Chohan and Secretary, Department of Home Affairs (Freedom of information)
[2022] AATA 1151
•13 May 2022
Chohan and Secretary, Department of Home Affairs (Freedom of information) [2022] AATA 1151 (13 May 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2021/3941
Re:Fida ul Mustafa CHOHAN
APPLICANT
AndSecretary, Department of Home Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:13 May 2022
Place:Sydney
The Tribunal upholds the exemptions to the requested information under sections 22 and 47F of the FOI Act. As a result, the decision under review is affirmed.
...................................[SGD].....................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION - request for access to case notes and other documents regarding sharing of information concerning the applicant between governments - whether documents conditionally exempt under s 47F Freedom of Information Act 1982 (Cth) (FOI Act) - whether disclosure of the documents are in the public interest - where applicant does not press request for personal information - whether practical refusal reason exists under s 24AA of the FOI Act - whether the work involved in processing the request would substantially and unreasonably diver the resources of the agency from its other operations - where reasonable searches have been undertaken - Tribunal satisfied practical refusal reason exists - Tribunal satisfied disclosure of personal information unreasonable - Tribunal satisfied public interest weighs against disclosure - decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
CASES
AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464;
David Syme & Co Ltd v General-Motors Holden’s Ltd (1984) 2 NSWLR 294;
Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 6
“GI” and Department of the Prime Minister and Cabinet [2015] AICmr 51
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal and Ors [2012] HCA 36; (2012) 246 CLR 379
Rovere and Secretary, Department of Education and Training [2015] AATA 462Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43
SECONDARY MATERIALS
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (version 1.4, December 2016)
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
13 May 2022
These proceedings were heard on 18 February 2022, 24 February 2022, 18 March 2022, and 31 March 2022. The proceedings are now complete.
By an Application For Review of Decision filed on 14 June 2021 the applicant, who is a citizen of Pakistan, seeks review of a decision (“the decision”) of the respondent, namely the Department of Home Affairs (the Department).
On 10 February 2021 the applicant made an application for Information Commissioner review (IC review) of a decision made by the Department on 10 February 2021 under the Freedom of Information Act 1982 (Cth) (“the FOI act”). Such decision is hereafter referred to as the “reviewable decision”.
By notification to the applicant (dated 10 June 2021), a delegate of the Office of the Australian Information Commissioner (“OAIC”) determined under section 54W (b) of the FOI Act not to continue to undertake an IC review on the basis that the interests of the administration of the FOI act make it desirable that the IC reviewable decision be considered by this Tribunal. Accordingly, the effect of the delegate’s decision enabled the applicant to apply directly to this Tribunal.
FACTS
On 11 November 2020 the applicant applied to the Department for records which the Department received in writing from the United States government and from the United Kingdom government.
On 31 January 2021 the applicant sought review of the Department’s deemed access refusal decision under section 54L of the FOI act on the basis that he had not received a decision in response to his request within the statutory time frame.
On 3 February 2021 the OAIC commenced preliminary enquiries with the Department concerning the status of the applicant’s FOI request.
On 10 February 2021 the Department made a substantive decision in respect of the applicant’s request. The Department identified two electronic files relevant to the applicant’s request (containing 37 folios) and decided to release such documents in part. In refusing partial access to the documents the Department relied upon the exemption for documents affecting national security, defence or international relations as provided in section 33, the exemption for documents affecting enforcement of law; as provided in section 37, the exemption for legal professional privilege and finally the exemption for the protection of personal privacy a provided in section 47F of the FOI act.
On 14 February 2021 the applicant informed the OAIC that he wished to proceed with the IC review of the Department’s substantive decision.
BASIS OF APPLICATION
The applicant advised the OAIC that he had received a letter from the Australian High Commission, Islamabad on 03 February 2016 concerning adverse information received from the UK Home Office concerning the allegation that the applicant had engaged in illegal work whilst in the United Kingdom and that he was arrested in the United Kingdom as a consequence. The applicant asserts that he wrote to the UK Home Office on 11 February 2016 and complained that the information they had supplied was “fake information”.
The applicant states that the UK Home Office replied on 10 March 2016 and denied providing any information to the Australian Embassy. Accordingly on 11 March 2016 the applicant requested a review of the United Kingdom Home Office of his complaint. The United Kingdom Home Office again refused to provide any information.
The applicant states that he filed a claim in the County Court at Manchester (claim F 40 6YM762). In such claim the applicant claims damages for alleged “data breach”. It was for this claim that the applicant sought to obtain access to the documents that form the subject matter of these proceedings.
The applicant stated in support of his application:
My Concern is, I need an evidence from Australia Home Office with date and email address of UK Home Office and their information about me from whom Australian Embassy received the information of my travel history.
This document is the only evidence For Court (sic) to prove that UK home office has provided false information.
I cannot prove otherwise that, UK Home Office provided the wrong information to Australia Authoritirs (sic).
Furthermore, I requested these documents on 13 Marh (sic) 2016 when i received the reply from UK Home Office but did not received any response from Australian high commission Islamabad.
The applicant made requests during February 2021 that his application be expedited.
On 21 April 2021 the Department replied to a request of the OAIC as to any documents that might be supplied to the applicant. The reply states:
The Five Country Conference (FCC) Data -Sharing Protocol agreed in 2009 between the UK, Australia, Canada, New Zealand and the United States, secured arrangements to share the fingerprints of up to 3000 individuals between each participating country per year. Where there is a match under these ranges, partner countries exchange information which may assist with decision-making on Visa applications, among other things. In July 2015, the Department received information from the United Kingdom regarding Mr Chohan through the FCC data exchange.
Unfortunately I been unable to locate or obtain any further information on this matter at this time.
The above response was provided to the applicant by the OAIC. The OAIC also requested the Department clarify whether it had identified further documents relevant to the scope of the request and whether it would then issue a revised decision if other documents had been located. A reply was requested by 28 April 2021. No response was received.
On 3 May 2021 the applicant informed the OAIC that a hearing for his claim in the United Kingdom courts was adjourned for 28 days because he had not received any documents from the Australian Home Office.
On 3 May 2021 the OAIC wrote to the applicant and to the Department to recommend that the delegate of the Information Commissioner should finalise the application under section 54W(b) of the FOI act on the basis that it was in the interests of administration of the FOI act that the IC reviewable decision be considered by this Tribunal. By letter dated 4 May 2021 the applicant responded stating that he had no objection to such course. On 8 June 2021 the Department advised that it supported the matter being finalised under section 54W(b) of the FOI act. Accordingly, the applicant filed his application in this Tribunal.
LEGISLATION
The following sections of the FOI Act will be relevant in this application.
Section 3 states:
Objects--general
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government's activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
Section 11 provides:
Right of access
(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 22 states:
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a)an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b)it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and
(c)it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d)it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a)prepare the edited copy as mentioned in paragraph (1)(b); and
(b)give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:
(a)that the edited copy has been prepared; and
(b)of the grounds for the deletions; and
(c)if any matter deleted is exempt matter--that the matter deleted is exempt matter because of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole document unless the applicant requests the agency or Minister to give the applicant a notice in writing in accordance with that section.
Section 33 states:
Documents affecting national security, defence or international relations
A document is an exempt document if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to:
(i) the security of the Commonwealth;
(ii) the defence of the Commonwealth; or
(iii) the international relations of the Commonwealth; or
(b)would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization 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.
Note: See also subsection 4(10).
Section 34B provides:
Exempt documents for the purposes of this Part
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).
Note 1: A document is an exempt document for the purposes of this Act (see subsection 4(1)) if:
(a)it is exempt under this section; or
(b)it is exempt because of section 7 (exemption of certain persons and bodies); or
(c)it is an official document of a Minister that contains matters not relating to the affairs of an agency or a Department of State.
Note 2: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Section 47F provides:
Public interest conditional exemptions--personal privacy
General rule
(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 Tribunal understands that some documents have been supplied to the applicant. The remaining documents which were in issue as at 18 March 2022 are set out in the table hereunder, together with the statutory basis upon which the respondent relies for non-access.
Applicant’s file number CLD2020/36113381
Folio numbers Description Decision Exemption 9 - 14 Third party client case notes Exempt in Full Section 47F – personal information of third party
Applicant’s ICSE Notes
Folio numbers Description Decision Exemption 1, 2, 3, 4, 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22 and 23 Applicant’s case notes Exempt in part Section 22 – irrelevant to scope of request – names and ID of staff members
alternatively
Section 47F – personal information staff members who did not directly interact with the applicant10 - 11 Applicant case note dated 9 February 2016 Exempt in part Section 33(b) – information provided in confidence by authority of a foreign government 22 - 23 Names and details of third parties in client case note dated 30 June 2015 Exempt in part Section 47F – personal information of third parties
By consent order dated 17 March 2022 the parties altered the decision under review pursuant to section 26 of the Administrative Appeals Tribunal Act 1975 (Cth) to release the ‘Applicant case note dated 9 February 2016’ found in folios 10 and 11. Consistent with this order, the Respondent ceased to press their objection under section 33(b) of the FOI act in regard to this document. The document is a document referred to in the respondent’s list as “Applicants ICSE Notes”. “ICSE” is a database known as Integrated Client Services Environment Offspring database (“ICSE Offspring“).
In view of the above consent order, it becomes unnecessary to consider the applicant’s submissions relating to the Five Country Conference Protocol relating to secure data sharing. For the same reason, it is unnecessary to consider the applicant submissions concerning the effect of the agreement made between the respondent and the Secretary of State, Home Department, United Kingdom.
REASONS FOR CREATION OF THE DOCUMENTS IN ISSUE
The affidavit of Ms. Neal affirmed on 15 February 2022 provided information concerning some of the background for the application. Ms Neal is an acting Senior Legal Officer, and as such is responsible for the management of litigation on behalf of the respondent relating to this application.
Ms Neal states that the applicant sought access to information concerning his visitor Visa refusal decision, and that the applicant sought documents or information received from the United Kingdom and the United States in the record concerning a third party that had been referred to in a previous decision dated 20 November 2020 which responded to an earlier FOI request made by the applicant.
Ms Neal states that the respondent has agreed to the release of additional information to the applicant in this proceeding and that the only remaining information in issue is as follows:
8.1 Folios 9 to 14 of the Applicant’s file number CLD2020/36113381 in relation to:
8.1.1. Information about a third party claimed to be exempt under s 47F.
8.2 In the Department’s database ‘ICSE Offspring Notes’ Request ID 1969937450 in relation to:
8.2.1 Folios 2, 3, 4, 5, 7, 8, 10, 12, 13, 18, 20, 21, 22 and 23 in relation to the names of employees of the Department who did not interact directly with the Applicant claimed to be irrelevant under s 22 or, in the alternative, exempt under s 47F.
8.2.3 Case note dated 9 February 2016 in relation to information provided to the Department’s Post in Islamabad by its foreign counterpart from the United Kingdom (UK) claimed to be exempt under s 33(b).
8.3.3 Case note dated 30 June 2015 in relation to the information about third parties claimed to be exempt under s 47F.
Third-party information
Ms Neal states that the information about a third party contained in folios 9 – 14 in the applicant’s file CLD 2020/3611 3381 and folios 22 and 23 of ICSE Offspring Notes Request ID 1969937450 relate to a third party. Ms Neal stated she is not aware of any relationship between the third-party and the applicant and she believes that such information was included in the applicant’s file in error. The information concerning this other individual is not publicly known and the information is confidential. Ms Neal maintained that disclosure of such information would be unreasonable.
Similarly folios 22 and 23 of ICSE Offspring Notes Request ID 1969937450 (ADD 2021/917879) contains names of third parties not related to the applicant. The names are individuals whose information was checked under the Five Country Conference Agreement which is considered hereunder. Ms Neal states that she has considered the names mentioned and states that the email does not relate specifically to the applicant but indicated the applicant was one of several individuals whose information had been checked. Since the information concerning the other individuals is not publicly known, the information is confidential. Ms Neal states that disclosure of such information would be unreasonable.
Names of former and current employees in applicant’s file CLD 2020/3611 3381 and ICSE Offspring Notes Request ID 19699374500 (ADD 2021/917879)
Ms Neal states that folios 1, 2, 3, 4, 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22 and 23 in offspring notes Request ID 1969937450 (ADD 2021/917879) contain the names and contact details of former and current employees of the Department. None of the employees dealt directly with the applicant.
Ms Neal states that the Department advised the applicant of the Department’s policy to consider the personal details of the employees whose names and contact details are in the documents as being irrelevant to the scope of the FOI request. The applicant did not indicate any opposition to those documents not being disclosed
Ms Neal states that the policy of the Department is not to publicly disclose names or contact details of current or former staff members who are below the senior executive service (SES) level. Further, the Department does not publish on the Internet or make generally available the names or contact details of employees below the SES level. Ms Neal stated she believes the disclosure of the names of the individuals in such circumstances would be unreasonable.
Applicant’s submission
The applicant has drawn the attention of the Tribunal to a document entitled “Report of a Privacy Impact Assessment conducted by the UK Border Agency in relation to the High Value Data Sharing Protocol amongst the immigration authorities of the Five Country Conference”.
The Report refers to the Five Country Conference (“FCC”) Protocol which would enable secure data sharing based on fingerprint checks between the UK border agency and its partners in the Five Country Conference comprising the immigration authorities in Australia, Canada, New Zealand and the United States of America.
The Protocol refers to the proposed volume of approximately 3000 sets of fingerprints being checked for immigration purposes per year against the relevant fingerprint databases of the other FCC countries on a secure and confidential basis in the Protocol’s initial stages. The applicant draws attention to paragraph 9.3 of the report entitled “Fair Processing”. In the text the following is stated:
It is most important that the processing of people’s information is transparent and fair, both from the point of view of the individual whose information is being processed and for the wider public trust.
The text continues:
We have seen how information obtained through the Protocol is in the interests of the genuine applicant as it helps corroborate his application. It is also important to consider how the information will be processed fairly within our operational processes. Where we receive information that introduces ambiguity because it contradicts what one of our applicants tells us, we intend to put the information directly to the person, give him an opportunity to respond to it, and take his response equally into account. This is part of fair processing. There may be a rational, innocent explanation for something that at first appeared to contradict a person’s account.
The applicant states that his claim against United Kingdom is unable to proceed unless he has access to the documents which conveyed information by the United Kingdom to the Department’s Islamabad station. The applicant submits that the Protocol intended that a person’s information should be transparent accordingly he should be able to be shown the information which was conveyed.
Agreement between The Australian Department of Immigration and Citizenship (DIAC) and the Secretary of State, Home Department, United Kingdom
On 21 August 2009 the DIAC signed a document titled Memorandum of Understanding between the Secretary of State for the Home Department acting through the United Kingdom Border Agency. Such memorandum refers to procedures for the exchange of information as follows:
2.1 In respect of any case handled under this MOU, the Participant which supplies the fingerprints for matching is known as the "Requesting Participant" whilst the Participant which searches the fingerprints against its systems is known as the "Providing Participant".
2.2 Data exchange under this MOU is expected to be conducted securely between designated officials, through the FCC Secure File Share Server ("SFSS") which will be hosted by the Government of Australia. The arrangements for management of the SFSS are set out in a separate Service Arrangement among countries participating in the Protocol and the Government of Australia. Notwithstanding any discontinuance or suspension of activities under the Protocol in accordance with Paragraphs 6.19 or 11.2, the Government of Australia will continue to host the SFSS in accordance with the Service Arrangement. In the event that the Government of Australia is unable to continue to host the SFSS, it will give notice in writing of not less than 90 days to the other countries participating in the Protocol.
2.2A Alternatively, data exchange under this MOU may be conducted through a Secure Real-Time Platform (SRTP) link between the Immigration and Asylum Biometric System (IABS) of the UK Home Office and the DIAC Biometric Acquisition and Matching System (BAMS) with associated secure gateways and links. The SRTP link is to meet all security requirements of both countries.
Other paragraphs refer to fingerprint matching and response and relevantly state:
Fingerprint matching and response
2.9 Upon receipt of the request, the Providing Participant is to then search the fingerprints against its relevant biometric systems.
2.10 The relevant biometric systems, in the first instance, will in the case of the UK be the Immigration and Asylum Biometric System (IABS) and will in the case of Australia be the DIAC Biometric Acquisition and Matching System (BAMS). The participants may decide in writing to extend some or all of the searches to additional relevant systems.
2.11 The Providing Participant is expected to conduct its search and notify the other Participant of whether a fingerprint match was achieved within three working days of receiving the matching request, using the appropriate mechanism (SFSS or SRTP). For each case where it identifies a fingerprint match (“matching case”), the Providing Participant’s confirmation should also include the following data in respect of each biometric encounter recorded for the person, to the extent that they are available within its relevant biometric system and the data may be lawfully disclosed:
i. the date, location and reason fingerprinted;
ii. the last name, first name, and any other names;
iii. the date of birth, place of birth, nationality and gender;
iv. the travel document number;
v. the photograph or other facial image, and/or scan of the passport biodata page;
vi. the Requesting Participant unique identifier; and
vii. the Providing Participant unique identifier.
2.12 The Providing Participant is expected to destroy the fingerprints in a secure manner and use them for no other purpose once the search against its relevant biometric systems is complete.
The integrity of the information is provided for in clause 6 which relevantly provides:
Integrity of Information
6.11 Information provided and received under this MOU should be accurate and as complete and up to date as is reasonably necessary for the purposes of this MOU. A Participant may not modify any information received under this MOU without the authorisation of the Participant that provided it.
6.12 If either Participant becomes aware that information it provided or received under this MOU is inaccurate, that Participant should advise the other Participant thereof and provide correct information.
6.13 Participants are expected in a timely manner to take appropriate action with regard to any request made by the other Participant for access, additions, changes, deletions, or corrections to information provided.
A letter of agreement to amend the High-Value Data Sharing Protocol, Memorandum of Understanding was signed between Australia and the United Kingdom on 11 March 2014. It Introduced an Addendum to the protocol. It is not apparent that any portion of the letter is relevant to the present application.
The Tribunal is informed that the Protocol and Addendum represents an agreement between the United Kingdom and the DIAC. However, the Protocol and the Addendum are not the subject of any Australian legislation and accordingly do not have the force of law in Australia.
CONSIDERATION
The Tribunal is required to consider the objects of the FOI Act, as well as its relevant statutory provisions. In particular, the Tribunal is mindful of the objects contained in section 3 of the FOI act, including the object stated in subsection 3(4), namely that Parliament intends that functions and powers given by the FOI Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
Further, the Tribunal is required to have regard to Guidelines which are referred to in section 11B(5). The Freedom of Information Guidelines were issued by the Office of the Australian Information Commissioner (combined June 2020). If a document is found to be conditionally exempt, the FOI act requires its disclosure unless disclosure would, on balance, be contrary to the public interest: see subsection 11A(5) of the FOI act and the Guidelines (Conditional Exemptions) at [6.27] which states:
To conclude that, on balance, disclosure of the document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefits of the public of withholding the information. The decision-maker must analyse, in each case, where on balance the public interest lies based on the particular facts of the matter at the time the decision is made.
APPLICATION OF FOI ACT
Folios 9 – 14
An examination of these folios confirms that they do not relate to the applicant. Further, the applicant is not mentioned in any of them. There is no apparent association between any of these documents and the applicant. The respondent claims that the documents are exempt in full pursuant to section 47F as they relate to the personal information of a third party.
Upon consideration of the factors in section 47F(2), the evidence before the Tribunal, as provided by Ms Neal outlined above, indicates that the personal information is not well known, nor widely publicly available, and the individuals involved are not publicly known to be associated with the matters dealt with in the document to the extent that they may be involved directly at all. As such the Tribunal is satisfied that disclosure of the documents would be unreasonable and the documents are conditionally exempt.
As the documents are conditionally exempt it is necessary to consider the public interest.
Section 11B, whilst referring to public interest exemptions, does not contain a definition of “public interest.” However, in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunaland Ors [2012] HCA 36; (2012) 246 CLR 379, the High Court considered this question. At [42] the High Court said:
“It is well-established that, when used in a statute, the expression “public interest” imports a discretionary value judgement to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”.”
In Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63, the Court 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 interests of an individual or individuals.”
For other examples of “public interest”, see AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; David Syme & Co Ltd v General-Motors Holden’s Ltd (1984) 2 NSWLR 294; Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43.
In addition to the definitions provided by the above authorities, further authorities have refined the circumstances where public interest might prevail. For example in Rovere and Secretary, Department of Education and Training [2015] AATA 462, it was observed by the Tribunal that in respect of pre-decisional communications, an objection to production on the basis of frankness and candour could not be considered a public interest factor against access. To justify such an objection rather, it must be related to something such as a particular practice, process, policy or program in government: see also “GI” and Department of the Prime Minister and Cabinet [2015] AICmr 51 [20].
Section 11B of the FOI Act does provide a number of factors which are to be considered when determining whether access to documents should be granted when public interest exemptions may apply, as well as a number of factors which are not to be considered, which are outlined as follows:
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.
The conditionally exempt information in Folios 9 – 14 would not, if disclosed, significantly promote the objects of the FOI Act, nor go toward any of the other factors in section 11B(3). Because the documents have no relationship to the applicant and contain personal information of a third party, the Tribunal considers that the public interest weighs against disclosure and upholds the exemptions claimed by the respondent.
Applicant’s ICSE notes
Each of these documents are case notes relating to the applicant. The respondent claims exemption only in respect of the name and ID of staff members who were involved in the compilation of the notes. Accordingly, the respondent submits that they are irrelevant to the request or alternatively, section 47F applies namely the information is personal information of staff members who did not directly interact with the applicant.
The Tribunal has considered the respondent’s submissions. It notes that the applicant does not consider that such details are required by him. The Tribunal considers that it would be contrary to the public interest if the personal details of such officers were disclosed in circumstances where they bear no relevance to the issues relating to the application. Accordingly, the Tribunal upholds the claim of the respondent under section 22 and under section 47F.
Documents 10 and 11: applicant case note
Contained in these documents are notes which relate to information supplied by the United Kingdom Home Office. These notes may be significant to the applicant’s claim. The applicant claimed that he could not proceed with his action against United Kingdom government unless he was provided with such information.
Such information included the content of an email sent from an officer of the UK Home Office which was adverse to the applicant. The applicant maintained that such information was false, since at the time of the incident referred to in the notes, he was not present in the United Kingdom. The Tribunal notes that the Department has endeavoured to clarify the factual issue arising, namely whether the applicant was in fact in England at the relevant time, but has been unable to obtain any further information from the United Kingdom Home Office.
The applicant relied upon the statements contained in the Protocol in support of his claim that transparency of an applicant’s information, which is expressly referred to in the Protocol requires that it be released to him. The respondent maintains that the Protocol provisions cannot override the provisions of the FOI act and that section 33 requires of the information not be disclosed if the information were communicated by the United Kingdom to DIAC in confidence: section 33 (b).
The respondent initially relied upon the provisions of section 33(b) on the basis that the information was provided in confidence by a foreign government. No issue of public interest arises as the claim, if upheld, is one of exemption, not conditional exemption.
The decision under review was altered by the Tribunal under section 16 of the Administrative Appeals Tribunal Act 1975 (Cth) on 17 March 2022 as follows:
1. The Respondent wishes to alter the decision of 10 February 2021. The decision in respect of the following FOI request review is varied as set out below:
1.1Applicant case note dated 9 February 2016 contained in the Applicant’s Case Notes contained in folio is 10 – 11 of the exempt documents. The document is no longer exempt under s 33 (b) of the Freedom of Information Act 1982 (Cth).
At the hearing on 18 March 2022, the Department’s legal representative informed the Tribunal that the Department had agreed to release the documents comprising Folios 10 and 11, the ICSE notes, to the applicant. Such documents contained the adverse information. However the applicant stated that he needed to know the identity of the person who provided the information and whether that person was based in Islamabad or elsewhere.
Folios 22 – 23: names and details of third parties in client case note
These documents contain the names of third parties in respect of which the respondent submits the exempt information relates to personal information third parties. The Tribunal considers that disclosure of this information is unreasonable consistent with the factors outlined above, and the information is therefore conditionally exempt pursuant to section 47F of the FOI act. As such, the public interest is to be considered.
Having considered the documents, and the portions in respect of which it is claimed that section 47F applies, the Tribunal is satisfied that, having considered the particular application and the reasons for it, disclosure of that information would be unreasonable and is contrary to the public interest. It reaches such conclusion because the public interest benefit of disclosure of personal information is outweighed by the withholding of that information.
Further Information Requested
Following the alteration of the decision under review on 17 March, the Department filed a further affidavit of Jessica Leigh Neal affirmed on 29 March 2022, together with a supplementary submission, in response to the applicant pressing their request for the identity of the person who provided the information in the ICSE case notes.
The affidavit of Ms Lee provides information of the search made to determine whether the name and email address of the officer of the United Kingdom Department who forwarded the information relating to the applicant to the Department’s Islamabad Post could be identified.
On 18 March 2022 Ms Neal contacted the First Secretary (Immigration and Border Protection) at the Department’s Islamabad Post and requested the First Secretary to check the system that stored email records held at that Post to determine whether there were records held concerning the applicant. On 21 March 2022 the First Secretary responded that no emails can be located from the UK Home Office which related to the applicant which contained the full name and email address of the UK representative. She states that had such information existed, it would have been stored in such records.
On 24 March 2022 Ms Neal requested a search be made by the Assistant Director who had recorded receiving, in Islamabad, the email from the United Kingdom Home Office representative on 9 February 2016. The Assistant Director recalled receiving an email from the UK representative in Islamabad and confirmed that she would have copied and pasted the content of email into a case note in ICSE Offspring. However, she did not copy the email address or contact details of the UK representative who sent the email to the Department in Islamabad. She also confirmed that the email was received through her DFAT email address and stored in a DFAT inbox to which she no longer had access.
A search was conducted on the Departments Immigration Records Information System (“IRIS”) which is used by offshore posts to contain records and information relating to visa and citizenship processing and decision-making for offshore non-citizens. Information is copied from this database into the departments Integrated Client Services Environment Offspring database (“ICSE”) database which is accessible to departmental officers in Australia. However, it was asserted that the email address and full name of the relevant communicator is not typically retained.
On 18 March 2022 and 25 March 2002 Ms Neal searched the Department’s ICSE Offspring to find any reference of the name and contact details of the representative who forwarded the information from the UK Home Office. No notes or documents containing such information could be located. The Assistant Director informed Ms Neal that emails of such a nature were often not retained or stored due to the limited bandwidth available at the Post.
On 25 and 28 March 2022 Ms Neal searched another database used by the Department to store information known as the HPE Content Manager (“trim”) using the applicant’s name as the keyword. On 29 March 2002 she searched the ICSC database. She did not find the name and contact details of the UK representative on any of these systems.
Ms Neal states that the Department does not have any other records management systems for storing client information of this kind. She has further confirmed that she has searched in all of the systems where the information, if it existed, would be stored.
The applicant was unable to suggest any other searches that might be made to identify the name and contact details of the person who forwarded the information which was adverse to him to the Islamabad Post.
In view of these facts, the Tribunal is satisfied that a practical refusal reason exists in relation to a search for documents which cannot be located and that any further search by the Department would substantially and unreasonably divert the resources of the department from its other operations. Accordingly section 24AA of the FOI act applies in respect of the documents which the applicant seeks concerning the identity of the officer of the UK Home Office who provided the information adverse to the applicant.
CONCLUSION
The Tribunal records its conclusions:
(a)applicant’s file number CLD 2020/3611 3381: folio numbers 9 – 14: these documents relate to information concerning a third party and are exempt from production pursuant to section 47F of the FOI act;
(b)applicant’s ICSE notes:
(i)Folios 1, 2, 3, 4, 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22 and 23: these documents, comprising the names and identities of staff members are irrelevant under section 22 of the FOI act; and further, the information is personal information of staff members who did not directly interact with the applicant and are accordingly exempt;
(ii)10 – 11: applicant’s case note: this document has now been released and the claim under section 33(b) is no longer relied upon by the respondent
(iii)22 – 23: these comprise names and details of third parties: production is exempt under section 47F.
Further, the information regarding who sent the information adverse to the applicant cannot be located nor ascertained and a practical refusal reason exists in relation to such documents as provided by section 24AA of the FOI Act.
DECISION
The Tribunal upholds the exemptions to the requested information under sections 22 and 47F of the FOI Act. As a result, the decision under review is affirmed.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
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Associate
Dated: 13 May 2022
Date(s) of hearing: 18 & 24 February 2022, 31 March 2022 Applicant: In person Solicitors for the Joined Party: Ms E Arduca, AUSTRALIAN GOVERNMENT SOLICITOR
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