Dezfouli and Australian Federal Police (Freedom of information)
[2019] AATA 4079
•4 October 2019
Dezfouli and Australian Federal Police (Freedom of information) [2019] AATA 4079 (4 October 2019)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2018/5167
Re:Saeed Dezfouli
APPLICANT
Australian Federal PoliceAnd
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:4 October 2019
Place:Sydney
For the reasons contained in both this decision and its Annexure A, the reviewable decision made by the Respondent on 8 May 2018 in relation to the Applicant’s request for information made under the Freedom of Information Act 1982 (Cth) is affirmed.
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The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – access – where documents were produced to Applicant either in full or with exemptions – whether the Respondent took all reasonable steps to find documents within the scope of the access request – whether information contained in identified documents fall under exemptions in FOI Act – public interest considerations – decision affirmed
LEGISLATION
Freedom of Information Act 1982 (Cth) – ss 7, 24A, 33, 37, 42, 47B, 47E, 47F, 54W, 55G, 57A, 93A
CASES
Saeed Dezfouli v NSW Police Force [2018] NSWCATAD 264
Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD11
SECONDARY MATERIALS
FOI Guidelines
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
4 October 2019
This is an application by Mr Saeed Dezfouli (‘the Applicant’) who is seeking review of a decision by the Australian Federal Police (‘AFP’) dated 8 May 2019 to refuse to provide the Applicant access to certain information held by them. The Applicant initially sought review by the Information Commissioner, who subsequently decided not to continue to undertake their review pursuant to s 54W(b) of the Freedom of Information Act 1982 (Cth) (‘the Act’).
Accordingly, the application to the Tribunal for review of the AFP’s decision is made pursuant to section 57A(1)(b) of the Act.
BACKGROUND
On 29 August 2016, the Applicant made a Freedom of Information (‘FOI’) request to the AFP. In his application for access to documents he requested:
all documents that relate to, or form part of, any investigation gathering, surveillance, or any other function of the AFP in which I, Saeed Dezfouli, (DOB: XX.XX.1958) am named.
On 23 December 2016, the AFP made a decision relating to 31 documents which were initially identified. Eight of these documents were released to the Applicant in full and the remaining 23 documents were released with redactions.
On 18 January 2017, the Applicant made a request to the AFP for an internal review of that decision. An internal review decision was made on 20 January 2017 affirming the original decision.
On 31 January 2017, the Applicant made an application seeking review of the internal review decision by the Information Commissioner.
During the course of the Information Commissioner’s review, the AFP made three variation decisions under section 55G of the Act which varied the original decision to include additional documents that had been identified. This ultimately resulted in a decision relating to 137 documents in total, with 40 documents released in full, 68 documents released in part and two documents refused in full.
On 28 August 2018, the Information Commissioner finalised its review under section 54W(b) of the Act, which allowed the Applicant to seek review by the Tribunal.
ISSUES
There are two issues for determination for the Tribunal.
The first (public) issue for determination is whether the AFP has taken all reasonable steps to find documents falling within the scope of the Applicant’s access application in accordance with section 24A of the Act.
The Applicant contends that there are additional documents held by the AFP which have not been identified, namely:
(a)documents mentioned in a list of material (identified as folios 3 and 4) that was contained in the documents released to the Applicant,;
(b)faxes from 2006 that the Applicant believes should have been identified as falling within the scope of his FOI request; and
(c)records relating to the United States Central Intelligence Agency (‘CIA’).
The second issue is in relation to the Applicant’s objection to the release of material which the AFP contends is confidential on the basis of falling under the following exemptions contained in the Act:
·Section 7(2A) – agencies exempt from the operation of the Act
·Section 33 – documents affecting national security, defence of international relations
·Section 37(2)(b) – documents disclosing lawful method of investigation
·Section 42(1) – documents subject to legal professional privilege
·Section 47B(a) – documents that could cause damage to relations between the Commonwealth and a State
·Section 47E(d) – documents that could have a substantial adverse effect on the proper and efficient conduct of the operations of an agency
·Section 47F – documents affecting personal privacy
Due to the confidential nature of the documents and the information contained within them, the reasons for this aspect of this decision will be contained in a confidential annexure to this decision which will be provided only to the Respondent and will not be publicly disclosed.
The Applicant was aware of the confidential part of these proceedings which was explained to him at the hearing. The hearing opened as a public session, reconvened in confidential session at the conclusion of the hearing on the public material, and convened again in public session for concluding submissions to be made.
ISSUE 1 – HAS THE AFP TAKEN ALL REASONABLE STEPS TO FIND DOCUMENTS IN ACCORDANCE WITH SECTION 24A OF THE ACT?
Section 24A(1) of the Act states as follows:
Document lost or non-existent
(1) 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.
The Act does not define what is meant by ‘reasonable steps’ for the purposes of section 24A. However, the Information Commissioner has published guidelines under section 93A of the Act (‘FOI Guidelines’). The FOI Guidelines provide as follows:
3.88 The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.
3.89 Agencies and ministers should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment or the minister’s office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:
• the subject matter of the documents
• the current and past file management systems and the practice of destruction or removal of documents
• the record management systems in place
• the individuals within an agency or minister’s office who may be able to assist with the location of documents, and
• the age of the documents.
The Respondent relied upon an affidavit of Ms Helen Drew dated 21 March 2019 in relation to the searches undertaken. Ms Drew’s affidavit states that she is the Freedom of Information Coordinator for the Australian Federal Police and that she has held this role for one year and four months. In paragraph 4 of her affidavit Ms Drew lists the searches which have been undertaken in relation to the Applicant’s request, namely:
(a)a "person" search of the AFP's investigation case management system PROMIS for records relating to "Saeed Dezfouli"
(b)a "text" search of the AFP's investigation case management system PROMIS for records relating to "Dezfouli"
(c)a search of AFP email records containing the name "Saeed Dezfouli" either in the subject heading or message for the period 1/1/2001 to 30/7/2016.
(d)a search of the AFP's National Police Reference System (NPRS) record relating to "Saeed Dezfouli"
(e)a search of the AFP Legal shared drive and advice database for "Dezfouli"
(f)a search of records held by the AFP's Professional Standards unit (PRS), and
(g)a search of records held by the AFP Operations Coordination Centre (AOCC)
5I also relied on previous searches of records held by the relevant lines areas within the AFP, being:
(i) Intelligence
(ii) International Operations, and
(iii) Protection
Ms Drew goes on to say that on the basis of her experience she considers these to be reasonable searches. Ms Drew goes on to detail the searches relevant to the categories of documents of concern to the Applicant.
In relation to the documents referred to in the list of documents released to the Applicant, Ms Drew says that:
I am satisfied, to the best of my knowledge information and belief, that there are no further documents to be released from the list of material at folios 3 and 4’.
In relation to the 2006 faxes, Ms Drew outlines the steps which have been taken and states in paragraph 21 of her affidavit that:
I am satisfied, to the best of my knowledge, information and belief that the original faxes from 2006:
(a)cannot be found, if they are in the AFP’s possession, or
(b)no longer exist.
Ms Drew goes on to deal with these searches undertaken in relation to the Applicant’s request for documents relating to the CIA and at paragraph 24 of her affidavit states as follows:
I am satisfied, to the best of my knowledge, information and belief, that the AFP does not hold any documents relating to the CIA falling within the scope of Mr Dezfouli’s FOI request.
In relation to diary entries that the Applicant has contended should exist in relation to communications between a member of the AFP and NSW Justice Health, Ms Drew identified one diary note which was annexed to her affidavit, with redactions. Ms Drew outlines the steps which had been taken and also the difficulties of accessing further information. In paragraph 28 of her affidavit Ms Drew says that she considers it ‘is impracticable for the AFP to conduct searches of diary notes of all AFP members referred to in the documents’.
The question of reasonableness needs to be looked at within the particular circumstances of this case. Reasonable for these purposes means appropriate, involving effort, and thorough. It should not be excessive or exhaustive, inordinately expensive or should not impose an unreasonable or extraordinary burden on the agency. In other words the section is not looking for perfection but rather what would normally be considered an appropriate or reasonable effort in all of the circumstances. In this case, that would in my opinion include the particular circumstances of the Applicant and any disadvantage he may suffer as a result of his circumstances.
Ms Drew’s affidavit makes it clear that the agency undertook a considerable effort in looking for the documents requested by the Applicant. I accept her evidence in that regard. I note that there was considerable discussion at the hearing in relation to the adequacy of the search and in particular documents that were said not to be in the possession of the agency.
I also accept her evidence that the faxes from 2006 either cannot be found or no longer exist (paragraphs 16 to 18 of Ms Drew’s affidavit).
In relation to documents relating to the CIA, I accept that the Respondent does not hold any documents which fall within the scope of the FOI request. I note that the Applicant was advised that this was also the case in relation to the confidential documents that have been redacted either in part or in full.
On the basis of Ms Drew’s affidavit and the evidence presented at the hearing, I am satisfied that the Respondent took all reasonable steps to respond to the Applicant’s FOI request. Considerable efforts were made to track down documents and I note that following the original decision on 20 December 2016 there were further internal reviews and additional material was made available to the Applicant.
It is difficult to see what further steps could have been taken by the AFP that would fall within the scope of ‘reasonable searches’.
ISSUE 2 – DO EXEMPTIONS AND/OR CONDITIONAL EXEMPTIONS APPLY TO CERTAIN IDENTIFIED DOCUMENTS OR PARTS OF THOSE DOCUMENTS THAT WOULD EXEMPT THEM FROM THE OPERATION OF THE FOI ACT?
The reasons for decision relating to this issue are contained in a confidential annexure to this decision. Following my consideration of the evidence provided by the Respondent, I am satisfied that the reviewable decision should be affirmed.
DECISION
For the reasons contained in both this decision and its Annexure A, the reviewable decision made by the Respondent on 8 May 2018 in relation to the Applicant’s request for information made under the Freedom of Information Act 1982 (Cth) is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
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Associate
Dated: 4 October 2019
Date of hearing: 1 August 2019 Applicant: In person Advocate for the Respondent: Ms C Tipene Solicitors for the Respondent: Sparke Helmore Lawyers
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