DEJAN MAKSIMOVIC and COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS AUSTRALIAN FEDERAL POLICE - [2009] AATA 700

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 700
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION Nos. 2008/1170, 2008/1383, 2008/1892, 2008/1983, 2008/2227, 2008/2256, 2008/3171, 2008/3205, 2008/3994, 2008/4669, 2008/4726, 2008/4941, 2008/5083, 2009/0641

Re DEJAN MAKSIMOVIC
Applicant

And

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

AUSTRALIAN FEDERAL POLICE

Respondents

DECISION

Tribunal G. D. Friedman, Senior Member
Date11 September 2009
PlaceMelbourne

Decision

The Tribunal varies the decisions under review in that documents or parts of documents released to Mr Maksimovic by the respondents during the proceedings are not exempt under the Freedom of Information Act 1982. In all other respects the Tribunal affirms the decisions under review.

(sgd) G.D. Friedman
Senior Member

FREEDOM OF INFORMATION - criminal investigation and prosecution - whether documents exempt from disclosure - adequacy of searches
Customs Act 1901
Freedom of Information Act 1982 ss 4, 22(1), 24A, 33(1)(a)(iii), 33(1)(b), 33A(1)(b), 33A(5), 37(1)(a), 37(2)(b), 40(1)(d), 40(2), 41(1), 42
Mutual Assistance in Criminal Matters Act 1987
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Commonwealth v Hittich (1994) 53 FCR 152
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445
News Corporation Ltd v National Companies and Securities Commission (1984) 1 AAR 511
Re Anderson and Australian Federal Police (1986) 11 ALD 355
Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Environment Centre NT Inc and Department of the Environment, Sport and Territories (1994) 35 ALD 765
Re Maher and Attorney-General’s Department (1985) 7 ALD 731
Re Maksimovic and Attorney-General’s Department(2008) 109 ALD 417
Re Mann and Australian Taxation Office (1985) 7 ALD 698
Re McKinnon and Commissioner of Taxation (2001) 48 ATR 1114
Re Parisi and Australian Federal Police (1987) 14 ALD 11
Re Russell Island Development Association Inc and Department of Primary Industries and
Energy (1994) 33 ALD 683
Re Wallace and Australian Federal Police (2004) 83 ALD 679
Re Wang and the Department of Employment, Education and Training (1988) 15 ALD 497
REASONS FOR DECISION

11 September 2009   G. D. Friedman, Senior Member

1.       Dejan Maksimovic was investigated by the Australian Federal Police (the AFP) and prosecuted by the Commonwealth Director of Public Prosecutions (the CDPP) for importing a prohibited substance (cocaine) contrary to the Customs Act 1901 and attempting to possess a prohibited import, following the interception of a parcel sent by post from Costa Rica. On 5 September 2006 Mr Maksimovic was convicted and sentenced to seven years’ imprisonment. He has made a number of requests under the Freedom of Information Act 1982 (the FOI Act) to various Commonwealth agencies for access to documents relating to his investigation, trial and conviction. The current proceedings involve reviewable decisions by the respondents in respect of 14 requests under the FOI Act in 2007, 2008 and 2009.
2.       During the Tribunal’s proceedings the respondents released a number of documents or parts of documents to Mr Maksimovic and at the date of the hearing 60 documents were claimed to be exempt or partially exempt (the exempt documents) on a number of grounds as set out in the schedule of exempt documents.
3.       The issues before the Tribunal are whether the exempt documents should be released, and whether the respondent made adequate searches for documents relevant to the FOI requests.
SUMMARY OF FOI REQUESTS
4.       The FOI requests are:
AAT File No.            Details of request: documents in the matter of The Queen v   Dejan Maksimovic
2008/1170a)     AFP Exhibits DPH/DFAT/01-04;
b)All statements made by the witness ‘Sam Weatherhead’;           and
c)All statements made by Federal Agent ‘Peter Constantinou’.

2008/1383Names of all ‘suspects’ in the case.
2008/1892Complete uncensored Australian Federal Police officers diary notes or entries for the period 1 March 2005 to 5 March 2005 for any officer involved directly or indirectly in the case of The Queen v Dejan Maksimovic. In particular, the diary of David Paul Herman who was the informant and Nicholas Andrew Read.
2008/1893All averments made to the informant ‘David Herman’.
2008/2227First request
a)AFP Exhibits DPH/DFAT/01-04;
b)All statements made by the witness ‘Sam Weatherhead’; and
c)All statements made by Federal Agent ‘Peter Constantinou’.
Second request
All unused material in the case.

2008/2256A list or schedule identifying all other material to which the prosecution has had a regard.
2008/3171a)     A list or schedule identifying any rightful premise upon    which the indictment was founded;
b)Any document granting any person immunity from           prosecution; and
c)Any document for exclusion of evidence. (Prosecution    Policy of the Commonwealth, 2.7(a) – Are there any grounds for believing the evidence may be excluded bearing in mind the principles of admissibility at common       law and under statute?).

2008/3205All documents pertaining to the origins of the pack/parcel that contained narcotic goods.
2008/3994All legislation that was provided to the County Court of Victoria by the Prosecution.
2008/4669Copy of all decisions made under The Prosecution Policy of the Commonwealth and the Director of Public Prosecutions Act 1983 (DPP Act).
2008/4726a) All documents which bring probative value to the eliminating of all other suspects in the case; and
b)All potentially exculpatory material.

2008/4941All decision made to NOT disclose material in the case.
2008/5083All documents which bring probative value to the eliminating of all other suspects in the case.
2009/0641a) All documents in which advice was requested by the Australian Federal Police; and
b)All documents in which advice was given to the Australian Federal Police.

THE EXEMPT DOCUMENTS
5. The exempt documents are:

Doc No.

AAT File No(s)

Date of document

Document description

Exemption(s) claimed

D 1A

2008/2227 & 2256

2008/3205

August 2005

Letter from AFP to CDPP requesting advice on other suspects

Entire document - s33(1)(b), s 37(1)(a), s 40(1)(d), s 41(1), s 42

D 1B

2008/2227 & 2256

04.07.05

Witness statement

Entire document - s 37(1)(a), s 37(2)(b), s 40(1)(d), s 41(1)

D 1C

2008/2227 & 2256

22.07.05

Witness statement

Entire document s 37(1)(a), s 37(2)(b), s 40(1)(d), s 41(1)

D 1D

2008/2227 & 2256

2008/5083

2008/4726

22.07.05

Witness statement

Entire document - s 37(1)(a), s 37(2)(b), s 40(1)(d), s 41(1)

D 1E

2008/1893

22.07.05

Witness statement

Entire document - s 37(1)(a), s 37(2)(b), s 40(1)(d), s 41(1)

D 2

2008/3171

undated

Undated indictment submission checklist

11^th to 31^st words of the 3^rd sentence of the 1^st full paragraph under sub-point 2 on page 10 of the document - s 33(1)(a)(iii), s 33(1)(b), s40(1)(d), s 41(1)

D 3

2008/1892

March 2005

Notebook entries: Federal Agent Nick Read

All information on the 1^st page of the document excluding the last 5 lines - s 22(1)(a)(ii)

All information on the 2^nd page of the document excluding the first 3 lines of the entry at '8.30' and the 2^nd to 5^th words of the 9^th last line on the page - s 22(1)(a)(iii)

D 4

2008/3205

1.03.05

Case Note, 142796623, Mark McKiernan

2^nd telephone number in the signature block above the 1^st table of the 1^st page of the document – s 41(1)

D 5

2008/1892

1-7.03.05

Notebook entries: Federal Agent David Herman

First 11 lines of page FOI-2 – s 22(1)(a)(ii), 41(1)

First 11 lines under the heading 'Tuesday 01 March 05' of the page marked FOI-2 - s 22(1)(a)(ii), 41(1)

16^th and 17^th lines under the heading 'Tuesday 01 March 05' of the page marked FOI-2 - s 22(1)(a)(ii), 41(1)

Every line under the heading 'Monday 07 March 05' of the page marked FOI-6 - s 22(1)(a)(ii), 41(1)

D 6

2008/1892

26.02.05- 05.03.05

Notebook entries: Federal Agent Ian Hay

First 13 lines under the heading 'Saturday 26 February 2005' of the page marked FOI-8 - s 22(1)(a)(ii), 41(1)

D 7

2008/1892

01.03.05- 05.03.05

Notebook entries: Federal Agent Amanda Glover

First 12 lines of the page marked FOI-10 - s 22(1)(a)(ii)

Last 8 lines of the page marked FOI-10 - s 22(1)(a)(ii)

D 8

2008/1892

1-5.03.05

Notebook entries: Federal Agent David Williams

All information before '1/3/05' on page FOI-12 - s 22(1)(a)(ii)

2^nd and 3^rd lines under '1/3/05' of the page marked FOI-12 - s22(1)(a)(ii)

4^th word of the 20^th line of the page marked FOI-13 - s 41(1)

All information after entry date '7/3/05'on the 28^th line on the page marked FOI-14 - s 22(1)(a)(ii)

D 9

2008/1892

1-5.03.05

Notebook entries: Federal Agent Robert Grant

All text above entry dated 1/3/05 of the page marked FOI-16 – s 22(1)(a)(ii)

6^th, 7^th, and 8^th words of the entry dated 1/3/05 of the page marked FOI-16 - s 22(1)(a)(ii)

Last 5 lines of the page marked FOI-16 - s 22(1)(a)(ii)

First line of the page marked FOI-17 - s 22(1)(a)(ii)

6^th and 7^th words of the entry dated 2/3/05 on the page marked FOI-17 – s 22(1)(a)(ii)

3^rd and 4^th line of the entry dated 3/3/05 on the page marked FOI-17 commencing 1000- s 22(1)(a)(ii)

6^th, 7^th, and 8^th words of the entry dated 4/3/05 on the page marked FOI-17 - s 22(1)(a)(ii)

Last 6 lines of the page marked FOI-17 - s 22(1)(a)(ii)

D 10

2008/1892

1-5.03.05

Notebook entries: Federal Agent Carol Hugi

All information above '01/03/05 - Tuesday' on the page marked FOI-19 - s 22(1)(a)(ii)

All information following '01/03/05 - Tuesday' and before '02/03/05 - Wednesday' on the page marked FOI-19 - s 22(1)(a)(ii)

3^rd to 8^th lines following the entry of 4/3/05 of the page marked FOI-20 – s 22(1)(a)(ii)

All information following '05/03/05 - Saturday - RDO' on the page marked FOI-20 - s 22(1)(a)(ii)

D 11

2008/1892

1-5.03.05

Notebook entries: Federal Agent Corey Wiggett

All information on the page marked FOI-22, excluding the header of the page - s 22(1)(a)(ii), s 41(1)

All information on the page marked FOI-23, excluding the last line and the header of the page – s 22(1)(a)(ii), s 41(1)

3^rd to 12^th lines following the entry dated 'Friday 4/3/05' on the page marked FOI-27 - s 22(1)(a)(ii), s 41(1)

Last 5 lines of the page marked FOI-27 - s 22(1)(a)(ii)

D 12

2008/1893

2.03.05

Affidavit for warrant to search premises, Federal Agent David Herman

All information following paragraph 1 'I am a member of the AFP' on page 1 of the document - s 40(1)(d), s 37(2)(b)

All information on page 2 of the document - s 41(1), s 40(1)(d), s 37(2)(b)

All information on pages 3-4 of the document - s41(1), s 40(1)(d), s 37(2)(b) and s 33A(1)(b)

All information above the jurat on page 5 on the document - s 40(1)(d), s 37(2)(b)

D 13

2008/1892

3.03.05

Notebook entries: Federal Agent Stephen Cook

All information above the entry dated '3/3/05' on the page marked FOI-29 - s 22(1)(a)(ii)

All information below the entry '2100 cease duty' on the page marked FOI-30 - s 22(1)(a)(ii)

D 14

2008/1892

3.03.05

Notebook entries: Federal Agent Jamie Fletcher

5^th to 20^th lines on the page marked FOI-32 - s 22(1)(a)(ii)

All information following the entry '2/3/05 0900 commence duty RHQ' on the page marked - FOI-32 – s 22(1)(a)(ii)

First 20 lines above '1645 cease duty' of the page marked FOI-33 – s 22(1)(a)(ii)

Last 14 lines below '3/3/05 commence duty RHQ' of the page marked FOI-33 - s 22(1)(a)(ii)

First 13 lines of the page marked FOI-34 - s 22(1)(a)(ii)

23^rd to 28^th lines of the page marked FOI-34 - s 22(1)(a)(ii)

31^st to 38^th lines of the page marked FOI-34 - 22(1)(a)(ii)

D 15

2008/3205

15.03.05

Overseas Liaison Communication Federal Agent David Herman

1^st paragraph under sub-point 'e' on the 3^rd page of the document – s 37(2)(b), s 40(1)(d).

2^nd telephone number in the 2^nd last sentence on the 3^rd page of the document - s 41(1)

D 16

2008/5083

30.03.05

Statement: Sharon McKillop

Employer and work address information in header of statement on the 1^st page - s 41(1)

Words between 'employed by' and 'I fly domestic routes only.' in the 3^rd sentence of the body of the statement on the 1^st page s 41(1)

All words after 'employed by' in the 6^th sentence of the body of the statement on the first page of the document – s 41(1)

D 17

2008/5083

30.03.05

Statement: Nikola Peter

Employer and work address information in header of statement on the 1^st page - s 41(1)

Work telephone number in the header of the statement on the first page – s 41(1)

All words after 'employed by' in the 3^rd sentence of the 1^st paragraph of the 1^st page of the document - s41(1)

Address information under 'Acknowledgement made and signature witnessed by me' on the last page of the document - s 41(1)

D 18

2008/3205

12.04.05

Overseas Liaison Communication Federal Agent Austin, SLO Bogota

All information on the 1^st page of the document under the entry 'Reply to File and Folio' details - s 33(1)(a)(iii), s 33(1)(b), s 37(2)(b), s 40(1)(d)

All information on the 2^nd page of the document - s 33(1)(a)(iii), s 33(1)(b), s 41(1)

All information on the 3^rd page of the document excluding the final heading and last sentence on the page – s 33(1)(a)(iii), s 33(1)(b)

D 19

2008/2227 & 2256

14.04.05

'Certificate of Potentially Disclosable Material'

The respondent no longer presses exemption over this document

D 20

2008/3205

19.05.05

Overseas Liaison Communication Federal Agent David Herman

2^nd sentence of the 1^st paragraph under the heading 'Information' on the 1^st page of the document – s 33(1)(a)(iii), s 33(1)(b), s 37(2)(b), s 40(1)(d), s 41(1)

All remaining information on the 1^st page of the document - s 33(1)(a)(iii), s 33(1)(b), s 37(2)(b), s 40(1)(d), s 41(1)

All information on the 2^nd page of the document - s 33(1)(a)(iii), s 33(1)(b), s 37(2)(b), s 40(1)(d), s 41(1)

1^st and 2^nd paragraphs on the 3^rd page of the document, including 3 bullet points - s 33(1)(a)(iii), s 37(2)(b), s 40(1)(d), s 41(1)

2^nd telephone number in the 2^nd last sentence on the 3^rd page of the document - s 41(1)

D 21

2008/3205

3.06.05

Letter from Federal Agent Herman to CDPP regarding request for Mutual Assistance from the Costa Rican Drug Police

2^nd and 3^rd full sentence, including the 1^st 2 bullet points, on the 2^nd page of the document - s 33(1)(a)(iii), s 33(1)(b)

2^nd sentence, including the immediately following table, under the heading 'Telephone Contact with Costa Rica by Maksimovic' on the 2^nd page of the document - s 33(1)(a)(iii), s 33(1)(b)

All information above the heading 'Penalties Applicable' on the 3^rd page of the document- s 33(1)(a)(iii), s 33(1)(b)

All information between the 1^st and final paragraph on the 4^th page of the document - s 42(1), s 33(1)(b), s 33(1)(a)(iii)

D 22

2008/3205

June 2005

Request for assistance in a criminal matter from the Attorney General's Department, including attachments

1^st to 3^rd line following the paragraph marked '32' on the 7^th page of the document - s 41(1), s 33(1)(a)(iii), s 33(1)(b)

D 23

2008/1893

8.06.05

Affidavit for warrant to search premises, Federal Agent David Herman

All information following paragraph 'I am a member of the Australian Federal Police' on the first page of the document - s 40(1)(d), s 37(2)(b)

All information on the 2^nd to 4^thpage of the document - s 40(1)(d), s 37(2)(b)

All information on the 5^th page of the document - s 40(1)(d), 37(2)(b), s 33A(1)(b)

All information above the jurat on page the 6^th page of the document – s 40(1)(d), 37(2)(b)

D 24

2008/1170

2008/2227 & 2256

2008/4726

21.06.05

Statement: S. Weatherhead

3^rd and 4^th paragraphs on the 1^st page of the document - s 37(1)(a), s41(1)

All of the 3^rd page of the document – s 37(1)(a), s 41(1)

D 25

2008/1893

6.07.05

Affidavit for warrant to search premises, Federal Agent David Herman

All information following paragraph 'I am a member of the Australian Federal Police' on the first page of the document - s 40(1)(d), s 37(2)(b)

All information on the 2^nd page of the document - s 40(1)(d), s 37(2)(b), s 41(1)

All information on the 3^rd page of the document - s 40(1)(d), s 37(2)(b)

All information on the 4^th page of the document - s 40(1)(d), s 37(2)(b), s 33A(1)(b), s 41(1)

All information above the jurat on the 5^th page of the document – s 40(1)(d), s 37(2)(b)

D 26

2008/1893

undated

Draft affidavit prepared by Federal Agent David Herman

All information following paragraph 'I am a member of the Australian Federal Police' on the 1^st page – s 41(1), s 40(1)(d), s 37(1)(a), s 37(2)(b)

All information on the 2^nd and 3^rd pages of the document - s 41(1), s 40(1)(d), s 37(1)(a), s 37(2)(b)

All information on the 4^th page of the document - s 41(1), s 40(1)(d), s 37(1)(a), s 37(2)(b), s 33A(1)(b), s33(1)(b)

All information on the 5^th page of the document - s 41(1), s 40(1)(d), s 37(1)(a), s 37(2)(b)

All information above the jurat on the 6^th page of the document – s 40(1)(d), s 37(1)(a), s 37(2)(b)

D 27

2008/1893

21.07.05

Affidavit for warrant to search premises, Federal Agent David Herman

All information following paragraph 1 'I am a member of the Australian Federal Police' on page 1: s 40(1)(d), s 37(2)(b)

All information on page 2 of the affidavit:
s 33A(1)(b), s 37(2)(b), s 40(1)(d)

All information on page 3 of the affidavit: s 33A(1)(b), s 33(1)(b), s 37(2)(b), s 40(1)(d)

All information on page 4 of the affidavit:
s 40(1)(d), s 37(2)(b)

All information above the jurat on page 5: s 40(1)(d), s 37(2)(b)

D 28

2008/1893

undated

Unsigned Affidavit for warrant to search premises, Federal Agent Bowman

All information following the 1^st sentence on the 1^st page of the document - s 37(1)(a), s 37(2)(b), s 40(1)(d), s 41(1)

All information on the 2^nd and 3^rd pages of the documents - s 41(1), s 40(1)(d), s 37(1)(a), s 37(2)(b)

All information on the 4^th page of the document - s 37(1)(a), s 37(2)(b), 40(1)(d), s 41(1), s 33A(1)(b), s33(1)(b)

All information on the 5^th page of the document - s 37(1)(a), s 37(2)(b), s 40(1)(d), s 41(1)

All information on the 6^th page of the document above the jurat – s 37(1)(a), s 40(1)(d), s 37(2)(b)

D 29

2008/1893

25.07.05

Affidavit for warrant to search premises, Federal Agent David Herman

All information following paragraph 'I am a member of the Australian Federal Police' on the 1^st page of the document - s 41(1), s 40(1)(d), s 37(2)(b)

All information on the 2^nd, 3^rd, 5^th, 6^th, and 7^th pages of the document – s 41(1), s 40(1)(d), s 37(2)(b)

All information on the 4^th page of the document - s40(1)(d), s 37(2)(b), s 41(1), s 33(1)(a)(iii), s 33(1)(b), s 33A(1)(b)

All information above the jurat on the 8^th page of the document – s 40(1)(d), s 37(2)(b)

D 30

2008/3205

29.07.05

Case Note, (143695950), Federal Agent David Herman, including attachments

All of the words immediately following 'Case Note: (143695950)' in the heading of the document – s 41(1), s 37(1)(a)

All of the information following the 'Date created' details ending with 'D Herman' on the 1^st page of document - s 37(1)(a), s 37(2)(b), s 40(1)(d), s 41(1)

All words in the 3^rd column, 2^nd row of the 2^nd table on the 1^st page of the document - s 37(1)(a), s 41(1)

D 31

2008/3205

August 2005

Letter from Federal Agent David Herman to CDPP (unsigned) regarding additional request for Mutual Assistance from Costa Rican Drug Police

16^th to 28^th words of the 2^nd sentence of the 1^st paragraph on the 2^nd page of the document - s 37(1)(a), s 41(1)

1^st heading and following 2 paragraphs, including 2 bullet points, on the 2^nd page of the document – s 37(1)(a), s 33(1)(a)(iii), s 33(1)(b), s 41(1)

2^nd heading and following 3 paragraphs on the 2^nd page of the document - s 37(1)(a), s 33(1)(a)(iii), s 33(1)(b), s 41(1)

The 7^th word of the 2^nd paragraph on the 3^rd page of the document, above the 1^st heading - s 41(1), s 37(1)(a)

The 15^th to 20^th words of the 1^st bullet point on the 3^rd page of the document - s 41(1), s 37(1)(a)

7^th word of the 3^rd bullet point on the 2^nd page of the document - s 41(1), s 37(1)(a)

4^th bullet point on the 3^rd page of the document - s 41(1), s 37(1)(a), s 37(2)(b)

D 32

2008/1893

10.08.05

Affidavit for warrant to search premises, Federal Agent David Herman

All information following point 1 'I am a member of the Australian Federal Police' on the 1^st page of the document - s 40(1)(d), s37(2)(b)

All information on the 2^nd and 3^rd pages of the document - s 41(1), s 40(1)(d), s 37(2)(b)

All information on the 4^th page of the document - s 33(1)(a)(iii), s 33(1)(b), s 37(2)(b) and s 40(1)(d)

All information on the 5^th page of the document - s 40(1)(d), s 37(2)(b), s 33A(1)(b)

All information above the jurat on the 6^th page of the document – s 40(1)(d), s 37(2)(b)

D 33

2008/1383

12.08.05

Case Note, 1465, Federal Agent David Herman

Telephone number following 'Dave Herman x 137594' at the end of the marked page FOI-14 - s 41(1)

D 34

2008/1383

29.08.05

Case Note, 143893072, Federal Agent David Herman

Telephone number after 'Dave Herman x 137594' on the page marked on page FOI-4 - s 41(1)

D 35

2008/1383

29.08.05

Case Note, 1481, Federal Agent David Herman

Telephone number after 'Dave Herman x 137594' on the page marked FOI-15 - s 41(1)

D36

2009/0641

30.08.05

Letter from AFP to CDPP

Entire document - s33(1)(b), s 37(1)(a), s 40(1)(d), s41(1), s 42

D 37

2008/3205

September 2005

Request for assistance in a criminal matter from the Attorney-General's Department

1^st to 3^rd lines following the paragraph marked '34' on the 9^th page of the document - 33(1)(a)(iii), s 41(1), s 33(1)(b)

D 38

2008/3205

2.09.05

Case Note, 143924830, Federal Agent David Herman

1^st word of the 1^st dash point under the 2^nd paragraph in the body of the document - s 37(1)(a), s 41(1)

1^st word of the 2^nd dash point under the 2^nd paragraph in the body of the document - s 37(1)(a), s 41(1)

3^rd dash point under the 2^nd paragraph in the body of the document – s 37(1)(a), s 41(1)

4^th paragraph in the body of the document - s 37(1)(a), s 37(2)(b)

D 39

2008/1383

7.09.05

Case Note, 1496, Federal Agent David Herman

Telephone number after 'Dave Herman x 137594' on the marked page FOI-16 - s 41(1)

D 40

2008/1383

23.09.05

Case Note, 1531, Federal Agent David Herman

Telephone number after 'Dave Herman x 137594' on the page marked FOI-17 - s 41(1)

D 41A

2008/5083, 2008/4726

26.07.05

Voluntary Written Permission Enabling Police to Take Fingerprints[1]

5^th to 8^th words of the 1^st paragraph on the page marked FOI - 128 – s 41(1)

D 41B

2008/5083, 2008/4726

26.07.05

Voluntary Written Permission enabling Police to take Handwriting Sample[2]

The 5^th to 8^th words of the 1st paragraph of the page marked FOI 129 - s 41(1)

D 42A

2008/5083

3.08.05

Voluntary Written Permission Enabling Police to take Photograph[3]

The 5^th to 8^th words of the first paragraph of the page marked FOI 110 - s 41(1)

D43

2008/3205

4.10.05

Memo of Ms Jennifer Bryant, Commonwealth Director of Public Prosecutions

2^nd sentence of the 2^nd paragraph under the heading 'Fingerprint Examination of Parcel' on the 6^th page of the document - s 41(1), s 37(1)(a), s 40(1)(d)

4^th heading and the following 2 paragraphs, including 2 bullet points, on the 6^th page of the document - s 41(1), s 37(1)(a), s 37(2)(b), s 40(1)(d), s 33(1)(a)(iii), s 33(1)(b)

5^th heading and following 3 paragraphs on the 6^th page of the document - s 41(1), s 37(1)(a), s 37(2)(b), s 40(1)(d), s 33(1)(a)(iii), s 33(1)(b)

The 15^th to 20^th words of the 1^st bullet point, under the heading 'REQUEST' on the 7^th page of the document – s 37(1)(a), s 41(1)

7^th word of the 3^rd bullet point under the heading 'REQUEST' on the 7^th page of the document - s 37(1)(a), s 41(1)

2^nd, 3^rd and 4^th lines of the 4^th paragraph under the heading 'Contact details' on the 8^th page of the document - s 33(1)(a)(iii), s 33(1)(b), s 41(1)

D44

2008/1383

09.03.06

Case Note, 147955015, Federal Agent Tom Jambrich

6^th paragraph under the heading 'Background' on the page marked FOI-2 - s 37(1)(a), s 40(1)(d)

2^nd and 3^rd sentences of 1^st paragraph under the heading 'Issues/Event' on the page marked FOI-2, excluding the 14^th word of the 2^nd sentence - s 37(2)(b), s 40(1)(d)

D 45

2008/3205

12.04.06

Overseas Liaison Communication

The 15^th to 20^th words of the 1^st bullet point on the 2^nd page of the document - s 33(1)(a)(iii), s 37(1)(a), s 40(1)(d), s 41(1)

7^th word of the 3^rd bullet point on the 2^nd page of the document – s 33(1)(a)(iii), s 37(1)(a), s 40(1)(d), s 41(1)

2^nd telephone number in the 2^nd last sentence on the 2^nd page of the document - s 41

D 46

2008/3205

26.04.06

Request for assistance in a criminal matter from the Attorney-General's Department

2^nd to 6^th sentence of the 1^st paragraph marked '8' on the 2^nd page of the document- s 37(1)(a), s 33(1)(a)(iii), s 33(1)(b), 40(1)(d) (1^st 16 words can be released)

19^th word of the 1^st sentence of the paragraph marked '10' on the 2^nd page of the document - s 37(1)(a), s 41(1)

14^th word of the paragraph marked '11' on the 2^nd page of the document - s 37(1)(a), s 41(1)

Last word of the 1^st sentence of the paragraph marked '12' on the 2^nd page of the document - s 37(1)(a), s 41(1)

Last word of the paragraph marked (e) of the paragraph marked '12' on the 2^nd page of the document – s 37(1)(a), s 41(1)

25^th word of the paragraph marked 13 on the 2^nd page of the document – s 37(1)(a), s 41(1)

35^th word of the 1^st sentence of the paragraph marked '14' of the 3^rd page of document - s 37(1)(a), s 41(1)

11^th word of the 2^nd sentence of the paragraph marked '14' of the 3^rd page of document - s 37(1)(a), s 41(1)

24^th word of the 1^st sentence of the paragraph marked '15' of the 3^rd page of document - s 37(1)(a), s 41(1)

1^st, 2^nd, 33^rd and 41^st words of the 2^nd sentence of the paragraph marked '15' of the 3^rd page of document – s 37(1)(a), s 41(1) (references to "he" can be released)

1^st to 3^rd lines following the paragraph marked '25' on the 5^th page of the document - s 41(1), 33(1)(a)(iii), s 33 (1)(b)

D 47

2008/3205

22.06.06

Overseas Liaison Communication

The 15^th to 20^th words of the 1^st dot point under 'MAR #2 (October 2005/May 2006)' on the 1^st page of the document - s 37(1)(a), s 41(1), s 40(1)(d)

7^th word of the 3^rd dot point under 'MAR #2 (October 2005/May 2006)' on the 1^st page of the document – s 37(1)(a), s 41(1), s 40(1)(d)

2^nd telephone number in the 2^nd last sentence on the 2^nd page of the document - s 41(1)

D 48

2008/3205

22.06.06

Case Note, 148666430, Federal Agent David Herman, attaching the response to MAR #1

Address and addressee details on the 30^th page of document marked FOI 195 - s 41(1)

The addressee name following 'Dear' on the 30^th page of document marked FOI 195 - s 41(1)

D 49

2008/1383

28.06.06

Case Note, 1743, Federal Agent David Herman

2^nd sentence of the 4^th full paragraph on the 1^st page of the document – s 40(1)(d), s 37(1)(a)

All information in the 6^th paragraph on 1^st page of the document – s 40(1)(d), s 37(1)(a)

3^rd paragraph under the heading 'Issues/Events' on the 1^st page of the document - s 40(1)(d), s 37(2)(b)

The 5^th paragraph after the heading 'Issues/Events' on the 1^st page of the document, excluding the 10^th to 12^th words of the 1^st sentence - s 41(1), s 40(1)(d), s 37(1)(a), s 37(2)(b)

SD 1

2008/4726

Unknown

Third party travel records

The 2^nd, 3^rd and 4^th words of the 'Subject' entry on the 1^st page of the document - s 41(1)

All of the 2^nd, 3^rd and 4^th pages of the document - s 41(1), s 40(1)(d)

SD 2

2008/4726

28 -29.04.05

Email from CDPP officer to Federal Agent David Herman

All information between the 1^st and last lines of the email dated 29 April 2005 sent at 9.05am - s 42, s 37(2)(b).

The telephone number in the 4^th paragraph in the email dated 29 April 2005 sent at 9.05am – s 41(1)

All information following the 2^nd sentence of the email sent 29 April 2005 at 9.47am, excluding the final paragraph and sender name - s 42, s 37(2)(b)

All of the final paragraph of the email dated 28 April 2005 sent at 9.47am – s 22(1)(a)(ii)

2^nd sentence of the 1^st full paragraph on the 2^nd page of the email dated 28 April 2005 sent at 9.47am - s 33(1)(b), s 37(2)(b), s 40(1)(d).

The 3^rd and 4^th words of the 1^st sentence of the 2^nd full paragraph on the 2^nd page of the document, email dated 28 April 2005 sent 9.47am – s 41(1).

The last 2 lines of 2^nd full paragraph on the 2^nd page of the email dated 28 April 2005 sent at 9.47am - s 41(1)

All of the 2^nd paragraph of the email dated 27 April 2005, sent at 5.29pm - s 42, s 37(2)(b), s 40(1)(d)

The 2^nd telephone number in the last line of the email dated 27 April 2005 sent at 5.29pm – s 41(1)

SD 3

2008/3171

26.05.05

Email forwarded to CDPP officer from another agency

All of the information under '--Original Message--' of the email dated 26 May 2005, sent at 9.09am - s 40(1)(d)

SD 4

2008/4726

20.07.05

Email from Federal Agent David Herman to CDPP officer

The whole 3^rd paragraph under the paragraph marked '1 Proposed Additional Material' of the email dated 20 July 2005, sent at 2.24pm - s 42, s 37(2)(b), s 40(1)(d)

All of the paragraph marked '3' of the email dated 20 July 2005, sent at 2.24pm - s 42, s 41(1)

The final paragraph of the email dated 20 July 2005, sent at 2.24pm – s 22(1)(a)(ii)

SD 5

2008/4726

13.10.05

Email from Federal Agent David Herman to CDPP officer

All of the paragraph marked '1' of the email sent at 2.56pm on 13 October 2005, excluding the 1^st 4 words – s 42, s 37(1)(a)

All of the paragraph numbered '3' of the email sent at 2.56pm on 13 October 2005 - s 42, s 37(1)(a)

All of the paragraph marked '4' on page 1 of the email sent at 2.56pm on 13 October 2005 - s 42, s 22(1)(a)(ii)

The 2^nd to 5^th sentences of the email dated 13 October 2005, sent at 11.14am - s 42

All of the paragraph numbered '1' of the email dated 10 October 2005, sent at 11.25am - s 41(1)

All of the paragraph numbered '3' of the email dated 10 October 2005, sent at 11.25am - s 37(2)(b), s 40(1)(d)

All of the final paragraph of the email dated 10 October 2005, sent at 11.25am - s 22(1)(a)(ii)

The 2^nd and 3^rd sentences of the 2^nd paragraph of the email dated 10 October 2005, sent at 9.41am - s 41(1)

The 3 dash points after the paragraph marked '1' of the email dated 10 October 2005, sent at 8.57am - s 41(1)

All of the paragraph marked '3' of the email dated 10 October 2005, sent at 8.57am - s 40(1)(d)

SD 6

2008/2256

08.12.05

Letter from AFP to CDPP in relation to schedule of additional material (including schedule)

The 3^rd paragraph on the 1^st page - s 22(1)(a)(ii), s 42

SD7

Various

Case notes of Peter Constantinou

The last 2 lines of the log sheet on the 2^nd page – s 22(1)(a)(ii)

All of the 2^nd paragraph under the heading ‘OTHER INFORMATION’ on the 8^th page – s 37(2)(b), s 37(1)(a)

All remaining search terms below the words ‘Costa Rica’ on the 9^th page – s 37(1)(a), s 41(1), s 33(1)(b)

The mobile number at the top right hand corner of the 17^th page – s41(1)

All of point 2 and 3 under the heading ‘REQUESTED SERVICE’ on the 17^th page – s 37(2)(b)

The 4^th to 9^th words of the 1^st line under the heading ‘INTERIM REPORT’ on the 19^th page – s 41(1)

All information after the 4^th word on the 2^nd line under the heading ‘INTERIM REPORT’ on the 19^th page – s 41(1)

The first 3 words of the 1^st line under the heading ‘Account Detail Summary’ on the 19^th page – s 41(1)

The first word of the 2^nd line under the heading ‘Account Detail Summary’ on the 19^th page – s 41(1)

All the individual account information following the colons on the 19th page – s 41(1)

All information in the paragraph under the heading ‘Passwords used:’ on the 19^th page – s 41(1)

All information on the 30^th to 38^th pages of the documents – s 37(2)(b), s 40(1)(d)

Mobile telephone numbers on the 18^th and 36^th pages of the document – s 41(1)

[1]Document annexed to the statement of Federal Agent Henderson dated 28 September 2005 , which was released to the applicant on 1 October 2008 (2008/5083) and noted to have previously been provided under cover of a Notice of Additional Evidence dated 8 February 2006 (2008/4726).
[2]Document annexed to the statement of Federal Agent Henderson dated 28 September 2005 , which was released to the applicant on 1 October 2008 (2008/5083) and noted to have previously been provided under cover of a Notice of Additional Evidence dated 8 February 2006 (2008/4726).
[3]Document annexed to the statement of Federal Agent Herman dated 29 September 2005 (FOI 75), which was released to the applicant on 1 October 2008.
SHOULD THE EXEMPT DOCUMENTS BE RELEASED?
6. Section 22(1) of the FOI Act provides:
22 Deletion of exempt matter or irrelevant material
(1)Where:
(a)an agency or Minister decides:
(i)not to grant a request for access to a document on the ground that it is an exempt document; or
(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

(b)it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i)would not be an exempt document; and
(ii)would not disclose such information; and

(c)it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

7. Mr D Herman, Federal Agent, AFP, told the Tribunal in affidavits dated 4 March 2009 and 31 August 2009 that he has been the case officer in the investigation of Mr Maksimovic since it began. Mr Herman stated that documents D3, D5, D6, D7, D8, D9, D10, D11, D13, D14, D48, SD2, SD4, SD5, SD6, SD7, or parts of the documents, refer to matters or investigations by him or other officers of the AFP that are entirely unrelated to Mr Maksimovic or are otherwise outside the scope of the FOI requests.
8. In respect of s 22 of the FOI Act, in Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683, the Tribunal stated at 691:
Returning to the expression “would reasonably be regarded'’ as it appears in s 22(1) and having regard to Cockcroft's case, it seems to me that I must consider whether disclosure of certain information might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request for access made under the Act.

9. The Tribunal has inspected the exempt documents and accepts Mr Herman’s evidence that documents for which the exemption in s 22 of the FOI Act are claimed contain information that is irrelevant to the FOI request as they concern material relating to the private affairs of officers of the respondents, or are unrelated to Mr Maksimovic or the subject matter of his FOI requests. The Tribunal finds that these documents, or parts of documents, are exempt from disclosure under s 22 of the FOI Act.
10. Section 33(1)(a)(iii) of the FOI Act provides:
33 Documents affecting national security, defence or international relations
(1)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:
…
(iii)the international relations of the Commonwealth;

11. Mr Herman told the Tribunal that documents D2, D18, D20, D21, D22, D29, D31, D32, D37, D43, D45, D46, or parts of the documents, are exempt because they contain information provided by Costa Rican law enforcement agencies on the understanding that the information would be treated as confidential. Mr Herman stated that D18, D22, D37, D43, D46, or parts of the documents, contain material that consists of the names and titles of Costa Rican intelligence officers. He explained that two requests under the Mutual Assistance in Criminal Matters Act 1987 (the Mutual Assistance Act) were sent to Costa Rican authorities, and the response to the first request was received prior to Mr Maksimovic’s criminal trial and was released to him in full at that time as it was provided in the knowledge that it may be disclosed in legal proceedings. However the response to the second request was received after the trial and was provided in a less formal context directly to the AFP by the Costa Rican law enforcement authorities on the basis of an understanding that information exchanged in this manner would be treated as confidential.
12. Mr Herman said that, based on his personal dealings with international law enforcement organisations over a number of years and his experience as a provider of information to such organisations, the relationship of trust between the AFP and the Costa Rican law enforcement agencies and other external police forces will be seriously damaged if the exempt material is disclosed and the understanding of confidentiality is breached. He emphasised that relations between Australian and international law enforcement authorities would be seriously undermined if the AFP released information provided by Costa Rican authorities, other than in the formal response, to requests under the Mutual Assistance Act.
13. In Re Maksimovic and Attorney-General’s Department (2008) 109 ALD 417 the Tribunal decided that the names of the Costa Rican officials were exempt under this section of the FOI Act. In Commonwealth v Hittich (1994) 53 FCR 152 the Full Federal Court held that there is no public interest test in section 33, and in Re Wang and the Department of Employment, Education and Training (1988) 15 ALD 497 the Tribunal noted that the strong personal interest by an applicant in obtaining access to a document is not relevant. In Re Maher and Attorney-General’s Department (1985) 7 ALD 731 the Tribunal held that a mere allegation or possibility of damage to international relations was insufficient, but that the phrase damage to international relations of the Commonwealth comprehends intangible damage such as trust and confidence, even though such damage may be difficult to assess.
14. The Tribunal accepts that Mr Herman has had considerable experience in international criminal investigations and personal dealings with international law enforcement agencies over a number of years, and accepts his evidence. The Tribunal has inspected the exempt documents and concludes that disclosure of the exempt material would, or could reasonably be expected to, damage the international relations of the Commonwealth. The Tribunal finds that these documents, or parts of documents, are exempt from disclosure under s 33(1)(a)(iii) of the FOI Act.
15. Section 33(1)(b) of the FOI Act provides:
33 Documents affecting national security, defence or international relations
(1)A document is an exempt document if disclosure of the document under this Act:
…
(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 organisation 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.

16. Mr Herman told the Tribunal that documents D1A, D2, D18, D20, D21, D27, D29, D31, D32, D36, D43, D46, SD2 and SD7, or parts of the documents, are exempt because the material consists of information that has been communicated in confidence by or on behalf of, Costa Rican law enforcement authorities for the purposes of the investigation into the activities of Mr Maksimovic. He said that the information was received prior to Costa Rican agencies providing a full and formal response to requests under the Mutual Assistance Act. He said that over the past five years he has participated in a number of investigations that have involved requests for information from foreign authorities, and that, in his experience, the information is provided on the understanding that the information is treated as confidential, as is information provided by Australian authorities to foreign law enforcement authorities. Mr Herman said that D22, D37, or parts of the documents, contain names and titles of Costa Rican intelligence officers, and that D26, D28, or parts of the documents, contain information communicated to the AFP by another foreign law enforcement authority.
17. In Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445 Wilcox J held that for the exemption in s 33(1)(b) of the FOI Act to apply there is no need for the information to be confidential in character or for disclosure to amount to a breach of confidence. At 448 he stated:
I do not think there is any scope for importing into s 33(1)(b) the equitable principles relating to breach of confidence. The paragraph recognises that there is a public interest in the Australian Government being seen by foreign governments, and their agencies, as a reliable recipient of confidential information; a government that will respect the status of confidential information that is supplied to it in the normal course of business. It would be neither possible nor appropriate for the Australian government to make judgments about the motives with which the information is supplied.

Whether a document is communicated in confidence is a question to be decided on the balance of probabilities (Re Environment Centre NT Inc and Department of the Environment, Sport and Territories (1994) 35 ALD 765), and there can be an implied or inferred understanding that the information would be kept confidential (Re Maher).
18. Mr Herman has had extensive and direct personal involvement in Mr Maksimovic’s case. The Tribunal accepts his evidence and has inspected the exempt documents. The Tribunal concludes that disclosure of the exempt material would, or could reasonably be expected to, divulge information communicated in confidence by or on behalf of a foreign government. The Tribunal finds that these documents, or parts of documents, are exempt from disclosure under s 33(1)(b) of the FOI Act.
19. Section 33A(1)(b) of the FOI Act provides:
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

…
(5)This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

20. In respect of s 33A(1)(b) of the FOI Act Mr Herman told the Tribunal that the contents of documents D12, D23, D25, D26, D27, D28, D29 and D32, or parts of the documents, are exempt because the material consists of information that would, if disclosed, divulge information communicated in confidence to the AFP by a State government. These documents are affidavits prepared in support of requests for search warrants. Mr Herman said that, based on his personal involvement in obtaining the information in question, the information was provided by State authorities for the purposes of the investigation of Mr Maksimovic on the understanding that it would be treated as confidential. Mr Herman said it was his opinion that if the information was divulged to Mr Maksimovic the relationship of trust between the AFP and State authorities could reasonably be expected to be damaged.
21. To establish an exemption under s 33A(1)(b) of the FOI Act it must be shown that the information in question was communicated in confidence by a State to the Commonwealth. It is not necessary that the information in fact be confidential, or that it be communicated in circumstances giving rise to an obligation of confidence (Re Environment Centre). There needs to be evidence that there is an express or implied understanding of confidentiality between the Commonwealth and the relevant State (Re Parisi and Australian Federal Police (1987) 14 ALD 11). Section 33A(5) of the FOI Act provides that the exemption in s 33A(1)(b) of the FOI Act will not apply if disclosure would, on balance, be in the public interest. In Re Mann and Australian Taxation Office (1985) 7 ALD 698 the Tribunal held that if prima facie the exemption is established under s 33A(1)(b) of the FOI Act, then without positive evidence to establish that disclosure would, on balance, be in the public interest, the exemption will be made out.
22. The Tribunal has inspected the exempt documents and accepts Mr Herman’s evidence that the exempt material contains information received in confidence from State authorities in the course of his investigations, and its release would divulge material communicated in confidence. The Tribunal also accepts that the exemption is established prima facie under s 33A(1)(b) of the FOI Act, so that the exclusion provision in s 33A(5) of the FOI Act does not apply in this application. The Tribunal finds that these documents, or parts of documents, are exempt from disclosure under s 33A(1)(b) of the FOI Act.
23. Section 37 of the FOI Act provides:
37 Documents affecting enforcement of law and protection of public safety
(1)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
…

(2)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(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
…

24. In respect of s 37(1)(a) of the FOI Act Mr Herman told the Tribunal that documents D1A, D1B, D1C, D1D, D1E, D24, D26, D28, D30, D31, D36, D38, D43, D44, D45, D46, D47, D49, SD5 and SD7, or parts of the documents, are exempt because the material consists of information that could, if disclosed, be reasonably expected to prejudice the conduct of an investigation of a breach, or possible breach, of the law. Mr Herman stated that the documents concern inquiries made by the AFP arising out of investigations into Mr Maksimovic’s activities which are not concluded. He said that disclosure of witness statements and other documents would seriously impair further investigations into these matters. He expanded on these matters in a confidential affidavit dated 4 March 2009 and in confidential evidence to the Tribunal.
25. To establish the exemption under s 37(1)(a) of the FOI Act it is necessary to show that disclosure would, or reasonably be expected to prejudice an investigation, which requires more than a mere risk or possibility, and includes a situation where a person would be able to ascertain the state of the investigator’s information and thereby avoid detection (News Corporation Ltd v National Companies and Securities Commission (1984) 1 AAR 511).
26. The Tribunal has inspected the exempt documents and accepts Mr Herman’s evidence that disclosure of the exempt material would seriously impair, if not make ineffective, future investigations into possible breaches of the law. Those investigations remain open. The Tribunal finds that these documents, or parts of documents, are exempt from disclosure under s 37(1)(a) of the FOI Act.
27. In respect of s 37(2)(b) of the FOI Act Mr Herman told the Tribunal that documents D1B, D1C, D1D, D1E, D12, D15, D18, D20, D23, D25, D26, D27, D28, D29, D30, D31, D32, D38, D43, D44, D49, SD2, SD4, SD5 and SD7 or parts of the documents, are exempt, based on his experience as an investigating officer with the AFP and his knowledge of particular matters contained in the documents. He said that disclosure would divulge lawful methods and procedures for investigating breaches of the criminal law commonly adopted by the AFP but not known generally by the public, and the effectiveness of those methods and procedures would be prejudiced. Mr Herman also stated that disclosure would enable others who were contemplating involvement in these activities to modify their plans or activities, which would make detection by the AFP significantly more difficult. He expanded on these matters in his confidential affidavit and in confidential evidence to the Tribunal.
28. Mr A Scott, Commander, Australian Federal Police, told the Tribunal in an affidavit dated 24 February 2009 that he is the manager of the Melbourne office of the AFP, and has had wide experience in operational and policy areas of the AFP since 1981, including service as the AFP Senior Liaison officer attached to the Australian Embassy in Rome, where he liaised at a high level with law enforcement agencies in Europe. He said that he dealt frequently with sensitive information passing between Australia and other countries involving the enforcement of the criminal law.
29. Mr Scott stated that documents D12, D23, D25, D26, D27, D28, D29 and D32 are affidavits prepared in support of requests for search warrants and describe the investigative process undertaken before the warrant is sought. He said that disclosure of this kind of information would reveal a common pattern to investigations that is not known generally and, if known, would assist persons involved in suspected criminal activity avoid detection by law enforcement authorities, and would prejudice the effectiveness of this investigative approach. He said that the ability to gather sufficient evidence to support an application for a search warrant would also be impaired if the contents of the affidavits were to be disclosed.
30. As with s 33(1)(a) of the FOI Act, the requirement in s 37(2)(b) of the FOI Act that disclosure would, or could reasonably be expected to disclose lawful methods or procedures requires more than a mere possibility (News Corporation). In Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 the Full Court of the Federal Court referred to could reasonably be expected to… and stated at 190:
In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information’’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like…

In Re Anderson and Australian Federal Police (1986) 11 ALD 355 the Tribunal held that 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.

31. The Tribunal has inspected the exempt documents and accepts Mr Herman’s evidence, including his confidential evidence, that the exempt documents include information from a number of avenues of inquiry undertaken by the AFP, and the information could be used by individuals to avoid detection and prejudice the effectiveness of the methods and procedures described in the documents. The Tribunal also accepts Mr Scott’s evidence that affidavits for warrants to search premises contain information regarding investigative activities of the AFP which are not known generally to the public, and that disclosure would prejudice the effectiveness of those measures. The Tribunal finds that these documents, or parts of documents, are exempt from disclosure under s 37(2)(b) of the FOI Act.
32. Section 40(1)(d) of the FOI Act provides:
40 Documents concerning certain operations of agencies
(1)Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency;
…

(2)This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

33. In respect of s 40(1)(d) of the FOI Act Mr Herman told the Tribunal that documents D1A, D1B, D1C, D1D, D1E, D2, D12, D15, D18, D20, D23, D25, D26, D27, D28, D29, D30, D31, D32, D36, D43, D44, D45, D46, D47, D49, SD1, SD2, SD3, SD4, SD5 and SD7, or parts of the documents, are exempt because they contain information that has been provided by Australian and foreign agencies, or is information collected by the AFP. He said that disclosure would have a substantial adverse effect on the proper and efficient conduct of criminal investigations by the AFP, which is the core function of the agency. Mr Herman stated that information is provided by other agencies on the understanding that it is treated confidentially for the purposes of the relevant investigation.
34.      Mr Herman explained that disclosure of the exempt material would impair the relationship of trust between the agencies and would hinder the timeliness of future investigations if a more formal means of obtaining the information was required. He also stated that some of the information is relevant to matters of concern to other agencies, and disclosure may prejudice those investigations and reduce the likelihood of future cooperation with the AFP. Mr Herman added that disclosure would reveal the kinds of investigations that are not known generally to the public, and would enable persons to modify their behaviour to avoid detection. He expanded on these matters in his confidential affidavit and in confidential evidence to the Tribunal.
35.      Mr Scott told the Tribunal that due to the scale and nature of some criminal activity the AFP collaborates and cooperates extensively with other law enforcement agencies in Australia and overseas in the investigation of crimes against the Commonwealth and the exchange of criminal intelligence. He said that this is critical to the ability of the AFP to detect and prevent criminal activity against the Commonwealth. Mr Scott emphasised that relations with other national and international law enforcement agencies would be seriously and permanently undermined if information contained in affidavits in support of applications for search warrants was released. This would significantly impede the ability of the AFP to carry out its core function of conducting investigations into Commonwealth offences, and would have a substantial adverse effect on the proper and efficient conduct of the AFP’s operations.
36.      In Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443 the Tribunal held that substantial adverse effect means an effect that is real or of substance and not insubstantial or nominal. In Re Wallace and Australian Federal Police (2004) 83 ALD 679 the Tribunal held that the exemption applied to information provided by the Thai police to the AFP on the understanding that the information would be kept confidential, and that disclosure would have a substantial adverse effect on the AFP by interfering with the close links between the AFP and the Thai police.
37.      Section 40 does not prevent the disclosure of information where the disclosure would be, on, balance, in the public interest. In Re McKinnon and Commissioner of Taxation (2001) 48 ATR 1114 the Tribunal noted at [84] that …satisfaction of the grounds in s 40(1) would ordinarily be enough, by itself, to make the grant of access prima facie contrary to the public interest.
38. The Tribunal has inspected the exempt documents and accepts Mr Herman’s evidence, including his confidential evidence, that disclosure of the exempt documents would impair the relationship of trust between the AFP and other law enforcement agencies and would have an adverse effect on the proper conduct of the AFP’s operations by prejudicing its ability to conduct proper and efficient criminal investigations. The Tribunal also accepts Mr Scott’s evidence that the AFP’s ability to carry out investigations would be impeded if the contents of affidavits in support of applications for search warrants were disclosed. This would have an adverse impact on the AFP’s core function and its operations. The Tribunal finds that these documents, or parts of documents, are exempt from disclosure under s 40(1)(d) of the FOI Act.
39. In respect of the public interest consideration the Tribunal takes into account the objects of the FOI Act that recognise the right to gain access to documents in the possession of government agencies; the public interest in the scrutiny of the respondents in their investigation and prosecution of criminal activity; and the public interest in enabling an individual to gain access to information relating to that person’s prosecution and conviction. On the other hand there is a public interest in preserving the respondents’ ability to carry out their functions of investigating and prosecuting criminal activity in order to protect the community from the effects of serious crime. On balance the Tribunal finds that the public interest in non-disclosure outweighs the public interest in disclosure because the protection of the community requires the respondents to be able to carry out their functions of investigating and prosecuting criminal activity, and release of the exempt material would hinder their ability to do so effectively. Therefore the Tribunal finds that the exclusion provision of s 40(2) of the FOI Act does not apply to the exempt documents.
40. Section 41(1) of the FOI Act provides:
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).

41. In respect of s 41(1) of the FOI Act Mr Herman told the Tribunal that documents D1A, D1B, D1C, D1D, D1E, D2, D4, D5, D6, D8, D11, D12, D15, D16, D17, D18, D20, D22, D24, D25, D26, D28, D29, D30, D31, D32, D33, D34, D35, D36, D37, D38, D39, D40, D41A, D41B, D42A, D43, D45, D46, D47, D48, D49, SD1, SD2, SD4, SD5 and SD7, or parts of the documents, are exempt because they contain information about individuals whose identity could be ascertained from the information; and information the disclosure of which would amount to unreasonable disclosure of personal information about the individuals.
42.      Mr Herman stated that witness statements contained in documents D1B to D1E and D24 contain personal information collected in confidence about individuals who are not parties to the proceedings before the Tribunal. He said that material contained in documents D18, D20, D45 and D47 relates to individuals who have come to the attention of police in the course of the investigation into Mr Maksimovic’s activities, and that disclosure to Mr Maksimovic would be an unreasonable intrusion into their privacy. Mr Herman noted that documents D1A, D2, D12, D22, D25, D26, D28, D29, D30, D31, D32, D36, D38, D46 and D49 identify individuals who are not a party to these proceedings or to Mr Maksimovic’s prosecution, and that disclosure of this personal information would be unreasonable. He stated that documents D5, D6 and D8 are a record of the activities of various Federal Agents who were involved in some part of investigations into Mr Maksimovic’s activities, and the exempt material refers to personal information of individuals who were identified in the course of investigations unrelated to Mr Maksimovic.
43.      Mr Herman further identified communications between himself, as the AFP case officer, and international law enforcement agencies, which contain personal information such as the name, date of birth and travel information about individuals identified in the course of the investigations into Mr Maksimovic’s activities, and personal mobile telephone numbers of Federal Agents involved in the investigations. He said that disclosure of this information would allow Mr Maksimovic and others, including those involved in criminal activity, to gain inappropriate and unreasonable access to Federal Agents. Similarly, Mr Herman stated that other documents contain the personal information about law enforcement officials who assisted the AFP with its investigations, and disclosure of this information would be unreasonable because the information was communicated in confidence and in the expectation that it would not be disclosed to Mr Maksimovic.   In addition he said that release of the information would deter members of the community from assisting law enforcement agencies with their investigations if protection of their personal information could not be guaranteed.
44.      The term personal information is defined in s 4 of the FOI Act as:
information or an opinion, (including information forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

45. In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 the Federal Court held that what is unreasonable disclosure of information for purposes of s 41(1) must have public interest considerations as its core. The public interest in disclosure is the general right of the public to have access to documents held by the Commonwealth and to participate in the Government’s decision-making process. The public interest against disclosure includes the individual’s right to privacy and the right to confidentiality of information about himself or herself held by the Commonwealth. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Tribunal stated at [51]:
Whether a 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 enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

46. The Tribunal has inspected the exempt documents and accepts Mr Herman’s evidence that information of a personal or private nature that is not relevant to these proceedings or affairs of government may well satisfy the curiosity of Mr Maksimovic or others, but in the circumstances its disclosure would be an unreasonable breach of personal privacy, regardless of whether that information relates to a Commonwealth employee acting in the course of his or her duties. Similarly, contact details of individuals such as the private mobile or other personal telephone numbers, constitute private personal information and disclosure would be unreasonable.
47. On the same basis the release of other personal information contained in documents referring to investigations into other persons, and documents containing private information about individuals other than Mr Maksimovic, such as dates of birth, the names of officers of a foreign government and employer information, would be unreasonable. The benefit to Mr Maksimovic of disclosure would be outweighed by the potential effect of disclosure on the individuals concerned and law enforcement processes more generally. The Tribunal finds that these documents, or parts of documents, are exempt from disclosure under s 41(1) of the FOI Act.
48. Section 42 of the FOI Act provides:
42 Documents subject to legal professional privilege
(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2)A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).

49. Mr Herman told the Tribunal that documents D1A, D21, D36 and SD6 are letters written by him to the DPP, and documents SD2, SD4, SD5 are emails which represent confidential communication between himself and the CDPP for the dominant purpose of seeking legal advice from the CDPP and in contemplation of possible legal proceedings. He said that there is a solicitor/client relationship between the CDPP and the AFP in relation to the provision of advice concerning prosecutions and possible prosecutions, and that advice is generally sought by the AFP and obtained from the CDPP on a confidential basis. Mr Herman stated that any privilege had not been waived.
50. In Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 the High Court of Australia held that legal professional privilege applies to a confidential communication between lawyer and client made or created for the dominant purpose of the lawyer providing legal advice, or for the dominant purpose of use in existing or anticipated litigation. The Tribunal has inspected the exempt documents and accepts Mr Herman’s evidence that the CDPP is the AFP’s legal adviser and that, from the face of the documents, the advice was sought or provided by the CDPP as legal advice for the dominant purpose of litigation. The Tribunal concludes that the documents are subject to legal professional privilege that has not been waived by the AFP as the client of the CDPP. The Tribunal finds that these documents, or parts of documents, are exempt from disclosure under s 42(1) of the FOI Act.
ADEQUACY OF SEARCHES
51. Section 24A of the FOI Act provides:
24A Requests may be refused if documents cannot be found or do not exist
An agency or Minister may refuse a request for access to a document if:
(a)all reasonable steps have been taken to find the document; and
(b)the agency or Minister is satisfied that the document:
(i)is in the agency’s or Minister’s possession but cannot be found; or
(ii)does not exist.

52. Mr Maksimovic told the Tribunal that the respondents had not included all relevant documents in the schedule of exempt documents and that the searches had been inadequate. In an affidavit dated 4 March 2009 Mr D Bahlen, Principal Legal Officer, CDPP, stated that he is the FOI officer in the Melbourne office of the CDPP. He told the Tribunal that he was not the FOI officer at the time most of the FOI requests the subject of these proceedings were dealt with, but has reviewed the available material relating to the searches undertaken in response to the requests. Mr Bahlen said that he personally arranged, supervised and participated in fresh searches for documents that may fall within the scope of Mr Maksimovic’s requests under the FOI Act.
53. Mr Bahlen described the CDPP’s records management system and the procedure for searching for documents in response to an FOI request. He said that, as a result of discussions with relevant officers of the CDPP and searches of electronic and hard copy files carried out under his direction and supervision, further documents were identified and have been included in the responses to Mr Maksimovic. Mr Bahlen stated that he was satisfied that the CDPP has taken all reasonable steps to locate documents requested by Mr Maksimovic and holds no additional documents within its possession or control that come within the scope of the requests.
54. The Tribunal accepts Mr Bahlen’s evidence and finds that the CDPP took all reasonable steps to identify and locate documents relevant to Mr Maksimovic’s requests under the FOI Act. These include discussions with officers involved in the prosecution of Mr Maksimovic. The Tribunal also finds that under Mr Bahlen’s supervision further searches were made and that the documents identified during the searches constitute all relevant documents for the purpose of the requests under the FOI Act. The Tribunal is satisfied that any further documents claimed by Mr Maksimovic to be relevant either do not exist or cannot be found.
DECISION
55. The Tribunal varies the decisions under review in that documents or parts of documents released to Mr Maksimovic by the respondents during the proceedings are not exempt under the Freedom of Information Act 1982. In all other respects the Tribunal affirms the decisions under review.
I certify that the fifty-five [55] preceding paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior Member
(sgd) Mara Putnis
Associate

Date of hearing:  2, 3 and 4 September 2009
Date of decision:  11 September 2009
Advocate for the applicant:          Self-represented
Advocates for the respondents:     Ms E Arduca and Ms L McConnell
Solicitor for the respondents:        Australian Government Solicitor