Bradford and Australian Federal Police (Freedom of Information)

This matter concerned an application for review of a decision by the Information Commissioner, who had affirmed a decision by the Australian Federal Police (AFP) to exempt certain documents under the *Freedom of Information Act 1982* (Cth). The applicant, Dr Bradford, sought access to documents comprising property seizure records, photographs, police statements, and court reports related to an individual subject to current arrest warrants. The AFP claimed these documents were exempt under section 37(2)(a) of the FOI Act, arguing their disclosure would, or could reasonably be expected to, prejudice the proper administration of the law and the fair trial or impartial adjudication of a case.

The primary legal issue before the court was the interpretation of the phrase "would, or could reasonably be expected to" as it applies to the prejudice limb of section 37(1) and (2) of the FOI Act. This required the court to determine the threshold of likelihood or certainty necessary to establish that disclosure would cause prejudice to the proper administration of the law or the fair trial of a person or the impartial adjudication of a case. The court also considered whether the applicant's contention that disclosure was in the public interest was relevant to the exemption under section 37.

The court applied the FOI Guidelines, which state that the "could reasonably be expected to" test requires an assessment of the likelihood of a predicted event occurring. It was noted that "could" is less stringent than "would" and requires an analysis of reasonable expectation rather than certainty. Drawing on established case law, including *News Corporation Ltd v National Companies and Securities Commission* and *Attorney-General’s Department & Anor v Cockcroft*, the court affirmed that the mere risk or possibility of prejudice is insufficient. Instead, there must be a real, significant, or material possibility of prejudice based on reasonable grounds. The court found that the Information Commissioner had correctly applied this standard, agreeing that disclosure of the documents could reasonably be expected to prejudice the fair trial and impartial adjudication of the criminal case against the individual, particularly given the ongoing prosecution and outstanding arrest warrants. The court also noted that section 37 of the FOI Act does not permit consideration of the public interest in disclosure.

The Information Commissioner’s decision was affirmed. The court found that the material in the documents was exempt under section 37(2)(a) of the FOI Act, as disclosure could reasonably be expected to prejudice the proper and impartial adjudication of a criminal case. The applicant's arguments regarding the relevance of the documents to a cocaine smuggling trial and the potential for tampering were considered, but ultimately did not displace the exemption.