Dutton and Attorney-General's Department - [2002] AATA 293

DECISION AND REASONS FOR DECISION [2002] AATA 293

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1513

GENERAL ADMINISTRATIVE DIVISION       )
           Re      EDWARD ISAAC DUTTON
  Applicant
           And    ATTORNEY-GENERAL'S DEPARTMENT
  Respondent

DECISION

Tribunal Mr M D Allen, Senior Member

Date30 April 2002
PlaceSydney

Decision The decision under review is varied in that documents numbered 75, 192 and 410 in the schedule to the affidavit of Margaret Charlotte Jackson affirmed the 9th day of January 2002, and being exhibit 4 in these proceedings, are not exempt documents pursuant to the Freedom of Information Act 1982 but in all other respects the decision under review is affirmed.

[sgd] M D Allen
Senior Member
CATCHWORDS
Freedom of Information – exemption claimed for documents arising out of extradition proceedings against the Applicant – various grounds of exemption sought including legal professional privileges – distinction between release of documents under FOI Act and documents obtained for the purpose of curial proceedings
Freedom of Information Act 1982 s4, 24, 24A, 33, 36, 37, 41, 42 and 61
Extradition Act 1988
Re Dutton and Attorney General's Department 31 AAR 168
Commonwealth of Australia v Dutton 102 FCR 168
Colakovski v Australian Telecommunications Corporation 29 FCR 429
Re Dwyer and Department of Finance 8 ALD 474
Ainsworth v Hanrahan 25 NSWLR 155
Esso Australia Resources v Commissioner of Taxation (Cth) 74 ALJR 339
Waterford v Commonwealth of Australia 71 ALR 673

REASONS FOR DECISION

Mr M D Allen, Senior Member

By application lodged with the Tribunal on 27 September 2000, the Applicant sought review of decision by officers of the Respondent on 19 September 2000 to claim exemption from release to him under the Freedom of Information Act 1982 of documents or parts of documents, which came into the possession of the Respondent as a result of a request by the Republic of South Africa that the Applicant be extradited to that country.
The history of the extradition proceedings regarding the Applicant have been set out in two prior decisions see re Dutton and Attorney General's Department 31 AAR 233 (Deputy President McMahon) and Commonwealth of Australia v Dutton 102 FCR 168. I see no need to repeat that history here, except to state that the Applicant is currently incarcerated following an order by a Magistrate pursuant to section 19 of the Extradition Act 1988. That order is currently on appeal to the New South Wales Supreme Court.
It is trite law that pursuant to s61 of the FOI Act the onus in these proceedings is upon the Respondent to show that the decision to exempt a document (or part of a document) from production to the Applicant is upon the Respondent.
The term "exempt document" is defined in s4 FOI Act in the following terms:
"Exempt document means –

(a) a document which, by virtue of a provision of part I,V is an exempt document;

(b) a document in respect of which, by virtue of s7, an agency is exempt from the operation of this Act; or

(c) an official document of the Minister that contains some matter that does not relate to the affairs of an agency of a Department of State."

The exemption sought by the Respondent referred to the following sections of the FOI Act, namely s24A, 41, 33(1)(a)(iii) and 36(1), 37, 41 and 42, which provisions stated inter alia:
"s24A
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.
s33
(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:
(i)…
(ii)…
(iii) the international relations of the Commonwealth; or
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, and authority of a foreign government or an international organisation to the Government of 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.
S36
1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
S37
(1)…
2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)…
(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
(c)…
s41
(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).
S42
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."
Certain documents which were claimed as exempt under the FOI Act 1982 (Cth) were released to the Applicant by a Local Court Magistrate O'Shane following the issue of a subpoena by the Applicant in extradition proceedings held before her. It is difficult to understand the basis for that order as the documents in question are exempt documents under the FOI Act 1982 (Cth). They include documents, which on current authority of Colakovski v Australian Telecommunications Corporation 29 FCR 429 clearly involve the disclosure of personal information about other persons while other documents (for example from Interpol) were specifically requested by the sending authority to be kept confidential, and s33(1)(a)(iii) and s37(2)(b) FOI Act 1982 (Cth) clearly applied to them. It appears the Magistrate did not apply her mind to those considerations.
Although the Applicant does have copies of the documents order by O'Shane LCM to be given to him, release pursuant to the FOI Act 1982 (Cth) is release to the public at large, see re Dwyer and Department of Finance and ors 8 ALD 474 at 482. This general release must be contrasted to release to a party in litigation, which is release to the party and the court can exercise control as to the use made of the said documents, see for example Ainsworth v Hanrahan 25 NSWLR 155 and the cases discussed therein. I therefore propose to consider whether the documents released by Magistrate O'Shane are exempt documents pursuant to the FOI Act not withstanding the fact the Applicant has been able to obtain copies of them.
Following the decision of the Full Court of the Federal Court in Commonwealth of Australia v Dutton 102 FCR 168 the status of communication between officers of the Attorney General's Department as between themselves and with officers of the Commonwealth Crown Solicitors Office and officers of the Director of Public Prosecutions Office, concerning sections 12, 15, 18 and 19 of the Extradition Act and s50 of that Act has been resolved. The said communications are subject of legal professional privilege. As pointed out in Commonwealth v Dutton [supra] the test is that as stated by the High Court in Esso Australia Resources Ltd v Commissioner of Taxation (Cth) 74 ALJR 339 namely the "dominant purpose" test.
During the course of his submissions the Applicant sought to obtain some advantage by pointing out that extradition proceedings were administrative in character and not curial. That much may be accepted but the proceedings like those in this Tribunal, are litigious and doctrines such a legal professional privilege apply see Waterford v Commonwealth of Australia 71 ALR 673.
The Applicant was however able to demonstrate by reference to documents disclosed to him in the most recent extradition proceedings and in prior Freedom of Information proceedings, that the description of documents in the schedule to the affidavit of Margaret Charlotte Jackson of 9 January 2002 (Exhibit 4) was not in all cases a full and accurate description of the said documents. This matter was easily cured although it required my inspection of each and every document for which release or partial release was opposed.
I have had regard also to the general nature of the released documents under the FOI Act. Therefore whilst certain information as contained in documents might appear innocuous as the Applicant by virtue of the extradition proceedings and various appeals resulting there from would have some knowledge of their contents, that is not the test.
Of the documents concerning which restriction is sought pursuant to s42 FOI Act 1982 (Cth) I find that the following can be released to the Applicant, namely documents 75, 192, 410 as enumerated in the affidavit of Ms Jackson referred to above.
Document 75 should be released in part. Section 41 applies so that names of persons should be excised, however all other material is to be disclosed.
Document 192 is not an exempt document. It is a narrative only and is a "follow up" document to document 193, which has been released.
Document 410 is not an exempt document. It is a pure narrative of factual matters as to the course of the Administrative Appeals Tribunal hearing on 26 April 2000.
Apart from the above so far as relates to all other documents as specified in paragraph 32 of Ms Jackson's affidavit of 9 January 2002, they are exempt from production under the FOI Act.
In addition documents 481 and 493 are exempt as not being within the terms of the Applicant's request as they relate to a matter of statutory interpretation unrelated to the Applicant's matter. Their presence on the Applicant's file has not been explained, however it seems clear that it is a case of mis-filing in the Attorney General's Department.
I agree with the submissions of the Respondent that document 360 is exempt pursuant to s33(1)(a)(iii) of the Act. Similar exemptions apply regarding document 366.
I find that documents 105, 106, 341 – 343 and 416 are exempt pursuant to s36 FOI Act 1982 (Cth).
Other documents have not been produced to the Applicant as the Respondent claims they have been unable to be found. Nothing in these proceedings has suggested to me, that further inquiry or search would advance matters and I am of the opinion that the Respondent could claim pursuant to s24 that any further search would substantially and unreasonably divert its resources from its other operations. There therefore exists an exemption pursuant to s24 and s24A FOI Act 1982 (Cth).
Of the documents released to the Applicant by Magistrate O'Shane, I consider that they are all exempt from production to the Applicant under the FOI Act for the reasons claimed by the Respondent in the annexure to the affidavit of Ms Jackson (Exhibit 4). In addition I find pursuant to paragraph 33(1)(b) FOI Act that documents 337 and 338 are exempt documents.
The decision of the Tribunal is that with the exception of documents 75, 192 and 410 in said annexure to Exhibit 4 the decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  29 and 30 October 2001, 14 and 15 March 2002
Date of Decision  30 April 2002
Applicant  self represented
Counsel for Respondent         T Reilly
Solicitor for the Respondent    Australian Government Solicitors Office