Eshchenko and Australian Federal Police
[2006] AATA 1034
•1 December 2006
Administrative
Appeals
Tribunal
DIRECTION AND REASONS FOR DIRECTION [2006] AATA 1034
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/237
GENERAL ADMINISTRATIVE DIVISION ) Re RUSLAN ESHCHENKO Applicant
And
AUSTRALIAN FEDERAL POLICE
Respondent
DIRECTION
Tribunal Senior Member B J McCabe Date1 December 2006
PlaceBrisbane
THE TRIBUNAL DIRECTS THAT:
1. Within 14 days the respondent file in the Brisbane registry and serve on the applicant a statement pursuant to s 38 of the Administrative Appeals Tribunal Act 1975 providing additional information in accordance with these reasons about the nature of the documents it claims are exempt from production.
2. The parties are at liberty to apply.
................[Sgd]..............................
SENIOR MEMBER
CATCHWORDS
PRACTICE AND PROCEDURE – freedom of information – s 37 statement – adequacy of material disclosed pursuant to s 37 – additional statement pursuant to s 38 – respondent to file additional statement
Administrative Appeals Tribunal Act 1975 s 2A, 37, 38
Freedom of Information Act 1982 s 26, 56
Victorian Civil and Administrative Tribunal Act 1998 s 49
Filonis v Transport Accident Commission [2003] VCAT 2038
Palmer and Minister for the Capital Territory (1978) 1 ALD 183
Re Mann Capital Territory Health Commission (No 2) (unreported, 14 December 1983)
The Taxpayer and Commissioner of Taxation (2006) 91 ALD 242
Vai v Forgie [2003] FCA 87
REASONS FOR DIRECTION
1 December 2006 Senior Member B J McCabe
introduction
1. Mr Eshchenko has made an application under the Freedom of Information Act 1982 (the FOI Act) to access a range of documents held by the Australian Federal Police (the AFP). The AFP was deemed to have declined the request when it failed to respond to the application within the required time. Mr Eshchenko has asked the Tribunal to consider the matter.
2. The AFP was informed of the Tribunal’s proceedings. It prepared a statement of reasons and lodged material documents with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The applicant says the statement of reasons was inadequate.
3. Mr Eshchenko asked for a direction pursuant to s 38 of the AAT Act requiring the respondent to provide an additional statement with further and better particulars. A directions hearing was held before me on 27 September 2006. Mr Poynder of counsel appeared for the applicant, and Ms Oliver of the Australian Government Solicitor appeared on behalf of the respondent. The hearing was adjourned after it became apparent there were some deficiencies in the statement that had been filed. Ms Oliver obtained instructions from her client and undertook to file an amended statement of reasons. That was done on 23 October 2006. The applicant says the statement is still deficient. The hearing resumed before me on 8 November 2006. Ms Oliver provided written submissions. Mr Poynder referred to and relied upon his earlier submissions. I indicated I would review the material and determine whether it was appropriate to make a direction pursuant to s 38.
the operation of s 26 of the foi act and ss 37 and 38 of the aat act
4. Section 26 of the FOI Act obliges the decision-maker to
…state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision…
5. A statement of reasons will only be provided if the agency makes a decision. If the agency does not make a decision within the time contemplated by the legislation, it is deemed to have refused the request: s 56. Section 37 of the AAT Act becomes relevant once an application for review is lodged with the Tribunal. Section 37(1) provides:
a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
6. I note s 37(3) provides the section “has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents”.
7. Section 38 permits the Tribunal to order the decision-maker to lodge an additional statement or statements where the Tribunal forms the view the document that has been lodged:
does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for a decision…
8. The additional statement required pursuant to s 38 should contain further and better particulars of the matters referred to in the order.
9. A citizen will be unable to understand or challenge a decision unless he or she is supplied with an explanation of the decision-maker’s reasons. The decision-maker would ordinarily make his or her reasons clear at the time the decision was made. Section 37 ensures that is done when the matter comes before the Tribunal: see, for example, Palmer and Minister for the Capital Territory (1978) 1 ALD 183 at 192-194. But the statement is not just for the applicant’s benefit. The s 37 statement of reasons is also intended to assist the Tribunal to understand what was decided, and why. (The decision-maker’s duty to inform and assist the Tribunal has recently been reinforced by amendments incorporating s 33(1AA).) The obligation to provide a clear statement of reasons is particularly important in FOI cases because – almost by definition – the applicant does not have access to the documents in question: see, for example, Re Mann Capital Territory Health Commission (No 2) (unreported, 14 December 1983).
10. The Tribunal’s expectation of s 37 statements was explained in its decision in The Taxpayer and Commissioner of Taxation (2006) 91 ALD 242. It said at 244-245:
Essentially a modified s 37 statement of reasons must contain the actual reasons for the decision. Those reasons must be set out in a manner that renders them intelligible to a reasonable lay person. For that purpose it is necessary to expose the reasoning process in relation to each of the substantive issues. The reasoning process will be exposed if, in relation to each issue, the applicable law or standard is identified, any relevant findings of fact are set out with reference to the material on which those findings are made, and the conclusions reached are explained by applying the facts to the relevant law or standard. This construction is consistent with s 25 of the Acts Interpretation Act 1901. If it is not possible to understand the reasons for a decision without particulars of the factual findings and the evidence being set out, or without the particulars of the reasons for the decision being clearly explicated, then the reasons may be found inadequate in those particulars and an order for further and better particulars pursuant to modified s 38 may be justified. Those are the particulars to which modified s 38 refers.
11. The applicant referred to the decision of Bowman J sitting as a presidential member of the Victorian Civil and Administrative Tribunal in Filonis v Transport Accident Commission [2003] VCAT 2038. The case dealt with a dispute over the adequacy of a statement of reasons lodged pursuant to s 49 of the Victorian Civil and Administrative Tribunal Act 1998. Section 49 is drafted in similar terms to s 37 of the AAT Act, and performs a similar function in the proceedings. His Honour observed (at paragraph 8):
I am not suggesting that the reasons given by the respondent should attain the level of perfection, nor have the precision of pleadings. However, whether or not the recipient of the reasons seeks to review the decision, in my view pro forma reasons will frequently not be sufficient. Reasons should ordinarily deal with conflicts of evidence and generally assist in relation to an understanding of how the decision was made and the reasons for its making. As a general rule, pro forma reasons have the potential to fail to be satisfactory in this regard…
12. His Honour went on to criticise the statement of reasons that had been provided to several of the applicants in those proceedings. The statements identified each document and included a reference to the statutory provision setting out the relevant exemption. There was also a reference to particular medical reports by name, although there was no discussion of the content of the reports. The material was set out in some sort of pro forma document that merely required the decision-maker to fill in the blanks. His Honour said that was inadequate because it did not illustrate the reasoning process. The statement was merely a series of assertions. He contrasted those statements with a statement provided to one of the applicants which had been properly completed. His Honour noted (at paragraph 10):
…a considerable amount of material has been reviewed and this is set out in the statement. For example, there are quotes from a witness statement, the ambulance case sheet, a report from a hospital, two reports from treating surgeons, and from a neurosurgeon to whom the respondent referred material. Whilst the reasons for decision are brief in the extreme, and refer back to the material provided, that material has been set out in detail, and the detail is obviously directed to the case in question. In no way could it be considered a situation where there has been a mere filling in of the blanks.
13. Ms Oliver also argued the s 37 statement must be seen in its proper context – a context which includes the Tribunal’s Freedom of Information Practice Direction. The Practice Direction anticipates the respondent filing a schedule of documents with additional detail about the exemptions that have been sought. That schedule would ordinarily be filed at least seven days prior to the hearing, together with an affidavit setting out the evidence relied upon to claim the exemptions. Mr Oliver said additional information about the AFP’s position will be forthcoming in the ordinary course. Any shortcomings the Tribunal identified would be cured in plenty of time for a hearing, so there was no reason to exercise the discretion to order a further statement in any event. She referred me to a number of authorities including Vai v Forgie [2003] FCA 87 where North J accepted (at paragraph 35) that any shortcomings in a s 37 statement might be cured at other points in the proceedings. As the Tribunal pointed out in The Taxpayer and Commissioner of Taxation (2006) 91 ALD 242, a pragmatic approach might be the best way of giving effect to the Tribunal’s statutory objective of providing a mechanism that is fair, just, economical, informal and quick if the alternative is to delay proceedings with technical arguments over the adequacy of a statement.
14. The applicant wishes to obtain as much detail about the documents as soon as possible. He does not wish to wait for the details to be provided in the ordinary way. He says obtaining the necessary information now would permit him to refine his claim for access to documents, which will make the proceedings cheaper for him and perhaps simpler for the Tribunal.
examining the schedule of documents provided with the section 37 statement
15. A person has a legally enforceable right to access documents held by a minister or agency that are not exempt from production: s 11(1) of the FOI Act. The exemptions that may be invoked are set out in Part IV of the Act. The agency may rely on one or more of the exemptions to deny access to a document, or to provide a document with exempt material deleted. The agency is also not required to disclose material that is irrelevant to the request: s 22.
16. In this case, the AFP says some documents (or parts of documents) include irrelevant material that should not be disclosed. The AFP also relies on one or more exemptions mentioned in Part IV in relation to a number of documents. The documents, and the grounds for non-disclosure of all or part of each document, are identified in tables incorporated in the revised s 37 statement.
17. I have perused the tables and the explanations which accompany them. I will deal with each table in turn. The first relates to documents the respondent says are irrelevant to the request. It is difficult to identify some of the documents: for example, document 107 is simply described as a “facsimile” sent on an identified date, while document 147 is described as an “email” sent on an identified date. It would be more helpful if the sender and the recipient were identified in each case – although that would be inappropriate if providing the extra details effectively revealed information that should not be disclosed. At a minimum, references to correspondence of this nature should at least include an indication if the communication occurred between members of the investigative team, or with an outside agency.
18. I am satisfied the decision-maker has provided sufficiently detailed reasons in paragraphs 25-27 to enable the applicant to determine why the claims of irrelevance have been made. While I have some question as to whether enough detail has been provided in order to identify each document, the balancing act involved in making that judgement probably cannot be completed until the hearing at which the point the Tribunal has the opportunity to review the documents in question.
19. The next table relates to documents which are the subject of a claim for exemption under s 33(1)(b) of the FOI Act. I am satisfied the documents have been adequately identified at this point in the process. The reasons set out in paragraphs 28-32 are also sufficiently clear to meet the standard set out in The Taxpayer and Commissioner of Taxation (2006) 91 ALD 242.
20. The next table relates to the exemption under s 33A(1)(b). That provision exempts documents provided in confidence by a state or territory agency to a Commonwealth agency. The table does not provide enough information about the two documents in question. What is a “person summary”? What does an “operational evaluation form” do? I think that information could be provided at this point without disclosing information contained in the documents that may be exempt. The reasons proffered in paragraphs 33-38 provide adequate information at this point in the process.
21. The next table sets out documents which are subject to a claim for exemption under s 36. Some of the documents are not adequately identified. For example:
·document 88 is described as an “email”. More information is required to indicate why this email in particular might be sensitive. At a minimum, the description should include a reference to whether the email is sent to or from a member of the investigative team and another team-member or an outside agency or individual.
·What is a “minute to CNI” (document 65)?
·What is the function of case note entries?
22. There should be a more detailed explanation in the reasons of the role of a joint agency agreement (document 148) and why it might be sensitive. More information should be given about the nature of the Treasury Executive minute (document 102) and the advice (document 120) if that is possible without disclosing the contents of the documents. The explanation of reasons is otherwise adequate.
23. The next claim for exemption is made under s 37(1)(b). This claim for exemption is made where the information comes from a confidential source. The respondent should supply further information about the nature of the documents. The reference to the case note entry (document 78) should confirm it contains information provided by a confidential source. The reasons should also explain why a DIMIA referral might be regarded as a confidential source. Or does the referral contain information obtained from a confidential source? The reasons are otherwise adequate.
24. A large number of documents have been subject to a claim for an exemption pursuant to s 37(2)(b). That category of exemption is available to protect information in documents which might disclose methods and procedures used by the AFP. I am not satisfied sufficient information has been given to identify a number of the documents. There are a number of references to the ubiquitous email: consideration should be given to providing a more detailed description of the document if that can be done without disclosing the contents. Is it an email between members of the investigative team, for example, or between an investigator and an outsider or another government agency? What are running sheets? What is an “analysis” (eg, document 100)? What is an “information report” (document 73) or an “information check” (document 47)? What is a “person search” (document 30) and what were the circumstances of the search – was the person a suspect, for example? The respondent should provide this sort of detail. Without more detail it is difficult to form a view as to the adequacy of the reasons that have been given for claiming the exemption in question. The reasons might make more sense when the documents are described more fully.
25. The respondent also lists a number of documents over which an exemption claim has been made pursuant to s 38. Section 38 permits the decision-maker to claim an exemption if disclosure of the document or the information contained therein is prohibited under an enactment. Schedule 3 of the FOI Act lists s 503A of the Migration Act 1958 as such an enactment. Section 503A refers to confidential information passed to a migration officer by a “gazetted agency”.
26. The statement does not formally confirm the information was provided by a gazetted agency, although it is unclear whether the decision-maker could have identified the agency in the statement in any event without disclosing important parts of the contents of the document.
27. A large number of documents are listed in the table of documents exempted under s 40(1)(d). I would make the same comments that I made in relation to the list of documents subjected to a claim for exemption pursuant to s 37(2)(b). Some clarification of the nature of the documents is required. I am otherwise satisfied at this point in the proceedings with the reasoning process evident in paragraphs 51-61.
28. A number of documents are listed as exempt pursuant to s 41 of the FOI Act. Section 41 protects documents containing information about third parties where disclosure would be unreasonable. The list of documents needs to be revisited to see if further information can be provided to give a clearer picture of the role of the documents. The reasoning is otherwise adequate.
29. The decision-maker has relied on s 42 to exempt a number of documents. Section 42 exempts communications between the agency and legal advisers where those documents attract legal professional privilege. Some additional information is required about the case note entries: were they generated by members of the investigative team and provided to the DPP for comment or advice? The reasoning is otherwise adequate at this point in the proceedings.
30. The last claim for exemption is made pursuant to s 45 of the FOI Act. I am satisfied the reasoning is adequately explained at this point in the proceedings.
should orders be made under s 38 of the aat act?
31. I have identified a number of shortcomings in the s 37 statement. As I have already observed, I am not obliged to make an order under s 38 to correct the errors if I am satisfied that will occur in the ordinary course of the proceedings without undue delay.
32. I am satisfied the respondent could readily provide more information about the nature of many of the documents at this point in the proceedings without undue inconvenience, and without compromising its position on the exemptions. I have indicated the reasons given in relation to a number of claims for exemption should clarify the nature and role of particular documents. That information will give the applicant a clearer idea of what exemptions to contest. It follows an additional statement should be filed pursuant to s 38 of the AAT Act containing this information, although the respondent is at liberty to apply in relation to any particular document if it forms the view that the additional information cannot be supplied without rendering the exemption pointless.
33. I am satisfied other shortcomings in the reasons can be adequately addressed in the usual course of the proceedings – most obviously when the schedule required pursuant to the Freedom of Information Practice Direction is filed.
conclusion
34. In accordance with these reasons, the respondent shall prepare and lodge a statement pursuant to s 38 of the AAT Act providing additional information about the nature of the documents it claims are exempt from production.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.
Signed: .....................................................................................
Associate Adam RyanDate of Hearing 27 September 2006 & 8 November 2006
Date of Decision 1 December 2006
The applicant was represented by Mr Poynder of Counsel.
The respondent was represented by Ms Oliver, solicitor.