Fewster and Director-General, National Archives of Australia (Freedom of information)

[2023] AATA 4240

Fewster and Director-General, National Archives of Australia (Freedom of information) [2023] AATA 4240 (21 December 2023)

Division:Freedom of Information Division

File Number(s):       2018/5813

Re:Alan Fewster

APPLICANT

AndDirector-General, National Archives of Australia

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:21 December 2023

Place:Adelaide

The Tribunal decides that the reviewable decision, as varied by the parties, is affirmed.

..............................[SGD]......................................

The Hon. John Pascoe AC CVO, Deputy President

Catchwords

FREEDOM OF INFORMATION – National Archives of Australia – exempt records – information or matter the disclosure of which could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth – whether discretion should be exercised to allow release of part of the records – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 36

Archives Act 1983 (Cth) ss 33, 44

REASONS FOR DECISION

21 December 2023

BACKGROUND:

1. On 4 June 2018 the Applicant, Mr Fewster, lodged an application for access under the Archives Act 1983 (Cth), for the following record:

   (a)‘Australian Secret Intelligence Service [ASIS] “History of the Service” – internal version’ (ASIS Internal History);

2. On 5 June 2018, the Respondent informed the Applicant that:

   As mentioned on the phone today, I have submitted a request on your behalf to the Australian Secret Intelligence Service [ASIS] seeking access to their internally written history of itself.

   As you identified, several relevant records were created by ASIS. After extensive searches, we have been unable to locate these records in our collection. It is possible that they may still be held by the controlling agency. As such, we have submitted an application on your behalf to have the controlling agency search for these records, and transfer them to the National Archives.

3. On 3 September 2018, the Respondent notified Mr Fewster that they had not been able to notify him of a decision in relation to his application for access to the internal history within 90 days and referred him to his options to seek appeal as to the outcome of this request. The Applicant was also informed that the Respondent would continue to process his application and notify him of a decision when examination was completed

4. On 8 October 2018, the Applicant applied to the Administrative Appeals Tribunal for review of the deemed refusal of his application for access to the records.

5. In June 2020, a decision was made denying the Applicant access to the entirety of the internal history. However, the decision has since been altered by the Tribunal with the consent of the parties, most recently on 17 November 2023, giving the Applicant access to parts of the records.

   PROCEEDINGS AND THE ROLE OF THE TRIBUNAL:

6. In considering this application, the role of the Tribunal as an integrity measure under the Archives Act may need some further explanation. The Tribunal does not concern itself with the motivations of the person seeking access to the documents in question. The Tribunal’s focus is on whether the exemptions have properly been claimed by the decision-maker under the legislation.

7. The Tribunal has received evidence in this case – some of it in closed session – from experts with experience in matters of national security and intelligence. The ways in which Australia’s adversaries can obtain useful and potentially damaging insights from apparently innocuous disclosures, including through a process known as ‘mosaic analysis’, was carefully outlined. The Tribunal was provided with evidence about how increasingly powerful computer systems can be used by foreign intelligence services to put together seemingly unrelated pieces of information, which when taken as a whole, may be prejudicial to Australia’s security.

8. The difference between official confirmation of material and mere speculation was also discussed. It is self-evident that information which has been officially confirmed is of much greater value than information which may be the subject of speculation, perhaps even well based speculation.   

9. The importance of security to the free flow of information between intelligence agencies, both nationally and internationally was also outlined.

10. It is also important to appreciate the provisions in the Archives Act relating to exempt records of the intelligence and security services are not merely concerned with preserving the secrecy of information contained in individual documents in appropriate cases. In many instances – and this may be one of them – the concern is less about keeping secrets per se than it is about preserving our government’s capacity to keep secrets where appropriate. That capacity is important in and of itself, but it is vital in circumstances where our security and intelligence services depend on others to provide us with valuable information that impacts on our national security in a dangerous world. It is no answer to say that other countries which provide us with assistance in the expectation of secrecy might take a more relaxed approach to some of the same information which might be contained within the files. It is also beside the point that some of the information in the documents may already be known or strongly suspected in some circles. Protecting our ability to keep secrets – and being seen to do that – may require us to continue suppressing documents containing what may appear to be benign or uncontroversial information about events that occurred long ago.

11. Part of the Tribunal’s role is also to maintain public confidence in the accountability of Government agencies. For this reason, what might appear to be a costly and somewhat opaque process is a necessary one. In looking at matters involving Australia’s security and intelligence services, the Tribunal must make a delicate balance between proper protection of Australia’s national security, which properly involves secrecy and the protection of confidential information. This must be balanced against public accountability so as to ensure that our intelligence and security services maintain public trust, including the keeping of records, even where access to those records is necessarily restricted, for example in accordance with the Archives Act.

    LAW:

12. Section 33(1)(a) of the Archives Act provides as follows:

    (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;…

13. Sections 44(3) is stated as follows:

    (3) where, in proceedings before the Tribunal in pursuance of an application under section 43, it is established that a record is an exempt record, the Tribunal does not, except as provided by subsection (7), have power to decide that access is to be granted to the record.

14. Section 44(7) is in the following terms:

    (7) 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 disclosure information or matter by reason of which the record is an exempt record, direct that access be given accordingly

    ISSUE

15. There are two issues in this case. First, is the exemption under s 33(1)(a) of the Archives Act correctly claimed. Second, and if so, ought the discretion in s 44(7) be exercised, so to give access to, or to a copy of part of, the exempt records in a form that would not disclose information or matter by reason of which the records are exempt.

    EVIDENCE:

16. In open material, the Applicant detailed that he was writing a biography of Sir Walter Cawthorn and was seeking access to the whole of the ASIS Internal History, and in particular, those parts of the history were of particular interest to him, in that they covered periods in which Sir Walter was the Director General of ASIS.

17. The Applicant referred to the Tribunal to a range of information that had been published in relation to ASIS and its history, including comments by the Director General of ASIS in 2012, and an interview by the Director General of ASIS with the Australian Strategic Policy Institute in September and October 2020, and a 2019 discussion with Allan Gyngell.

18. The Applicant also referred the Tribunal to material published in the book ‘Oyster; the story of the Australian Secret Intelligence service’, and in ‘Secret: The Making of Australia’s Security State’, by Brian Toohey, published in 2019.

19. For its part, in open session, the Respondent relied upon the affidavits of:

    (b)Mr Jack Lowe, of ASIS;

    (c)Mr Peter Darby of ASIO;  

    (d)Ms Michelle Chan from the Department of Foreign Affairs and Trade (DFAT);

    (e)Ms Brooke Sharpley of the Defence Intelligence Organisation;

20. The Applicant did not seek to cross examine the above witnesses, but a series of questions, prepared by the Applicant was put to each of them during the confidential session.  

21. On 24 August 2021, and 18 October 2023, the Commonwealth Attorney General issued a certificate under section 36 of the Administrative Appeals Tribunal Act 1975 (Cth), placing an obligation on the Tribunal not to disclose certain confidential material which was lodged in the matter.

    Evidence of Mr Lowe

22. In his open affidavit Mr Lowe gives evidence of his employment with ASIS over a period of approximately 25 years.

23. Mr Lowe says that as a result of his background and experience he has expertise in relation to the following matters:

    (a)ASIS’s role and how it operates;

    (b)Intelligence and counter-intelligence activities;

    (c)National security, defence, foreign relations and liaison relationship matters, including what may put these at risk; and

    (d)The importance of maintaining the secrecy of sensitive information concerning ASIS.

24. At paragraph 57 of his affidavit, Mr Lowe makes the following statement:

    I have personally examined the ASIS Internal History. In assessing what material should remain exempt from release, I have also taken into account the material released by the NAA from the record known as Series A12392, Volume 3: ‘[History compiled by the Department of Foreign Affairs:] Post-War Development of Australia’s Intelligence Machinery: A Documentary Survey Part 3 – Australian Secret Intelligence Service’.

25. And continues in paragraph 58, to state that in his view ‘disclosure of the exempted information could reasonably be expected to cause damage to the security, defence and international relations of the Commonwealth.’.

26. In his affidavit Mr Lowe also referred to the current security environment, and stated as follows:

    The threat environment which faces Australia now is very serious. The level of threat has substantially increased over recent years. Further, the environment is continues to evolve. New threats and dangerous threats emerge periodically (as other threats cease or reduce).

    Similarly, the capacity and sophistication of ASIS’s adversaries, such as foreign intelligence services, and how they can collect information also evolves across time.  

27. Mr Lowe gave much more detailed evidence in closed session, and I accept his evidence without reservation. Put simply, Mr Lowe demonstrated to the Tribunal that he had approached his task firstly, with the view of releasing as much material as possible, consistent with his view as to what could be released without damaging Australia’s security, and that he had undertaken his task with diligence and great care. I found his evidence to be entirely reliable.

28. In relation to the importance of secrecy to ASIS, Mr Lowe said as follows:

    34. In order to operate effectively, ASIS must largely do its work in secrecy. In order to remain effective today, it is essential for ASIS to protect information the disclosure of which could decrease that effectiveness now. This includes the identity of ASIS staff members and agents, sensitive aspects of the intelligence ASIS obtains and how it obtains it, the information provided to ASIS in confidence by liaison partners and other government agencies, as well as the details of ASIS’s sensitive operations, techniques, capabilities, methods and certain sensitive internal administrative arrangements where that information could be used to circumvent ASIS’s current or future operations.

    35. Secrecy is necessary for ASIS to operate effectively and obtain such foreign intelligence as is required by the Australian Government.

    35.1 If ASIS does not operate secretly, and deniably, when collecting foreign intelligence, the capacity of its adversaries to deploy counter measures against ASIS operations will be enhanced and ASIS’s effectiveness commensurately decreased.

    35.2 ASIS’s operational effectiveness depends on ASIS staff and agents being willing to accept the risk of severe adverse consequence should their identities be disclosed, including serious risk to their lives or liberties. The risk of serious adverse consequences may also extend to their families. These risk to staff, agents (and at times families) may persist long after the relevant ASIS operation, and/or the person’s association with ASIS has ended.

    35.3 ASIS’s operational effectiveness depends on maintaining the confidence of the many persons, agencies and foreign liaisons that provide information to ASIS. If these sources of information lose confidence in ASIS’s willingness and ability to maintain the confidentiality of information provided to it on the understanding that it will not be disclosed, it is likely to result in information of vital importance to Australia’s natural security, defence or international relations being withheld from ASIS (and consequently, from the Australian Government).

    35.4 ASIS must operate in such a way that the risk of discovery of its activities is minimised, limited the risk of damage to Australia’s international reputation if its activities are disclosed.

29. In relation to the passage of time, Mr Lowe said as follows:

    37 The access request concerns a record from the 1970s containing information from the 1940s to the 1970s.

    38 Whilst, as a general proposition, the passage of time can lead to the risk of damage to security, defence or international relations arising from the disclosure of sensitive information being reduced (sometimes to nothing), that is not always the case. Further, the relationship between the passage of time and the propensity of a particular segment of information causing damage if released is not necessarily linear. The sensitivity of the information may, depending on various circumstances, also increase at points in time, rather than decrease. As a general proposition, the reason(s) for its sensitivity may also be modified across time.

    39. I have taken into account the effect the passage of time has had on the sensitivity of the information in the record as well as the likelihood that the information would cause damage to security, defence or international relations. Where I consider the passage of time (or any other factor) has meant that the information can be released without any real risk of damage to security, defence, or international relations, that advice has been provided to the NAA by ASIS.

    40. However, I consider that the public release of the remainder of the record would lead to a real risk of such damage despite the passage of time since the record was made.

30. Mr Lowe also referred to mosaic analysis, and in paragraph 43, stated as follows:

    The disclosure of ASIS information can have significant adverse consequences for ASIS and the Australian Government, including in some of the ways noted above. Information released in response to an Archives Act access application is made available to the public as a government record. It may be published on the NAA’s website. This readily and directly exposes the information to scrutiny, including by way of mosaic analysis.

31. Mr Lowe also gave evidence in relation to speculation versus confirmation and stated as follows:

    Whether information is officially confirmed (as opposed to being mere speculation) has consequences for whether the information in the record will be viewed as officially confirmed by other entities, such as foreign intelligence agencies, and the conclusions that may be drawn reasonably from the record by such agencies and the resources that may deploy in relation to it.

32. Mr Lowe said that he was aware of the material that had been put in the public domain by current and former Directors General, and that there was no attempt to seek exemption for any material which had been previously disclosed.  

33. I found Mr Lowe’s open and confidential affidavits to have been carefully prepared and comprehensive. He clearly approached his task with a great deal of diligence and with a view to releasing as much information publicly as was appropriate, given the security context.  

    Evidence of Peter Darby

34. In his open affidavit dated 18 June 2021, and further amplified by his confidential affidavit, Mr Darby gave an outline of his extensive background with ASIO together with an outline of the functions of ASIO.

35. Mr Darby said as follows:

    It is fundamental to ASIO’s effective operation that, where disclosure would damage Australia’s security and international and international relations, strictest possible secrecy be maintained in relation to:

    -    The identity of staff, including administrative identifiers that could be used to identify staff;

    -    The specific details and the extent of its areas of interest and knowledge;

    -    The identity of groups and persons the subject of security interest;

    -    The extent of its ability to obtain intelligence in relation to those areas, groups and persons;

    -    Its sources, investigative techniques and work methods;

    -    The extent of its intelligence holdings; and

    -    The nature and extent of ASIO’s foreign intelligence relationships.

36. Mr Darby went on to outline why secrecy was important to ASIO in its operations.

    Operating in secrecy allows ASIO to:

    -    Maximise the prospect of obtaining intelligence;

    -    Maximise the prospect of assisting other agencies to disrupt ventures and prosecute individuals who threaten the security of Australia, its people and its interests;

    -    Minimise the risk of harm to its employees and affiliates, as collection intelligence often depends on the willingness of those person to put their safety and liberties (and in some circumstances, those of their families) at considerable risk. These risks can persist long after the person’s association with ASIO has ceased. It is for this reason it is ASIO’s policy to protect the identity of current and former employees and affiliates from disclosure (other than in circumstances that do not apply here); and

    -    Minimise the risk of subject of security interest being aware of intelligence collection activities.

37. In his affidavit Mr Darby recognised that some of the information being sought was historical, and noted in paragraph 22 that:

    ASIO is only seeking to protect information the disclosure of which would impact its ability to perform its functions today. While the passage of time may in some instances degrade the damage caused by the disclosure of information concerning some aspects of ASIO’s work, the disclosure of information identifying current and former ASIO employees and affiliates, details of its operations and the nature and extent of ASIO’s relationships, could adversely impact ASIO’s current capabilities and ability to perform its functions today.

38. Mr Darby went on to emphasise that protecting the identify of current and former ASIO employees is critical to the personal safety of those persons and their families.

39. Mr Darby also outlined the potential damage to Australia’s foreign partner relationships if information was disclosed. In paragraph 29, Mr Darby said as follows:

    ASIO’s relationships with foreign partners are primarily founded on mutual interest and confidentiality. There is an expectation, both on the part of the foreign partner and ASIO that the nature and extent of the relationship, and at times the relationship itself, and any information shared or capability jointly developed will be kept confidential. In some circumstances this expectation extends even after the relationship is no longer active, or the intelligence or capability is no longer current. Releasing this information subject to such confidentiality could lessen the confidence of those countries or agencies in ASIO to adequately protect details of that liaison, which could impact on their willingness to provide intelligence to ASIO.

1. Mr Darby also provided information in relation to ‘mosaic analysis’, and the difference between speculation and official confirmation.

2. All of these issues were expanded upon in closed session.

   Evidence of Michelle Chan

3. The Tribunal also received evidence from Ms Michelle Chan, whose position was outlined as follows:

   I am the Deputy Secretary, Southeast Asia and Global Partners Group covering Southeast Asia, Central Asia, the Middle East, Europe, Africa and Latin America, in the Department of Foreign Affairs and Trade (DFAT). I commenced in this role on 9 August 2022. I am also Australia’s ASEAN, East Asia Summit and ASEAN Regional Forum Senior Official.

4. Ms Chan went on to say that from 2016 to 2018 she was Deputy Director-General of the then Office of National Assessments – now the Office of National Intelligence, which is Australia’s peak intelligence assessments agency.

5. In her open affidavit Ms Chan said as follows:

   Foreign policy necessarily involves operating in highly complex and ambiguous environments. The course of any one particular international event is affected by multiple factors, many outside the control of government, any of which can influence Australia’s interests suddenly and in unexpected ways. Domestic factors, including public sentiment, often shape outcomes as much as events abroad. States and other international actors do not always behave in rational or predictable ways. This means it is not always possible to identify or quantify the specific damage that may occur to Australia’s national interests as a result of the disclosure of any particular piece of sensitive information.

6. Having examined all of the relevant material, Ms Chan said as follows:

   My assessment is that even though the material is more than 50 years old, were it to be disclosed, it would present a significant risk of damage to Australia’s security and international relations today.

7. In closed session Ms Chan gave a much fuller explanation in relation to the information for which the exemption was claimed.

   Evidence of Ms Brooke Sharpley

8. Ms Sharpley outlined her recent position as follows:

   I was appointed to the position of Assistant Secretary Global Security in the Defence Intelligence Organisation (DIO) on 1 February 2023, and will commence in the role on 15 May 2023. In this position, I will manage a branch of intelligence analysts to provide assessments and strategic warning that support Defence and wider government decision-making and operational planning.

   Since June 2021, I have held the position of Defence Intelligence Liaison Officer to the UK and Europe, based in the UK Ministry of Defence in London. In this diplomatic role, I manage DIO’s relationships with UK Defence Intelligence (UKDI) and other UK and European intelligence agencies, including by representing DIO’s equities, assessments and positions to key international partners, and providing insight into UK and European intelligence agency positions and understanding.

9. Ms Sharpley outlined the role of the defence intelligence organisation as follows:

   DIO is Defence’s all source intelligence assessment agency. DIO provides insights into the current and planned capabilities and intentions of state and non-state actors who may affect Australia’s national interests. DIO’s assessments provide strategic warning, inform the development of Defence policy, support the planning and conduct of Defence operations and activities, and guide capability development through their insights into:

   -    Foreign government decision-making, as well as strategies and plans for the use of national security forces;

   -    Foreign military and security forces’ doctrine and operating concepts;

   -    The threats posed by potential adversary weapons systems and capabilities;

   -    The operating environments in which Australian defence capabilities are, or may need to be, deployed.

   In support whole-of-government decision-making, DIO also contributes assessments and analysis on:

   -    International counter-terrorism capabilities;

   -    Threats from Weapons of Mass Destruction and their proliferation;

   -    Sensitive defence and dual use equipment and technology of proliferation concern;

   -    Warning and monitoring of diseases of national and military significance, including pandemics;

   -    Foreign cyber threats to the Australian Government and its interests.

10. In relation to the importance of secrecy, Ms Sharpley said as follows:

    The protection of information sources and collection methods is extremely important for intelligence agencies, including DIO. In my opinion, releasing information that reveals sources, methods, capabilities, or activities, could place individuals in danger or damage Australian and international partner collection capabilities. In my confidential affidavit I will explain why I hold this view.

11. Ms Sharpley in her open affidavit also said:

    I have personally examined this exempted material. For the reasons I will outline in my classified affidavit, I believe that the relevant information should remain exempt and not be publicly disclosed, to protect DIO’s intelligence partnerships, and to prevent damage to security, defence or international relations.

    In my judgement, public disclosure of this information could reasonably be expected to damage international intelligence relationships. I will identify the specific relationships and the countries involved in my confidential affidavit.

    I am aware of the age of the exempted material, and have taken that into account in making this assessment.

    DECISION

12. In closed session, each of the deponents gave evidence, which expanded on the material contained in their open affidavits.  

13. In the closed session, the Tribunal was helpfully provided with an index which cross-referenced each of the claims for exemption to the agency making the claim. The Tribunal was thus able to clearly understand the various claims, link them to the relevant affidavits and come to a conclusion as to the appropriateness of each exemption claimed.

14. The Tribunal conducted an examination of a sample of the exemptions claimed on behalf of each agency, by reference to the index of claims made by the various agencies. The Tribunal was satisfied that the claims were properly founded on the grounds outlined in the open affidavits, further explained during closed session both in more detailed affidavits and by oral evidence from each of the deponents.

15. To the extent that any information might be released, without context it would be trivial and meaningless.

16. During closed session, a number of questions were put to each independent deponent, as requested by the Applicant. In summary, the answer to each of the relevant questions was ‘no’.

17. In looking at the matter overall, the Tribunal was greatly assisted by the clear written and oral evidence of Mr Lowe. He had spent a great deal of time examining the relevant documents in a very detailed fashion, starting from the premise that as much information as possible should be released. Further information was in fact released after Mr Lowe’s review and on his recommendation.

18. Much of his evidence was corroborated by Mr Darby in particular, and both witnesses/deponents were thorough and convincing in their explanations as to why the various exemption claims were made.

19. It is important to note that the evidence in closed session was entirely consistent with the information provided in the open affidavits. I found each of the witnesses knowledgeable, thorough, and convincing in their explanations as to why the various exemption claims were properly made. Thus, the Tribunal was able to come to a conclusive determination that the exemption in section 33(1)(a) was properly claimed in the case of each Agency.

20. The Tribunal notes the overall thrust of the evidence, that in an increasingly dangerous international environment the protection of those who are or have been engaged in protecting the security of Australia is of critical importance. Secrecy is critical to intelligence gathering and cannot be compromised. The same is true of those relationships of trust which are vital to the security interests of a middle ranking power such as Australia.  The fact that information may be decades old does not mean that it cannot be used to damage Australia’s security interests.

21. Accordingly, after carefully considering all of the information given to the Tribunal, in both open affidavits and closed session, the Tribunal is of the opinion that it should not exercise its discretion under section 44(7) of the archives Act.

22. In light of the evidence, the Tribunal did not feel it was necessary to call any further witnesses. Further, and given the Tribunal’s decision, it was not necessary to call the Inspector-General of Intelligence and Security.

23. The correct and preferable decision is to affirm the reviewable decision.

I certify that the preceding 62 (sixty - two) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 21 December 2023

Date(s) of hearing:	30 October 2023
Solicitors for the Respondent:	Justin Hyland & Danielle Edwards