Campillo and Australian Customs Service
[2005] AATA 1196
•2 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1196
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/122
GENERAL ADMINISTRATIVE DIVISION ) Re JOSE CAMPILLO Applicant
And
AUSTRALIAN CUSTOMS SERVICE
Respondent
DECISION
Tribunal Senior Member Allen Date2 December 2005
PlaceSydney
Decision The decision under review, being the internal review decision of 3 September 2004 as varied by decision of this Tribunal dated 21 November 2005, is affirmed. (Sgd) M D Allen ..............................................
Senior Member
CATCHWORDS
Freedom of Information – Applicant seeks access to report concerning joint customs and Australian Federal Police operation – Respondent relies on ss 36, 37 and 41 exemptions – the concept of public interest – what constitutes personal information – disclosure of investigative methods and procedures would risk decreasing their effectiveness – held that the exemptions were made out – decision under review affirmed.
Freedom of Information Act 1992 ss 36, 37, and 41
News Corporation Limited v National Companies and Securities Commission (No 4) (1984) 1 FCR 64
Dwyer and Department of Finance (& Superannuation Fund Investment Trust (1985) 8 ALD 474
Re James and Australian National University (1984) 6 ALD 687
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142
Re Mickelberg and Australian Federal Police (1984) 6 ALN N176
Re Edelsten and Australian Federal Police (unreported AAT 2454; 10 December 1985)
Re Anderson and Australian Federal Police (1986) 11 ALD 355
Ward v Centrelink (2005) 84 ALD 231
Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55
Re Shewcroft and Australian Broadcasting Corporation (1985) 2 AAR 496
Re Williams and Registrar of the Federal Court of Australia (1985) 8 ALD 219
Wiseman v The Commonwealth of Australia (Unreported Full Federal Court) G167 of 1989, 24 October 1989.
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Attorney-General v Cockcroft (1986) 10 FCR 180
REASONS FOR DECISION
Senior Member Allen
1. The Applicant is currently serving a sentence of imprisonment for the crime of being knowingly concerned in the importation into Australia of not less than a commercial quantity of cocaine.
2. For a history of the events giving rise to the Applicant’s conviction, see R v Campillo Vaquere [2004] NSW CCA 271.
3. By letter dated 28 April 2004, the Applicant requested that the Respondent supply to him the document described as the “Significant Detention Analysis Report – Folios 1 through to 23” concerning a joint Customs, Australian Federal Police (the AFP) operation codenamed “Ethos”.
4. The code name “Ethos” is the name given by the Australian Customs Service (Customs). As document T5, (p 19 of the documents prepared for the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975) (the AAT Act) discloses, the AFP code name for the operation was “gentle”.
5. During the course of the hearing of this matter, the Applicant referred to other documents which he had requested from the Respondent. The solicitor for the Respondent pointed out that those documents had been the subject of another request under the Freedom of Information Act 1992 (the FOI Act) by the Applicant and internal review of the decision upon that request had not been sought by the Applicant. Suffice it to say that the only matter which was before me in the current proceedings was the Applicant’s request dated 28 April relating to the document entitled Significant Detention Analysis Report.
6. Part of that document has been released to the Applicant. Exhibit R1 in these proceedings sets out the parts of the document which the Respondent is prepared to release to the Applicant and on 21 November 2005, I made an order in terms of s 26 of the AAT Act varying the decision under review so as to effect the partial release.
7. The rest of the document remains subject to a claim for exemption for the reasons given in Exhibit R1 and the decision under review.
8. I have perused the subject document and am now able to make this decision based upon my knowledge of the contents of the said document.
9. It is clear from the documents tendered by the Applicant, including his written submissions, that his reason for requesting disclosure of the whole of the document, is that he believes it contains information that will assist not only his application for special leave to appeal to the High Court, but will also be cogent evidence if special leave is granted and his appeal results in his conviction being set aside and a new trial granted.
10. At the outset, what must be kept in mind is that disclosure under the FOI Act is disclosure to the public at large not just the Applicant (see Re Dwyer and Department of Finance (& Superannuation Fund Investment Trust) (1985) 8 ALD 474 at 482). Similarly, the right of access to documents is not affected by the Applicant’s reasons for seeking access to them (ss 11(2) FOI Act).
11. Although ss 3(1) FOI Act refers to the object of the Act being to extend the right of access to documents, as was pointed out in News Corporation Limited v National Companies and Securities Commission (No 4) (1984) 1 FCR 64 at 66, the exemptions in the FOI Act are not to be construed narrowly and the Court there rejected the adoption of any policy of “leaning” towards disclosure.
12. The Respondent has claimed exemption from disclosure of parts of the document pursuant to ss 36(1), 37(2)(b), and 41(1) FOI Act. Those provisions read inter alia:
S 36 Internal working documents
(1)Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b)would be contrary to public interest.
S 37Documents affecting enforcement of law and protection of public safety
(1)…
(2)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)…
(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)…
S 41Documents affecting personal privacy
(1)A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
13. The various grounds for exemption as relates to the pages of the subject document are set out in paragraphs 14 to 103 of Exhibit R1.
14. In Re James and Australian National University (1984) 6 ALD 687 at 694, Deputy President Hall rejected a narrow or pedantic construction of the ambit of ss 36(1)(a). He stated:
It is sufficient to bring a document within s 36(1)(a) if the disclosure of the document would disclose matter in the nature of or relating to opinion, advice or recommendations obtained, prepared or recorded or consultation or deliberation that has taken place, in the course of or for the purposes of the deliberative processes involved in the functions of the agency.
15. Section 36(1)(b) requires that the release of the information would be contrary to the public interest. The concept of what might the public interest was discussed by Tamberlin J in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 at paragraph 13 where His Honour said:
In the context of freedom of information, the notion of the public interest was helpfully considered by the Appeal Division of the Supreme Court of Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75], where Kaye, Fullagar & Ormiston JJ said:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480, per Barwick CJ. There are … several and different features and facets of interest which form the public interest.
16. His Honour continued at paragraph 15 by referring to O’Sullivan v Farrer (1989) 168 CLR 210 at 216, namely:
Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable”…
17. To my mind a facet of the public interest that in this case is paramount, is the necessity to preserve the deliberative processes of government departments when investigating criminal offences.
18. The remarks in Re Mickelberg quoted below are also apposite to the counter exemption claim under s 36(1)(b).
19. Subsection 37(2)(b) of the FOI Act refers to the disclosure of methods or procedures for preventing, detecting, investigating or dealing with breaches of the law. In dealing with this provision of the FOI Act, I rely upon what was stated in Re Mickelberg and Australian Federal Police (1984) 6 ALN N176 and reiterated in Re Edelsten and Australian Federal Police (unreported AAT 2454; 10 December 1985), namely:
It is of course difficult to discuss adequately the application of this provision to the documents now under review. Perhaps the most useful comments are to say firstly, that in the public interest it is essential that law enforcement agencies have speedy, accurate and a secure system of communication, both within an agency and between agencies especially where agencies have different fields of responsibility. Secondly, it is one thing for observers to deduce, with varying success from everyday experience, media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies’ own documents or in the proceedings of a tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them.
20. In Re Anderson and Australian Federal Police (1986) 11 ALD 355, Deputy President Hall at paragraph 36 said:
A document may disclose methods or procedures either by specifically referring to or describing them or by providing information from the nature of which the methods or procedures employed may be capable of being inferred. Thus, the disclosure of a document containing information that, on the face of it, is purely factual may nevertheless be information known only to a chosen few members of a particular group. To reveal that information, may disclose the existence or identify a confidential source of information in relation to the enforcement or administration of the law. It may equally serve to confirm what may otherwise only be suspected, namely the methods or procedures for preventing or detecting possible breaches or evasions of the law employed by the police in order to meet the perceived threat. I agree, in this regard, with the views expressed by a differently constituted Tribunal in Re Mickelberg and Australian Federal Police (1984) 6 ALN N176 …
21. The learned Deputy President continued at paragraph 38:
Where a lawful police method or procedure would be disclosed, s 37(2)(b) requires that prejudice to the effectiveness of those methods or procedures must be established before the exemption is made out. Questions of prejudice are, I think, more likely to arise where the disclosure of a document would disclose covert as opposed to overt or routine methods or procedures … it is my view that disclosure of methods or procedures would be “reasonably likely” to prejudice their effectiveness if, on reasonable grounds, it is found that there is a “real risk” of such prejudice. Finally, it must be noted that, for the purposes of s 37, no consideration may be given to any countervailing public interest in favour of disclosure: see Department of Health v Jephcott (1985) 62 ALR 421.
22. As to the phrase “reasonably be expected to”, see the judgment of Bowen CJ and Beaumont J in Attorney-General v Cockcroft (1986) 10 FCR 180 at 190, where their Honours said that the words “could reasonably be expected to” in ss 43(1) of the FOI Act were intended to receive their ordinary meaning. That is to say they required a judgment to be made as to whether it is reasonable and distinct from something that is irrational, absurd or ridiculous. The Court further added that it was undesirable to attempt to paraphrase the said words and in particular, undesirable to consider the operation of the provision in terms of the probabilities or possibilities or the like. The preferable approach was to confine the enquiry to whether the expectation claimed was reasonably based.
23. The third basis for a claim of exemption is that the document contains personal information. The term “personal information” is defined in s 4 of the FOI Act as:
Personal information means information or an opinion (including information forming part of a database), whether true or not, and whether accorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
24. The concept of what might constitute “personal information” was extensively discussed by Mansfield J in Ward v Centrelink (2005) 84 ALD 231. Commencing at paragraph 27, His Honour referred to Colakovski v Australian Telecommunications Corp (1991) 29 FCR 249 and having noted that that decision predated the amendments to ss 4 and 41 of the FOI Act in the Freedom of Information Amendment Act 1991 (the FOI Amendment Act), continued:
In summation, Lockhart J (with whom Jenkinson and Heerey JJ agreed) stated at FCR 438:
This is not an appropriate case in which to examine definitively the circumstances that may constitute “the unreasonable disclosure of information” relating to a person’s “personal affairs” because the argument before us proceeded on the limited basis outlined previously. It is sufficient for present purposes to say that “every person” has a “legally enforceable right to obtain access” to documents under the FOI Act; s 11. There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the “Australian community” the right of access to information in the possession of the Australian Government. What is “unreasonable” disclosure of information for purposes of s 41(1) must have, as its core, public interest considerations. The exemptions necessary for the protection of “personal affairs” (s 41) and “business or professional affairs” (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights; rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided that the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.
Heerey J, at FCR 441 added the following comments with respect the issue of “unreasonableness”:
Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.
25. In Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55, Kiefel J, after discussing the Full Court’s decision in Colakovski stated at [28]:
Section 41(1) cannot in my view simply be waived by the person to whom the information or opinion relates, in particular because it extends to opinions expressed about that person. Whether disclosure is to take place depends then upon whether it is regarded as unreasonable. In that connexion the tribunal applied the reasoning of Heerey J in Colakovski (at 440-441), holding that the documents containing the opinions were supplied on the basis that they remain confidential and their disclosure would cause embarrassment or distress to them. It may be that the tribunal has understated the potential effects upon the authors if disclosure were to occur, but no legal error is disclosed in its reasoning on this point.
26. As to what might be an unreasonable disclosure of personal information, the first consideration is that whereas the motives of the person seeking disclosure are irrelevant (see Re Shewcroft and Australian Broadcasting Corporation (1985) 2 AAR 496), at the same time it must be recognised that disclosure is to the world at large; Re Williams and Registrar, Federal Court of Australia (1985) 8 ALD 219. What is or is not reasonable is a question of fact and degree which calls for a balancing of all the legitimate interests involved; see Wiseman v The Commonwealth of Australia (unreported FFC G167 of 1989, 24 October 1989. Further, the Court in Re Wiseman (supra) said that the Administrative Appeals Tribunal had made no error of law when it followed Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at 259. In particular, the passage stating:
Whether the disclosure is “unreasonable” requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
27. Applying the principles I have outlined above to the document in question, I can only state that the objections to release have been made out. In particular, I find that the document does disclose lawful investigation methods and procedures and as pointed out in Re Mickelberg (supra) and the cases that followed and applied that decision, to spell out from an agency’s own document what methods and procedures are adopted to combat breaches of the law renders those methods and procedures less effective. Indeed, I would go further and say that knowledge of methods does not so much prejudice their effectiveness as to render them abortive.
28. As is put in Exhibit R1, the disclosure of investigative methods and procedures would have the real risk of decreasing their effectiveness by enabling law-breakers to modify their use of infrastructure, associations, movements, finances, travel and living patterns, with a view to avoid detection.
29. Likewise, it is not in the public interest to reveal to the public at large any debriefing document such as the document in question here. Any such document must depend for its usefulness upon a full and comprehensive overview of the investigation. As such, it will of necessity record opinions and advice and recommendations as well as the methods adopted. It cannot be in the public interest for these opinions, advice and recommendations to be in the public arena.
30. Finally, if there is personal information in the document regarding other person and given the nature of the document, it is proper that the said information remain confidential for the reasons set out in Exhibit R1. This is especially so regarding names and contact telephone numbers of officers of the Respondent and the AFP, and other persons who may have supplied information.
31. In his written submissions to the Tribunal, the Applicant referred to matters arising in or out of the Commonwealth proceedings against him. Suffice it to say that those considerations are irrelevant to an application pursuant to the Freedom of Information Act 1982 (Cth) and this matter must be dealt with under the provisions of the said FOI Act and not for example under the Criminal Practice Rules in force in New South Wales or other statutes pertaining to criminal trials in New South Wales State Courts.
32. For the reasons outlined above, the decision under review, being the internal review decision of 3 September 2004, as varied by the Tribunal’s decision of 21 November 2005, is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: (E.Pope) .....................................................................................
AssociateDate of Hearing 21 November 2005
Date of Decision 2 December 2005Representative for the Applicant Self Represented
Solicitor for the Respondent Mr G Komora, Australian Government Solicitor
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