Clark and Australian Federal Police
[2005] AATA 632
•4 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 632
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/512
GENERAL ADMINISTRATIVE DIVISION )
Re BRUCE ROBERT CLARK Applicant
And
AUSTRALIAN FEDERAL POLICE
Respondent
DECISION
Tribunal Dr KS Levy, Member Date4 July 2005
PlaceBrisbane
Decision (a) As conceded by the respondent, Documents 10 and 12 are not exempt.
(b) Subject to the concession in decision (a) above, the remainder of the decisions of the original decision-maker, as confirmed by internal review, are affirmed.
…...…………………………
K S Levy
MemberCATCHWORDS
FREEDOM OF INFORMATION – ambit of request for access to documents “related to myself” – claims of exemption – documents affecting enforcement of law and protection of public safety (s 37(2)(b)) – prejudice to effectiveness of police methods and procedures – documents affecting relations with States (s 33A(1)(b)) – prejudice lawful investigations and individuals – documents affecting personal privacy (s 41(1)) – whether disclosure of information relating to personal affairs of any person is unreasonable – documents containing personal information are exempt – decision under review affirmed.
Administrative Appeals Tribunal Act 1975 s 35(1)
Freedom of Information Act 1982 ss 3, 4(1), 11, 22(1), 33A(1), 37(2), 41(1), 60, 64(1)
Re Anderson v Australian Federal Police (1986) 11 ALD 355
Re Rees v Australian Federal Police (1998) 57 ALD 686
Re Scholes v Australian Federal Police (1996) 44 ALD 299
Re Cosco Holdings Pty Ltd v Department of Treasury (1998) 51 ALD 140
Re Shopping Centre Council of Australia v Australian Competition and Consumer Commission (2004) 78 ALD 494
Re Angel v Department of Arts, Heritage and Environment (1985) 9 ALD 113
Re Environment Centre NT Inc. v Department of the Environment, Sport and Territories (1994) 35 ALD 765
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429; (1991) 23 ALD 1
REASONS FOR DECISION
4 July 2005 Dr KS Levy, Member 1. This is an application made by the applicant under section 29(1) of the Administrative Appeals Tribunal Act 1975. This application is an appeal against the original decision of the Australian Federal Police (“AFP”), dated 16 February 2004 as advised to the applicant’s solicitors by a letter dated 20 February 2004. That decision was affirmed by internal review decision of Federal Agent Kieran Miller of 19 April 2004, and refused access to certain documents pursuant to the Freedom of Information Act 1982 (“the Act”) on the ground that certain documents were exempt or partially exempt in accordance with provisions of that Act.
2. This matter was heard in the Administrative Appeals Tribunal on 18 May 2005. Mr Clark was represented by Mr Hodge of Counsel. The applicant did not attend personally. The respondent was represented by Mr McLeod of Counsel and instructed by the Australian Government Solicitor.
BACKGROUND
3. The applicant originally applied through his solicitors by letter dated 6 October 2003 (T12 of the T Documents) to the Australian Federal Police Commissioner in Queensland “for the release of any documents held by you which relate to him”. In response, various documents were released to the applicant on 16 February 2004, some of which had material deleted from those documents on the basis that they were partially exempt under the Act. Other documents were claimed to be wholly exempt. A schedule of the exempt and partially exempt documents is contained in document T6 of the T Documents.
4. The various documents claimed to be exempt and the basis of those exemptions at the outset were –
Document No.
Folio No.
Description
Exemption/Public Interest Claimed
1
1-5
Information report from the Australian Customs Service
Full exemption section 37(2)(b) and section 41(1)
2
6-8
Information report concerning advertisement of SLR rifles and parts
Folios 6-7: Full exemption section 37(2)(b)
Folio 8: Full exemption section 37(2)(b) and section 33A(1)(b)
3
9-12
Person details
Folios 9, 10, 12: Partial exemptions section 22(1)(a)(ii).
Folio 11: Partial exemptions section 22(1)(a)(ii) and section 37(2)(b).
5. In opening submissions, the Tribunal was informed that in relation to Document 3, the respondent had relaxed its stance with respect to the exemption claimed for folios 10 and 12. The latter documents had been released to the applicant’s Counsel prior to the hearing. Therefore, in respect of Document 3, the exemption was pursued only in relation to folios 9 and 11. In respect of the remaining documents in contention, copies of those documents with relevant detail deleted were available to the applicant’s Counsel.
FRAMEWORK OF THE FREEDOM OF INFORMATION ACT
6. Before looking at the sections relied upon as exempting certain documents from release under the Act, it is appropriate to consider section 3(1) of the Act as it expressly states that the object of the Act is primarily to make information available to the public, and that decisions and the exercise of discretions pertaining to decisions under the Act should be exercised in a way to promote the object of the Act.
7. Section 3 of the Act provides as follows:
“3 Object
(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.”
8. Other general provisions of the Act are contained in section 11 as follows:
“11 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.”
9. The specific provisions of the Act which relate to this application are relevantly as follows:
“4 Interpretation
"agency" means a Department, a prescribed authority ….
22 Deletion of exempt matter or irrelevant material
(1) Where:
(a) an agency or Minister decides:
…
(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and…
33A Documents affecting relations with States
(1) Subject to subsection (5), a document is an exempt document if disclosure of the document under this Act:
…;
(b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
37 Documents affecting enforcement of law and protection of public safety
…
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…;
(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; …
41 Documents 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).
64 Production of exempt documents
(1) Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to the document but the Tribunal, for the purpose of deciding whether the document is an exempt document, may require the document to be produced for inspection by members of the Tribunal only and if, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal shall return the document to the person by whom it was produced without permitting any person other than a member of the Tribunal as constituted for the purposes of the proceeding, or a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff, to have access to the document or disclosing the contents of the document to any such person.”
10. The specific provision of the Administrative Appeals Tribunal Act 1975 which relate to this application is relevantly as follows:
“35 Hearings to be in public except in special circumstances
…
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
…
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”
PRELIMINARY
11. The thrust of the Act relates to the documents of an agency rather than an individual or decision-maker (section 60 of the Act). Section 4(1) of the Act defines the term ”agency” as “…a department, a prescribed authority…”. The Australian Federal Police is a prescribed authority within the meaning of section 4(1) of the Act.
12. As part of the preliminary issues dealt with at the hearing, the Tribunal made an order under section 64(1) of the Act that unexpurgated versions of the exempt documents which were provided to the Tribunal were to be restricted to the Tribunal. I also made an order under section 35(2)(c) of the Administrative Appeals Tribunal Act 1975 that the documents remained sealed with the Tribunal until further order.
CONSIDERATIONS
13. In relation to the claims made in the decision under review, as stated earlier, the respondent advised the Tribunal at the start of the hearing that it no longer relied on section 22(1)(a)(ii) of the Act as an exemption for folios 9, 10 and 12 of Document 3. However, folio 9 is still claimed to be exempt under section 37(2)(b) of the Act. This was confirmed at a telephone directions hearing on 1 July 2005. Therefore, the following documents only are now relied upon -
- Document 1 : Folios 1-5
- Document 2 : Folios 6-8
- Document 3: Folios 9 and 11
SECTION 37(2)(b)
14. The respondent relies on this exemption for folios 1-5, 6-8, 9 and 11. Section 37(2)(b) of the Act deals with an exemption from release for documents which would 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.
15. Mr McLeod submitted that the material claimed to be exempt discloses lawful methods for detecting criminal activities. If disclosed, the respondent claims that the ability of the AFP to utilise the methods disclosed in the document would be reduced.
16. With respect to the legal effect of section 37(2)(b) of the Act, the respondent’s Counsel referred the Tribunal to Re: Anderson v Australian Federal Police (1986) 11 ALD 355 at 364-365:
“(35) Intelligence gathering is a time-honoured method of preventing breaches or evasions of the law. The lawful methods and procedures employed in so doing may vary from quite routine overt police enquiries to a range of more clandestine or covert operations. Section 37(2)(b) is capable of protecting these methods or procedures where their disclosure would, or would be reasonably be likely to, prejudice their effectiveness.
(36) 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 of 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 a perceived threat. I agree, in this regard with the views expressed by a differently constituted Tribunal in Re Mickleberg v Australian Federal Police (1984) 6 ALN N176 where it was said that: “…., 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 agency’s 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.”
17. Mr Hodge, Counsel for the applicant, argued that this decision from the mid 1980’s should not be followed as times have changed.
18. The respondent’s Counsel also submitted that there is no necessity for there to be an actual breach of the law disclosed. The only question is whether disclosure of the procedure would be likely to prejudice the effectiveness of the investigatory methods (Re Rees v Australian Federal Police (1998) 57 ALD 686 at 718).
19. One of the essential considerations in dealing with exemptions under section 37(2)(b) of the Act is that an exemption will apply not where a method or procedure is identified, but where it discloses a method and where the disclosure would be reasonably likely to prejudice the effectiveness of those methods in the future. This was described in Re Scholes v Australian Federal Police (1996) 44 ALD 299 at 332 as follows:
“If the methods are methods which every reader of detective stories and every watcher of ‘Blue Heelers’, ‘Janus’, ‘The Bill’ and other police shows on TV knows all about, then the identification of the methods will disclose nothing and, further, will have no effect on the effectiveness of those methods or procedures.”
20. I have examined the documents referred to above which are claimed to be subject to an exemption under section 37(2)(b) of the Act. I am satisfied that the content disclosed in those official police reports are such that all of the documents listed contain information about methods of investigation which would not be commonplace or in as much detail as what might be available to members of the public through media sources. I accept that the folios referred to reveal information that if released, could potentially prejudice the effectiveness of those methods in the future. Therefore, I uphold the claimed exemption under section 37(2)(b) of the Act.
SECTION 33A(1)(b)
21. Only one document, folio 8 of Document 2, is argued as falling within the bounds of this section. Section 33A(1)(b) of the Act deals with claims for exemption from release of documents which would divulge information or matters communicated in confidence by or on behalf of the Government of a State or an authority of a State.
22. Counsel for the applicant argued that mere communication between the two law enforcement agencies of Queensland and the Commonwealth did not of itself indicate a communication in confidence. He argued that it would be unsafe to rely on the affidavit of Superintendent Harrigan and referred also to Re Cosco Holdings Pty Ltd v Department of Treasury (1998) 51 ALD 140 at 151 where Deputy President Forgie said, inter alia:
“Whether or not information was communicated in confidence may be apparent from the face of the document in that it is expressly stated to have been given in that way……It may be established by the nature of the information communicated whether taken on its own or considered in light of such matters as the circumstances in which it was communicated.”
23. It was submitted that this section looks to the nature of the information or matter to be disclosed (Re Shopping Centre Council of Australia v Australian Competition and Consumer Commission (2004) 78 ALD 494 at 497).
24. It was also submitted that whether information is communicated in confidence is a question of fact. It was argued that it is not relevant whether legal obligations of confidence are involved with the communications in issue (Re Angel v Department of Arts, Heritage and Environment (1985) 9 ALD 113 at 119-121; and Re Environment Centre NT Inc. v Department of the Environment, Sport and Territories (1994) 35 ALD 765 at 776). Here, it is contended that the Queensland Bureau of Crime Intelligence provided information disclosed in these documents on a confidential basis and if the documents were released, then restrictions would be placed on supply of such information in the future by the Bureau of Crime Intelligence. This submission was also made in some detail in the affidavit of Superintendent Harrigan (see paragraphs 11 to 20).
25. In relation to folio 8, I am satisfied on the balance of probabilities that there is an arrangement in place to cooperate between State and Federal Police agencies as that is fundamental to the effective operation of the criminal justice system. To release that document would be likely to have some effect on this important Government service. Reference to an investigator and other relevant information could also prejudice lawful investigations and in some circumstances, the individuals concerned. Having examined folio 8, I agree with the submissions put by the respondent and I would allow the document as an exempt document under section 33A(1)(b) of the Act.
SECTION 41(1)
26. Folios 1-5 of Document 1 are claimed to be subject to this exemption. Section 41(1) of the Act is concerned with exemptions from release which would result in the unreasonable disclosure of personal information.
27. It was submitted by the respondent that it would be unreasonable to disclose the information to the applicant which is deleted on folios 1-5 as presented to the Tribunal. Counsel referred the Tribunal to Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429. In particular, he referred to the judgment of Lockhart J (with whom Jenkinson and Heerey JJ agreed), at 438 which, inter alia, said:
“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 the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Part Four of the Act concerning exempt documents confirms this approach.”
28. The Tribunal was also referred to the judgment of Heerey J at 441 of the above case which further dealt with the meaning of “unreasonableness”. His Honour added, “….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 enure 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.” In comparing similar legislation from an American jurisdiction, His Honour referred to balancing the seriousness of invasion of privacy with whatever gain would result to the public interest.
29. In Colakovski, it was held that “personal affairs” in section 41(1) of the Act refer to information which concerned or affected the person as an individual, whether it was known to other persons or not.
30. I have examined folios 1-5 which clearly show names, addresses, dates of birth and business connections. The association of those details with possible criminal investigations are also identified. Other personal information, such as passport numbers are also disclosed. Clearly, while some of the information shown relates to the disclosure of police investigation information, detailed personal information is also described. Exemption of those details would plainly satisfy the criteria determined by the Full Court in Colakovski’s case (supra). I am satisfied that given the extent of the personal affairs information, and the nature of the information associated with the personal affairs information in folios 1-5, that public interest considerations are involved and that the exemption under section 41(1) of the Act is justified in this case.
31. Therefore, the Tribunal determines that the respondent has discharged the onus of establishing that all of the documents which it seeks to establish are exempt, have been satisfied i.e. folios 1-5, 6-8, 9 and 11. Therefore, the decisions of the original decision-maker, as upheld by internal review, are affirmed. Also, the respondent conceded that Documents 10 and 12 are not exempt and that an exemption under section 22 (1)(a)(ii) of the Act is no longer claimed. That concession is included as part of the Tribunal’s determination.
32. It is also necessary to revisit the preliminary orders made at the hearing under section 60(1) of the Act and section 35(2)(c) of the Administrative Appeals Tribunal Act 1975. In view of the decisions made above in respect of the documents claimed to be exempt, I order that the documents provided to the Tribunal which disclosed the full information contained in the official records of the Australian Federal Police, should remain sealed at the Tribunal and should be returned to the respondent intact upon publication of this decision.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jenny Tran
Associate
Date/s of Hearing 18 May 2005
Date of Decision 4 July 2005
For the Applicant Mr Michael HodgeFor the Respondent Mr McLeod, Counsel instructed by the Australian Government Solicitor
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