Faure and Telstra Corporation Limited
[2003] AATA 755
•6 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 755
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1866
GENERAL ADMINISTRATIVE DIVISION ) Re LEONARD FAURE Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Ms N Bell, Member Date6 August 2003
PlaceSydney
Decision The Tribunal affirms the decision under review.
.
[Sgd] Ms N Bell, Member
CATCHWORDS
FREEDOM OF INFORMATION – Applicant requested documents relating to telephone interception under Freedom of Information Act 1982 – Respondent refused access – Respondent neither confirmed nor denied existence of documents – designated warrant information – exemptions under FOI Act – decision affirmed
LEGISLATION
Freedom of Information Act 1982, sections 3, 22, 24(5), 25, 37(1)(a) & (b) 37(2)(b), 38, 61(1)
Telecommunications (Interception) 1979 Act, sections 6EA, 63
REASONS FOR DECISION
6 August 2003 Ms N Bell, Member 1. This is an application by Mr Leonard Faure (“the Applicant”) for review of a decision by Telstra Corporation Limited (“the Respondent”) to refuse the Applicant access to the following requested documents:
“1) All judicial orders or documents which may be reasonably construed as such, and as requested from any source, for the purpose of the interception or “bugging” of any telephone service with the number (02) 9771-9156.
2) Any other document which may not be included in the request (as in number (1) above) but is nevertheless pertaining directly or indirectly for the purpose as indicated in number one (1) above, that is interception or “bugging” of the telephone service with the number (02) 9771-9156.” (T3).
2. The means by which the Respondent refused access to the documents was to neither confirm nor deny the existence of the documents. This decision and approach was affirmed on review.
3. The Applicant appeared on his own behalf before the Tribunal and the Respondent was represented by Mr Mick Batskos. The following documentary evidence was before the Tribunal:
Exhibit
Document
Date
TDI
‘T’ documents
TD2
Further statement of decision of Respondent
18 March 2003
A1
Applicant’s Submission for consideration by the Tribunal
15 June 2003
R1
Respondent’s Statement of Facts and Contentions
17 April 2003
R2
Witness statement of Kingsley James Bannister
6 June 2003
R3
Respondent’s submissions
16 June 2003
EXEMPTIONS CLAIMED BY THE REPSONDENT
4. The Respondent’s claim for exemption of the documents requested is based on the following provisions of the Freedom of Information Act 1982 (“the Act”):
a) Section 38 of the Act in conjunction with section 63 of the Telecommunications (Interception) 1979 Act (“the TI Act”). Section 38 of the Act prohibits disclose of documents under a provision of an enactment. Section 63 of the TI Act provides:
63 No dealing in intercepted information or designated warrant information
(1)Subject to this Part, a person shall not, after the commencement of this Part:
(a)communicate to another person, make use of, or make a record of; or
(b) give in evidence in a proceeding;
lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1).
(2)Subject to this Part, a person must not, after the commencement of this subsection:
(a)communicate designated warrant information to another person; or
(b) make use of designated warrant information; or
(c) make a record of designated warrant information; or
(d)give designated warrant information in evidence in a proceeding.
b)Section 37(1)(a) which provides that a document is exempt if disclosure would or could reasonably be expected to prejudice the conduct of an investigation of a breach of the law or prejudice the proper enforcement or administration of the law;
c)Section 37(2)(b) which provides that a document is exempt if it would or could reasonably be expected to disclose lawful methods of investigating breaches of the law and prejudice the effectiveness of those methods.
5. The term “designated warrant information” is defined in section 6EA of the TI Act as:
6EA (a) information about any of the following:
(i) an application for a warrant;
(ii) the issue of a warrant;
(iii) the existence or non-existence of a warrant;
(iv) the expiry of a warrant; or
(b) any other information that is likely to enable the identification of:
(i) the telecommunications service to which a warrant relates; or
(ii)a person specified in a warrant as a person using or likely to use the telecommunications service to which the warrant relates.
6. In addition, the Respondent contended that on the basis of section 24(5) of the Act, it was entitled to refuse access without having identified any documents. The Respondent argued that without identifying the documents it is apparent from the description in the request for access, that all documents would if they existed be exempt documents under the above provisions.
7. The Respondent also contended that it was entitled to refuse access by relying on section 25 of the Act by neither confirming nor denying the existence of the documents.
APPLICANT’S CASE
8. The Applicant made the following written submission to the Tribunal and confined his comments to that submission:
“REFERENCE: Part One, Section Two of the Telecommunications Interception Act 1979 which reads as follows:
Commencement: " This Act comes into operation on the day on which the Australian Security Intelligence Organisation Act 1979 comes into operation"
1.1)This section clearly shows that the Telecommunication Interception Act 1979 is a supplemantary (sic) legislation to the ASIO Act…or ASIO an exempt agency for the purposes of the Freedom of Information Act 1982. The Telecommunication Interception Act 1979 can therefore be considered as solely aimed at the operations of ASIO.
1.2)It therefore follows that the contents of Section 63 of that Act the section upon which the respondent is relying on for its claimed absolution from its FOI obligations contain secrecy provisions which apply ONLY to, and when that telephone service is being used for the purposes of interception by, ASIO. Section 63 therefore DOES NOT APPLY to any other (Federal) agency which is not exempt under the Freedom of Information Act and which may use the telephone service for the purposes of interception (e.g. The Australian Federal Police).
1.3)The applicant therefore as inkeeping (sic) with this interpretation is submitting the following process which has to be followed (subject to the Tribunal’s determination):-
1.4)Any or all documents as relavant (sic) to ASIO will be isolated and be considered exempt for the purposes of the Freedom of Information Act 1982, (by the respondent)
1.5)Any or all documents besides those as indicated in 1.4 above cannot be, under any circumstances, considered as exempt documents and must be provided and/or a decision rendered (by the respondent) upon their request as in accordance with the Freedom of Information Act 1982 and as requested by the applicant.
1.6)Should any document/s exist which is/are in the possession of the respondent, and whose contents consists of conjoint material between that as relevant to ASIO which is exempt, and any other which clearly indicates that it is relevant to another Federal agency, then the exempt material may be deleted and that document or documents provided (to the applicant) as pursuant to Section 22 of the Freedom of Information Act 1982 “
RESPONDENT’S SUBMISSION
9. The Respondent made a lengthy written submission to the Tribunal. In relation to the exemption claimed under section 24(5) of the Act, so far as it relates to section 37(1)(a), the Respondent submitted:
“4.15In the present case it is submitted that the evidence clearly establishes that it is reasonable as distinct from irrational, absurd or ridiculous, to expect that the administration of the TI Act would be derogated from if the existence or non-existence of the documents sought by the applicant were confirmed one way or the other. Requiring Telstra to process the request and indicate whether the documents sought by the applicant existed and, if so, whether they would or would not be exempt would be a clear contravention of section 63 of the TI Act. This would put Telstra, as a carrier of telecommunications services, in direct conflict with its obligations to administer the TI Act in accordance with strict requirements of that Act (which include complying with the secrecy provision).
4.16That is, merely acknowledging the existence or non-existence of the documents sought by the applicant would divulge designated warrant information in contravention of section 63 of the TI Act. That conduct is specifically prohibited and is an offence. The importance and seriousness of that provision is emphasised by the fact that it would equally be such an offence were such information provided in evidence during a proceeding.
4.17If Telstra processed the request and documents were found to exist, their mere existence would make them exempt under section 37(1)(a) of the FOI Act. It is because disclosure would inevitably prejudice the proper administration of the TI Act by Telstra. As a carrier of telecommunications services Telstra is involved in the administration of the TI Act when it is requested to conduct interception activities in accordance with a warrant. As part of the administration of that Act Telstra and its staff are clearly covered by section 63 of the TI Act.. To indicate one way or the other whether a document falling within the request exists would be breach section 63 of the TI Act and, therefore, derogate from Telstra’s ability to administer the TI Act in accordance with its strict requirements and terms.”
10. So far as the claimed exemption under section 24(5) relates to section 37(2)(b) of the Act, the Respondent submitted:
“4.20The fact that the TI Act provides for the lawful methods or procedures for detecting, investigating or dealing with matters arising out of possible breaches of the law is self evident. It confirms that if the documents in question existed, their disclosure (and even the mere disclosure of their existence) would reveal those matters. That is, would disclose lawful methods or procedures for preventing, detecting, investigating or dealing with breaches of the law and would be likely to prejudice those methods.
4.21It is well accepted that the prejudice to the effectiveness of certain methods or procedures would be reasonably likely and that the risk that those methods may be less effective is increased if a person endeavouring to combat or evade them has authoritative knowledge of them. If the documents in question existed it is submitted that they would fall squarely within what was described by Deputy President Hall in the case Re Anderson and Australian Federal Police (1986) 11 ALD 355 at para 36 and 38 where he referred to the case of Re Mickelberg and Australian Federal Police (1984) 6 ALN N176:
“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 identity of a confidential source of information and relation to the enforcement or 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 the perceived threat. I agree, in this regard, with the views expressed by a differently constituted Tribunal in re Mickelberg and Australian Federal Police 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 agency’s 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.””
The learned Deputy President also stated at paragraph 38:
“Where a lawful police method or procedure would be disclosed s37(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… 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 there is a “real risk” of such prejudice. Finally, it must be noted that, for the purposes of s37, no consideration may be given to any countervailing public interest in favour of disclosure (see Department of Health v Jephcott 62 ALR 421).”
11. In relation to the exemption claimed under section 38 of the Act, the Respondent submitted:
“4.27Section 63 of the TI Act is one of the secrecy provisions recognised and given effect to by section 38 and Schedule 3 of the FOI Act.
4.28If the documents sought by the applicant were to exist, it is clear that those documents would be in the nature of designated warrant information as defined in section 6EA of the TI Act referred to earlier. That is, it would comprise the warrant and information about the warrant or as to the existence or non-existence of a warrant.
…
4.32The second element that is required to satisfied before section 24(5) is made out is that were the documents as described to exist, would there be an obligation to provide a copy of edited documents under section 22 of the FOI Act with exempt matter deleted. For the reasons set out below it is submitted that there would be no such obligation. In addition, it is arguably apparent from the request that the applicant would not wish to have access to an edited copy of any documents were they to exist.
4.33It is submitted that no obligation would arise under section 22 as a result of the operation of section 63 of the TI Act. That is, the mere fact of existence or non-existence of a document being acknowledged would convey information which is prohibited from disclosure. To the extent that any document were to exist falling within the applicant’s request, no amount of editing could deprive it from being exempt in full. This is because by definition the whole of any document would be exempt to the extent that it contained (or comprised) information about the existence or non-existence of a warrant for a telephone interception. This is one of those rare “all or nothing” occasions.
4.34In those circumstances it is submitted that section 24(5)(b)(ii) similarly does not come into play because of the operation of the secrecy provision in the TI Act. It is apparent from the request when viewed in conjunction with the effect of section 63 of the TI Act that the applicant would not wish to have edited documents.”
12. In relation to the Respondent’s reliance on section 25(2) of the Act in order to neither confirm nor deny the existence of the documents sought by the Applicant the Respondent submitted, concerning exemption under section 37(1)(a):
“5.7As referred to earlier, Telstra is a telecommunications service carrier involved in the administration of the TI Act. By requiring Telstra to divulge whether or not the documents sought by the applicant exist, there would be in direct contravention of the secrecy provision in section 63 of the TI Act and would directly detract or derogate from Telstra’s ability to administer the TI Act in this particular instance in strict accordance with the TI Act. Accordingly, any notional document containing information as to the existence or non-existence of the documents sought by the applicant would be clearly exempt under section 37(1)(a) of the FOI Act as it would prejudice the proper administration of the law in a particular instance.”
13. In relation to a claimed exemption under section 37(1)(b), the Respondent submitted:
“5.10It is contended that in circumstances surrounding any application for an interception in accordance with the TI Act there are inherent circumstances of confidentiality involved. Any sources of information involved in that process could properly be considered as “confidential” for the purposes of section 37(1)(b) of the FOI Act. The provisions of Part VI, Division 3 of the TI Act dealing with some of the procedures involved make it clear that the name of the person seeking the warrant must be provided and there must be an affidavit in support of a written application. Given the inherent secrecy surrounding the issuing and implementation of warrants under the TI Act and the limited circumstances in or purposes for which warrants may be issued, it is clear that the individuals involved in this process would be considered confidential sources of information in relation to the enforcement or administration of the law.
5.11For example, if Telstra possessed a notional document that contained information as to the existence or non-existence of documents pertaining to directly or indirectly to the purpose of getting an order for interception or bugging, that would directly enable the applicant or any other person to ascertain that there existed or did not exist a confidential source of information. If a notional document contained a statement that the documents sought existed, that would confirm that a confidential source of information existed. If the notional document contained information as to the non-existence of the documents sought, that would disclose or enable a person to ascertain the non-existence of a confidential source of information. In either case the source of information would be in relation to the administration of the law, namely, the TI Act.
5.12Considering all of the facts and circumstances, and particularly the regime contained within the TI Act, it is submitted that on the balance of probabilities documents as described by the applicant in his request for access would contain information provided under an express or implied pledge of confidentiality as to the source of the information in relation to the administration of the TI Act. In those circumstances a response in a document by Telstra in terms otherwise than to neither confirm nor deny the existence of such documents sought would be an exempt document pursuant to paragraph 37(1)(b) of the FOI Act that is, it would, on the balance of probabilities, disclose the existence or non-existence of a confidential source of information relating to the enforcement or administration of the law: Re Vandenberg and Secretary to the Department of Social Security, paras 20, 26 and 28.”
CONSIDERATION
14. Section 24(5) of the Act provides as follows:
24 Requests may be refused in certain cases“
24(5)An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if:
(a)it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and
(b)either:
(i)it is apparent from the nature of the documents as so described that no obligation would arise under section 22 in relation to any of those documents to grant access to an edited copy of the document; or
(ii)it is apparent from the request or as a result of consultation by the agency or Minister with the person making the request, that the person would not wish to have access to an edited copy of the document.”
1.1Section 37(1)(a) of the Act provides as follows:
37 Documents 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.”
15. Section 37(2)(b) of the Act relevantly provides:
“37(2)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to…
(a)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.”
16. Section 38 of the Act relevantly provides:
“38 Documents to which secrecy provisions of enactments apply
38(1) Subject to sub-section (1A), a document is an exempt document if:
(a)disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.
…
38(2)Where a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.”
17. Section 25 of the Act provides as follows:
“25 Information as to existence of certain documents
25(1)Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document where the information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be an exempt document by virtue of section 33 or 33A or sub-section 37(1).
25(2)Where a request relates to a document that is, or if it existed would be, of a kind referred to in sub-section (1), the agency or Minister dealing with the request may give notice in writing to the applicant that the agency or the Minister, as the case may be, neither confirms nor denies the existence, as a document of the agency or an official document of the Minister, of such a document but that, assuming the existence of such a document, it would be an exempt document under section 33 or 33A or sub-section 37(1) and, where such a notice is given:
(a)section 26 applies as if the decision to give such a notice were a decision referred to in that section; and
(b)the decision shall, for the purposes of part VI, be deemed to be a decision refusing to grant access to the document in accordance with the request for the reason that the document would, if it existed, be an exempt document under section 33 or 33A or sub-section 37(1), as the case may be.”
18. Consideration of the above mentioned provisions of the Act cannot be undertaken without regard to section 3 and subsection 61(1) of the Act. Section 3 provides in part:
"3 Object
3(1)the object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by -
(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
3(2)it is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information."
19. Subsection 61(1) provides:
"61 Onus
61(1)Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant."
20. Section 22 of the Act permits a document to be released with deletions. The nature of the documentation sought by the Applicant in this matter renders this provision inapplicable.
21. The Tribunal considers the Respondent’s submissions as to the availability of exemptions under the Act and the application of sections 24 and 25 of the Act to be sound. The Tribunal rejects the submission of the Applicant as to the application of section 63 of the TI Act as incorrect.
22. The Tribunal considers that an exemption under section 38 of the Act is available to the Respondent because disclosure of the documents requested, which are “designated warrant documents”, is prohibited under section 63 of the TI Act. That provision is included in Schedule 3 to the Act.
23. The Respondent refused access to the documents requested, if they exist, without identifying any documents and by neither confirming nor denying their existence.
24. As to the non-identification of documents, it is clear they are, by their nature, exempt under the Act. It is also clear that they do not, again by their nature, if indeed they exist, lend themselves to the type of modification or deletions envisaged in section 22 of the Act. It follows that, pursuant to section 24(5) of the Act, the Respondent may refuse to grant access to the documents, if they exist, without having identified any or all of the documents to which the request relates.
25. Turning to the Respondent’s decision to neither confirm nor deny the existence of the documents, it is clear that the documents are exempt under section 37(1)(a). This is because, if the documents exist, they are of such a nature that their release could prejudice the conduct of an investigation of a breach or possible breach of the law. Telephone interceptions, by their nature, are granted and administered in secrecy for the purpose of investigating a breach or possible breach of the law. The disclosure of documents relevant to a telephone interception would clearly prejudice that investigation. In addition, the Respondent is in the position of being a participant in the administration of the TI Act and release of information as to the existence or non existence of such documents would amount to the divulging of “designated warrant information”.. Not only is such conduct prohibited under the TI Act it would prejudice the administration of the TI Act. It follows that section 25(2) of the Act applies to allow the Respondent to neither confirm no deny the existence of the documents requested.
26. Given this conclusion, it is unnecessary to consider the exemption claimed by the Respondent under section 37(1)(b) of the Act.
DECISION
27. The Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Member
Signed: A. Krilis
AssociateDate/s of Hearing 16 June 2003
Date of Decision 6 August 2003
Representative for the Applicant Self Represented
Representative for the Respondent Mr Mick Batskos
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