurring, or could occur in the future…
Investigating a breach of the law
5.86Section 37(1)(a) applies to documents only where there is a current or pending investigation and release of the document would, or could reasonably be expected to, prejudice the conduct of that investigation…
5.87The exemption is concerned with the conduct of an investigation. For example, it would apply where disclosure would forewarn the applicant about the direction of the investigation, as well as the evidence and resources available to the investigating body — putting the investigation in jeopardy.[46] The section will not apply if the investigation is closed or if it is being conducted by an overseas agency.[47]
[46] Citing News Corporation v National Companies and Securities Commission [1984] 5 FCR 88.
[47] Citing Re Rees and Australian Federal Police (1999) ALD 686.
5.88Where the investigation is merely suspended or dormant rather than permanently closed, or where new information may revive an investigation, the Information Commissioner considers the exemption should apply. However, the expectation that an investigation may revive should be more than speculative or theoretical and be supported by evidence.[48]
[48] Citing Re Doulman and CEO of Customs [2003] AATA 883 and Noonan and Australian Securities and Investments Commission [2000] AATA 492.
…
Disclosure of a confidential source
5.91Section 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).
…
Prejudice to law enforcement methods and procedures
5.108Section 37(2)(b) exempts documents which, if released, would or could reasonably be expected to:
• disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches of law
• prejudice the effectiveness of those methods or procedures.
…
5.111This exemption requires satisfaction of two factors. There must be a reasonable expectation that a document will disclose a method or procedure and a reasonable expectation or a real risk of prejudice to the effectiveness of that investigative method or procedure.[49] If the only result of disclosing the methods would be that those methods were no surprise to anyone, there could be no reasonable expectation of prejudice. However, where a method might be described as ‘routine’, but the way in which it is employed can reasonably be said to be ‘unexpected’, disclosure could prejudice the effectiveness of the method.[50]
(Original emphasis.)
[49] Citing Re Anderson and Australian Federal Police [1986] AATA 79.
[50] Citing Hunt and Australian Federal Police [2013] AICmr 66.
Section 42 of the FOI Act provides:
(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2)A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3)A document is not an exempt document under subsection (1) by reason only that:
(a)the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b)the information is operational information of an agency.
…
Paragraph 5.127 of the FOI Guidelines confirms that, for the purposes of s 42 of the FOI Act, it is the common law definition of legal professional privilege, and not the definition set out in the Evidence Act 1995 (Cth) (Evidence Act) that applies.[51]
[51] See also Commonwealth of Australia v Dutton (2000) 102 FCR 168.
Section 47B of the FOI Act relevantly provides:
A document is conditionally exempt if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(b)would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth;
Section 47F of the FOI Act relevantly provides:
(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.
The term “personal information” has the same meaning as in the Privacy Act 1988 (Cth),[52] s 4 of which defines “personal information” as:
… information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(c)whether the information or opinion is true or not; and
whether the information or opinion is recorded in a material form or not.
[52] FOI Act s 4.
Part 6 of the FOI Guidelines deals with conditional exemptions and includes the following paragraphs:
6.142Key factors for determining whether disclosure is unreasonable include:
(a)the author of the document is identifiable [footnote omitted]
(b)the documents contain third party personal information
(c)release of the documents would cause stress on the third party
(d)no public purpose would be achieved through release. [Footnote omitted.]
6.143As discussed in the leading s 47F IC review decision of ‘FG’ and National Archives of Australia [2015] AICmr 26, other factors considered to be relevant include:
•    the nature, age and current relevance of the information
•    any detriment that disclosure may cause to the person to whom the information relates
•    any opposition to disclosure expressed or likely to be held by that person
•    the circumstances of an agency’s collection and use of the information
•    the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act
•    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
•    whether disclosure of the information might advance the public interest in government transparency and integrity. [Footnote omitted.]
…
6.161Where a document includes personal information relating to a person who is not the applicant, an agency or minister should give that individual (the third party) a reasonable opportunity to make a submission that the document should be exempt from disclosure before making a decision to give access (s 27A). If the third party is deceased, their legal representative should be given this opportunity.
The FOI Guidelines provide as follows with respect to whether disclosure of public servants’ personal information is “unreasonable”:
6.153Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties. Such information may often also be publicly available, such as on an agency website.
6.154When considering whether it would be unreasonable to disclose the names of public servants, there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose. In seeking to claim the exemption an agency needs to identify the special circumstances which exist rather than start from the assumption that such information is exempt.
(Footnotes omitted.)
THE HEARING AND THE EVIDENCE
The applications were heard on 10 and 11 September 2020 and 28 and 29 January 2021. The Applicant represented himself. The AFP was represented by Ms C Tipene who appeared by video link from Canberra.
The following documents were admitted into evidence:
(a)ASFIC (A1);
(b)Summary of ASFIC received by the Tribunal 3 September 2020 (A2);
(c)Two volumes of the Applicant’s documents (A3);
(d)Applicant’s application including attachments (A4);
(e)Applicant’s reply (A5);
(f)Additional evidence provided by the Applicant, tendered into evidence 28 January 2021 (A6);
(g)RSFIC19 (R1);
(h)RSFIC20 (R2);
(i)Affidavit of Shelley Miller sworn 13 August 2020 (R3);
(j)Open affidavit of Ian Leland Nelson sworn 13 August 2020 (R4);
(k)Confidential affidavit of Ian Leland Nelson (R5);
(l)Volumes 1 and 2 of T-documents in application 2019/6997 (R6);
(m)Supplementary T-documents in application 2019/6997 (R7);
(n)T-documents in application 2020/1903 (R8); and
(o)Schedule of decisions and bases of objections (R9).
Pursuant to a direction made on 29 January 2021,[53] the AFP filed with the Tribunal a revised confidential bundle of documents. Each document was marked with a “CT” number and each page given a folio number.
[53] See [70] below.
The following witnesses were called by the AFP:
(a)Federal Agent Ian Leland Nelson; and
(b)Ms Shelley Miller.
The Applicant did not call any witnesses.
By the conclusion of the hearing on 29 January 2021, it had become clear that the volume of documents involved, concessions that had been made in the hearing and the mixture of issues involved in relation to the documents, necessitated further submissions and the preparation of a form of “Scott Schedule”,[54] setting out the documents (or parts of documents) in relation to which determinations still needed to be made, the legislative provisions relevant to each such document and a summary of the parties’ contentions in respect of each such document. A version of such a schedule had been provided by the AFP prior to the hearing largely in line with para 2.3 of the Tribunal’s Freedom of Information Practice Direction dated 30 June 2015.[55] At the conclusion of the hearing on 29 January 2021, I made the following directions:
1.    By 10 February 2021, the Respondent is to prepare an amended version of Exhibit R9, “Schedule of Decisions and Basis of Objections” (the schedule) and serve a copy on the Applicant.
2.    By 17 February 2021, the Applicant is to advise the Respondent of any documents contained in the schedule which he no longer seeks to have produced.
3.    By 10 March 2021, the Respondent is to file with the Tribunal and serve on the Applicant an amended version of the schedule including references to evidence and legal bases for claiming exemption.
4.    By 10 March 2021, the Respondent is to file with the Tribunal a revised confidential bundle of documents.
5.    By 31 March 2021, the Applicant is to file with the Tribunal and serve on the Respondent his responsive schedule responding to the amended version of the schedule referred to in direction 3.
[54] Scott v Avery (1856) 5 HL Cas 811. A Scott Schedule “is a composite picture of both sides of the dispute, extended horizontally according to the allegations and issues.” As noted in the Laws of Australia, citing His Honour Edgar Fay QC, this process is used to draw parties’ attention to issues where their views diverge and to what extent, which may facilitate agreeance on certain points and subsequently reduce the time and expense of further litigation. (Westlaw AU, The Laws of Australia (online at 7 October 2021) 13 Dispute Resolution ’13.7 Arbitration’ [13.7.1600].)
[55] R9.
Over the months following the making of the above directions on 29 January 2021, there was correspondence between the parties and the Tribunal by which extensions of time for the steps in the directions were agreed. The end result was that on 30 May 2021, the Applicant filed the schedule with his responses pursuant to direction 5 of the directions made on 29 January 2021 (see [70] above).
Although I made no order or direction for the provision of further submissions, on 26 March 2021, in addition to filing the updated schedule, the AFP filed further submissions together with revised confidential versions of documents 17 and 18 (as so numbered in the updated schedule) and a letter dated 23 March 2021 from the New South Wales Crime Commission (NSWCC). The AFP sought a confidentiality order under s 63 of the FOI Act and ss 35(2) and 35(5) of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of that letter. The terms of the order sought were not specified. Following that request for a confidentiality order, I asked the AFP to specify the basis on which it sought a confidentiality order. By email received by the Tribunal on 30 April 2021, the AFP advised that they no longer sought a confidentiality order.

On 7 April 2021, following receipt of the AFP’s further submissions on 26 March 2021, I made further directions including a direction that by 11 May 2021, the Applicant was to file and serve on the AFP any submissions in reply to the AFP’s further submissions. The Applicant’s submissions in reply were filed on 30 May 2021.
ADEQUACY OF SEARCH FOR DOCUMENTS
The Parties’ submissions
The AFP
The FOI Act does not define what constitutes “reasonable steps” for the purposes of s 24A (see [53] above). The FOI Guidelines provide the following commentary:
3.88The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.
3.89Agencies and ministers should undertake a reasonable search on a flexible and common-sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment or the minister’s office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:
•    the subject matter of the documents
•    the current and past file management systems and the practice of destruction or removal of documents
•    the record management systems in place
•    the individuals within an agency or minister’s office who may be able to assist with the location of documents, and
•    the age of the documents.
(Footnotes omitted.)
The AFP confirmed that it undertook the following searches to locate documents responsive to the access applications:
(a)In respect to FOI Request 1:
(i)a search of the AFP’s investigation case management system “Police Real-time Online Management Information System” (PROMIS) for records relating to “Operation Mocha” and “Operation Rhodium”;[56]
(ii)a search for all relevant documents held by AFP case officers with responsibility for matters relating to the documents the subject of FOI Request 1;[57] and
(iii)in respect to item C specifically, a search of the PROMIS system, emails, shared drive, Drug and Property Register, Federal Agent Ian Nelson’s notes, statements of witnesses and information provided by the AFP’s Crime Scenes unit who provided additional photographs and reports.[58]
(b)In respect to FOI Request 2, a search of all relevant documents by AFP officers with responsibility for matters relating to Operation Mocha and Operation Rhodium, including a search of the PROMIS system and Specialist Operations (Forensic Services) unit.[59]
(c)In respect to FOI Request 3, a search for all relevant documents held by AFP officers with responsibility for matters relating to Operation Mocha and Operation Rhodium, including but not limited to the PROMIS system and AFP document drives.[60]
(d)In respect to FOI Request 4, a search of all relevant documents held by AFP officers with responsibility for matters relation to Operation Mocha and Operation Rhodium.[61]
(e)In respect to FOI Request 5, a search of all relevant documents held by AFP officers with responsibility for matters relation to Operation Mocha and Operation Rhodium, including a search of the PROMIS system.[62]
(f)In respect of FOI Request 6, a search was undertaken by the Organised Crime, Protection and Crime Operations portfolios which included a search of the PROMIS system for records relating to Operation Rhodium and Operation Isogon, an ICT email audit for emails sent by or received by AFP case officers and a search of all records held by AFP case officers with responsibility for matters the subject of the request.[63] The affidavit of Ms Shelley Miller[64] and the open affidavit of Federal Agent Ian Nelson[65] also confirmed that the above searches were undertaken.
[56] R6, T5; R6, T11.
[57] R6, T5; R6, T11.
[58] R6, T13; R7, ST2; R7, ST4.
[59] R6, T19; R7, ST8.
[60] R6, T30; R7, ST13; R7, ST14.
[61] R6, T35; R6, T38; R7, ST16.
[62] R6, T43; R7, ST17.
[63] R8, T7.
[64] R3.
[65] R4.
The Applicant
As far as I can ascertain, the Applicant makes no express submission to the effect that the searches undertaken by the AFP were inadequate. Paragraphs 208–214 of the Applicant’s Reply filed on 1 September 2020,[66] purports to respond to the affidavits of Ms Miller and Federal Agent Nelson. Those paragraphs cite various provisions of AFP National Guidelines on information management, AFP National Guidelines on information security, the Director of Public Prosecutions Act 1993 (Cth) (DPP Act) and the Director of Public Prosecutions Act Regulations 2019 (Cth) (DPP Regulations). The submissions then pose a number of (apparently) rhetorical questions about the AFP deleting information and the AFP’s technical capacity to recover deleted data. The Applicant also attached a number of documents, including 67 pages of the transcript of a voire dire in the criminal prosecution of one of those involved in the importation of cocaine through Sydney airport in 2005. The point of these various references and the material provided was not explained by the Applicant.
[66] A5.
Consideration
The process employed by the AFP to identify and locate relevant documents in response to an FOI request, including those made by the Applicant, was explained in some detail by Ms Miller in her affidavit and expanded in her evidence at the hearing.[67] She holds the position of Acting Deputy General Counsel of Freedom of Information and Information Law for the AFP.[68]
[67] transcript at 109–110.
[68] R3, para 1.
Federal Agent Nelson’s affidavit and evidence at the hearing described in some detail the various digital platforms used by the AFP for the storage of information. The primary platform is PROMIS, with other platforms used on an investigation-by-investigation basis, including shared team drives and email. Shared drives and email databases are text searchable.[69] Hard copy documents are digitised and stored on one of the above electronic platforms.[70] Federal Agent Nelson provided further details of the procedures used by the AFP for the gathering and storage of information on the various systems and the steps taken to search those databases in relation to the FOI Requests made by the Applicant.[71] In his evidence at the hearing Federal Agent Nelson also set out the structure and operational processes and protocols used by the Joint Task Force comprising the AFP and the NSWCC in undertaking Operation Mocha/Rhodium.
[69] R4, paras 9–10.
[70] R4, para 11.
[71] transcript at 48–55.
Guided by the above cited paragraphs of the FOI Guidelines, I am satisfied that the searches of the AFP’s records described in the affidavits and the oral evidence of Federal Agent Nelson and Ms Miller constituted “reasonable steps” for the purposes of section 24A of the FOI Act. The first issue identified in [46(a)] above, is answered in the affirmative.
EXEMPTION CLAIMS
Although the question of whether the exemptions from production claimed are sustainable has to be determined on a document by document basis, (in this case using the Schedule as the reference document for that process) the parties made their respective submissions on an issue-by-issue, or more accurately, a FOI Act section-by-section basis. I therefore address the parties’ submissions on that basis.
A. Section 37(1)(a) of the FOI Act
The parties’ submissions
The AFP
The AFP asserts that the documents in relation to which this exemption is claimed contain information which, if disclosed, would or could reasonably be expected to prejudice the proper administration of the law in respect to the prosecution of an individual in connection with Operation Mocha/Rhodium.
The RSFIC submitted that the AFP has an outstanding arrest warrant and Interpol Red notice in existence for an individual in connection with Operation Rhodium. At the hearing Federal Agent Nelson advised that the current level of the Interpol alert was a Blue notice which requires police agencies to notify the AFP of the location of the person if they are identified.[72] Federal Agent Nelson’s evidence was that if such a notification is received, the AFP and the Commonwealth Director of Public Prosecutions (CDPP) would “… discuss the opportunity to have that person detained and possibly extradited, if located overseas. And if they are located in the Commonwealth of Australia then the two existing arrest warrants would suffice in that person’s detention”.[73]
[72] transcript at 51.
[73] transcript at 51–52.
The AFP points to the previous Tribunal decision in Bradford and Australian Federal Police[74] (Previous Bradford Decision) in which the Tribunal accepted that s 37(1)(a) of the FOI Act did apply to certain of the documents the subject of that application and that the disclosure of the information in the relevant documents could reasonably be expected to prejudice the process for briefing prosecutors in the context of criminal prosecutions and the filing and tendering of evidence in court, which is a process that falls within the “administration of justice”.[75] The AFP contends that that is still the case.
[74] [2016] AATA 775.
[75] Previous Bradford Decision at [31]–[32].
Further, the Tribunal in the Previous Bradford Decision (at [33]) accepted that the premature public release of that information could reasonably be expected to subvert that established process and give rise to a number of other reasonably expected consequences, such as deny the effectiveness of the Court’s power to make suppression and non-publication orders in respect to the information, should the Court consider it appropriate to do so. This would give rise to the potential for a claim of prejudice to a fair trial or the impartial adjudication of the case. Again, the AFP contends that is still the case.
The AFP notes that, in his correspondence in respect of the access applications, the Applicant cites an extract of evidence provided by Federal Agent Mansfield in the matter that gave rise to the Previous Bradford Decision. It is contended by the Applicant that in that matter Federal Agent Mansfield stated that the investigations under Operation Mocha/Rhodium were “complete” but that there was “one outstanding matter” which was the prosecution of an individual.[76]
[76] See, for example, R6, T22.
The AFP submits that the status of the investigation into Operation Mocha/Rhodium is not relevant to whether the disclosure of the exempt information could reasonably be expected to prejudice the proper administration of the law in respect of the prosecution of that individual.
The AFP’s further submissions filed after the hearing, sought to address an argument that appeared to emerge at the hearing, namely, whether section 37(1)(a) of the FOI Act requires an agency to identify the specific law to which the prejudice is likely to arise, or whether the exemption can be relied on to prevent prejudice in a general sense. The AFP refers to the decision of ReLobo and Department of Immigration and Citizenship.[77]
[77] [2011] AATA 705.
Relevantly s 37(1)(a) of the FOI Act states that a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
(Emphasis added by AFP’s submission.)
…
(3)In this section, law means law of the Commonwealth or of a State or Territory.
(Original emphasis.)
The Tribunal is to give effect to the ordinary meaning of the language used in the provision. In the case of s 37(1)(a) of the FOI Act, the AFP notes the exemption relates to:
(a)whether disclosure would or could reasonably be expected to prejudice the “conduct of an investigation of a breach, or possible breach, failure or possible failure to comply with the law” as phrased in more general terms; and then
(b)more specifically in regard to a breach or possible breach of “a law” in relation to taxation.
This provision clearly refers to “the law” in a more general, all-encompassing sense (as opposed to a specific law relating to taxation). Save for a specific law in relation to taxation, the exemption provision should be read in a general sense as referring to prejudice of “the law” more generally.
The AFP’s position on this issue is, according to the AFP, supported by paras 5.80–5.88 of the FOI Guidelines.
The AFP submits that disclosure would, or could reasonably be expected to, prejudice the proper administration of the law in respect to the prosecution of an individual in connection with Operation Mocha/Rhodium.
The AFP relies on the evidence of Federal Agent Nelson, provided in both open and confidential formats, which verified that there is an outstanding arrest warrant and Interpol alert for an individual in connection with Operation Rhodium, and in the event that that individual is arrested, the matter will likely proceed to criminal prosecution under Australian criminal law. As at the date of these proceedings that individual has not yet been arrested.
The confidential evidence of Federal Agent Nelson provided the Tribunal with detailed information about the outstanding arrest warrants relevant to this matter and the likelihood of the documents at issue being used as evidence in such future proceedings. In consultation with the NSWCC on other similar FOI requests, the NSWCC have also confirmed the AFP’s position that disclosure of this material may likely prejudice future criminal investigations.
At the hearing the Applicant also made submissions to the effect that disclosure may reveal evidence of misconduct on behalf of the agencies involved in Operations Mocha/Rhodium and asserted that it was open to the Tribunal to consider whether the documents did relate to the “proper administration of the law”.
The AFP’s primary submission in response to this proposition is that the outstanding arrest warrants and likelihood that this matter will proceed to the prosecution of a person understood to be involved in a highly sophisticated drug syndicate, clearly, in and of itself, relates to the “proper administration” of the criminal law in Australia. The AFP does not accept that the Applicant’s allegations of misconduct in respect of Operation Mocha/Rhodium are substantiated or relevant to these proceedings. In any event, the documents in issue do not themselves evidence any misconduct on behalf of the AFP or any other law enforcement agency.
Section 37 of the FOI Act is a prospective provision which considers whether disclosure would or could reasonably be expected to prejudice a current or ongoing investigation into the proper administration of the law.
Allegations of misconduct would ordinarily be raised in the context of a public interest test for or against disclosure. Section 37 of the FOI Act is not a conditional exemption and therefore does not require the application of a public interest test. The Applicant’s submissions are not relevant to the Tribunal in respect of the application of s 37 itself. This understanding is supported by the FOI Guidelines, which do not recognise allegations of misconduct as relevant to the application of section 37 of the FOI Act.
Paragraph 6.19(b)(ii) of the FOI Guidelines recognises that a public interest factor favouring disclosure could well include whether disclosure could be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct. In contrast, paragraph 6.22(b) of the FOI Guidelines states that a possible public interest factor against disclosure would be that disclosure “could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct.”
In Danis v Commissioner of Police, NSW Police Force,[78] the New South Wales Civil and Administrative Tribunal (NCAT) found that the Applicant’s allegations were not supported by the documents themselves. The public interest grounds as raised by the Applicant, were ultimately considered to be irrelevant in that case.
[78] [2020] NSWCATAD 138.
The Applicant argues that certain material claimed to be exempt under s 37 of the FOI Act was already in the public domain and that this means disclosure would no longer prejudice the proper administration of the law.[79] The Applicant has only made assertions in this regard and has not evidenced the specific disclosure of the material at issue to the public at large. Such an argument would ordinarily be raised in the context of a conditional exemption where the application of a public interest test is relevant. However, the AFP cannot control all information reported in the media and has not at any stage publicly commented as to whether the media reports referred to by the Applicant are or are not accurate reflections of the AFP’s records of events. The material claimed to be exempt under s 37 of the FOI Act has not, to the extent that it is disclosed in the documents, been publicly disclosed, published or authorised by the AFP.
[79] transcript at 66 onwards.
The Applicant
In respect of the phrase “would, or could reasonably be expected to” as used in s 37(1)(a) of the FOI Act, the Applicant, refers to para 5.18 of the FOI Guidelines and contends that a mere risk, possibility or chance of prejudice does not qualify as a reasonable expectation. There must be at least a real, significant or material possibility of prejudice.[80]
[80] Attorney General’s Department v Cockcroft (1986) 10 FCR 180; [1986] FCA 35.
The Applicant contends that the reasons for decision of the Tribunal in the Previous Bradford Decision make it clear that the reason for finding that s 37(1)(a) applied was on the basis of the release of information would “prejudice the conduct of an investigation”. The Applicant submits that through the review process the basis of the exemption changed to “prejudice the… proper administration of the law in a particular instance” and that that change “gives the appearance that the reason to apply the exemption is actually weak”.
Insofar as prejudice to an investigation is relied on, the FOI Guidelines specify that the investigation must be current or pending and the exemption will not apply if the investigation is closed. In the hearing giving rise to the Previous Bradford Decision, Federal Agent Mansfield twice in cross-examination, stated that the investigation was complete.
In relation to whether the release of the information would or could reasonably be expected to prejudice the proper administration of the law in a particular instance, the Applicant refers to the AFP’s reference to [29]–[34] of the Previous Bradford Decision and says that the Tribunal’s decision was based on the finding that the premature release of information would, or could reasonably be expected to prejudice the proper administration of the law. The Applicant says that this process was not followed (presumably by the AFP) by allowing the producers of a television show to release images of a black suitcase seized by the police as part of the operation. The Applicant also points to an AFP response to a media enquiry in which the AFP stated that the release of the image of the black briefcase was not of concern because “the content in the program regarding this is already in the public domain and it will not have an adverse impact on outstanding matters in the case”.
According to the Applicant, the above statements “completely defeat” the arguments upon which paras [29]–[31] of the Previous Bradford Decision were based.

The release of the documents relating to the red suitcase could not prejudice the proper administration of the law because the red suitcase is not an exhibit in current or anticipated court proceedings.
Federal Agent Nelson gave evidence that the Interpol alert notice has been downgraded from a Red alert to Blue alert, which demonstrates that the AFP are requesting Interpol to locate the person of interest (POI) but not detain him. This implies less resources are being employed from international agencies, decreasing the likelihood of finding the POI; it shows that the AFP have just about given up on finding the POI. Apart from the Interpol Blue notice, the witness didn’t provide any detail of what the AFP, themselves, are actively doing to find the POI and did not detail what resources are being expended on this matter.
Paragraph 5.85 of the FOI Guidelines states that “the mere risk or possibility of prejudice to an investigation is not a sufficient basis for a reasonable expectation of prejudice”.
Sections 37(1)(a) and s 37(2)(a) should not apply as the likelihood of the POI being arrested has further diminished and no longer meets the threshold of a mere risk or possibility for a reasonable expectation of prejudice.
In relation to the correct interpretation of the term “the law” in s 37(1)(a), and the AFP’s contention that “the law” is used in a general, all-encompassing sense and that the exemption provision should be read in a general sense as referring to prejudice of the law more generally, the Applicant accepts that the Tribunal is to give effect to the ordinary meaning of the language used in the provision. However, the Applicant disagrees that it should be interpreted as laid out in the AFP’s submissions as set out in [87]–[91] above.
The Applicant draws the following comparison between s 37(3) of the FOI Act and para 5.80 of the FOI Guidelines:
(a)Section 37(3): “In this section, law means law of the Commonwealth or of a State or Territory.” (Original emphasis.)
(b)Paragraph [5.80]: For the purposes of the exemption, “law” means a law of the Commonwealth or of a State or Territory (s 37(3)). It encompasses both criminal and civil law.
Clearly, the Information Commissioner interprets that “law” means “a law” and not a more general usage of “the law”.
Consideration
Both parties cited the Previous Bradford Decision which engaged many of the same considerations as the present applications. I agree with and adopt Senior Member Walsh’s reasoning and analysis of the law in that matter. In my view, there has been no material change in the circumstances which would warrant my not applying the same analysis and application of the legislation and the FOI Guidelines as Senior Member Walsh did in the Previous Bradford Decision.
I do not accept the Applicant’s argument that the relevant investigation is “closed” (see [104] above). I did not hear the evidence of Federal Agent Mansfield in the previous matter to which the Applicant refers, however, Federal Agent Nelson’s evidence at the hearing of these applications was that there are still outstanding arrest warrants in the investigations the subject Operation Mocha/Rhodium and that there is an Interpol Blue notice which, if activated, would result in an arrest or, potentially, extradition proceedings (see [82] above). The current state of the investigations undertaken as part of Operation Mocha/Rhodium falls into the category described in para 5.88 of the FOI Guidelines (see [58] above) as being “suspended or dormant”. Federal Agent Nelson’s evidence, which I accept, was that if information is received as a result of the activation of the Interpol Blue notice, the expectation is that the investigation (Operation Mocha/Rhodium) would revive.
I also do not accept the Applicant’s submission that through the review process the basis of the exemption changed to “prejudice the … proper administration of the law in a particular instance” and that that change “gives the appearance that the reason to apply the exemption is actually weak”. Whether in the Applicant’s view something gives the appearance that an exemption claimed is “weak”, is, of course, irrelevant to my considerations. My role is to assess the exemption claimed in respect of each document in the context of the applicable relevant circumstances. In any event, the two concepts covered by the opening words of s 37(1)(a) (prejudicing an investigation) and the subsequent concept of the proper enforcement or administration of the law in a particular case, are not mutually exclusive and are, most likely in a lot of cases, causally and factually intertwined.
For the purposes of s 37(1)(a), I find that the investigations the subject of Operation Mocha/Rhodium and the prosecution of charges that may still arise out of those investigations are investigations and the enforcement of proper administration of the law to which s 37(1)(a) would apply.
I also do not accept the Applicant’s apparent argument that, somehow, questions that he raised about possible breaches of procedures in Operation Mocha/Rhodium or in the handling or accounting for the drugs and/or proceeds of the sale of drugs in the operation are relevant to whether s 37(1)(a) applies. Firstly, there is no evidence to substantiate the allegation on which the Applicant’s argument is based, namely, that Operation Mocha/Rhodium was carried out or involved anything other than the “proper administration of the law”. The Applicant’s speculation as to the issue behind the cross-examination of NSWCC Assistant Director Standen in the voire dire in the prosecution of one of the organised crime syndicate members, is not evidence of the operation not being carried out “properly”.
Secondly, and in any event, the reference to the “proper administration of the law” in s37(1)(a) is, as the AFP contends, the proper administration of the law in the future, in this case by being able to enforce the law and prosecute offenders. The release of information now which would, or could reasonably be expected to, prejudice such future prosecutions or future investigations, comes within the operation of s 37(1)(a).
The Applicant argues that certain exemptions under the FOI Act (including those claimed under s 37(1)(a)) should not apply because information is already in the public domain. While that may be a legitimate argument in some cases and in respect of some information, there is a significant and critical difference between public speculation, driven by sensationalist journalism, and source information which would or may confirm facts. For instance, there is an obvious difference in substance and repercussions between a tabloid television program showing grainy footage of someone who they claim is a drug courier/informant and the investigating agency releasing to the public the identity of the informant, or releasing information from which the identity of that person could be ascertained. Even if certain members of the public, for instance criminal associates of the person whose image was shown, know who that person is, it is a totally different matter, with obviously different serious consequences, for an investigating agency to confirm who an informant is. For a start, the image as shown in the television program may not be the correct person. Secondly, and more importantly, speculation as to a person’s identity based on an image shown in a television program and formal confirmation of an informant’s identity by the investigating agency by the release of documents (which is what the Applicant seeks) are totally different things.
In his response to the AFP’s further submissions addressing the proper construction of “the law” in s 37(1)(a),[81] the Applicant makes the statement that he “no longer pursues this aspect as it is hardly likely to assist the Tribunal in making its required decision(s)”. Given the context in which that statement is made, it is not clear whether the Applicant is no longer seeking to make the argument that “the law” means a specific law rather than the law generally. In any event I find that the AFP’s construction of the term “the law” in s 37(1)(a) is correct for the reasons put forward by the AFP. Used in s 37(1)(a), the term “the law” is a reference to the general law and the administration of the law generally. It is not necessary for the AFP to identify specific legislation to which the principal enunciated would apply, which, I note, they have done in any event.[82] Such a construction is consistent with the decision in Re Lobo.
B. Section 37(1)(b) and 37(1)(c) of the FOI Act
The parties’ submissions
[81] Filed in the Tribunal 30 May 2021.
[82] Respondent’s Further Submissions paras 23–25.
The AFP
The documents in relation to which exemption is sought under this section contain information which, if disclosed, could reasonably be expected to enable a person to ascertain the identity of a confidential source of information, being the informant “Tom” and/or contain information that, if disclosed, would enable a person to ascertain the identity of a confidential source of information in relation to the enforcement or administration of the law.
It is the source of information, rather than the content of the information, that is confidential. The exemption has been found to apply even in circumstances where the information supplied by the confidential source is out of date or incorrect.[83]
[83] Quoting Dale v Australia Federal Police (1997) 47 ALD 417 at 420.
Further, in relation to certain documents, the disclosure of this information could reasonably be expected to endanger the life or physical safety of the informant. This is especially the case in respect of informants within drug syndicates, due to the high level of risk attached to engaging in drug-related activity. The AFP submits that there is a reasonable apprehension of danger given the identity of the informant has never been publicly disclosed and their name has remained suppressed in proceedings. The disclosure of the informant’s identity in this context could reasonably be expected to endanger the life of the informant and other individuals associated with the informant.
The Applicant
The thrust of the Applicant’s submissions, taken largely from the Applicant’s summary of ASFIC[84] and the Applicant’s Response to the AFP’s further submissions filed in the Tribunal 30 May 2021, was:[85]
(a)There is sufficient evidence that the courier is also an informant. Whether he is a confidential source of information turns on the facts at hand. Confidentiality is lost when he gave evidence in person in court and this evidence was reported in the media as well as published in public documents and Statements of Facts.
(b)The FOI Guidelines emphasise that it is the source of information which is confidential, rather than the information itself. Significant amounts of information have been released in the statements of facts and remarks in sentencing of many of the individuals convicted for their part in this syndicate.
(c)Material broadcast on television illustrates that the identity of the informant has been compromised. The Tribunal must now accept that the informant’s identity does not require protection to the extent claimed by exempting these documents. The physical safety of the informant is not endangered to the extent claimed; If there was a possibility of harm it was considered not to be a real chance. The informant and Hatfield have been friends for twenty years and Hatfield would know the informant’s identity. This will not be changed by release of the documents.
(d)“Tom’s” witness statements are subject to sub-ss 37(1)(b) and (c). Any details pertaining to his location or relocation can remain exempt under s 37(1)(c). It is the contents of his information which are contested. The claim that the material in these documents is highly sensitive must be checked against the statement of facts documents and remarks on sentencing documents already in possession of the Applicant and released in full.
[84] A2.
[85] Filed in the Tribunal 30 May 2021.
Consideration
The Applicant’s above arguments are largely addressed in my consideration of s 37(1)(a) above. For the same reasons set out in [119] above, I reject the Applicant’s argument in respect of sub-ss 37(1)(b) and (c). There is a material difference between speculation and confirmation of identity. I also accept that any informant’s life would be in danger from the international crime organisation the subject of Operation Mocha/Rhodium should his or her identity be “officially” confirmed by the release of information by the AFP.
I also do not accept the proposition put by the Applicant in [124(a)] and [124(c)] above. Firstly, there is no evidence before me as to what any informant may have said in criminal proceedings or even whether any relevant informant gave evidence, let alone evidence in open court. Secondly, there is no legal basis identified by the Applicant to support his contention and I do not accept that it is a correct statement of the law.
C. Sections 37(2)(a) and 37(2)(b) of the FOI Act
The parties’ submissions
The AFP
The exemption claimed under this section applies to two items. The Applicant has previously sought access to these items by a separate access application. That separate access application was subject to external review:
(a)by the IC, where the IC affirmed the AFP’s decision that the exemption in section 37(2) of the FOI Act applied;[86] and
(b)the Previous Bradford Decision, where the AAT affirmed the AFP and IC’s position that these documents were exempt under both ss 37(1)(a) and 37(2)(a) of the FOI Act.
[86] Citing ‘HU’ and Australian Federal Police [2015] AICmr 83.
As at 30 September 20219 the IC advised that “[t]here is no information before the OAIC at this time that would indicate a change of circumstances that would lead to a different finding being made by the Information Commissioner about whether the documents are exempt under section 37(2)(a)”.[87]
[87] R6, T51.
The above (see [125]) continues to be the position. The documents contain information that would be included in a brief of evidence for an outstanding prosecution, and the premature release of this information could reasonably be expected to prejudice the enforcement or proper administration of the law and prejudice the fair trial of a person or the impartial adjudication of the case.
The Applicant
The relevant documents under review were initially not marked up for exemption under ss 37(1)(a) and 37(2)(a), suggesting that the risk of prejudice is unlikely and low. One of the relevant documents was provided to the AFP in September 2006 by which time many of the men charged were tried in the absence of this document forming part of any brief of evidence.
Similar claims for exemption were contested in the Previous Bradford Decision in which the subject was a black briefcase which was the luggage item that contained the cocaine smuggled from South America into Sydney on 8 October 2004; those documents remained exempt or redacted. Despite the ruling from the Tribunal in that matter, some of the folios are now released in part and have quite an extraordinary outcome, revealing what type of information the AFP deemed was exempt under ss 37(1)(a) and 37(2)(a). The released information now places the red suitcase and black briefcase together on the same folio, which invites the viewpoint that these two cases have a related prior purpose or existence.
Consideration
The ultimate test that I must apply in looking at the relevant documents is whether the release of the information would prejudice the fair trial of a person or the impartial adjudication of a particular case or disclose lawful methods or procedures for preventing, detecting, investigating or dealing with breaches of the law or prejudice the effectiveness thereof. While I am guided by the Previous Bradford Decision and the decision of the IC and am mindful of the fact that the AFP has released some parts of documents in relation to which exemption was previously claimed, I have reviewed the documents in light of the current circumstances and based on the evidence presented to me, I have reached my own conclusions as to whether the documents in question attract exemption under these sub-sections.
D. Section 38 of the FOI Act – Documents to which secrecy provisions apply
In the AFP’s further submissions, it submitted that certain documents in relation to Decision 3 and Decision 5 are exempt under s 63 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TI Act).[88] In order to be exempt under this section, disclosure of the document must be prohibited under a provision of an enactment and that provision must be specified in sch 3 to the FOI Act, or the provision of an enactment must expressly apply s 38 of the FOI Act.
[88] Respondent’s further submissions paras 44–52.
The AFP relies on this section in relation to three documents.[89] Two of these documents relate to applications made for warrants under the TI Act, which is listed in sch 3 of the FOI Act. However, the third document claimed to be exempt under this section is a document relating to an application for a warrant under the Surveillance Devices Act 2004 (Cth). That Act however, is not listed in sch 3 and s 38 is not expressly applied to the document by a provision of that act such that s 38(1)(b)(ii) of the FOI Act would apply. I have accordingly found that, while the document is still exempt in full under other sections of the FOI Act, it is not exempt under s 38.[90]
E. Section 42 of the FOI Act – Documents subject to legal professional privilege
The parties’ submissions
[89] One in Decision 3 and two in Decision 5; see Schedule.
[90] See Schedule to these reasons.
The AFP
The FOI Guidelines confirm that, for the purposes of s 42 of the FOI Act, it is the common law definition of legal professional privilege, and not the definition set out in the Evidence Act that applies.[91]
[91] Citing FOI Guidelines para 5.127; Dutton.
The common law test for legal professional privilege requires a consideration of:
(a)whether there is a legal adviser-client relationship;
(b)whether the communication was for the purpose of giving or receiving legal advice, or use in connection with actual or anticipated litigation;
(c)whether the advice given is independent; and
(d)whether the advice given is confidential.[92]
[92] Citing Grant v Downs (1976) 135 CLR 674; Waterford v Commonwealth of Australia (1987) 163 CLR 54. Noting, for examples of the application of these considerations in the FOI Act context see Hamden and Department of Human Services [2013] AICmr 41; 'AF' and Department of Immigration and Citizenship [2013] AICmr 54 and Rudd and Civil Aviation Safety Authority [2013] AICmr 56.
The document in relation to which exemption under this section is claimed was created by the AFP for the purpose of receiving legal advice from the CDPP. A professional lawyer-client relationship existed between the CDPP and the AFP in relation to the subject matter of the documents.[93] Legal professional privilege has not been waived.
[93] Citing ‘JV’ and Australian Federal Police [2016] AICmr 72 at [15] and ‘BD’ and Australian Federal Police [2014] AICmr 13 at [31].
The Applicant
It is not clear how a document attracting this exemption would be found in the searches relating to Decision 3. There are a number of tests to apply before this exemption is satisfied. Correspondence from the AFP varies as to whether the document was created for the purpose of legal advice or prepared for litigation purposes.
The CDPP’s activities are restricted to s 6 of the DPP Act. The DPP Regulations list other prescribed actions. The AFP has to prove that the “legal advice” was for the purpose of enforcement of the law or a matter relating to law enforcement.
If the information has been provided in proceedings or is accessible in public documents of a proceeding, it raises the possibility that legal professional privilege has been waived.

Paragraph 6.6 of the FOI Guidelines provides that:
It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of particular interest or benefit to an individual or small group of people may also be a matter of general public interest.
(Emphasis added by Applicant’s submission.)
Paragraph 6.19 of the FOI Guidelines provides a non-exhaustive list of public interest factors favouring disclosure. The Applicant considers those pertinent to this AAT review are:
(a) Promotes the objects of the FOI Act, including to:
(a) Inform the community of the Government’s operations, including, in particular, the policies, rules, guidelines, practices and codes of conduct followed by the Government in its dealings with members of the community;
(b) Reveal the reason for a government / agency decision and any background or contextual information that informed the decision;
(c) Enhance the scrutiny of government / agency decision making;
(b) Inform debate on a matter of public importance, including to:
(a) Allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official;
(b) Reveal of substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct;
(f) Contribute to the administration of justice generally, including procedural fairness;
(g) Contribute to the enforcement of the criminal law;
(h) Contribute to the administration of justice for a person.
(Without alteration. Emphasis added by Applicant’s submission.)
The Applicant cites ss 11B(4) and 11(2) of the FOI Act and submits that in light of s 11(2)(a), providing the reasons for seeking access to documents in this FOI campaign may assist in determining the public interest factors favouring disclosure of conditionally exempt documents, in particular “to contribute to the administration of justice for a person” and “reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct”.
The reason that the Applicant seeks the documents the subject of these proceedings is to determine the likelihood of the corrupt baggage handlers linked to the drug syndicate interfering with Ms Corby’s luggage. Corby was arrested at Ngurah Rai Airport, Denpasar, Bali on 8 October 2004 when 4.2 kilograms of cannabis was found in her unlocked bodyboard bag.
The AFP’s continued stance that corrupt baggage handlers at Sydney international airport were not involved in the Corby matter demonstrates a monumental failure by the AFP: the AFP was formally asked on 7 December 2004 to investigate Brisbane and Sydney baggage handlers and provide the results in a Court proceeding involving an Australian citizen arrested in a foreign country. They did not do so, but “had the audacity to claim they did”. The impact of this falsehood was damaging to Ms Corby’s defence, appeals and support.
Ms Corby has endured a miscarriage of justice and the documents under review could provide further information that the cocaine smugglers were responsible. Overturning a miscarriage of justice or overturning wrongful convictions is in the public interest. The Commonwealth government, state governments, and the general public are all entities which can learn so much about what went wrong and make corrections to prevent reoccurrence. The Applicant submits it is in the public interest that the public are informed of the truth. Any possible chance Ms Corby has of clearing her name centres on identifying anomalies in Operation Rhodium; this cannot be done by the AFP as they are of the opinion/belief that Corby’s matter is unrelated to the cocaine importation.
The test for s 47B(b) is whether the communication was considered to be confidential at the time of the communication, whereas the harm claimed to be done is considered in the present or future, rather than at the time of the communication. In this matter this is more than 15 years after the event.
During Operation Rhodium/Mocha the AFP were in the NSWCC offices. When the Joint Task Force was in the NSWCC offices, the communication could not be confidential as it was shared (as implied by the term ‘Joint’ Task Force). When the AFP left these offices, it was reasoned that information was then communicated on a confidential basis.
In relation to the statement of Federal Agent Mansfield, the undisclosed information is likely to mention either the NSWCC or NSW Police Force. Irrespective of which, if another member of the Joint Task Force team is mentioned, this is no reason to exempt the information.
In relation to another document, that Applicant contends that it was co-authored by all three agencies of the Joint Task Force. The information subject to s 47B exemption would be in possession of the AFP prior to the AFP leaving the Kent Street offices. It is evident that s 47B has been applied to documents when the AFP were operating from the Kent Street offices of the NSWCC or applied to documents written on AFP templated material with AFP logos. Very few documents were communicated in confidence after the AFP departed the NSWCC Kent Street offices.
The FOI Guidelines at para 6.41 also states that “the circumstances of the communication may also need to be considered”. The AFP claims that such a circumstance to be considered is that there were secrecy provisions in place at the time the information was communicated. Section 27A of the former Act provides that when a Joint Task Force is created, it can include the secondment of members of the AFP. This means that once a Joint Task Force is formed, then by operation of law, the AFP automatically receives the information and is deemed to have the confidential information. The usage of the term “joint task force” implies that information received by one agency is information received by all.
The Act in force at that time (which contained the relevant secrecy provision when the information was communicated), has since been repealed. This legally terminates all provisions made under that Act, which raises a question of law as to whether any person is still bound by the secrecy provisions of s 29 under the former Act. It is noted that the secrecy provisions under the current Act are different.
Consideration
A thorough analysis of the operation of and law relating to s 47B, more specifically s 47B(a) of the FOI Act, was recently undertaken by Justice White, sitting as a Deputy President of the Tribunal, in Patrick and Secretary, Department of Prime Minister and Cabinet.[103]
[103] [2021] AATA 2719.
Relevant to my review of the documents in the present case, his Honour made the following observations and findings:
216.The word “damage” in s 47B is not qualified by any adjective as to extent or character. In context, it seems apt to refer to forms of intangible damage: Diamond v Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707 at [103]; Re Maher and Attorney‑General’s Department (1985) 7 ALD 731 at 742. It can also be taken to connote a less severe deleterious effect than “a substantial adverse effect”, which is the expression used in the cognate provisions in ss 47D, 47E and 47J of the FOI Act.
217.On the other hand, s 47B(a) operates with respect to “damage”, which would preclude adverse effects which cannot be characterised as such, for example, effects which do no more than cause relationships to develop in particular ways, without being damaging. The damage need not be generalised damage to the relationship between the Commonwealth and the State: damage to the relations in some particular respect would be sufficient: Re Guy v Department of Transport (1987) 12 ALD 358 at 363.
218.The term “relations between the Commonwealth and a State” in s 47B should not be understood as having a narrow conception. It is capable of encompassing the whole of the relationship between the Commonwealth, on the one hand, and a State or States (accepting that, in accordance with s 23(b) of the Acts Interpretation Act 1901 (Cth), the singular “a State” may encompass two or more States). In Arnold (on behalf of Australians for Animals) v Queensland [1987] FCA 148; (1987) 73 ALR 607, Wilcox J said of the then s 33A of the FOI Act (the predecessor of s 47B):
[T]he words ‘relations between the Commonwealth and a State’ refer to the total relationship between the Commonwealth and the relevant State. As is essential in a federation, there exists a close working relationship, over a wide spectrum of matters and at a multitude of levels, between representatives of the Commonwealth and representatives of each State. The word ‘relations’ includes all of those contacts.
219.The expression “could reasonably be expected to prejudice the future supply of information” in the former s 43(1)(c)(ii) of the FOI Act was considered by Bowen CJ and Beaumont J in Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180. Their Honours said, at 190, that the expression required “a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act”. This meaning was applied to the former s 33A of the FOI Act in Arnold v Qld, by Wilcox J at 616 and by Burchett J at 628.
220.Cognates of the expression “could reasonably be expected to” have been considered in later authorities, resulting in some refinement of the reasons in Cockcroft. Perry J referred to these authorities in Secretary, Department of Prime Minister and Cabinet v Summers at [42]‑[47]. In the view I take of the matter, it is not necessary to review those authorities presently. It is sufficient to indicate that I accept that the Tribunal is to proceed on the basis that s 47B(a) requires, in accordance with its terms, consideration of whether disclosure of the subject documents “would, or could reasonably be expected to” cause damage to relations between the Commonwealth and a State and that, if satisfied of either limb, the subject documents will be conditionally exempt.
…
225.Accordingly, the Tribunal must consider two questions in the application of s 11A(5) and s 47B(1)(a):
(a)would disclosure of the subject documents cause, or reasonably be expected to cause, damage to relations between the Commonwealth and a State;
(b)if so, would access to the documents at this time, on balance, be contrary to the public interest.
…
227.Both questions require the Tribunal to engage in a process of evaluation having regard, in particular, to the content and nature of the documents, such evidence as is available as to the effect of disclosure, to matters which may be inherent in the documents or in the disclosure, and to the general context.
…
232.There is, prima facie, a distinction in s 47B between subs (a) on the one hand, and subss (b), (d) and (f), on the other. The criterion on which the latter operates is the prospect that information communicated in confidence in particular contexts would be divulged, whereas subs (a) is concerned with an effect of the disclosure of the document itself. This raises the possibility that the former requires consideration of the contents of the document in question, but that may not necessarily be so in the case of the latter.
…
235.It is also to be noted that the FOI Act makes a broad distinction between documents according to their class and their content. Some exemptions are class‑based in that the exemption is expressed by reference to the class to which they belong. Section 34(1)(b) is an example. There are other examples in Division 3 of Part IV.
…
239.The very nature of the criterion upon which s 47B(a) operates seems inconsistent with it having an application to a class of documents. It seems to contemplate a factual enquiry as to the effect of disclosure in the circumstances, rather than the application of some form of a priori reasoning by reference to a category of documents. Put slightly differently, a document is to be conditionally exempt because of the perceived effect of its disclosure: not the perceived effect of disclosure of the class of documents to which it belongs. A focus on whether disclosure of a class of documents would be damaging to Commonwealth‑State relations would divert attention from the application of the statutory criterion in s 47B(a) to the document, that is to whether its disclosure would have, or be reasonably expected to have, the relevant adverse effect.
His Honour at [240] referred to the approach taken by the High Court in Commonwealth v Northern Land Council[104] (dealing with claims for exemptions to classes of documents), and opined that “the structure and terms of the FOI Act make it appropriate to apply this approach by analogy”.[105]
[104] (1993) 176 CLR 604; [1993] HCA 24.
[105] At [241].
His Honour went on to say:
242.I also observe that counsel’s submission is inconsistent with the approach stated by the Tribunal in Re MacTiernan and Secretary, Department of Infrastructure and Regional Development [2016] AATA 506 at [63]:
... What s 47B(a) of the FOI Act requires, and indeed what each of the other sections of the FOI Act which are at issue in this application (namely s 47B(b), s 47C(1) and s 47E(d) of the FOI Act) require, is a closer analysis of the nature of the information contained in each of the Contested Documents to determine whether a particular Contested Document is conditionally exempt under the section ...
243.For these reasons, I do not accept the submission that the present application may be determined by reference to the documents as a class, and without the Tribunal’s consideration of the content of the documents. In this case, that will include the Tribunal’s inspection of the documents.
244.This conclusion does not mean that the considerations which underpinned counsel’s submission are not relevant at all. The prospect of damage being caused by disclosure of each document is to be assessed having regard, not only to the content of each document, but also by reference to the significance of the disclosure more generally.
Insofar as the AFP relies on s 47B(a) of the FOI Act, I have reviewed the relevant documents applying the above principles, including paras 6.32 to 6.38 of the FOI Guidelines. Generally, I accept that disclosure by the AFP of documents that were created, or came into the AFP’s possession as part of the joint Operation Mocha/Rhodium, were provided in confidence and that their disclosure would, or could, reasonably be expected to cause damage to the working relationship between the AFP and the NSWCC. Paragraph 6.37 of the FOI Guidelines refers to Diamond and Australian Curriculum, Assessment and Reporting Authority[106] in which it was found that disclosing school data provided by State and Territory Governments would damage Commonwealth-State relations because it might reasonably have caused State and Territory Governments to decline to provide further data. A letter dated 23 March 2021 provided by NSWCC, in effect, confirms that that would be the case if the documents sought by the Applicant were released. In that letter the NSWCC advised that:
Release of the detailed information contained in the documents may also cause the Commission to lose confidence in the ability of the AFP to adequately protect Commission information. This would have the direct impact of limiting the type and amount of material the Commission communicated to the AFP in the future. This would damage the capability of both the AFP and the Commission to investigate criminal activity and to fulfil our statutory functions.
[106] [2013] AICmr 57.
The Applicant objected to the letter from the NSWCC on various grounds.[107] None of the grounds of objection raised by the Applicant is sufficient to warrant my excluding the letter and disregarding its contents. While he objected to the letter, the Applicant did make extensive submissions on the matters raised in the letter in the event that I was to have regard to the letter. In those submissions at paras 223–239, the Applicant makes a number of points including:
(a)it is now more than 15 years since the events the subject of the documents; and
(b)while the public interest issues raised by the NSWCC as to the damage that would be caused “are sound public interest considerations against disclosure, there are also public interest factors favouring disclosure”.
[107] Applicant’s Respondent para 221.
The evidence of Federal Agent Nelson as to the effect that the release of the Operation Mocha/Rhodium documents of the type sought would have on the relationship between the NSWCC (and more generally State law enforcement agencies) and the AFP was consistent with the views expressed by the NSWCC in the letter.
I accept that the release of certain of the documents (subject to my reviewing each document for content, context and provenance) would, or could, reasonably be expected to cause damage to the relationship between the Commonwealth and a State of the type identified in Diamond.
I am also satisfied that divulging the information in the documents sought by the Applicant in relation to which exemption is claimed under this section of the FOI Act would be contrary to the public interest under s 11A(5) of the FOI Act. In reaching that conclusion I have taken into account the factors identified in s 11B and have been guided by paras 6.50 and 6.51 of the FOI Guidelines. While the Applicant argues that Ms Corby’s interest would be served by the release of the information sought, the Applicant’s argument as summarised in [164]–[165] above, set out in more detail in paras 150–165 of the ASFIC and expanded on orally by the Applicant in the hearing[108] is totally speculative. The starting point of the Applicant’s thesis is that the South American drug cartel which imported the cocaine into Australia at the same time brought in four kilograms of marijuana. There is simply no evidence that that was the case. The following exchange at the hearing was one of several in which I asked the Applicant to point to any evidence supporting his theory as to how the marijuana came to be on Ms Corby’s bodyboard bag:
[108] See transcript at 11–13.
TRIBUNAL:     Well, it does assume your theory about transfer of marijuana and so    on, of which there’s no evidence, is correct, doesn’t it? So you’re   starting with an assumption that your story is true and therefore when   things don’t fit that story you’re saying, well, there’s something amiss   here. Well, okay, can I put it another way and it might not be relevant.   But where is the evidence that a cocaine importing cartel also   contained in either the nested cases or otherwise four kilograms of   marijuana. They then took the cocaine out of the nested suitcase,            which was worth probably millions, tens of millions of dollars, well,   well over a million dollars. And then for some reason offloaded the   marijuana, in relation to which there’s no evidence as far as I’m aware   that it ever existed, and put it in Ms Corby’s boogie bag.
…
APPLICANT:   …I’m saying that was not the case because there’s no information   that I could see that it was actually done in South America.
…
There were two bags put on the plane by McDonald, one was the              unnamed case and one was the case that contained the cocaine. My           theory or what I’m proposing is that those two cases came together      in Sydney at the checked baggage system and they couldn’t take            both bags onto the next stage of the importation, which was to put            them behind the trolley, the baggage cart, behind the calves, legs of         the driver because there was only one tug and they can’t put two       together because it would impede the pedals, so they had to - they       needed to - sorry, they needed to have two but there was only one         available. So that’s where they decided to open up the larger bag, which was the unknown case, chuck out the contents, which, well,      they didn’t chuck it out, they put it into a case that had to be      serendipitously nearby, which happened to be Ms Corby’s case, that      was therefore the marijuana. And in went and zipped up the smaller         case, which was the case containing the cocaine hence now the           nested cases and that’s where the nested cases actually occurred.        So that’s what I’ve been pushing and suggesting has actually taken place and therefore the nested cases got taken out of the airport - - -
…
TRIBUNAL:     And so where’s all the correspondence about what happened to our four or five kilograms of marijuana? I would have   thought a Colombian drug cartel, or wherever they came from, might   not be too happy if, as you say, they’re marijuana was coming in via   the same route that just disappeared.
APPLICANT:   The cartel in South America would have already got their money from                    North where the - - -
TRIBUNAL:     Somebody would have followed it up, surely.
APPLICANT:   Well, we have to ask North.
TRIBUNAL:     Who’s North?
APPLICANT: The person of interest who’s got the Interpol alert.
TRIBUNAL:     But we know the cartel was - there were discussions that were    recorded, which you’ve referred to afterwards, they only talk about   the cocaine. And they’re talking about a kilo up or down but no one   mentions, well, by the way what happened to the marijuana. And   what were the baggage handlers getting paid for handling the   marijuana or was that part of another deal?
APPLICANT:   I’m not a police officer, so I won’t be able to have that information for                     you. But I think a police officer if they had that realisation that there   was this connection could have made that inquiry.
TRIBUNAL:     But do you see this is - you’re starting with the connection and    working backwards. What connection between marijuana and the   cocaine?
…
TRIBUNAL:     There’s no evidence of any marijuana.
APPLICANT:   Well, I don’t think even McDonald would have known if there was any                    marijuana. He didn’t know there was any cocaine in there although   the diminishing responsibility is that why would he - he wouldn’t have   known so that he could deny the contents, that he knew what the   contents were. And it may well be the same with the other bag as   well. The only person who knows would actually be the person of   interest who is the subject of the Interpol alert.[109]
[109] transcript at 96–9.

Following and around that exchange and at other times during the hearing, there were similar discussions between the Applicant and me, however, the end result is that the Applicant could not point to any evidence to support his theory. It is purely speculation.
When considering s 11A(5) and whether the release of the information (assuming that a conditional exemption applies) is, on balance, contrary to the public interest, I am to balance the detriment to the public interest that the release of the documents would have as identified by the AFP (which the Applicant appears to concede; see [178] above) against the factors weighing in favour of disclosure, primarily on my understanding of the Applicant’s case, being those factors identified in [164] above. As I have noted above, however, the public interest claimed by the Applicant, and more particularly the interest of Ms Corby in clearing her name, proceeds on a theory of the Applicant’s in relation to which there is no direct or substantial evidence.
I also agree with the AFP’s submissions in relation to the claimed interests of Ms Corby and the Applicant being, in relation to the balancing of considerations for and against disclosure, interest that can be given little (if any weight). As the AFP points out, Ms Corby makes no claim for the release of the documents and is (as far as the Applicant could advise) not even aware of these proceedings. The claimed benefit to Ms Corby in clearing her name (there is no evidence that she has any interest in doing that) is, as with the Applicant’s theory as to how the drugs got into her luggage, speculation.
I am satisfied that on balancing the interests in favour of disclosure as identified by the Applicant against the considerations against disclosure, it would be contrary to the public interest to release the documents (or parts of documents) over which a conditional exemption under s 47B applies.
G. Section 47F - Public interest conditional exemptions – personal privacy
The parties’ submissions
The AFP
One of the documents in relation to which this exemption is claimed discloses the age of a public servant, Federal Agent Mansfield, which is not relevant for the purposes of revealing that the public servant was performing his duties.[110]
[110] I understand from the final version of the schedule that the Applicant no longer seeks provision of this document or this part of the document.
Third parties identified in the conditionally exempt information in some of the documents have not been consulted by the AFP in relation to the proposed release of their personal information in connection with the access applications in circumstances where the information was obtained by an informant, who is a protected witness.
The AFP submits that special circumstances exist and justify the exemption of personal information contained in these Items under section 47F of the FOI Act. Those special circumstances are:
(a)the documents relate to an ongoing matter; and
(b)the disclosure of the documents may result in the reputations of the identified individuals being tainted.
Public interest test: Section 11A(5) of the FOI Act provides that information that is conditionally exempt must be released unless, in the circumstances, access to that document at this time would, on balance, be contrary to the public interest.
The AFP accepts that there are a number of public interest factors in favour of the disclosure of identified items sought by the Applicant. Those factors in favour of disclosure are:
(a)the general public interest in access to documents as expressed in ss 3 and 11 of the FOI Act;
(b)the extent to which the information is well-known;
(c)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the documents;
(d)the availability of the information from publicly accessible sources;
(e)the current relevant of the information; and
(f)the circumstances in which the information was obtained and any expectation of confidentiality.
The AFP submits that the following factors against disclosure are also relevant:
(a)prejudice to the protection of an individual’s right to privacy;
(b)the risk of people being aware that their personal information could be disclosed, which would impede the flow of information to the police;
(c)the need for the AFP to maintain confidentiality with regard to the subject matter and the circumstances in which the information was obtained;
(d)if such information was disclosed, that it may discourage public cooperation in AFP investigations;
(e)the fact that some of the information is not on the pubic record or available from publicly available sources; and
(f)the need for the agency to maintain the confidentiality with regard to the subject matter and the effect that disclosure may have on third parties.
The Applicant
The Applicant did not press for release of a significant number of the documents (or parts of documents) in relation to which exemption under s 47F was claimed. In relation to other documents the Applicant made specific submissions as to whether the exemption should apply, which I have taken into account in reviewing those documents.
The Applicant does make some general submissions in relation to this section, including the submission that the investigation is not ongoing and where a person has been involved in the criminal matter investigated under Operation Rhodium/Mocha, then their reputation should not be considered as a reason to exempt these documents. The Applicant notes that McDonald was the courier in the 8 October 2004 importation, that the AFP acknowledge that he was not charged despite the enormous amount of evidence detailing his involvement and that couriers for the conspiracy to import cocaine in 2005 each received substantial custodial sentences.
The Applicant contends that items in possession of a person at the time that person was committing a crime (whether charged or not) are not afforded the degree of privacy as possessions of persons who are not involved in crime. McDonald knew he was involving himself in a criminal syndicate for the purposes of drug smuggling and he knew he would be carrying a case back to Australia. His other luggage items in his possession, including carry-on luggage, forfeit any right to privacy, and in any case descriptions of any carry-on luggage or other luggage in McDonald’s possession whilst he was committing this crime could not identify him.
Consideration
As noted above, in reviewing each of the documents I have looked at whether they contain information which would come within the operation of this section. I do not accept the Applicant’s submission referred to in [212] and [213] above. The Applicant cites no authority or any legal basis to support the proposition.
G. Public interest conditional exemptions – Business Information
The AFP no longer relies on this exemption.[111]
[111] AFP’s further submissions para 67.
DETERMINATION
As noted above, the number and volume of documents, the range of bases on which exemptions were claimed and the manner in which the material in these applications was provided presented significant problems in how to effectively deal with the claim or claims made in relation to each document. This was further complicated, as is invariably the case in FOI matters, by the fact that the Applicant does not have the documents, so his submissions are, to a degree, based on assumptions. It was to address that difficulty that the Tribunal’s Freedom of Information Practice Direction was issued. Paragraph 2.3 and 2.4 of that Practice Direction provide for the provision of a schedule. It was also to assist in this process that I made the orders referred to in [70] above. An abridged version of the schedule that arose out of that process is attached to these reasons.
DECISION
I have made specific decisions relating to each of the exemptions claimed by the AFP in relation to each document. These decisions are set out in the reasons for decision and due to the number of documents relating to the six decisions, are summarised in the Schedule. The documents in the Schedule refer to the CT number, being the number of the document in the confidential bundle filed with the Tribunal.
Decision 1 is varied to find that the document CT3 is not exempt in full, with the name of the passenger being exempt under s 47F of the FOI Act.
Decision 2 is affirmed.
Decision 3 is affirmed.
Decision 4 is affirmed.
Decision 5 is varied to find that document CT31 (being a duplicate of CT12) is not exempt under s 38, but is exempt in full under a combination of sections of the FOI Act.
Decision 6 is affirmed.

I certify that the preceding 223 (two hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 25 October 2021

Dates of hearing: 10 and 11 September 2020
28 and 29 January 2021

Applicant: In person

Counsel for the Respondent: Ms C Tipene

Solicitors for the Respondent: Sparke Helmore Lawyers
SCHEDULE
“CT” refers to the confidential T-document number of each document sought. The folios correspond to the confidential T-document bundle. Where documents are referred to as a “duplicate”, the folios identified correspond to the original document.
Decision 1

Document

sought

Description

Exemption claimed

Tribunal’s finding

[CT3]

Folios 45–49

Five pages falling within police seizure records – Qantas baggage system AAA folios

Refused in full

37(1)(a)

37(2)(a)

47B

47F

Not exempt; the name of the passenger is exempt under s 47F

[CT4]

Folio 50

Property seizure record

Refused in part

47F

Exempt in part as claimed

Decision 2

Document

sought

Description

Exemption claimed

Tribunal’s finding

[CT7], [CT8], [CT9], [CT10]

Folios 10, 11, 17, 18, 30, 31

Forensic services examination requests and operations support requests

Exempt in part

37(1)(a)

47F

Exempt in part as claimed

[CT8]

Folios 49–53

Court report

Exempt in part

37(1)(a)

37(2)(a)

47F

Exempt in part as claimed

[CT9]

Folios 54–57

Kelly Mansfield statement

Exempt in part

37(1)(a)

37(1)(b)

37(1)(c)

37(2)(b)

47B

Exempt in part as claimed

Decision 3

Document

sought

Description

Exemption claimed

Tribunal’s finding

[CT11]

Folios 1–15

Document 1: Warrant

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT11]

Folios 16–17

Document 2: Warrant

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT11]

Folios 18–19

Document 3: Warrant

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT12]

Folio 20

Document 4: Warrant

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

38

47B

47F

Exempt in full as claimed

[CT14]

Folio 55

Document 7: Warrant

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT16]

Folios 111–116

Document 9: NSW Crime Commission letter

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT17]

Folios 141–142

Document 11: Minute

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

Exempt in full as claimed

[CT17]

Folios 143–151

Document 12: NSW Crime Commission Briefing Paper

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT22]

Folios 180–198

Document 17: Post operational assessment

Exempt in part

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in part as claimed

[CT23]

Folios 199–209

Document 18: Major investigation plan

Exempt in part

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in part as claimed

[CT24]

Folios 210–222

Document 19: Advisory report

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT25]

Folio 223

Document 20: Case note entry

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT25]

Folios 224–225

Document 21: Case note entry

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT25]

Folios 226–228

Document 22: Case note entry

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT25]

Folios 229–231

Document 23: Case note entry

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT25]

Folios 232–235

Document 24: Case note entry

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT25]

Folios 236–238

Document 25: Case note entry

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT25]

Folios 239–243

Document 26: Case note entry

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT25]

Folios 244–245

Document 27: Case note entry

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT26]

Folios 246–253

Document 28: statement

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT27]

Folios 254–257

Document 29: statement

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

Decision 4

Document

sought

Description

Exemption claimed

Tribunal’s finding

[CT28], [CT29], [CT30]

No folio number

3x statement of witness

Exempt in full

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

Decision 5

Document

sought

Description

Exemption claimed

Tribunal’s finding

[CT31] (Duplicate of [CT12])

Folios 21–38

Document 5: Affidavit

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

38

47B

47F

The document is not exempt under s 38 (see para [134] of these reasons for decision). The document is still exempt under a combination of other sections.

[CT31]

(Duplicate of [CT13])

Folios 20-31

Document 6: Affidavit

Released in part

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in part as claimed

[CT32]

(Duplicate of [CT14])

Folio 35 para 9; folios 36–43, 48-58, 61–64, 70

Document 8: Affidavit

Released in part

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in part as claimed

[CT33]

(Duplicate of [CT15])

Folios 92–110

Document 8a: Affidavit

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

38

47B

47F

Exempt in full as claimed

[CT34]

(Duplicate of [CT16])

Folios 117–140

Document 10: Chronology

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT35], [CT36]

(Duplicate of [CT18], [CT19])

Folios 152–155

Document 13: Overseas communication

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in full as claimed

[CT37]

(Duplicate of [CT20])

Folios 156–167

Document 14: Joint Task Force letter

Exempt in full

37(1)(a)

37(1)(b)

37(1)(c)

42

47B

47F

Exempt in full as claimed

[CT38]

(Duplicate of [CT21])

Folios 168–179

Document 16: Affidavit

Exempt in part

37(1)(a)

37(1)(b)

37(1)(c)

47B

47F

Exempt in part as claimed

Decision 6

Document

sought

Description

Exemption claimed

Tribunal’s finding

[CT39]

Folios 1–12

Statement

Exempt in full

37(1)(a)

37(2)(a)

47F

47B

Exempt in full as claimed

Dates of hearing:	10 and 11 September 2020 28 and 29 January 2021
Applicant:	In person
Counsel for the Respondent:	Ms C Tipene
Solicitors for the Respondent:	Sparke Helmore Lawyers

Document sought	Description	Exemption claimed	Tribunal’s finding
[CT7], [CT8], [CT9], [CT10] Folios 10, 11, 17, 18, 30, 31	Forensic services examination requests and operations support requests	Exempt in part 37(1)(a) 47F	Exempt in part as claimed
[CT8] Folios 49–53	Court report	Exempt in part 37(1)(a) 37(2)(a) 47F	Exempt in part as claimed
[CT9] Folios 54–57	Kelly Mansfield statement	Exempt in part 37(1)(a) 37(1)(b) 37(1)(c) 37(2)(b) 47B	Exempt in part as claimed