Bradford and Australian Federal Police (Freedom of Information)
[2016] AATA 775
•30 September 2016
Bradford and Australian Federal Police (Freedom of information) [2016] AATA 775 30 September 2016)
Division
FREEDOM OF INFORMATION DIVISION
File Number
2016/0123
Re
Adrian Bradford
APPLICANT
And
Australian Federal Police
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 30 September 2016 Place Perth The Tribunal affirms the decision under review.
................[sgd]..................................................
Senior Member CR Walsh
CATCHWORDS
FREEDOM OF INFORMATION – whether the contested documents are exempt as their disclosure would, or could reasonably be expected to, prejudice the proper administration of the law and prejudice the fair trial of a person or the impartial adjudication of a particular case – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 35 – s 43(1)
Freedom of Information Act 1982 – s 4(1) - s 11(1)(a) – s 11A(3) – s 11A(4) - s 21(1)(a)(ii) – s 22 – s 31B(a) - s 37(1)(a) – s 37(2)(a) - s 37(2)(b) – s 47B – s 47E(d) – s 47F - s 54 – s 55K - 57A(1)(a) - 61(1)(b) - s 64(1) - s 93A(3)
CASES
Attorney-General’s Department & Anor v Cockcroft [1986] FCA 35; (1986) 10 FCR 180
Chemical Trustee Limited and Ors and Commissioner of Taxation and Chief Executive Officer, AUSTRAC (Joined Party) [2013] AATA 623
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Cordover and Australian Electoral Commission [2015] AATA 956
Francis and Department of Defence [2012] AATA 838
Lobo and Department of Immigration and Citizenship [2011] AATA 705
News Corporation Ltd v National Securities Companies and Securities Commission [1984] FCA 400; (1984) 57 ALR 550
Prinn and Department of Defence [2016] AATA 445
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 - 5.13 – 5.14 - 5.20 - 5.73 – 5.74 – 5.75 – 5.76 – 5.91 – 5.97 – 6.119
Macquarie Dictionary (Online Edition)
REASONS FOR DECISION
Senior Member CR Walsh
30 September 2016
INTRODUCTION
This proceeding concerns a request by the Applicant, Dr Adrian Bradford (Dr Bradford), to access documents under the Freedom of Information Act 1982 (the FOI Act). At issue is whether those documents are exempt documents under s 37 of the FOI Act.
In short, the Respondent, the Australian Federal Police (the AFP), contends that the documents are exempt under s 37(1)(a) and s 37(2)(a) of the FOI Act as their disclosure would, or could reasonably be expected to, prejudice the proper administration of the law and prejudice the fair trial of a person or the adjudication of a particular case.
In contrast, Dr Bradford’s position is broadly that the documents are not exempt documents as they contain material evidence relating to the “Schapelle Corby case”.[1] More specifically, Dr Bradford’s SFIC states:
23.By withholding the documents… , there is a possibility that non-disclosure would or could prejudice the adjudication of justice to rightfully correct the miscarriage of justice Ms Corby is enduring and release of these documents will accelerate this correction.
24.The Applicant contends that S37(2)(a) should not apply to the documents… ,those being the photographs of The Rushcutters Bay Case, as the material evidence (that being The Rushcutters Bay Case), is incorrectly assigned as evidence in a cocaine smuggling case. The Rushcutters Bay Case should be reassigned as material evidence to the Corby case…
[1] See the “Applicant’s Statement of Fact’s, Issues and Contentions”, received on 13 June 2016 (Dr Bradford’s SFIC), “Prelude” (Exhibit 4).
FACTUAL & PROCEDURAL BACKGROUND
On 16 February 2014, Dr Bradford requested access to documents from the AFP under the FOI Act (the FOI Request). The FOI Request states:
I am writing to make a Freedom of Information Request for descriptions of evidence pertaining to Operation Mocha, a drug importation case circa 2004-2005.
In particular the only evidence I wish to have described are the bags that were seized by police (of which I believe there are at least 2 bags) and were used during the October 2004 Importation.
May I please request a full description of the said bags including:
·any and all photographs of both bags;
·documentation of the dimensions (internal and external);
·a full description of the locks with photographs;
·a full description of the handles with photographs; and
·if the bags were seized with any labels attached, then a full description an photographs of ALL labels including text and numbers.
·Police identification codes for each evidence item.
On 22 October 2014, the AFP notified Dr Bradford of its decision on the FOI Request, as follows:
DECISION
I have identified four documents relevant to your request. A schedule of each document and details of my decision in relation to each document is at Annexure B.
I have decided that some of the documents itemised at Annexure B are released to you with deletions pursuant to subsections 22(1)(a)(ii), 37(2)(a), 37(2)(b), 47B, 47E(d) and 47F of the Act. Some of the documents that relate to your request are exempt in full, pursuant to subsection 37(2)(a) of the Act. (the Original Decision)
By email to the AFP, dated 25 October 2014, Dr Bradford requested an internal review of the Original Decision.
On 28 October 2014, Dr Bradford lodged a “Review Application Form” with the Office of the Australian Information Commissioner (the Information Commissioner) for a review of the Original Decision.
On 19 November 2014, the AFP notified Dr Bradford of its decision to uphold the Original Decision (the Internal Review Decision)[2]. The Internal Review Decision states:
[2] The Internal Review Decision was made by the Respondent pursuant to s 54 of the FOI Act.
The Office of the Australian Information Commissioner (OAIC) guidelines on internal reviews note that I can either rely on work undertaken by the original decision maker, or can cause the same work to be undertaken again. After reviewing the files for this decision, I have decided to rely on the work undertaken by the original decision maker, supported by some additional queries with the relevant line area.
I have also assessed where relevant, my interpretation of the Freedom of Information Act 1982 (Cth) (the FOI Act), and the OAIC guidelines on FOI decision making. OAIC guidelines also require me to consider all matters you raise in your review request.
Your review request
I note your acceptance of the exemptions applied per s22(1)(a)(ii), s 47F, s37(2)(b), 47E(d) of the FOI Act.
Regarding your query of the applicability of:
·s 37(2)(a) – I note the decision maker outlined her reasons for exemption on page 3 and 4, of the Decision Letter. In summary, there remains an outstanding court matter in relation to this case and any disclosures at this time may have a detrimental impact on that matter. The fact that the information does not relate to personal information is irrelevant. The material sought forms evidence in relation to a person’s legal proceedings.
·s 47B – I note your comments regarding publically (sic.) known damaged relations between the AFP and the NSWCC regarding the activities of particular members of the NSWCC. That point is acknowledged however the AFP, NSWCC and both the Commonwealth and State Director of Public Prosecutions have continued to work closely together in information sharing and prosecution of this syndicate that has extend[ed] beyond the publically known matters. It is in this context the AFP considers relations would, or could reasonably be expected to cause damage to relations between the Commonwealth and the State.
·Folio 10 being ‘greyed out’ when nil exemptions were applied. My review indicates the absence of an exemption being applied was in error. Folio 10 will remain exempted in its full form under s 37(2)(a). I have re-attached this page for your records.
For the above reasons outlined to each of your queries, I uphold the original decision.
On 15 December 2015, the Information Commissioner affirmed the Internal Review Decision (the Information Commissioner Decision)[3]. The Information Commissioner Decision states:
15.I have examined an unedited copy of the documents, they comprise property seizure records and photographs, police statements, and Court reports about the examination of items.
16.I agree with the AFP that disclosure in this case could reasonably be expected to prejudice the fair trial of an individual, and also impact on the proper and impartial adjudication of the case. In particular, I accept the AFP’s submissions that the information contained in the documents relates to the prosecution of an individual who is the subject of current arrest warrants. I agree with the AFP that disclosure could reasonably be expected to impact on the proper and impartial adjudication of a criminal case. I note that the applicant himself appears to acknowledge that there is at least some scope for disclosure to impact on the case.
17.I am satisfied that the material in the documents that the AFP found to be exempt under s 37(2)(a) is exempt under this provision.
18.The applicant contends that disclosure is in the public interest. However, the s 37 exemption does not provide for me to consider whether disclosure is in the public interest.
[3] The Information Commissioner Decision was made by the Information Commissioner pursuant to s 55K of the FOI Act.
On 8 January 2016, Dr Bradford applied to the Tribunal for review of the Information Commissioner Decision[4]. Dr Bradford’s stated “Reasons for the Application” are as follows:
Information provided by the [Respondent] to the AIC [i.e. the Information Commissioner] is considered to be faulty causing the AIC [i.e. the Information Commissioner] to err. The AFP claim[s] (sic.) that the bag in question contained the cocaine smuggled to Sydney on 8/10/2004, but FOI reveals it is big enough to have contained the cannabis found in Ms Schapelle Corby’s luggage in Bali contingent with: an overlap of less than 20 mins; 3 breached of regulations by baggage handlers within that overlap; and a reason for tampering with luggage. The bag cannot be considered as evidence in a cocaine smuggling trial. The bag in contention now falls outside S37(2)(a) of the FOI Act.
[4] Section 57(1)(a) of the FOI Act provides that a person may apply to the Tribunal for a review of a decision made by the Information Commissioner under s 55K of the FOI Act. In such proceedings, the agency that decided the applicant’s FOI request (here, the AFP) has the onus of establishing that the Information Commissioner’s decision is justified or that the Tribunal should make a decision adverse to the applicant (here, Dr Bradford).
ISSUES
During the course of the review by the Information Commissioner, the AFP no longer claimed the exemptions in s 37(2)(b), s 47B or s 47E(d) of the FOI Act. For material which was previously claimed as being exempt under s 37(2)(b) and s 47E(d) of the FOI Act, the AFP claimed that it was instead “irrelevant matter” under s 21(1)(a)(ii) of the FOI Act. For material which was previously claimed as being exempt under s 47B of the FOI Act, the AFP claimed that it was instead exempt under s 37(2)(a) of the FOI Act.
The AFP's current position has changed since then. The AFP now claims the exemption in s 37(1)(a) of the FOI Act in addition to s 37(2)(a) of the FOI Act, but for essentially the same reasons. The Schedule of Documents, attached to these reasons as “Attachment 1”, represents the AFP’s current position on the claimed exemptions and irrelevant matter.
Consequently, the issues for consideration by the Tribunal are whether disclosure of the four contested documents referred to in “Attachment 1” (the Contested Documents)[5] would, or could reasonably be expected to:
(i)prejudice the enforcement or proper administration of the law in a particular instance (s 37(1)(a) of the FOI Act); and/or
(ii)prejudice the fair trial of a person or the impartial adjudication of a particular case (s 37(2)(b) of the FOI Act).
[5] At the hearing of this application, the Tribunal required the Contested Documents to be produced for its inspection, pursuant to s 64(1) of the FOI Act. The Contested Documents were tendered as Exhibit 2.
Each of these issues is considered, in turn, below.
ANALYSIS
Exempt documents – s 37 of the FOI Act
Section 11(1)(a) of the FOI Act provides that, subject to the FOI Act, every person has a legally enforceable right to obtain access in accordance with the FOI Act to a document of an agency, other than an "exempt document”.
If a person has made a request for access to a document of an agency, as Dr Bradford has done in this case, s 11A(3) of the FOI Act provides that an agency must give the person access to the document in accordance with the FOI Act, subject to s 11A of the FOI Act.
Section 11A(4) of the FOI Act provides that an agency is not required by the FOI Act to give the person access to the document at a particular time if, at that time, the document is an "exempt document”.
The definition of "exempt document” in s 4(1) of the FOI Act relevantly includes a document that is exempt for the purposes of Part IV (Exempt documents) of the FOI Act. In turn, s 31B(a) of the FOI Act provides that a document is exempt for the purposes of Part IV if it is an “exempt document” under Division 2 of Part IV of the FOI Act.
Section 37 of the FOI Act, which is contained in Division 2 of Part IV of the FOI Act, provides:
37Documents affecting enforcement of law and protection of public safety
(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;
…
(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;
… [Emphasis added]
FOI Guidelines
The Information Commissioner has issued guidelines under s 93A(3) of the FOI Act (the FOI Guidelines). Regard must be had to the FOI Guidelines for the purposes of the performance of a function or the exercise of a power under the FOI Act. Paragraph [3.12] of the FOI Guidelines, referring to Francis and Department of Defence [2012] AATA 838 [18], provides that the Tribunal also expects decision makers (including members of the Tribunal reviewing FOI matters) to "apply the Guidelines unless there is a cogent reason to do otherwise” (with reference to): see also Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
Part 5 of the FOI Guidelines sets out guidance in relation to the exemptions in s 37 of the FOI Act. Part 5 of the FOI Guidelines provide:
5.73Section 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.
5.74To be exempt under s 37(1)(a) or 37(1)(b) the document in question should have a connection with the criminal law or the processes of upholding or enforcing civil law or administering a law. This is not confined to court action or court processes, but extends to the work of agencies in administering legislative schemes and requirements, monitoring compliance, and investigating breaches. The exemption does not depend on the nature of the document or the purpose for which it was brought into existence. A document will be exempt if its disclosure would or could reasonably be expected to have one or more of the consequences set out in the categories listed in paragraph 5.71.
5.75In 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
5.76In the context of s 37, as elsewhere in the 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.
…
5.91 The phrase ‘the enforcement or the proper administration of the law’ is not confined to the enforcement or administration of statutory provisions or of the criminal law. It requires only that a document should have a connection with the criminal law or with the processes of upholding or enforcing civil law.
5.97 A document which, if disclosed would, or could, reasonably be expected to, prejudice the fair trial of a person or the impartial adjudication of a particular case (s 37(2)(a)) is exempt. This aspect of the exemption operates in specific circumstances. It is necessary to identify which persons would be affected. ‘Trial’ refers to a criminal or civil proceeding before a court or tribunal. The term ‘prejudice’ implies some adverse effect from disclosure. For example, the AAT refused to accept a claim under this section where, on the facts, disclosure of the documents in question to the applicant could have actually facilitated the adjudication of the matter. The fact that documents are relevant to an investigation is not of itself sufficient to justify exemption. Some causal link between the disclosure and the prejudice must be demonstrated. [Footnotes omitted]
Would, or could reasonably be expected to
The FOI Guidelines provide that the test of "would, or could reasonably be expected to" requires a decision maker to assess the likelihood of the predicted or forecast event, effect or damage occurring after disclosure of a document: FOI Guidelines at [5.13]. Use of the word "could' in s 37(1) and (2) of the FOI Act is less stringent than "would' and requires analysis of reasonable expectation rather than certainty of an event, effect or damage. The FOI Guidelines further provide that, in the context of s 37, decided cases have found that the mere risk, possibility or chance of prejudice does not qualify as a reasonable expectation and that there must, based on reasonable grounds, be at least a real, significant or material possibility of prejudice: FOI Guidelines at [5.14], citing News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400; (1984) 57 ALR 550 (News Corporation) at 561-62 and Chemical Trustee Limited and Ors and Commissioner of Taxation and Chief Executive Officer, AUSTRAC (Joined Party) [2013] AATA 623 at [78].
The full passage of Woodward J in the News Corporation (referred to in the FOI Guidelines at [5.14]), which considers s 37 of the FOI Act, is as follows:
I think that the words 'would, or could reasonably be expected to....prejudice' mean more than 'would or might prejudice'. A reasonable expectation of an event requires more than a possibility, risk or chance of the event occurring. On the other hand, if the legislature had required a probability of prejudice it could easily have said so. In my view it is reasonable to expect an event to occur if there is about an even chance of its happening and, without attempting to suggest words alternative to those chosen by the draftsman, it is in that general sense that the phrase should be read.
In Attorney-General’s Department & Anor v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 the Full Federal Court, having referred to the above passage of Woodward J in News Corporation, observed the following (at 190) in the context of s 43(1)(c)(ii) of the FOI Act:
In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require 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. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v West (1985) 60 ALJR 113 per Mason J and per Gibbs CJ.
…
It is also unnecessary to consider whether an "even chance" or something of that kind is needed. It is preferable to confine oneself to the language of the provision itself and to attempt to form an opinion, on the evidence, as to what can reasonably be expected to happen if disclosure occurs.
The relevant principles were helpfully summarised by the Tribunal in Cordover and Australian Electoral Commission [2015] AATA 956 at [42], as follows: [6]
In arriving at this conclusion, the Tribunal is mindful of the now settled principles that:
(i)“could reasonably be expected to” is to be given its ordinary English meaning.
(ii)What “could reasonably be expected” is something which is not irrational, absurd or ridiculous.
(iii)It is wrong to look at whether the effect was of substance rather than incidental or trivial.
(iv)It is improper to approach the task of assessing whether something could reasonably be expected on the basis of probabilities or likelihood.
(v)The task requires consideration of whether something can reasonably be expected to happen by reference to ordinary English. (Footnotes omitted)
[6] See also Prinn and Department of Defence [2016] AATA 445 at [58] to [60] per DP Forgie.
Prejudice
The ordinary meaning of "prejudice" includes:
to affect disadvantageously or detrimentally or detrimentally.[7]
[7] Macquarie Dictionary (Online Edition).
The FOI Guidelines provide that a prejudicial effect is one which would cause a bias or change to the expected results leading to detrimental or disadvantageous outcomes: FOI Guidelines at [5.20]. The expected outcome does not need to have an impact that is "substantial and adverse".
Consideration
As already stated, the AFP’s position is that the Contested Documents are exempt under:
(i)s 37(1)(a) of the FOI Act on the basis that their disclosure under the FOI Act would, or could reasonably be expected to, prejudice the proper administration of the law in a particular instance; and
(ii)s 37(2)(a) of the FOI Act on the basis that their disclosure under the FOI Act would, or could reasonably be expected to, prejudice the fair trial of a person or the impartial adjudication of a particular case.
In support of its position, the AFP provided the Tribunal with an affidavit from an employee of the AFP, dated 22 July 2016 (the First Affidavit).[8] The AFP also provided the Tribunal with a second affidavit from the same AFP employee, dated 15 September 2016 (the Second Affidavit),[9] which is the subject of a confidentiality order under s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Suffice it to say, its content essentially embellishes the content of the First Affidavit.
[8] Exhibit 7.
[9] Exhibit 8.
In summary, the First Affidavit and the Second Affidavit provide:
· The Contested Documents were created for the purposes of, and in connection with, a criminal investigation known as “Operation Rhodium / Mocha”;
· The Contested Documents (or the information contained therein) have been used, and will very likely continue to be used (discussed further below), in the criminal prosecution process as evidence, including the brief of evidence which would be prepared by the AFP and provided to the relevant prosecutor and evidence which would be filed and tendered in the proceeding;
· There is an outstanding arrest warrant and Interpol Red Alert for an individual (whose identity is known) in connection with Operation Rhodium / Mocha;
· If and when this individual is arrested, the AFP will recommend a criminal prosecution should be commenced against the individual;
· There is no reason to believe that the individual will not be prosecuted, particularly in circumstances where there has been a number of criminal prosecutions against other individuals in connection with Operation Rhodium / Mocha;
· If and when a criminal prosecution is commenced against the individual, the Contested Documents, or the information contained in the Contested Documents, will be used in evidence in connection with the prosecution;
· The information contained in the Contested Documents is relevant to the modus operandi of the syndicate and would form a crucial part of any prosecution of the individual;
· If the Contested Documents (or the information contained therein) is made available to Dr Bradford under the FOI Act, they have the potential to be disseminated widely. That is, if Dr Bradford is given access to Contested Documents under the FOI Act, Dr Bradford will generally be able to use and disseminate the documents or the information contained within the documents as he chooses - there is potential for the Contested Documents to be released to the world at large. In which case, the AFP will lose a significant degree of control over the Contested Documents (or the information contained therein); and
· It is not usual for evidence in the nature of the information contained in the Contested Documents to be publicly released prior to the commencement of criminal legal proceedings.
There is an established process, in the context of criminal prosecutions, for the briefing of prosecutors (by police) and the filing and tendering of evidence in court.
The AFP contends, and the Tribunal agrees, that this process falls within the "administration of the law" for the purposes of s 37(1)(a) of the FOI Act.[10]
[10] See the discussion of DP Forgie in Lobo and Department of Immigration and Citizenship [2011] AATA 705 at Attachment D, at [105] to [149].
According to the AFP, the premature public release of such information would, or could reasonably be expected to, subvert the established process discussed above and that this subversion alone would amount to prejudice to the proper administration of the law.
Additionally, and in any event, the AFP contends that there could be a number of reasonably expected consequences flowing from disclosure of the Contested Documents which would also amount to “prejudice”. The AFP's evidence is that the Contested Documents (or the information contained therein) will be significant and directly relevant to the prosecution of the individual. The AFP submits that the Contested Documents are not documents of peripheral or questionable relevance. According to the AFP, the premature release of the Contested Documents “could reasonably be expected to” have one of a number of prejudicial effects on both the “proper administration of the law” (s 37(1)(a) of the FOI Act) and “the fair trial” of the individual or the “impartial adjudication” of the individual’s trial, including, for example:
(i)the release of the Contested Documents at this time would potentially deny the effectiveness of the Court's power to make suppression or non-publication orders in relation to the Contested Documents if the Court considered it appropriate do so; and
(ii)the release of the Contested Documents at this time could result in the public at large being able to access the documents and could include media reporting on the documents. Such premature dissemination could give grounds to a future accused making a claim of prejudice to a fair trial or the impartial adjudication of the case: First Affidavit at [16] and refer to paragraphs 22-27 above.
Having reviewed an unedited (unredacted) copy of the Contested Documents, the Tribunal accepts the AFP’s contentions (as set out above) and evidence (as contained in the First Affidavit and the Second Affidavit). In such circumstances, the Tribunal's review begins and ends with a consideration of the impacts of release of the Contested Documents on the potential future prosecution of the individual referred to in paragraph 30 above.
The alleged connection or relevance of the Contested Documents to some other matter (namely the “Schapelle Corby case”), as is contended for by Dr Bradford, is respectfully simply not relevant for the purposes of this review.
In Dr Bradford’s SFIC and in the “Applicant’s Additional Statement in Reply”, received on 15 August 2016 (Dr Bradford’s Additional Statement)[11], Dr Bradford makes a number of other contentions which are respectfully plainly beyond the scope of this review and irrelevant.
[11] Exhibit 5.
Dr Bradford’s SFIC (at p27) provides:
L: DESIRED OUTCOMES
The Applicant requests the Administrative Appeals Tribunal to:
1.Direct the Respondent to release all of the photographs that have been exempt in application 2014/320.
2.Direct the Respondent to investigate for the first time whether baggage handlers at Sydney International Airport were responsible for placing the cannabis into Ms Schapelle Corby’s luggage item.
3.Direct the Respondent to place on its web page a media release which explains that the AFP are investigating for the first time whether baggage handlers at Sydney International Airport were responsible for placing the cannabis into Ms Schapelle Corby’s luggage item on the basis that credible information suggests it was from South America.
4.Direct the Respondent to transfer to the lawyers of Schapelle Leigh Corby, The Rushcutters Bay Case… as being an item of evidence in her legal case.
Dr Bradford’s Additional Statement provides:
207.The Applicant contends that the Documents under Review should be released to the Applicant… as it has been sufficiently demonstrated to the Tribunal that:
1.The Rushcutters Bay Case is misplaced evidence and should be reassigned to the Corby matter; and
2. Ms Schapelle Corby is enduring a miscarriage of justice.
The Tribunal has no jurisdiction in relation to the “desired outcomes” sought by Dr Bradford, as set out in paragraphs 38 and 39 above. Section 43(1) of the AAT Act provides that “For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. In this case, the Tribunal is limited in its jurisdiction to standing in the shoes of the Information Commissioner (being the “person who made the decision”) and deciding de novo whether the decision under review (being the Information Commissioner Decision) is the correct and preferable one based on the relevant provisions of the FOI Act (being the “relevant enactment”) and the associated FOI Guidelines: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ADL 60 at 78 per Smithers J. The Tribunal cannot substitute for the Information Commissioner generally. The Tribunal has no general review power and it has no general decision-making power. The Tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175 per Brennan J.
Paragraph 22(1)(a)(ii) (irrelevant matter)
For completeness, the Tribunal notes that documents 3 and 4 of the Contested Documents contain some information which does not relate to the FOI Request: see Attachment 1. This information is reasonably regarded as irrelevant to the FOI Request and consequently should not be disclosed in accordance with s 22 of the FOI Act. The Tribunal understands that Dr Bradford does not take issue with this.
Section 47F (public interest conditional exemption—personal privacy)
For completeness, the Tribunal notes that documents 1 and 3 of the Contested Documents contain the personal information of a number of persons: see Attachment 1. The information includes names, signatures, age, and specific job details. The disclosure of this information would be unreasonable and access to this information would be contrary to the public interest at this time, having particular regard to the protection of an individual's right to privacy and the nature of the Contested Documents. The Tribunal understands that Dr Bradford does not take issue with this.
DECISION
For the above reasons, the Tribunal affirms the Information Commissioner Decision.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh .....................[sgd]...................................................
Administrative Assistant
Dated 30 September 2016
Date of hearing 22 September 2016 Applicant In person Representative for the
RespondentMr K Powell Solicitors for the Respondent
Clayton Utz
ATTACHMENT 1
AAT 2016/0123 – BRADFORD: Schedule of Documents
Doc no. Folio no. Description of Document Date of Document Author Exemptions claimed/comments 1 1 Property Seizure Record 13 January 2005 Respondent Access to document refused in full.
ss 37(1)(a), 37(2)(a) and 47F2 2 – 11 Photographs 13 January 2005 Respondent Access to document refused in full.
ss 37(1)(a) and 37(2)(a)3 12 – 55 Police Statement 2 June 2005 Respondent Access given to edited copy of document (with exempt and irrelevant matter redacted).
Folios 12 – 13: ss 22(1)(a)(ii) and s 47Ft
Folios 14: ss 22(1)(a)(ii), 37(1)(a), 37(2)(a) and 47F
Folios 15 – 55: ss 22(1)(a)(ii) and 47F4 56 – 60 Court report on the examination of items 22 July 2005 Respondent Access given to edited copy of document (with exempt and irrelevant matter redacted).
Folio 56: ss 37(1)(a), 37(2)(a)
Folios 57 – 60: ss 22(1)(a)(ii), 37(1)(a), 37(2)(a)
2
10
0