Doulman and Chief Executive Officer of Customs

[2003] AATA 883

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 883

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No A2002/282

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID JOHN DOULMAN

Applicant

And CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date8 September 2003

PlaceCanberra

Decision The tribunal affirmed the respondent’s decision in all respects except that the tribunal varied the decision in relation to document 1 to restore two words deleted by the respondent.

...............................................

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – whether documents exempt from disclosure – whether documents exempt because disclosure could reasonably be expected to prejudice an ongoing investigation of a possible breach of law – whether documents exempt because disclosure could reasonably be expected to disclose the existence or non-existence of a confidential source of information in relation to the enforcement or administration of the law – whether documents exempt because disclosure could reasonably be expected to disclose lawful methods for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law where that disclosure would be reasonably likely to prejudice the effectiveness of those methods – whether deletions of material justified on basis that the deleted material related to persons other than the applicant

Administrative Appeals Tribunal Act 1975 s 26

Freedom of Information Act 1982 ss 22(1), (2)(a), 37(1)(a), (b), (2)(b), 41(1)

Anderson and Australian Federal Police, Re (1986) 11 ALD 355

Dale and Australian Federal Police, Re (1997) 47 ALD 417

Department of Health v Jephcott (1985) 8 FCR 85

Mickelberg and Australian Federal Police, Re (1984) 6 ALN N176

News Corporation and National Companies and Securities Commission, Re The (1984) 1 AAR 511

News Corporation v National Companies and Securities Commission (1984) 5 FCR 88

Russo and Australian Securities Commission, Re (1992) 28 ALD 354

Sinclair and Department of Social Security, Re (1985) 9 ALN N127

OPEN REASONS FOR DECISION

9 September 2003 Mr M J Sassella, Senior Member

APPLICATION

1.       On 15 July 2002 David John Doulman (“the applicant”), born 5 December 1950 (T1/5), applied to the Administrative Appeals Tribunal (“the tribunal”) for review of a decision by an officer in the Customs Service who was authorised by the Chief Executive Officer of Customs (“the respondent”, “Customs”) to conduct reviews of primary decisions on freedom of information (“FOI”) requests.  The decision under review was made by the authorised officer on 2 July 2002 (T15).  The authorised officer decided to allow the applicant access to certain documents additional to those to which he was accorded access under the primary decision dated 3 May 2002 (T6) supplemented by an additional decision on 14 May 2002 (T10).

HEARING

2.       The tribunal convened a hearing in this matter in Canberra on 25 March 2003.  Christopher Erskine of counsel appeared for the applicant.  Roger Northcote of the Australian Government Solicitor’s office represented the respondent.  Mr P C Naylor gave evidence at the hearing.  The tribunal had before it the following documents which were marked as exhibits:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T15) provided by the respondent.

Exhibit A1 – Affidavit of David John Doulman, 24 March 2003.

*Exhibit R1 – Affidavit of Peter Charles Naylor, 21 March 2003.

*Exhibit R2 – Affidavit of Bradley Ross Nicholls, 21 March 2003.

#Exhibit R3 – Affidavit of X, 21 March 2003.

Exhibit R4 – Affidavit of Peter Charles Naylor, 18 March 2003.

Exhibit R5 – Letter dated 18 March 2003 from Ms V Guthrie, Australian Government Solicitor’s office, to the Deputy Registrar of the tribunal.

Exhibit R6 – Respondent’s statement of facts and contentions, 18 March 2003.

*Exhibit R7 – Copies of disputed documents.

Exhibit R8 – Copies of documents as provided to applicant.

*Exhibit AH1 – Respondent’s additional confidential submissions, 28 March 2003.

Exhibit AH1 consisted of additional confidential submissions made by the respondent at the tribunal’s request and provided after the close of the hearing. 

3.       Documents marked “*” are subject to the following confidentiality order:

In accordance with s 35(2)(b) of the Administrative Appeals Tribunal Act 1975 the tribunal directs that the matters contained in documents lodged with and received into evidence by the tribunal, being those documents labelled exhibits R1, R2, R7 and AH1, are not to be published to any person save and except for the tribunal member presiding, any officer of the tribunal in the performance of his or her duties, the respondent and the respondent’s representatives.

4.       The document marked “#” is subject to the following confidentiality order:

In accordance with s 35(2)(aa) and (b) of the Administrative Appeals Tribunal Act 1975 the tribunal directs that the name, qualifications and address of the deponent and the matters contained in that document lodged with and received into evidence by the tribunal, being documents labelled exhibit R3 are not to be published to any person save and except for the tribunal member presiding, any officer of the tribunal in the performance of his or her duties, the respondent and the respondent’s representatives.

5.       The tribunal, with the consent of the applicant, conducted part of the hearing with the applicant and Mr Erskine absent from the room.  This was to permit the tribunal to question the respondent’s representatives regarding the foundations of some of the claimed exemptions without risk of disclosing information to the applicant that might later be found better not disclosed.  Additional reasons for decision have been prepared for provision only to the respondent.  These address issues raised in closed session.

REQUEST

6.       On 19 March 2002 Dr Doulman wrote (T3) to the FOI co-ordinator in Customs requesting:

“… a copy of all information including files, file notes, reports, telephone conversations, formal and informal correspondence, minutes, emails, faxes etc. concerning me that is being held in electronic databases and/or in hard copy in the Australian Customs service.”

7. The request was acknowledged on 25 March 2002 (T4). On 3 May 2002 the Director Operations Policy responded (T6) stating that some 18 documents had been located. Of these access in full was to be provided to six documents. Access was denied completely to one document, titled “customs form”.. Access was permitted, with deletions, to 11 documents. The reasons for refusing access were based on exemptions in s 37(1)(a) and 37(2)(b) of the Freedom of Information Act 1982 (“the FOI Act”)[1] and, in effect, s 41 of the FOI Act. These provisions are as follows:

[1] affecting enforcement of law and protection of public safety

37. (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;

(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a source of information, in relation to the enforcement or administration of the law;

(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

…

Documents affecting personal privacy

41. (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).

…

8. The Act in s 22 authorises access with deletions as occurred here in relation to a number of documents:

Deletion of exempt matter or irrelevant material

22. (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.

(2) Where access is granted to a copy of a document in accordance with subsection (1):

(a) the applicant must be informed:

(i) that it is such a copy; and

(ii) of the ground for the deletions; and

(iii) if any matter deleted is exempt matter because of a provision of this Act - that the matter deleted is exempt matter because of that provision; and

…

9. The tribunal noted that several of the documents, described as “extract from officer’s notebook”, were released with deletions. The deletions in all but one aspect related to material relating to other individuals which was deleted in accordance with s 22 of the FOI Act. Such action was justified under s 41 of the FOI Act in the view of the tribunal in that Dr Doulman had no need to know the business of those third parties and could be fully apprised of material relevant to himself despite those deletions. The respondent had deleted the material as irrelevant to the applicant’s FOI request. As will be seen below, the applicant was prepared to accept these deletions.

10. On 6 and 10 May 2002 Dr Doulman sent emails to Customs regarding documents apparently omitted from the list of documents attached to the original decision and seeking “a statement from the relevant decision maker that [Customs] is not holding any further documents, in any format … concerning me” (T7, T9). On 14 May 2002 the original decision maker responded (T10) stating that further searches had resulted in the locating of additional documents. Six additional documents were found. Three were released in full. Three were released with deletions based on exemptions in s 37(1)(a) and 37(2)(b) of the FOI Act. On 21 May 2002 the original decision maker wrote to the applicant stating that to the best of his knowledge and belief Customs did not hold any documents or information relating to Dr Doulman in any format other than as already specified in T6 and T10.

11.     On 27 May 2002 Dr Doulman sought internal review of the original decision (T13).  On 2 July 2002 the internal review decision was issued, the reviewable decision in this tribunal application.  The decision maker had located three more relevant documents which were released in full.  Apart from that the reviewable decision effectively affirmed the primary decision.  By the time the matter reached the tribunal there were 15 disputed documents.  14 of these were released with deletions.  One was withheld in full. 

APPLICANT’S EVIDENCE

12.     In an affidavit dated 24 March 2003 (ex A1) the applicant traversed a number of matters.  However, a considerable part of that document relates to a difficult relationship between the applicant and his brother, originally Paul but now Julia Doulman.  In March 2001 the two had a meeting which ended rancorously.  The applicant’s brother accused him of sexual misconduct and similar accusations appeared to have been made by the brother to third parties.  By early 2002 word of this had reached the applicant.  The applicant’s work requires him to travel overseas from Australia on frequent occasions.  The applicant wrote that prior to 22 February 2002 he had been subjected to customs searches on some occasions, “perhaps one every couple of years”..  They took about 10 minutes and involved baggage searches.  Nothing had been found in these searches.

13.     From 22 February 2002 the customs searches had become far more common and extensive.  Dr Doulman’s purpose in making his FOI request had been to ascertain why he was being searched.  He was dissatisfied that the documents given to him did not assist in answering that question.  Dr Doulman did not give oral evidence and the respondent did not query ex A1 in any way.

evidence from mr P C naylor

14.     The applicant had sought to question Mr P C Naylor who provided the affidavits in ex R1 and R4.  Mr Erskine had access only to ex R4.  Mr Naylor had been decision maker for the reviewable decision.  In ex R4 Mr Naylor presented a chronology.  The new material included information that he had decided on 22 October 2002 to release the document originally withheld in full (see paragraph 7 above) but with deletions.  He had done this with the consent of the tribunal under s 26 of the Administrative Appeals Tribunal Act 1975[2].  In the affidavit he addressed each of the 15 disputed documents and explained the bases for the exemptions claimed. 

[2] examination Mr Naylor said that he understood that an investigation was still in progress even though his work was no longer in the Customs Investigations Branch.  He is now in Information Management.  He had spoken with a third person to ascertain the situation regarding any ongoing investigation. 

16.     Mr Naylor said that at the time he made the reviewable decision he considered that the applicant would want to know why he was being searched repeatedly.

17.     Mr Erskine cross-examined Mr Naylor regarding his state of knowledge regarding the status of any investigation affecting Dr Doulman at the time of the hearing.  Mr Naylor advised that he had consulted a person, actually an officer of another agency of the Australian Government, and ascertained that an investigation was still in train.  Asked whether he was aware whether the investigation had ceased in respect of some aspects Mr Naylor said he had no knowledge regarding that. 

18. Mr Erskine asked Mr Naylor about s 37(1)(a) of the FOI Act and its applicability in Dr Doulman’s case. That provision relates to prejudice to the conduct of an investigation that could reasonably be expected to follow from disclosure of a document. He summarised the applicant’s case as:

“…prejudice to an ongoing investigation substantially happened when Dr Doulman was searched because, just as the police do not interrogate somebody unless they are investigating them, so Customs, in given the number of searches that Dr Doulman had, had to have been investigating him in order to have explained the search as it went on.  So, that to that extent there has already been a disclosure of the fact of an investigation to him by the fact of the searches.”

Mr Naylor could not recall whether he considered that Dr Doulman probably knew that he was under investigation because of the repeated searches.  He thought it reasonable that an average member of the public subjected to repeated searches could conclude that Customs must be looking at him or her for something.  However, he did not accept that the member of the public would necessarily conclude that an investigation was occurring.  He said that many people are searched for many reasons, some of those reasons not related to investigations at all.  Mr Naylor said also that he took account of the potential for Dr Doulman to modify his behaviour or destroy evidence if he became aware he was under investigation. 

19.     Mr Erskine ascertained that Mr Naylor had become aware on only the morning of the hearing that Dr Doulman had twice passed through customs on recent occasions without being searched.  Mr Erskine suggested that any investigation was beyond prejudice because Customs had lost interest in Dr Doulman.  In response none of the respondent, Mr Naylor or the tribunal thought that that necessarily followed.  It was conceivable that, while Customs had decided to cease bag searches, Customs’ investigation had assumed other dimensions.

20.     Mr Naylor co-operated in discussing the material in his affidavit relating to the applicable exemptions for each document.  The tribunal will refer to that material below.

RESPONDENT’S CASE

21.     Mr Northcote’s submissions were as follows. 

s 37(1)(a)

22. In relation to s 37(1)(a) of the FOI Act he noted that the prejudice is to be to the conduct, not the outcome, of an investigation if access is granted to information.  He cited Re The News Corporation and National Companies and Securities Commission (1984) 1 AAR 511 (tribunal level decision) and News Corporation v National Companies and Securities Commission (1984) 5 FCR 88 (Federal Court decision) as authority for the proposition that the relevant prejudice has often been described as impairment of an investigation because of the premature disclosure of the subject matter, details and state of knowledge of the investigators..

23.     In the News Corporation case (at tribunal level) (above) the respondent argued that, if any of the documents under review were disclosed to the applicants, even one of those documents might enable the applicants, or one of them, to take action whereby the respondent's attempt to ascertain whether a contravention of statutory provisions had occurred, or its attempt to ascertain the true circumstances of any such contravention, would be defeated or made more difficult to attain.  This could happen because of disclosure that a particular document was not in the respondent's files, or that a particular document had a particular date, or was received by a particular person.  It was said that if the documents of the type in question were released to a person under investigation that person would be in a position to mislead or divert the investigation either by fabricating defences, setting false trails or seeking to influence witnesses.  At pages 519 -- 520 the tribunal said:

"No doubt one of the principal objects of investigation of possible breach of the law is the discovery of what in fact happened, so that a lawyer may determine whether such a breach occurred, and so that all concerned may know in what circumstances any breach occurred.  But it is to the conduct of the investigation that s 37(1)(a) is addressed, not in terms to the ultimate outcome. The word 'conduct' in that paragraph is used, the Tribunal considers, primarily in the sense of management or handling. It is to the impairment or injurious affecting of the management or handling of the investigation that the words 'prejudice the conduct' refer, at least in their primary sense. If disclosure of the document to a person before he is questioned in the course of an investigation will deprive the investigator of the opportunity to exploit the prospect that the person's answers to the investigator's questions will better serve the attainment of the object of the investigation if the answers are given before disclosure of the document to him, that premature disclosure will affect injuriously the handling or management of the investigation. And that will be so even if it somehow appears later that the person to whom disclosure is made would have given the same entirely truthful and accurate answers whether or not the document was prematurely disclosed to him. The prejudice lies in the circumstances that he who is to conduct the investigation has been deprived of one of the means whereby he would have handled or manage the investigation to attain its object."

24.     In the full Federal Court decision in the News Corporation case (above) at pages 101 – 102 Woodward J (in the majority) said:

"... I think that the words 'would, or could reasonably be expected to ... prejudice' mean more than 'would or might prejudice'.  A reasonable expectation of an event requires more than the possibility, risk or chance of the event occurring.  On the other hand, if the legislature had required a probability of prejudice it could easily have said so.  In my view it is reasonable to expect an event to occur if there is about an even chance of its happening and, without attempting to suggest words alternative to those chosen by the draftsman, it is in that general sense that the phrase should be read. 

…

“The AAT held that it was sufficient to show prejudice to the conduct, in the sense of the carrying on, of an investigation; it was not necessary to show that the outcome of the investigation would be prejudiced.  On this basis it found that the conduct of the investigation would be prejudiced if the investigator were deprived of one of his techniques of inquiry -- in effect the putting of questions to persons who are not thoroughly prepared for them...."

25.     Later, at page 105 Woodward J commented:

"At this stage, the applicants are seeking, in effect, to 'look over the shoulder' of the respondent as it conducts its inquiry.  If it decides to take no action, this will prove to have been a waste of time.  If it decides to take action, the only purpose which the applicants can hope to have achieved by their present application will be to get advance warning of the actual evidence which is available to the respondent and may ultimately be used against them.  They would then be in a position, should they choose to do so, to tailor their response to questions and, if need be, their defence to an action, in order to suit that evidence."

26. Mr Erskine submitted that Mr Northcote’s submissions in paragraph 22 above, that the relevant prejudice is impairment of investigation flowing from premature disclosure of subject matter, details and state of investigators’ knowledge, did not reflect the law. The FOI Act, relevantly, refers only to a disclosure that is exempt because it could reasonably be expected to prejudice the conduct of an investigation. Mr Erskine’s point was that there is no principle of statute or common law to the effect that premature disclosure will always prejudice the conduct of an investigation. The tribunal understood Mr Erskine to be saying that the context of a particular disclosure might legitimise a disclosure. This may be correct, but the tribunal could not help but note the definite nature of the views of the above authorities where an investigation is involved. In addition, the very description of a disclosure as “premature” would seem to imply some problem with that disclosure.

27.     Mr Erskine was critical of the respondent and of Mr Naylor in expressing reasons for non-disclosure with what might be termed an unnecessary economy of language.  Mr Erskine said:

“Now, what was disclosed, in the present case, fell short of what has been disclosed in previous cases in circumstances where, in our submission, more should have been revealed.  And a good example of that came in the cross-examination this afternoon of Mr Naylor, when he was asked by me whether a particular reason existed and he expounded upon that.  He gave the sort of reason that should have been given, in open affidavit and in open session, that example was, of course, that Dr Doulman, if he had known about the nature of the investigation could, for example, have removed items from his baggage in future or taken steps to avoid being detected at the barrier in the same, or whatever it may be.  What we then have is a reason - a reason why, in this particular case, the respondent says, ‘37(1)(a) would be attracted because that would prejudice the conduct of the investigation.’

“Now, it is our submission that given that answer, that Mr Naylor gave, there must have been a great deal more of that type of evidence that could have been given in this case.  And it would be our submission that the Tribunal should set out some principles to guide respondents in future cases to ensure that the maximum possible is set out in open affidavit, as has been the case in the past in this jurisdiction, and so that what is put in camera is genuinely in camera.” 

28. There is something in this, although the tribunal does not think there are any general principles regarding these affidavits that can be mandated. The principle, consistent with the intention of Parliament behind the FOI Act, is that the respondent should say as much as is at all possible in explaining the reasons for non-disclosure.

29.     Mr Erskine presented two hypotheses to suggest that there was no reasonable expectation that any investigation would be prejudiced by disclosure of documents relating to the nature of the investigation.  The first hypothesis was that Dr Doulman was in fact a “malefactor”..  He would know he had done something wrong, say for example, drug smuggling or paedophilia.  The tribunal emphasises that this is for the purposes of argument only – it is not suggested that Dr Doulman is guilty of either of these offences.  He knows he has been searched by Customs on various occasions.  “[He] knows that there is an investigation going on.  There is a serious risk that he does … because of the fact of being searched.”  He has a “pretty good idea of what they are after”.  He is likely to change his behaviour as a result, for example by refraining from bringing through customs incriminating material although he may have done so previously.  He knows that the automatic searches have stopped.  At least in as much as Customs thinks it might get something useful by searching him, this part of any investigation has ceased, at least for now.  “One then asks rhetorically what is the prejudice if we reveal more information about the investigation against that background and we would submit that it is difficult to see what it could be.  Because if the prejudice is that he knows what is being investigated, well, at the moment the law enforcement authorities have to assume that he is well aware of what is being investigated because he is the malefactor. … So, in terms of prejudice to disclose the nature of the investigation at the very least, … , it could not prejudice the conduct of the investigation because the law enforcement authorities concerned in this case would have to be working on the assumption that he already knows the nature of the investigation.  So, we ask rhetorically how can it prejudice it, not whether it relates to it, but how can it prejudice it.

30.     The second hypothesis is that Dr Doulman is just someone caught up in something, an innocent person involved in another’s malefaction.  The example was Dr Doulman being set up without his knowledge to carry state secrets in microfilm in his United Nations literature.  He knows he has been searched.  The actual malefactor probably knows that Australian Customs has taken an interest in Dr Doulman.  The malefactor knows the nature of the investigation because he or she knows what wrongdoing has been done.  “They might not know the detail, they might not know every scrap of information that the authorities have collected, but in terms of the nature of the investigation, that is, what it is about, … the prejudice has already happened by the fact [of] being searched against those backgrounds.  And … given what has been not disclosed in the present case, which has been always referred to as the nature of the investigation - not the extent of it but the nature of it - … there is no longer a prejudice.” 

31.     Mr Erskine also queried the value of protecting any investigation into what might be termed “silly” allegations. 

“In 37(1)(a) the focus is upon prejudice and the focus is therefore upon some kind of analysis of the conduct of the investigation because one has to know something about the conduct of the investigation in order to conclude that there has been a reasonable likelihood of prejudice to it - a reasonable expectation, sorry, of prejudice.  Now, if the investigation is into allegations that are - and the word I used was ‘silly’ earlier on - that show there are allegations that clearly, on their face, would be made out of malice with very little credibility to them because of the nature of the source, it is hard to see how an investigation of such allegations could be prejudiced if they were revealed because the investigation itself was going to come to the same conclusion.

“My friend has drawn attention and, with respect, properly so, to the fact that the words used in 37(1)(a) are the conduct of an investigation.  But we would submit that the outcome of the investigation cannot be so readily divorced from the conduct of it because if the outcome of the investigation is, in all probability, going to be that the allegations as everybody suspected them at the outset were silly, then it is not going to prejudice anything to reveal the fact that you are investigating them.  And we would there say, in those circumstances, you are entitled to take into account the evidence that Dr Doulman has given in his affidavit about the discussions that occurred inside the family in relation to Julia.”

32.     Mr Erskine cited no authority for these propositions.  However, the tribunal doubts that they have any force.  They appear inconsistent with the position taken by the courts in cases relating to s 37(1)(b) (see paragraphs 37 and 38 below).  The exemption in s 37(1)(b) applies even if the potential informant is untruthful, malicious, revengeful, self-interested or demented and if the information is old, out of date or wrong.  Although those cases relate to protection of a confidential source, it is difficult to see how or why similar principles should not apply to prevent prejudice to the investigation of a breach, or possible breach of a law.  In any event, even if Mr Erskine is correct in principle, there was no convincing evidence here that any investigation was into “silly” allegations.

s 37(1)(b)

33.     Although the respondent’s decision makers had not referred to s 37(1)(b) as a basis for refusal of access, this provision was relied on the tribunal hearing.  The question of a possible informant was raised by the applicant himself in ex A1.  Mr Northcote cited several relevant authorities on s 37(1)(b) to the tribunal.  The first was Department of Health v Jephcott (1985) 8 FCR 85. Forster J in this full Federal Court decision said at page 89 that a “confidential source” exists where information was provided “under an express or implied pledge of confidentiality”.

34.     The court was dealing with a document that might or might not have existed, the respondent being keen to prevent the applicant from ascertaining whether it did exist.  In such a circumstance it was seen as difficult to ascertain whether the information was provided under an express or implied undertaking of confidentiality.  To say yes or no to this would indicate that such information had been provided. 

35.     The context in Jephcott (above) was the applicant’s suspicion that her sister had sent the respondent a letter denouncing the applicant’s care for their late mother.  The applicant had been paid Domiciliary Nursing Care Benefit (“DNCB”) in respect of that care and had experienced difficulty in receiving DNCB in respect of another person for whom she was caring.  Counsel for the respondent in Jephcott (above) submitted that, if such a letter had been sent by the applicant’s sister, it would have necessarily followed that it was exempt under s 37(1)(b), presumably because the sister would have wanted it treated as confidential.  Keely J (page 90) expressly disagreed with this.  Davies J (pages 91-92) suggested what a respondent could call in aid to show the receipt of information in confidential circumstances:

“In open session before the Tribunal, the agency would be entitled to call evidence that, if a document that type existed, it would be an exempt document by virtue of s 37(1).  The agency could rely upon the description of the document in the request for access and may be able to adduce evidence that documents of that type relate to the enforcement or administration of the law and are written and received in confidence.  In confidential session before the Tribunal, the agency may be able to adduce evidence that the document does exist and that the grant of access to it would enable the applicant for access to ascertain the existence or identity of the confidential source of information in relation to the enforcement or administration of the law."

36.     In the present case any basis for this claim for exemption is not self-evident.  All that was available in open session at the hearing was Mr Naylor’s explanation in ex R4, “I believe that disclosure of document 1 would enable Dr Doulman to ascertain the existence of a confidential source of information, or the non-existence of a confidential source of information.  Further information as to why I believe some of the information in document 1 is exempt under subsection 37(1)(b) is set out in my confidential affidavit [ex R1]”..  The matter is raised in ex R1.  The tribunal can attest that document 1 does state whether or not information has been received.  The tribunal is satisfied that, if it assumed that information was received, then the source was confidential.

37.     Mr Northcote cited Re Sinclair and Department of Social Security (1985) 9 ALN N127 at N130 for the proposition that a confidential source will warrant protection even where the informant is “untruthful or malicious or revengeful or self-interested or even demented … as much as of one who brings information from a high-minded sense of civic duty”.  Thus, in the present case, if the applicant’s brother had denounced the applicant for base motives, but in circumstances of express or implied confidentiality, the communication would be exempt from disclosure.

38.     Mr Northcote cited Re Dale and Australian Federal Police (1997) 47 ALD 417 for the comments (at page 420, paragraph 13), “The paragraph applies the adjective 'confidential' to the source, rather than the information. Accordingly, it has application even if the information is old, out of date, or simply wrong. The paragraph is intended to protect the basis of confidentiality, which is essential to ensure the cooperation of sources of information. On the face of the documents, the sources are clearly confidential. It is not necessary, in considering a claim made under this paragraph, to examine the truth or even the reliability of information attributed to the confidential source. The paragraph clearly supports the public policy that information given on the basis of confidence can be valuable in administration of the criminal law and if this attribute of confidentiality cannot be guaranteed and subsequently enforced, that the whole mechanism is endangered. The purpose of the exemption is to preserve this assurance of confidentiality. Once the nature of the relationship is established, there is no more to be said.”

39.     Mr Northcote admitted that the circumstances here were that the applicant suspected that a sibling was an informant and sought to have the exempt information disclosed so as to ascertain whether that was in fact the case.  The truth of any allegation from any confidential source is irrelevant.  The respondent therefore submitted that the exemption applied to some of the material in the documents.  However, as the tribunal noted earlier, the respondent has not shown the existence of confidentiality in relation to any material that may have been provided adverse to the applicant from a third party.

40.     Mr Erskine sought to convince the tribunal that this provision is not intended to prevent disclosure of information that there has been no confidential source of information in relation to the enforcement or administration of the law. 

“… it would be our submission that 37(1)(b) cannot mean what the respondent has urged upon you because if it means what the respondent says then just about every document that relates to an investigation by a law enforcement agency is always going to be caught by 37(1)(b).

“A moment's reflection would indicate that every investigation that a law enforcement agency carries out will have, as its source, either a confidential source or a non-confidential source, there is always a source.  To take an extreme example, the investigation of the events of September 11 in New York have, as their source, pictures that billions of people saw around the world, but they have a source.  Equally, an investigation … , for example, into a drug cartel may have as its source an informer inside the cartel who is highly confidential and whose very existence is a matter of extreme concern.  So, …  there is always a source for an investigation.  If the respondent is correct, then just about everything that relates to an investigation will always be exempt under 37(1)(b) because it will either reveal a confidential source, or reveal a non-confidential source, that is, it will reveal the existence or non-existence of a source of information.

“Now, with respect, that simply cannot be how 37(1)(b) is supposed to operate.  There is an alternative, and the alternative is that 37(1)(b), perhaps not elegantly drafted, but 37(1)(b) is getting at the so-called matrix argument, and I will come back to that in a minute.

…

“Now, in the present case, if one goes back to 37(1)(b) and asks, ‘Why would we want to protect information about the non-existence of a confidential source of information?’  On the face of it, it seems an incredible thing to want to protect if it is the fact that the police are investigating something that is sourced, not from a confidential source - and one that is publicly known - why on earth would we want to protect that fact?  Well, on its face, it does not make any sense. 

“So, we would submit that 37(1)(b) has that more restricted operation, that is, in the context of a matrix.  The question is whether that arises in the present case.  For this submission, I have to make an assumption for the purposes of the argument.  Let us assume, for the purposes of the argument, that Julia Doulman is the source.    Now, we do not need to have that confirmed because the submission we need to make in relation to 37(1)(b) is, what evidence has been given that that source is confidential. 

“There is presumably evidence in the confidential material, and I cannot traverse that, but what we also know about this supposedly confidential source is that she has told Dr Doulman that she intends to make a complaint to the police and she has told other members of the family that she has done so in respect of his activities.  Now, if she is, in truth, a confidential source of information then the evidence that was given in the open by Dr Doulman, upon which he was not cross-examined, would indicate that this source is not confidential, no matter what may have been said to the law enforcement agency concerned.

“If the source of information is not Julia Doulman, there is not a lot more I can say except that the fact that she is not the source of information does not really tell us anything about who a source of information might be if it is not her that is being investigated.  So, that to disclose her as a source, in our submission, would be appropriate just because she could not be confidential given her activities.  To disclose her as a non-source would also be appropriate because as far as we know, subject to what is in the confidential material, there is no matrix argument that arises here.

“That is, if we disclose that it is not Julia, it really does not tell us anything more as to who the source could possibly be.  In other words, it does not, through the process of elimination, tell us much.  So, in our submission, the 37(1)(b) claim cannot be made out by the respondent on the basis of what the applicant, at least, knows and we get some support from that from the fact that the 37(1)(b) claim has surfaced so late in the proceedings.  It was not mentioned by the decision maker nor in the internal review.  It first surfaces in the last week or so when the respondent puts on its affidavit material and its submissions. 

“That would tend to suggest that the 37(1)(b) claim was not one that was taken very seriously by the respondent and I know there is an alternative interpretation which is they simply messed it up and it should have been made a lot earlier, and that is obviously an alternative.  But based on the information that we have, and a careful thought processing going on through the meaning of 37(1)(b), our submission would be that you are entitled to take into account the fact that the claim arrived late because it suggests that an agency which otherwise has been relying for centuries upon confidential sources managed to overlook it twice in this case, not just with Mr Naylor but also by the original decision maker as well.”

41.     The tribunal has already observed that there is little here to support any confidential status attaching to any information that may have been received.  However, the tribunal has difficulty accepting Mr Erskine’s submissions that s37(1)(b) does not operate to exempt from disclosure material that would show there had been no confidential source of information.  As Mr Northcote said, if Mr Erskine were correct that would leave no function for the phrase in s 37(1)(b), “or the non-existence of a confidential source of information”..  There were several additional difficulties with Mr Erskine’s argument:

·     The suggestion that every document related to an investigation will be caught by s 37(1)(b) cannot be correct.  Not every such document will refer to information that may serve to confirm or deny a confidential source.

·     Mr Erskine seemed to refer to confidential sources and non-confidential sources as both attracting the exemption whereas only a confidential source will do so.  The law is clear on the face of the Act that the possible source must be confidential to attract the exemption.

·     Mr Erskine argued that the emphasis in the decided cases on s 37(1)(b) was on whether a source had been confidential.  It was clear in earlier cases that there had been a source.  The tribunal notes that the Jephcott case (above) did not fall within that description as it dealt with a document that might or might not have existed.  In any event, an agency is free to decide not to invoke an exemption in part or at all if it wishes.  The fact that other agencies in the past may have elected to admit that there was a source of information but then relied on the alleged confidential nature of that source as a ground of exemption does not mean that the respondent must do likewise in the present case.

s 37(2)(b)

42.     In relation to this provision Mr Northcote submitted that the methods discussed in the confidential affidavit of Mr Nicholls related to particular systems of relevance to Customs and border security.  It was submitted that some of the material in the documents, if disclosed, may enable some of the details of how Customs operates at the border to identify persons of interest, and conduct relevant examinations and ask questions, to be ascertained.  This would be to the detriment of the effectiveness of those methods.  Further, he said, with the recent increased risks of terrorism to add to the pre-existing concerns regarding ordinary criminal activity, this was not the time to disclose any information which could reasonably be expected to prejudice the effectiveness of such valid methods of law enforcement.

43.     Mr Northcote cited Re Mickelberg and Australian Federal Police (1984) 6 ALN N176 where apposite remarks were made.  The Tribunal in that case said:

"It is of course difficult to discuss adequately the application of this provision to the documents now under review.  Perhaps the most useful comments are to say firstly, that in the public interest it is essential that law enforcement agencies have speedy, accurate and secure systems of communication, both within an agency and between agencies especially where agencies have different fields of responsibility.  Secondly, it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies, own documents or in the proceedings of a Tribunal such as this what those methods and procedures are.  The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them."

44.     Relevant also is the decision in Re Anderson and Australian Federal Police (1986) 11 ALD 355, 364-365 in which Deputy President Hall had the following to say regarding s 37(2)(b) and s 37(1)(b):

“(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 Mickelberg and 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 agencies' own documents or in the proceedings of a Tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them.’

“(37) In my view, however, a document which discloses intelligence gathered by the police, but reveals nothing as to the source of that information or as to lawful police methods or procedures, is not within the potential scope of the exemption provided by s 37 (1) (b) or s 37 (2) (b). Claims of exemption under other provisions of the Act may, however, arise in such cases.

“(38) Even where a source of information would be disclosed, it is necessary to emphasise that the source must be found to be ‘confidential’ before the exemption in s 37 (1) (b) is satisfied. Where a lawful police method or procedure would be disclosed, s 37 (2) (b) requires that prejudice to the effectiveness of those methods or procedures must be established before the exemption is made out. Questions of prejudice are, I think, more likely to arise where the disclosure of a document would disclose covert, as opposed to overt or routine methods or procedures (cf Re Lander and Australian Taxation Office (1985) 9 ALN N25; cf; Re Arnold Bloch Leibler and Co and Australian Taxation Office (No 2) (1985) 9 ALD 7. For the reasons given in SMOS (No 2), it is my view that disclosure of methods or procedures would be ‘reasonably likely’ to prejudice their effectiveness if, on reasonable grounds, it is found that there is a ‘real risk’ of such prejudice. Finally, it must be noted that, for the purposes of s 37, no consideration may be given to any countervailing public interest in favour of disclosure: see Department of Health v Jephcott (1985) 62 ALR 421.”

45.     The tribunal has also considered the material in the Attorney-General’s Department’s FOI Memorandum No 98 – Exemptions Sections in the FOI Act (“FOI Memorandum”)[3] which embodies the views of the agency responsible for the FOI Act regarding its proper legal operation. While not binding on the tribunal or an agency decision maker, the contents of the FOI Memorandum are relevant to take into account. The FOI Memorandum refers to several cases which support the following propositions which derogate to an extent from the cases cited above on s 37(2)(b):

“8.7.3 There must be a reasonable expectation that a document will disclose a method or procedure and a reasonable expectation of prejudice to the effectiveness of that investigative method or procedure. If the only result of disclosure of the methods would be that those methods were no surprise to anyone, there could be no reasonable expectation of prejudice (Re Bartlett and Department of Social Security, (D409); Re Russo and Australian Securities Commission (D297)).

“8.7.4 The exemption will not apply to routine techniques and procedures already well known to the public or documents containing general information (Re Robinson and Australian Federal Police (D174), Re Anderson and Australian Federal Police (D137)). In Re Russo v Australian Securities Commission, (D297)) the AAT rejected a s 37(2)(b) claim concerning the method of allocating priorities to matters, with the observation that disclosing such a method is on par with disclosing that the respondent uses pens, pencils, desks, chairs and filing cabinets in the investigation of possible breaches of the Corporations Law.

8.7.5 The exemption may apply to methods and procedures that are neither obvious nor a matter of public notoriety, even if evidence of a particular method or procedure has been given in a proceeding before the courts (T v Queensland Health) and is more likely to apply where disclosure of a document would disclose covert, as opposed to overt or routine methods of procedures (Re Anderson and Australian Federal Police, (D137)). The method used by law enforcement agencies in gathering information in relation to an investigation from as many sources as possible, the evaluation of that information and the placement of it on the agency's records is a fundamental and overt method, the disclosure of which would not prejudice its effectiveness in the future (T v Queensland Health).

[3] the case, Re Russo and Australian Securities Commission (1992) 28 ALD 354, the tribunal considered arguments addressing the release of material held by the respondent and said at pages 356-357:

“Section 37 (2) (b) 

“(8) Mr Gotlib submitted that in terms of s 37 (2) (b) disclosure of documents 14 (a) and 17 under the Act could reasonably be expected to disclose lawful methods or procedures for investigating or dealing with matters arising out of breaches or evasions of the Corporations Law, the disclosure of which would be reasonably likely to prejudice the effectiveness of those methods or procedures.

“(9) The evidence of Mr McLeod relevant to this submission was first that disclosure of these documents would disclose that, in the investigation of Mr Russo's complaint, Mr McLeod had employed the method of speaking informally on the telephone to a former co-director of Mr Russo. If this were disclosed, he considered that it would be more difficult for him to speak to the former co-director informally in the future. Asked by the tribunal whether Mr Russo was not already aware that he had spoken to the former co-director, he answered in the affirmative. Having been disclosed, the method in question was not further susceptible of disclosure. Accordingly, it is not necessary for the tribunal to determine whether the submission otherwise had any merit, and it does not do so.

“(10) Mr McLeod then referred to a sentence in document 14 (a) which read:

‘As other more important matters required my attention above considering the contents of another John Russo letter I decided to reply to the letter on my return from leave.’

Disclosure of that sentence would, he said, disclose that the staff of the respondent allocated priorities to matters which came before them. In the view of the tribunal, that "disclosure" of this particular method or procedure is on a par with disclosing that the respondent uses pens, pencils, desks, chairs and filing cabinets in the investigation of possible breaches of the Corporations Law. It would be impossible for its officers to function without allocating priorities. There is nothing here capable of disclosure within the terms of s 37 (2) (b).

“(11) For the reasons given, we find neither document 14 (a) nor document 17 to be an exempt document under s 37 (2) (b).”

47. There are thus several possibilities where s 37(2)(b) is invoked. While any disclosure that would confirm investigative techniques would appear exempt under s 37(2)(b), this will not apply where the material has already been exposed to public gaze or where the elements of investigative technique in question are so basic and elementary that it would disclose nothing of value to allow access to the material.

48. The applicant appeared relatively uninterested in the matters protected by s 37(2)(b). Mr Erskine told the tribunal that exemptions claimed in respect of such matters as Customs computer codes were not under challenge by the applicant. Mr Erskine said, “In relation to methods of investigation, in broad terms we are not interested in that”.

THE DOCUMENTS AND FINDINGS ON THE DOCUMENTS

document 1

49.     In this part of the reasons for decision the tribunal will consider each of the 15 disputed documents, identifying the alleged bases for exemption in ex R4 and in the closed affidavit in ex R1 and assessing the validity of those bases.  Document 1 is described in the respondent’s schedule of exempt documents as “Customs form”.  This is somewhat ambiguous in that it could suggest a form completed by the applicant as part of passing through customs barriers.  It is in fact a form used internally by Customs for its own record keeping purposes.  All matters are deleted except that the form was created on 9 January 2002 and the applicant’s name, gender, date of birth, country of citizenship and Australian passport number are disclosed. 

50.     Mr Erskine asked Mr Naylor questions about document 1.  These elicited that the document was computer generated with fields completed by a customs officer, that codes understood and seen only by customs officers were employed and deleted in the copy provided, that deleted material related to systems used in Customs’ processes and that the document is of a type created prior to the traveller’s arrival at the customs barrier.

51.     The exemptions claimed are:

· Section 37(1)(a) in that certain deleted material would, if released, prejudice an ongoing investigation. In ex R4, an open document, Mr Naylor deposed that disclosure would indicate to the applicant “the nature of the allegations under investigation”. The tribunal agreed with the respondent’s submissions in this regard, having questioned the respondent’s representative in closed session.

·     Section 37(1)(b) in that certain of the deleted material would enable Dr Doulman to ascertain the existence or non-existence of a confidential source of information.  The tribunal accepted the respondent’s submissions in this regard which were consistent with evidence in the closed affidavit.  The tribunal finds that, if information was received and available to Customs, it was received on the basis that it would be treated as confidential. 

· Section 37(2)(b) in that “disclosure of document 1 would disclose Customs 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 prejudice the effectiveness of those methods or procedures … [and] information regarding the existence and operation of methods and procedures used by Customs in performing its activities at airports. … the disclosure of these methods and procedures would prejudice their effectiveness by enabling passengers to modify their behaviour with a view to avoiding detection of suspicious activities by Customs officers” (ex R5/4). The tribunal accepted the respondent’s submissions in this regard which were consistent with evidence in the closed affidavit.

52. There was one field, however, deleted in document 1 that the tribunal identified in closed session as innocuous. The respondent’s representative accepted this was so. The words “Travel Documents”, located immediately above the passport details, were not seen by the tribunal to attract any exemption under the FOI Act. Counsel for the respondent agreed. The tribunal will therefore vary the decision in relation to document 1 to restore two words deleted by the respondent.

document 2

53. This document is described as “Movement details”.. As ex R5 says, it records Dr Doulman’s travel on 22 February 2002. Mr Naylor cited as the reason for exemption s 37(2)(b). The deleted material was said to relate to Customs law enforcement methods and procedures. Disclosure was said to involve disclosure of the existence of methods and procedures thereby prejudicing their effectiveness. According to confidential affidavit ex R1 there is material in document 2 that is exempt under both s 37(1)(a) and s 37(2)(b). The reference to s 37(1)(a) is to the prejudice to an ongoing investigation.

54.     Mr Erskine asked Mr Naylor questions about document 2 and elicited information that it was printed out from a computer, that Mr Naylor was unclear at what stage such a form is generated and that deleted material included matter relating to Customs operational codes

55.     The tribunal accepted the respondent’s submissions.  The tribunal considered that the deleted material identified law enforcement methods and procedures and could assist in confirming or denying whether an investigation of a certain complexion might be occurring.  The tribunal therefore affirms the decision relating to document 2.

documents 3, 5, 7 and 9

56.     These are described in the schedule of exempt documents (ex R4) as “Customs form”.  As Mr Naylor seemed to concede in his affidavit (ex R4), these were forms used internally by Customs and termed “Information Report Details”..  As the affidavit stated, they were created by Customs officers after they searched Dr Doulman’s bags on 22 February 2002 (document 3), 1 March 2002 (document 7) and 9 March 2002 (document 9).  Document 5 was created after a Customs officer spoke with Dr Doulman on 24 February 2002. 

57.     Taking document 3 as exemplary, it disclosed the following to Dr Doulman:

·     The date of the event, ie the baggage search.

·     The type of activity, ie “examination” (this entry was deleted in document 5).

·     That the person and baggage were involved.

·     That Dr Doulman was inbound at the time.

·     That the activity outcome was relevant to NSW Customs administration.

·     That the primary entity of interest was Dr Doulman.

·     That the incident occurred at Sydney Airport.

·     That there was an “Admiralty Source” rated F as “reliability cannot be judged”.

·     That the truth of the “Admiralty Information” could not be judged.

·     It was not a priority matter.

·     The document had an “originator” whose region, branch and work area were disclosed.

·     A narrative identified Dr Doulman, his passport and United Nations document numbers, his occupation, his address and that there was a “100% bag exam with nil result”.  There was no frisking or Ionscan.  There was a description of the oral exchange between Dr Doulman and the Customs officer.

·     An “evaluator” assessed the report and provided comments.  He noted Dr Doulman was not previously recorded in “NIS”.  The given address was “neg NIS”.

58.     Mr Erskine asked Mr Naylor questions about these documents.  He elicited that they were computer generated, that they were completed after a traveller left customs, that the form is routinely completed whenever a traveller is stopped and searched, that the reference to “Admiralty Source” is a code going to the reliability of the source causing Customs to undertake the activity in question and that Mr Naylor was unaware whether the source evaluated is the traveller or some other source.

59. Deleted material was said (ex R4) variously to be exempt under s 37(1)(a), s 37(2)(b) and a combination of both. In ex R4 s 37(1)(a) was said to be relevant as disclosure would prejudice the conduct of an investigation of a breach, or possible breach of the law by disclosing the nature of the allegations being investigated. Section 37(2)(b) was invoked because it was said that the documents contained information regarding Customs methods and procedures used for preventing, detecting, investigating or dealing with breaches or evasions of the law. Disclosure was said to enable passengers to modify their behaviour with a view to avoiding detection of suspicious activities by Customs officers. [Closed reasons.  Refer to parra 23 of ex R1.]

60.     The tribunal accepted the respondent’s arguments in relation to these documents.  The tribunal, therefore, in relation to documents 3, 5, 7 and 9, affirms the decision under review.

documents 4 and 10

61. Described in the schedule as “Extract from Customs logbook” (ex R4), these date from 22 February 2002 (document 4) and 9 March 2002 (document 10). Logbooks are maintained by Customs officers at airports and record the searches and seizures conducted by Customs officers during each shift. These were said to contain material that was deleted as exempt under s 37(1)(a) and s 37(2)(b). Section 37(1)(a) was invoked for reasons given for documents above. Section 37(2)(b) was said to apply because deleted material would disclose information regarding Customs methods and procedures used for preventing, detecting, investigating or dealing with breaches or evasions of the law. The information in the deleted segments related to Customs law enforcement methods and procedures not commonly known to the general community. It was said that if these methods and procedures were to become publicly known, their effectiveness would be severely diminished.

62.     Mr Erskine asked Mr Naylor questions about these documents eliciting that a customs officer completes a running logbook on a shift recording any matter that should be recorded and that many entries in a shift would not relate to Dr Doulman even if one entry did.  It was established that most of the deleted material related to persons other than Dr Doulman.  Mr Erskine clarified that the applicant had no interest in seeing that material.  Mr Erskine ascertained that at least some other deletions pertained to Customs’ codes.  As noted elsewhere, Mr Erskine was not interested in these.  The applicant’s interests were as to the nature of any investigation into him and what had prompted it.  Some elements of the deleted material in documents 4 and 10 related to the investigation being carried out.

63.     The tribunal accepted the respondent’s arguments in relation to these documents.  Deletion of much of the material, that relating to third parties, was not challenged by the applicant.  Other minor deleted matters could, if disclosed, reasonably be expected to disclose Customs investigation procedures.  Yet other minor deletions could, if disclosed, be reasonably expected to prejudice an ongoing investigation.  The tribunal affirms the respondent’s decision in relation to documents 4 and 10.

document 6

64. This was described in ex R4 as “Extract from Custom officer’s notebook”. It was a handwritten document containing material relating to third parties. Exemption was claimed (ex R4) on the basis of s 37(2)(b) because the deleted matter was said to concern methods and procedures used by Customs in its law enforcement activities. Disclosure would, it was said, reveal the existence of specific methods and procedures utilised by Customs in performing its law enforcement activities. It was suggested that disclosure would prejudice the effectiveness of those law enforcement methods and procedures by making their existence publicly known.

65.     In cross-examination of Mr Naylor Mr Erskine elicited that the deletion related to a “method of operation” and he left matters lie there.

66.     The tribunal accepted the respondent’s arguments in relation to document 6, as, in effect, did Mr Erskine.  As recorded earlier, the applicant was uninterested in accessing material relating to investigative methods.  The tribunal was satisfied that the relevant deletion did pertain only to methods and not the nature of an investigation.  The tribunal affirmed the respondent’s decision in relation to document 6.

document 8

67.     Document 8 was described in ex R4 as “Extract from Customs officer’s notebook”.  The document was handwritten and the description was apt.  The only deleted material pertained to third parties.  Mr Erskine was satisfied that the applicant had no interest in seeing the deleted material.  The tribunal was satisfied that the deletions were appropriate and affirmed the respondent’s decision in relation to document 8.

document 11

68.     This was described in ex R4 as “Incoming passenger card”, an apt description.  It contained a deleted code relating to Customs’ methods of investigation.  As noted earlier, the applicant was not interested in disclosure of material relating only to Customs’ investigative methods, as this item was.  The tribunal accepted the respondent’s arguments in relation to document 11 and affirmed the respondent’s decision.

documents 12, 13 and 14

69. These were described in ex R4 as “Officer’s email” or “emails”, which were apt descriptions. These were sent between Customs officers on 12 March 2002. Exemption was claimed on the bases of s 37(1)(a) and 37(2)(b). Essentially it was stated that disclosure would prejudice the conduct of an ongoing investigation (s 37(1)(a)) and would refer to investigative methods not known to the public and which, if known, would be prejudiced. Mr Erskine questioned Mr Naylor about these documents but this yielded nothing of note.

70.     The tribunal accepted the arguments of the respondent in relation to these documents and affirmed the decisions of the respondent regarding them.

document 15

71. This was described in ex R4 as “Report by officer”, which it was. It was dated 14 April 2002. Very little was deleted. That which was justified by reference to s 37(2)(b) of the FOI Act. In ex R4 Mr Naylor explained that the document contained references to law enforcement methods and procedures that are not the subject of public knowledge. He said he believed the effectiveness of the methods and procedures would be prejudiced if they were to become publicly known. In cross-examination Mr Erskine elicited that such a minute was not routinely prepared. He said it appeared to be a report by a junior officer who had conducted a search to a more senior officer who had apparently requested the report. Mr Naylor had found no other similar documents relating to Dr Doulman. Mr Erskine ascertained that the deletions pertained only to investigative methods, which was the case.

72. The tribunal noted that the document was quite full. It detailed the discussion that had occurred between the writer and Dr Doulman on 9 March 2002. Among other things it noted Dr Doulman’s advice to the writer that the “Supervising Customs Officer in Brisbane told him he fitted the perfect drug courier profile”, a rather extraordinary statement by a Customs officer given the attitude of the respondent and its representatives at the tribunal hearing. Disclosure of such information would appear inconsistent with exemptions available under s 37(1)(a) and 37(2)(b).. This entry on document 15 tallied with open material in document 7, an information report dated 1 March 2002 relating to Dr Doulman’s arrival at Brisbane Airport. The writer in that report said, among other things, “DOULMAN asked about the code on his [incoming passenger card], the reason for the search, and stated that he must be on the computer system. I told him that because he met certain criteria, he was being searched”.

73.     The tribunal accepted the arguments put by the respondent, noting that the applicant was uninterested in disclosure of material relating only to investigative methods.  The tribunal affirmed the respondent’s decision in relation to document 15.

CONCLUSION

74.     The tribunal largely affirmed the decisions of the respondent in relation to the disputed documents.  The exception was a variation of the decision regarding document 1.  The tribunal decided that additional material in that document could be disclosed.

75.     In general terms the tribunal regarded the exemptions claimed as applicable on the following bases:

· Section 37(1)(a) was applicable because there was evidence of an ongoing investigation involving the applicant. The applicant was unaware of the reasons for the investigation. It was the tribunal’s view that it was reasonable to expect that the conduct of that investigation would be prejudiced if Dr Doulman or anyone else affected by it became aware of relevant details of the investigation at this time.

·     Section 37(1)(b) was applicable because in one document there was material going to the question of whether investigators had access to information from a confidential source.  Without making a finding regarding whether information from such a source was available, the tribunal found that, if such information was available, the source would be a confidential source.

· Section 37(2)(b) was applicable because Customs in this matter had made use of investigative methods not known to the general public. References to these methods were present in some of the documents. The tribunal considered that, although some members of the public might have theories or suspicions about the methods used by Customs in performing its duty, it would not be appropriate to disclose the actual situation to Dr Doulman, it being noted that under FOI law disclosure to a requester is disclosure to the world at large.

· Section 41(1) was applicable where a document contained personal information about people other than Dr Doulman.

DECISION

76.     The tribunal affirmed the respondent’s decision in all respects except that the tribunal varied the decision in relation to document 1 to restore two words deleted by the respondent.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

Signed:          .......................................................................................
  Associate

Date of hearing  25 March 2003
Date of decision  8 September 2003
Counsel for the applicant           Mr C Erskine
Solicitor for the applicant           Colquhoun Murphy, Barristers and Solicitors
Counsel for the respondent      Mr R Northcote
Solicitor for the respondent      Australian Government Solicitor

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