Fernandes and Director-General, National Archives of Australia - [2020] AATA 128

Fernandes and Director-General, National Archives of Australia [2020] AATA 128 (13 January 2020)
Division:GENERAL DIVISION
File Numbers: 2017/7744
Re:Dr Clinton Fernandes
APPLICANT

AndDirector-General, National Archives of Australia
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:13 January 2020
Place:Sydney

The decision of the National Archives dated 21 November 2018 is affirmed.
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Deputy President J W Constance
CATCHWORDS
ARCHIVES – Commonwealth Archives – disclosure of information as to the existence or non-existence of requested records in a Commonwealth record – whether disclosure would cause that Commonwealth record to be an exempt record – decision under review affirmed
LEGISLATION
Archives Act 1983 (Cth) ss 2A, 3, 31, 33, 39, 44
Freedom of Information Act 1982 (Cth) s 25
CASES
Brooks and Secretary, Department of Defence [2017] AATA 258
Department of Health v Jephcott (1985) 8 FCR 85
National Archives of Australia v Fernandes [2014] FCAFC 158
Re Slater and Cox (Director-General of the Australian Archives) [1988] AATA 118
SECONDARY MATERIALS
Brian Toohey and William Pinwell, Oyster: The Story of the Australian Secret Service (William Heinemann Australia 1 December 1989)
Report on the Australian Secret Intelligence Service, Public Edition March 1995
REASONS FOR DECISION
Deputy President J W Constance
13 January 2020

The National Archives of Australia was established by the Archives Act 1983 (Cth). One of its functions is “preserving and making publicly available the archival resources of the Commonwealth”.[1]
[1] Section 2A of the Act.
The function of making resources publicly available is subject to various restrictions imposed by the Act. One of these restrictions is to limit access to material which is determined to be an exempt record, as defined in the Act. Further, the National Archives is not required “to give information as to the existence or non-existence of a record where information as to the existence or non-existence of that record, if included in a Commonwealth record, would cause the last-mentioned record to be an exempt record”[2] by virtue of specified provisions of the Act.
[2] Subsection 39(1) of the Act.
On 9 August 2017, Dr Fernandes applied to the National Archives for access to the following records:
Records relating to ASIS [Australian Secret Intelligence Service] presence and operations in Cambodia 1965 – 1970.[3]
[3] Exhibit R6 at [37].
On 21 November 2018, a delegate of the Director-General advised Dr Fernandes:
As provided for in section 39(2) of the Archives Act, I neither confirm nor deny the existence of any records created or controlled by ASIS relating to ASIS presence and operations in Cambodia 1965-1971. Assuming the existence of any such record, it would be an exempt record by virtue of section 33(1)(a), (b) or (e), as the case may be.[4]
In these reasons, I will refer to this decision as “the reviewable decision”.
[4] Exhibit R6 at [43].
On 7 November 2017, Dr Fernandes applied to the Tribunal to review the reviewable decision.[5]
[5] See section 43 of the Act.
LEGISLATION
Unless Commonwealth records are “exempt records” within the meaning of the Act, the National Archives is required to make them available for public access once they fall within the open access period.[6] It is not in dispute that the requested records, if they exist, fall within the open access period.
[6] A table for the determination of the open access period in relation to particular documents is set out in subsection 3(7) of the Act.
Section 31 of the Act provides in part:
Records in open access period to be publicly available
(1A) This section applies to a Commonwealth record that:
(a)is in the open access period; and
(b)is in the care of the Archives or in the custody of a Commonwealth institution; and
(c)is not an exempt record.
(1) Subject to this Part, the Archives must cause the record to be made available for public access.
Subsection 33(1) provides, in part:
Exempt records
(1) For the purposes of this Act, a Commonwealth record is an exempt record if it contains information or matter of any of the following kinds:
(a) information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth;
(b)information or matter:
(i)     that was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity ) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity ); and
(ii)      which the foreign entity advises the Commonwealth entity is still confidential; and
(iii)    the confidentiality of which it would be reasonable to maintain;
…
(e)information or matter the disclosure of which under this Act would, or could reasonably be expected to:
(i)     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;
(ii)     disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law; or
(iii)     endanger the life or physical safety of any person;
…
Section 39 provides:
Information as to existence of certain documents
(1) Nothing in this Act shall be taken to require the Archives to give information as to the existence or non-existence of a record where information as to the existence or non-existence of that record, if included in a Commonwealth record, would cause that last-mentioned record to be an exempt record by virtue of paragraph 33(1)(a), (b) or (e).
(2) Where an application to the Archives for access to a record relates to a record that is, or if it existed would be, of a kind referred to in subsection (1), the Archives may give notice in writing to the applicant that the Archives neither confirms nor denies the existence, as a Commonwealth record, of such a record but that, assuming the existence of such a record, it would be an exempt record, and, where such a notice is given:
(a) section 40 applies as if the decision to give such a notice were a decision referred to in that section; and
(b) the decision to give the notice shall, for the purposes of Division 4, be deemed to be a decision of the Archives refusing to grant the applicant access to the record on the ground that the record is an exempt record under paragraph 33(1)(a), (b) or (e), as the case may be.
ISSUES FOR DETERMINATION
The Director-General accurately stated the issues for determination as follows:
1. whether the disclosure of information as to the existence or non-existence of the requested records in a Commonwealth record would cause that Commonwealth record to be an exempt record by virtue of ss 33(1)(a), (b) or (e) of the Archives Act, and depending on the answer to that question
2. whether the [Director-General] was entitled to give [Dr Fernandes] the 21 November 2018 notice in response to [Dr Fernandes’] application for access.[7]
[7] Statement of Facts, Issues and Contentions of the Respondent dated 15 March 2019 at [8].
THE ARGUMENT ON BEHALF OF DR FERNANDES
The following contentions were made on behalf of Dr Fernandes.
The exercise of the power under subsection 44(7) of the Act
Subsection 44(7) provides:
On a review in pursuance of an application to the Tribunal under section 43, the Tribunal may, if it is satisfied that it would be practicable to give access to, or to a copy of, part of an exempt record in a form that would not disclose information or matter by reason of which the record is an exempt record, direct that access be given accordingly.
When exercising this power, the Tribunal stands in the shoes of the National Archives and can exercise the powers available to it under the Act.[8]
[8] National Archives of Australia v Fernandes [2014] FCAFC 158 at [14].
Details of ASIS involvement in Cambodia are available on the public record
It was argued that documents on the public record show that ASIS was involved in Cambodia during the period covered by Dr Fernandes’ request:
·the ASIS website referring to the establishment of the organisation in 1952 as “a collector of foreign intelligence, primarily in the Asia-Pacific region”;[9]
[9] Exhibit A1 at 1.
·the publication “Oyster: The Story of the Australian Secret Service” by Brian Toohey and William Pinwell which includes:[10]
[10] Extracted in Exhibit A1; published by William Heinemann Australia (1 December 1989).
oa reference to the opening of an ASIS station in Phnom Penh;[11]
[11] Transcript, 27 May 2019, at 5.
oa reference to an ASIS representative in Phnom Penh;[12]
oa reference to ASIS offices in Phnom Penh;[13]
oa reference to ASIS reports on Cambodia in 1970 – 1972;[14]
oa reference to the building of a network of agents inside Phnom Penh;[15]
·Report on the Australian Secret Intelligence Service, Public Edition March 1995 which includes:
oFrom the beginning ASIS had a regional focus. This was reflected in the reasons put forward in 1950 for its establishment. They included: the Communist victories in China; the situation in Indo-China and Malaya; the rise of nationalism in Asia and so on.[16]
o15.77 The picture of ASIS which is presented to the Australian public should, as nearly as possible, resemble the true position. It seems to us to be self-evident that the persistence of an image of ASIS based on untruths and half-truths is contrary to the public interest. Within the constraints of secrecy which we have discussed in detail elsewhere, the Australian public should know what their foreign intelligence service is and is not doing in their name and on their behalf. We also think it very much in the interests of the Service that this should occur.
15.78 The essence of the strategy which we recommend is that as much information as possible about ASIS should be on the public record.[17]
[12] Transcript, 27 May 2019, at 5.
[13] Transcript, 27 May 2019, at 5.
[14] Transcript, 27 May 2019, at 5.
[15] Transcript, 27 May 2019, at 6.
[16] Exhibit A1 at 63.
[17] Exhibit A1 at 257.
It was argued that in view of the substantial amount of material already on the public record, the Director-General’s position that the existence of the requested documents should not be confirmed or denied is not sustainable.
The logic of the situation
It was submitted that it is logical that ASIS would have had an interest in Cambodia. This was put on the basis that Cambodia was a neighbour of Vietnam in which Australia was fighting a war, during which Australia maintained its diplomatic status with Cambodia.[18]
[18] Transcript, 27 May 2019, at 9.
A previous application to the Tribunal
In Re Slater and Cox (Director-General of the Australian Archives)[19] before the Tribunal, the Director-General acknowledged the existence of documents in relation to Cambodia during the period 1950 – 1955.
“Disclosure of ASIS (MO)” by Major Peter Young[20]
[19] [1988] AATA 118.
[20] Exhibit A2.
This extract of records of the National Archives refers to the role of Australian Intelligence in Cambodia.[21]
[21] Transcript, 25 May 2019, at 12.
THE EVIDENCE OF MR P B SYMON, DIRECTOR-GENERAL OF THE AUSTRALIAN SECRET INTELLIGENCE SERVICE
Mr Symon provided two affidavits sworn 15 March 2019[22] and gave evidence at the hearing. He also gave evidence in the closed hearing.
[22] Exhibits R1 and R3.
Mr Symon has held the position of Director-General of the Australian Secret Intelligence Service since 18 December 2017.
Mr Symon gave evidence that:
·a core function of ASIS is to obtain foreign intelligence through the management of a network of agents working overseas;
·the foreign intelligence is obtained without the official sanction of the owners of the information;
·operation in secrecy is essential for the operations of ASIS;
·“without accurate advice from ASIS, the Australian Government’s capacity to respond in a timely and well informed way to threats to Australia’s national interests, including security, may be substantially reduced”;[23]
·the public disclosure of ASIS information immediately exposes the information to scrutiny, including by way of mosaic analysis;
·mosaic analysis is a method of piecing together numerous disparate and often innocuous pieces of information by intelligence services; it can assist in revealing matters otherwise secret to ASIS and can be used to identify potential weaknesses and vulnerabilities of the Service;
·in intelligence operations, speculation is conjecture without an evidence base whereas official confirmation relies on official evidence; ASIS resources would be employed against official confirmation, but unlikely in relation to speculation;
·“there is … a significant difference between unofficial speculation and official confirmation of the correctness or existence (or otherwise) of a particular matter. Official confirmation, such as through the release of Archives records, may provide ASIS’s adversaries with a number of advantages when applying mosaic analysis”;[24]
·the effluxion of time is not the only factor when judging whether a source should be revealed or not.
[23] Exhibit R1 at [35].
[24] Exhibit R1 at [40].
Specifically, in relation to the request of Dr Fernandes, Mr Symon said that:
… in some circumstances, to confirm the existence of certain records would otherwise convert mere speculation into official fact, while to deny the existence of records would imply confirmation of any subsequent request for records on a same or similar topic, such as the same country, that was not denied.
…
… In some circumstances, merely confirming that there are records relating to certain things would enable reliable inferences to be drawn about such things as ASIS’s areas of interest at particular times, capabilities and methods of operation. It may also damage Australia’s international relations with certain countries.
…
For various reasons there is information in the public domain which confirms, for example, that ASIS holds records pertaining to Portuguese Timor and Indonesia in the 1970s. However, to my knowledge, there is no equivalent information in the public domain confirming whether ASIS does or does not hold records relating to Cambodia.
In my opinion, confirming or denying whether there are any records relating to ASIS presence and operations in Cambodia 1965 – 1970 could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth.[25]
[25] Exhibit R3 at [10], [12]-[13].
CONSIDERATION
Issue 1: Would the disclosure of information as to the existence or non-existence of the requested records in a Commonwealth record cause that Commonwealth record to be an exempt record by virtue of ss 33(1)(a), (b) or (e) of the Archives Act?
For convenience I again set out the provisions of subsection 39(1) of the Act:
Information as to existence of certain documents
(1) Nothing in this Act shall be taken to require the Archives to give information as to the existence or non-existence of a record where information as to the existence or non-existence of that record, if included in a Commonwealth record, would cause that last-mentioned record to be an exempt record by virtue of paragraph 33(1)(a), (b) or (e).
(2) Where an application to the Archives for access to a record relates to a record that is, or if it existed would be, of a kind referred to in subsection (1), the Archives may give notice in writing to the applicant that the Archives neither confirms nor denies the existence, as a Commonwealth record, of such a record but that, assuming the existence of such a record, it would be an exempt record, and, where such a notice is given:
(a) section 40 applies as if the decision to give such a notice were a decision referred to in that section; and
(b) the decision to give the notice shall, for the purposes of Division 4, be deemed to be a decision of the Archives refusing to grant the applicant access to the record on the ground that the record is an exempt record under paragraph 33(1)(a), (b) or (e), as the case may be.
It was argued on behalf of Dr Fernandes that the “Commonwealth record” referred to in subsection 39(1) is a reference to an existing document, not a hypothetical document as submitted on behalf of the Director-General. It was put that the Act refers to a “record” which is defined to include a document “that is, or has been, kept…”.[26] Counsel argued that “a hypothetical document is not a document. It cannot be kept.”[27]
[26] Subsection 3(1) of the Act.
[27] Outline of Submissions of the Applicant dated 26 March 2019 at [15].
I do not accept this argument. The use of the word “if” and the words “would cause” (future tense) show a clear intention that the Commonwealth record being referred to is not an existing document.
In Brooks and Secretary, Department of Defence,[28] I had cause to consider subsection 25(1) of the Freedom of Information Act 1982 (Cth),[29] a subsection which is in all relevant respects the same as subsection 39(1) of the Act.
[28] [2017] AATA 258.
[29] Subsection 25(1) of the Freedom of Information Act 1982 (Cth) relevantly provides:
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 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 …
In the application now before me I maintain the view I expressed in Brooks:
29. I accept the argument of the Secretary that subsection 25(2) “does not, by its terms, require the relevant agency or Minister to in fact determine that the requested documents, if they exist, would be exempt under those provisions. Rather, it is enough that a response confirming or denying the existence of the requested documents would itself be exempt under those provisions – if the agency or Minister is satisfied of that, they are entitled to provide a response in the terms set out in s 25(2).
30. It is the fact of denial or confirmation of the existence of documents, if that confirmation or denial was itself recorded in a document, that must meet the requirements of s 33 to be an exempt document. If the requirements of s 33 are met in these circumstances, the agency or Minister is empowered to give the subject notice. At no stage of this process is the agency or Minister required to consider whether they are, in fact, documents which themselves are exempt under section 33. Furthermore, subsection 25(2) does not require that a “document” be assumed to exist and then be subject to the requirements of section 33.
I find support for the conclusion I have reached in the judgement of Forster J in Department of Health v Jephcott:[30]
Section 25 is in some respects rather curious in that it provides for the notional creation of a hypothetical document. In this case it is a document of the agency including information as to the existence or non-existence of a letter or a memorandum of some other sort recording information given by Mrs Butler about Mrs Jephcott and Mrs Whitehead. If such a hypothetical document existed and was an exempt document by virtue of s 37(1) then the Department was entitled to give the answer which it gave neither admitting nor denying the existence of any record of information given by Mrs Butler. … If the hypothetical document to which I have referred would "disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law" then the hypothetical document would be exempt and pursuant to s 25(2) the Department was entitled to give notice to Mrs Jephcott as it did, neither confirming nor denying the existence of records of information given by Mrs Butler about Mrs Jephcott and Mrs Whitehead.
[30] (1985) 8 FCR 85 at 88.

On the basis of the evidence of Mr Symon given in the open and closed sessions, I am satisfied that if information as to the existence or non-existence of the requested records was contained in a Commonwealth record, that Commonwealth record itself would be an exempt record.
Clearly Mr Symon was particularly well-qualified to express the opinions he did. This is not to say that in considering matters such as this the Tribunal should implement the views expressed to it in the evidence given. The Tribunal is required to make the correct decision. In so doing, it is appropriate for it to take into account the expert evidence of officers of ASIS as to the effect of certain action or lack of action on its operations.
On the basis of Mr Symon’s evidence, I am satisfied that the disclosure of whether or not the requested records exist could reasonably be expected to cause damage to the security, defence and international relations of the Commonwealth.
The evidence of Mr Symon in closed session confirmed and added to the evidence I have set out above. I am satisfied that Mr Symon was an honest witness who gave his evidence in a careful and considered manner.
Unless requested I do not propose to publish classified reasons in this application.
Issue 2: Was the Director-General entitled to give Dr Fernandes the 21 November 2018 notice in response to his application for access to the requested documents?
In view of the conclusion I have reached above it follows that the Director-General was entitled to give the notice he did.
CONCLUSION
The reviewable decision, being the decision of the Director-General, National Archives of Australia to notify Dr Fernandes that he neither confirmed nor denied the existence of “Records relating to ASIS [Australian Secret Intelligence Service] presence and operations in Cambodia 1965 – 1970”, will be affirmed.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate
Dated: 13 January 2020

Date of hearing: 27 May 2019

Counsel for the Applicant: I Latham

Solicitors for the Applicant: Beston Macken McManis

Counsel for the Respondent: A Berger

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	27 May 2019
Counsel for the Applicant:	I Latham
Solicitors for the Applicant:	Beston Macken McManis
Counsel for the Respondent:	A Berger
Solicitors for the Respondent:	Australian Government Solicitor