Francis and Australian Sports Anti-Doping Authority (Freedom of information) - [2019] AATA 12

Francis and Australian Sports Anti-Doping Authority (Freedom of information) [2019] AATA 12 (4 January 2019)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2017/6886
Re:Bruce Francis
APPLICANT

AndAustralian Sports Anti-Doping Authority
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:4 January 2019
Place:Brisbane

The Tribunal determines:
(a)the decision under review is affirmed; and
(b)the Order of 13 July 2018 will lapse 28 days from the date of this decision.

.....................[Sgd]...................................................
Deputy President J Sosso
CATCHWORDS:
FREEDOM OF INFORMATION – anti-doping testing of Essendon AFL players’ – dates of testing of six identified Essendon AFL players’ - release of information opposed by Australian Sports Anti-Doping Authority and the AFL – whether disclosure of information would found an action for breach of confidence – s 45 of FOI Act – decision affirmed but for different reasons
LEGISLATION
Freedom of Information Act 1992
Australian Sports Anti-Doping Authority Act 2006
CASES
Brisbane North Regional Health Authority (1994) 1 QAR 279
Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434
Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 93
Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019
Francis and Department of Defence (2002) 59 AAR 35
G v Day [1982] 1 NSWLR 24 at 40
Kamminga and Australian National University (1992) 26 ALD 585
McKnight and Australian Archives (1992) 28 ALD 95
Re B and Brisbane North Regional Health Authority (1994) 1 QAR 271
Re Maher and Attorney-General’s Department (No. 2) (1986) 13 ALD 98
Salman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203
SECONDARY MATERIALS
Australian Sports Anti-Doping Authority Regulations 2006
World Anti-Doping Code 2009; 2015
World Anti-Doping Code International Standard – Protection of Privacy and Personal Information June 2009; January 2015
REASONS FOR DECISION
Deputy President J Sosso
4 January 2019
INTRODUCTION

This is a freedom of information (FOI) application which has its genesis in the controversy surrounding the legality of the Essendon Football Club’s (EFC) supplements program during the 2012 Australian Football League (AFL) season and the preceding preseason.
ASADA undertook blood and urine testing of Essendon AFL players in the period 25 August 2011 to September 2012 – Exhibit 2 para 5.
At time of each test, documentation recording the details of the test (the doping control form) was completed by the person administering the test. The information included in the doping control form included – Exhibit 2 para 6:
(a)the name of the tested player;
(b)the date of the test;
(c)personal information, including the player’s contact details;
(d)a declaration of details of any medication, vitamin or supplement and dosage taken in the previous seven days.
At the time the tests were conducted, it was ASADA’s practice to provide each tested player with a copy of ASADA’s Athlete Privacy Information Notice (the Privacy Notice) – Exhibit 2 para 42.
Paragraphs 1 and 2 of the Privacy Notice provide as follows – Exhibit 2 para 44:
“Any information collected by the Australian Sports Anti-Doping Authority (ASADA) on its forms (such as Doping Control forms or Athlete Whereabouts forms) will be maintained, used and disseminated by ASADA for the lawful purposes of carrying out its functions as authorised under the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) and the Australian Sports Anti-Doping Authority Regulations 2006 (ASADA Regulations).
When collecting, storing, using and disclosing your personal information ASADA is bound by the Privacy Act 1988 (which incorporates the Australian Privacy Principles) and the ASADA Act and the ASADA Regulations (which contains the National Anti-Doping (NAD) Scheme). ASADA also has regard to the World Anti-Doping Code 2009 (the Code)as well as recognises the international standard for the Protection of Privacy and Personal information as published by the World Anti-Doping Agency (WADA).”
After a lengthy investigation and legal proceedings, 34 Essendon AFL players were eventually found guilty of having used the banned peptide Thymosin Beta-4 and incurred suspensions of two years. The AFL players were the subject of proceedings in the AFL Tribunal, the Court of Arbitration for Sport (CAS) and, finally, the Federal Supreme Court of Switzerland.
On 22 June 2016 Mr Bruce Francis requested from ASADA access under the Freedom of Information Act 1982 (the Act) to the following documents – Exhibit 1 T4 p 22:
(a)the dates each of the 34 Essendon players found guilty of being administered Thymosin Beta-4 were drug tested between 25 August 2011 and September 2012;
(b)the doping control forms filled out by the Essendon players between 25 August 2011 and September 2012; and
(c)the doping control forms submitted by the Essendon players between 25 August 2011 and September 2012, which did not include the names of any substance administered to them in that timeframe.
On 27 June 2016 ASADA responded to Mr Francis acknowledging the second and third requests but contended that the first request did not comply with s 15(2) of the Freedom of Information Act 1992 (the Act) as it did not provide sufficient information for ASADA to identify the documents sought – Exhibit 1 T5 pp. 23 – 24.
On 28 June 2016 Mr Francis contacted ASADA and sought information as to why his first request had been refused – Exhibit 1 T6 p. 25. After an explanation was provided, Mr Francis emailed ASADA at 10:35 am on the same day and said – Exhibit 1 T7 p. 26:
“I understand the reason you can’t comply with my first request. Hopefully, you can comply with requests two and three.”
An officer of ASADA replied to Mr Francis at 10:41 am on 28 June 2016 stating that the second and third requests would be processed and a decision would be made by 22 July 2016 – Exhibit 1 T8 p. 27.
On 14 July 2016 ASADA corresponded with Mr Francis in the following terms – Exhibit 1 T9 p. 29:
“As your request covers documents which contain information concerning the business, commercial or financial affairs of an organisation, or a person’s business or professional affairs, the Australian Sports Anti-Doping Authority (ASADA) is required to consult with the person or organisation concerned (under sections 27 of the FOI Act) before making a decision on the release of those documents.
For this reason the processing of your request has been extended by 30 days in order to allow our agency time to consult with that person or organisation (section 15(6) of the FOI Act). The processing period of your request will now end on Monday 22 August 2016.”
(bold in the original)
On the same day Ms Kate Corkery, a Senior Lawyer with ASADA, emailed Mr Brett Clothier of the AFL with respect to Mr Francis’ FOI requests – Exhibit 1 T10 p. 30. Ms Corkery stated that she had collated all the documents falling within the scope of the FOI requests and created a consolidated list which she attached to the email. Ms Corkery then wrote:
“We are of the view that such information constitutes ‘business information’ in relation to the AFL. Accordingly, we wish to consult with the AFL under s 27 of the FOI Act as to the potential release of that information.
With this in mind are you in a position to advise if you object to the release of that information and if so why you wish to make such an objection (such as any identifiable harms to the AFL which may result from its release)?
ASADA is currently considering whether the information constitutes confidential information under the terms of the deed of standing offer in relation to AFL drug testing and the associated orders for services. I would be grateful for any view the AFL may have in this regard. There is also the issue of personal information with respect to Athlete names and information contained on the Doping Control Forms.”
Mr Clothier responded by an email dated 1 August 2016 in which he stated that the AFL objected to the disclosure of the requested documents to Mr Francis. The reasons given are set out below – Exhibit 1 T13 p. 42:
“We are of the view that pursuant to s 11(A)(6) of the FOI Act (Act), ASADA is not required to disclose the Documents as they fall within both categories of exemption under the Act. We note:
1The Documents satisfy the criteria for conditionally exempt business information under s47G as disclosure would divulge business information concerning the AFL which would unreasonably affect the AFL’s affairs.
2In our view, disclosure would damage that affairs and lawful business of the AFL as the named Essendon players, the AFL and ASADA would all be exposed to public scrutiny about the doping control information. The Documents contain information concerning the dates and methods of testing as well as player medication details. If released, this information could unreasonably affect the effectiveness of the ASADA’s testing scheme and the reputation of the parties, particularly the named players.
3The Documents are also conditionally exempt under s47F of the Act as disclosure would involve unreasonable disclosure of personal information about each of the players. The information outlined in the Doping Control Forms is sensitive, personal and medical information which is not publicly known or available, or accessible from public sources. The sensitive and personal information includes players’ names and details of player medication and substance use history.
4Further, the Documents currently form part of evidence in the Essendon players’ appeal proceedings in the Court of Arbitration for Sport. The proceedings are confidential and disclosure of this information has the real potential to damage the players’ defence in that process.”
At the time Mr Clothier wrote the above email the CAS had ruled against the 34 Essendon players. That decision was handed down on 12 January 2016. However, the decision of the Federal Supreme Court of Switzerland was not delivered until 11 October 2016.
In addition to the above grounds, Mr Clothier also raised the issue of confidentiality – Exhibit 1 T13 p. 43:
“Secondly, we submit that the Documents are exempt documents for the purposes of s 45 (documents containing material obtained in confidence). The User Pays Agreement between ASADA and the AFL identifies that the testing scheme agreed between the parties is strictly confidential. If the Documents were disclosed without AFL approval under this Agreement, ASADA could be liable for breach of confidence.”
By letter dated 17 August 2016, Mr B McDevitt, Chief Executive Officer of ASADA, refused Mr Francis access to 72 documents identified as being within the scope of his FOI request – Exhibit 1 T14 pp. 46 – 59. In so doing, Mr McDevitt applied the exemptions in ss 45 (material obtained in confidence), 47G (business information) and 47F (personal information) – Exhibit 1 T14 p. 47.
On 18 August 2016, Mr Francis applied to the Australian Information Commissioner (AIC) for a review of ASADA’s decision pursuant to s 54L of the Act.
On 12 December 2016 Mr Francis narrowed the scope of his request to the names of the players and the dates of the urine/blood tests in the doping control forms – Exhibit 1 T2 p. 12 para 5.
During the course of the AIC review, ASADA, while not resiling from its decision to deny access to doping control forms pursuant to ss 45, 47G and 47F, submitted that the forms were also exempt in full under s 47E(d) of the Act – Exhibit 1 T2 p. 12 para 6.
Subparagraph 47E(d) provides as follows:
“A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.”
Mr Francis submitted that releasing the doping control forms containing only the names of the Essendon players and the date of the tests could not jeopardise the commercial interests of ADADA, the AFL or any other organisations associated with the tests – Exhibit 1 T2 p. 13 para 14.
ASADA submitted that the doping control forms were created as part of the testing it carried out for the AFL on a user-pays contractual basis. The testing details were confidential and had to be viewed in light of ASADA competing in a commercial environment against other testing providers who are not subject to an FOI regime. If ASADA was required to reveal the information sought by Mr Francis there was a “significant risk” that “Australian sports” would cease using ASADA to collect user-pays samples. Further, user-pays samples constituted 10% of ASADA’s budget and the loss of this revenue stream would not only adversely affect the operations of ASADA, but, in addition, ASADA would lose the intelligence gained from performing such testing – Exhibit 1 T2 p. 13 para 15.
ASADA also submitted that should the timing of sample collection be publicly revealed it would have a significant and real impact on ASADA’s ability to comply with its obligations of conducting “No Advance Notice Testing” and could expose the methodology behind test planning. If revealed, it was submitted, it could unreasonably affect the effectiveness of ASADA’s testing scheme – Exhibit 1 T2 pp. 13 – 14 para 16.
The AIC found in favour ASADA, but in doing so relied on s 47E(d) rather than ss 45, 47F or 47G and gave the following reasons – Exhibit 1 T2 pp. 14 – 15:
17. I accept ASADA’s submissions that conducting sample collection for Australian sports, including the AFL, represents a significant source of funding for ASADA, and that it competes with other commercial testing bodies to provide this service. I also accept ASADA’s submissions that the integrity of its testing strategy is relevant to ASADA performing its statutory functions and implementing anti-doping arrangements in accordance with the World Anti-Doping Code.
18. I have examined an unedited copy of the doping control forms. It is apparent that the players were subjected to sample collection on specific dates and frequencies. I accept ASADA’s submissions that the names of the player, the dates that the samples were collected and the instances of the collections together form the basis of ASADA’s testing strategy.
19. I am satisfied that disclosing the doping control forms containing just the names of the athlete and the dates of testing would be sufficient to reveal ASADA’S testing strategy, and would substantially and adversely affect ASADA’s sample collection operations. I consider disclosure could reasonably be expected to:
·undermine the effectiveness of ASADA’s current testing strategy
·reduce the competitiveness of ASADA to provide user-pays sample collection services for Australian sports and
·adversely affect ASADA’s ability to comply with Australia’s international anti-doping legal obligations.
20. The doping control forms are conditionally exempt under s 47E(d) of the FOI Act.
21. In finding that the doping control forms are conditionally exempt, I am therefore required to consider whether it would be contrary to the public interest to give access to conditionally exempt documents at this time (s 11A(5)).
22. The applicant submits that disclosure would promote the objects of the FOI Act, including by revealing the reason for a government decision and any background or contextual information that informed the decision. I agree with the applicant that this is the relevant public interest factor favouring disclosure in this IC review.
23. Against the public interest factors favouring disclosure must be balanced any public interest factors against disclosure.
24. In this case, I consider there are four public interest factors against disclosure, disclosure could reasonably be expected to:
·prejudice the effectiveness of testing or auditing procedures
·prejudice an agency’s ability to obtain similar information in the future
·prejudice the competitive commercial activities of an agency
·prejudice law enforcement.
25. In this case, the public interest factors against disclosure outweigh the public interest factor in favour of disclosure. Giving the applicant access to the doping control forms at this time would, on balance, be contrary to the public interest.”
On 15 November 2017 Mr Francis filed an application for review of the AIC decision with the Tribunal – Exhibit 1 T1 pp. 1 – 10.
Prior to the Hearing ASADA identified through further searches four additional documents that where within the scope of the FOI request. The Tribunal was provided with an updated schedule describing each of the 76 documents that fell within the scope of Mr Francis’ FOI request.
A Hearing was convened in Brisbane on 3 July 2018. Mr Francis appeared in person and was not represented. ASADA was represented by Mr J Davidson. ASADA called two persons to give evidence: Ms Jane Annear (Acting National Manager, Operations – ASADA) and Mr Anthony Keane (Head of Integrity & Security at the AFL). Both were subject to cross-examination by Mr Francis.
At the Hearing Mr Francis further narrowed his FOI request -Transcript (Tr.) 3.7.2018 p. 6.
Mr Francis said that he simply sought access to the dates on which six named Essendon players were tested (the dates). He clarified that he did not seek the names of the six players. On 4 July 2018 Mr Francis identified for ASADA the six players of interest to him – Respondent’s Submissions (RS) para 1.
ASADA summed up the consequences of the revised request – RS para 2:
“If the applicant is successful, he will obtain the Dates. He will learn that one or more of the 6 players he named were tested on the Dates. He will not learn which player was tested on which date, or whether all 6 players were tested, or how many times any one of the 6 players were tested.”
It is not disputed that the dates are unknown to Mr Francis and are not able to be determined from any known public sources – WS para 3.
Further, the dates comprise information recorded by ASADA in the course of conducting anti-doping testing under contract with the AFL – WS para 4.
Finally, the AFL has not consented to ASADA disclosing the dates. When Mr Keane was asked at the Hearing what the AFL’s position was to a scenario whereby ASADA published the names and dates of tests performed in relation to Essendon players between August 2011 and September 2012, he gave the following response – Tr. 3.7.2018 pp. 62 – 63:
“I’d be reluctant for that to occur. I think that it would have a detrimental effect on our doping program if that data was to be released. It would create a public perception that perhaps our anti-doping program had been compromised. My understanding that our doping program is centred on confidentiality, so if that information were to be disclosed it could disclose logistical arrangements around tests, dates, times, frequencies. It could disclose strategy, methodology around testing missions. There’s certainly an expectation, not only from the AFL, but from the players, that our anti-doping program is conducted in a confidential manner and that’s paramount to the program. If that were to occur, I think there’s a potential for a lack of confidence to be shown in our program, from the players, and perhaps even supported by the player’s association. That may have a negative impact on the relationship the players have with the AFL and I think that it also may discourage players form perhaps fulsomely and candidly completing doping control forms into the future.”
Whilst the request before the Tribunal is of much narrower compass than the scenario put to Mr Keane, nonetheless, his response was, in part, an enunciation of a philosophical opposition by the AFL to breaches of the cloak of confidentiality which he articulated covered all of the information gleaned from ASADA’s anti-doping activities.
BACKGROUND

ASADA, pursuant to its statutory charter, provides anti-doping testing services on a commercial basis to various sporting entities, including Australian Rugby Union, Cricket Australia, the National Rugby League and Swimming Australia – Exhibit 2 para 58. However, the AFL is one of ASADA’s biggest contracts both in terms of revenue and workload.
As a consequence, part of ASADA’s funding base is sourced from the provision of commercial anti-doping testing services. ASADA has been providing testing services to the AFL since ASADA’s inception in 2006. Under the current contractual arrangements, ASADA will continue to provide anti-doping testing services until the end of the 2018 AFL season – Exhibit 2 para 57.
Australia is a signatory to the UNESCO International Convention against Doping in Sport (the Convention) and is required to implement anti-doping arrangements in accordance with the principles contained in the World Anti-Doping Code (the Code) – Exhibit 2 para 10. The Tribunal has been provided with two versions of the Code: the 2009 Code and the 2015 Code. The 2009 Code was still in force at the time the 34 Essendon players were tested in 2011 and 2012.
In Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019, Middleton J made the following observation – [321]:
“The World Code requires national sporting organisations such as the AFL to have anti-doping policies and rules directed to the promotion of anti-doping values, behaviours, and attitudes. The World Code also contemplates very close co-operation between the AFL and ASADA.”
ASADA has legislative responsibility for delivering Australia’s national anti-doping program under the Australian Sports Anti-Doping Authority Act 2006 (the ASADA Act) and the Australian Sports Anti-Doping Authority Regulations 2006 (the ASADA Regulations) – Exhibit 2 para 11.
Ms Annear deposed that, broadly, ASADA seeks to achieve its purpose through – Exhibit 2 para 12:
·Engagement: strengthening relationships internally and externally to build anti-doping capabilities and harden the environment against doping in sport;
·Deterrence: minimising the risk of doping through education, communications and testing;
·Detection: gathering intelligence, conducting targeted testing, and undertaking investigations into possible breaches of the anti-doping rules; and
·Enforcement: managing possible anti-doping violations and presenting cases at hearings and appeals.
The ASADA Regulations prescribe a scheme, known as the National Anti-Doping Scheme (the NAD Scheme) which contains the anti-doping rules and authorises the Chief Executive Officer (the CEO) of ASADA to test samples provided by athletes – Exhibit 2 para 13.
The CEO entered into contractual relations with the AFL to undertake anti-doping testing and related services for both of the 2011 and 2012 AFL seasons – Exhibit 2 para 14. Relevant extracts from both contracts are annexed to the Affidavit of Ms Annear dated 9 March 2018 (Exhibit 2).
The contracts contains confidentiality clauses (cl. 5.1.1 and 5.1.5) which provide, subject to exceptions contained in clause 5.3 that – Exhibit 2 para 15, Annexure JA-1 pp. 20 – 21, Annexure JA-2 pp. 29 - 30:
(a)confidential information is not to be disclosed by ASADA to a third party without the prior written consent of “the client” or except as authorised by the Code, the ASADA Act, the NAD scheme or relevant anti-doping provisions;
(b)ASADA will not disclose information relating to Athletes except as authorised by the agreement, the Code, the ADADA Act, the NAD Scheme or any relevant anti-doping provisions.
The exceptions to the above confidentiality requirements are set out in clause 5.3 of both the 2011 and 2012 contracts. That clause provides that the parties will not be taken to have breached the above obligations to the extent that the confidential information – Exhibit 2 para 16 Annexure JA-1 pp. 21 – 22, Annexure JA-2 pp. 30 - 31:
(a)is disclosed to ASADA’s or the Commonwealth’s Personnel in order to comply with obligations, or to exercise rights, under the contract;
(b)is disclosed to ASADA’s or the Commonwealth’s internal management to enable effective management or auditing of contract related activities;
(c)is disclosed by ASADA or the Commonwealth to the responsible Minister;
(d)is disclosed by ASADA or the Commonwealth, in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia;
(e)is shared by ASADA or the Commonwealth within ASADA or with another Commonwealth agency, where this serves ASADA’s or the Commonwealth’s legitimate interests;
(f)is authorised or required by law to be disclosed;
(g)is in the public domain otherwise than due to a breach of clause 5; or
(h)is disclosed by either party to their respective legal advisors for the purposes of obtaining legal advice.
Ms Annear deposed (Exhibit 2 para 17) that the exceptions contained in paragraphs (f) to (h) were only in the 2012 contract, however a perusal of the annexed contracts discloses that those paragraphs are contained in both the 2011 and 2012 contracts – Exhibit 2 Annexure JA-1 p. 22. This is of relevance as the exception in paragraph (f) is worded broadly and, ostensibly, contemplates disclosure under the Act.
Confidential information is described in Item J.2 to the 2011 contract as including the “terms of this Agreement including the Services and all details relating to the provision of the Services” – Exhibit 2 Annexure JA-1 p. 24.
ASADA is required to comply with the Code – Exhibit 2 Annexure JA-1 para 21. Pursuant to the Code ASADA is required to protect and ensure the security of personal information collected as part of the doping control process.
Article (Art.) 14 of the 2009 Code (and Art. 14 of the 2015 Code) deals with Confidentiality and Reporting. In particular Art. 14.1.5 (Art. 14.1.5/2015) provides as follows – Exhibit 2 Annexure JA-4 pp. 44 – 45 (Annexure JA-3 p.36):
“The recipient organizations shall not disclose this information beyond those Persons with a need to know [which would include the appropriate personnel at the applicable National Olympic Committee, National Federation, and team in a Team Sport] until the Anti-Doping Organization with results management responsibility has made public disclosure or has failed to make public disclosure as required in Article 14.2 below.”
Further, Art. 14.6 (Art. 14.6/2015) deals with Data Privacy and provides:
“Anti-Doping Organizations may collect, store, process or disclose personal information relating to Athletes and other Persons where necessary and appropriate to conduct their anti-doping activities under the Code and International Standards (including specifically the International Standard for the Protection of Privacy and Personal Information), and in compliance with applicable law.”
Nonetheless, due consideration also needs to be given to Art. 14.4 which contemplates disclosure of information in certain circumstances:
“Anti-Doping Organizations shall, at least annually, publish publicly a general statistical report of their Doping Control activities, with a copy provided to WADA. Anti-Doping Organizations may also publish reports showing the name of each Athlete tested and the date of each Testing. WADA shall, at least annually, publish statistical reports summarizing the information that it receives from Anti-Doping Organizations and laboratories.”
MR FRANCIS’ SUBMISSIONS
Mr Francis has devoted much of his time since 2013 in investigating the EFC’s supplements controversy. He deposed that he has worked 12 to 15 hours a day, seven days a week since late June 2013 on this matter. Mr Francis deposed that he had “clocked up” over 12,000 hours and written over a million words and distributed them to thousands of people. He also accumulated 81 arch lever folders with about 25,000 pages in them – Exhibit 1 p 2; Exhibit 4 para 2.
Mr Francis pointed out in his affidavits and during the Hearing that, initially, he only sought access to the relevant doping control forms with all information redacted other than the relevant player’s name and the date he was tested – Exhibit 4 para 6, Annexure BCF-1.
Mr Francis provided to the Tribunal two Affidavits dated 10 May 2018 – Exhibits 4 and 5. Exhibit 5 is drafted as a point by point response to the matters outlined in the affidavit of Ms Annear. It mostly covers the same ground as Exhibit 4, and to ensure that unnecessary repetition is avoided, I have set out below the key points raised by Mr Francis in Exhibit 4.
Quite properly, Mr Francis drew the Tribunal’s attention to Cl 14.4 of the Code, and contended that it implies that the names of the players and the dates of their doping control tests are not confidential information. In particular, Mr Francis relies on the following passage from Cl 14.4 – Exhibit 4 para 7.2:
“Anti-doping organisations may also publish reports showing the names of each athlete tested and the date of each testing.”
It flows from this, Mr Francis submitted that – Exhibit 4 para 7.3:
“ASADA is authorised, allowed [has] official permission, [has been] sanctioned by the World Anti-Doping Agency (WASA) to publish the names of the players and the dates of their doping control tests.”
Leaving aside the Code, Mr Francis submits that, as a matter of practicality, it is impossible to keep all the testing dates confidential. After a match many people gather in rooms with the players and would be aware that a player was being drug tested. Also, many practice sessions are attended by the media and members or supports of a club, and they too would invariably be aware if a player was drug tested – Exhibit 4 para 9.
Mr Francis also submitted that some of the drug tested players’ names and test dates were published in Chip Le Grand’s book The Straight Dope, the CAS transcript as well as in numerous newspaper article and blogs. To date 15 players’ names and dates of testing have been published and an additional 13 players who were not tested have also been named – Exhibit 4 para 13. Mr Francis annexed to his affidavit extracts from The Straight Dope (BCF– 4) and the transcript of the CAS Hearing (BCF- 5).
Insofar as information on 28 of the 34 players is already in the public domain, and the contended “non-response” by the AFL and ASADA to that state of affairs, Mr Francis submits “the AFL and ASADA do not believe that the players’ names and dates are confidential” – Exhibit 4 para 13. Mr Francis then went on to contend – Exhibit 4 para 16:
“It is incomprehensible and unconscionable for ASADA and the AFL to paint a Doomsday picture over the release of six players’ names and dates of their tests, when the release of details for 28 players didn’t raise a murmur.”
Mr Francis then explained why, in his submission, it was in the public interest that the requested information be disclosed to him. His reasoning is set out in full below – Exhibit 4 paras 17 – 20:
“17. With respect to my FOI request, I believe the ‘confidentiality excuse’ has been raised to protect the biased, inept and/or corrupt proceedings including in relation to Court of Arbitration for Sport (CAS) panel. During the CAS hearing (34 Essendon players v World Anti-Doping Agency (WADA) the panel members implied that it was compulsory for players to declare substances (Thymosin being the substance of interest) that they had been administered within seven days of their doping control test. The panel was wrong and inexcusably so. The player was only required to ‘consider’ listing the substances. It wasn’t compulsory. It is in the public’s interest for the requested information to be released so that the Court of Arbitration for Sport panel can be exposed, and then reformed…
18. Incomprehensibly, and unconscionably, at paragraph 129(vii) of the CAS Arbitral Award, the panel said: ‘The complete failure of the vast majority of Players who had to fill in a doping control form (“DCF’) during the season to reveal the receipt of injections does not encourage confidence in their statements as to the limited or sporadic nature of what they were injected with.’…
19. The panel believed that the players colluded to lie, through omission, by not declaring that they had been administered Thymosin.
20. The panel’s comment: ‘Does not encourage confidence in their statements’ was a euphemism for ‘the players are liars and we don’t have to believe any evidence that supports their innocence’. The FOI information requested is a vital component in helping expose the Court of Arbitration for Sport panel as biased, inept and/or corrupt. Clearly exposing any bias, ineptitude and/or corruption in the Court of Arbitration for Sport is in the public interest.”
Mr Francis also referred to an article published on 10 February 2013 wherein Australian Olympian Sally Pearson was quoted as stating that she was drug tested “dozens” of times each year and was “flabbergasted” to discover that AFL players were only drug tested on average only once per year – Exhibit 4 para 11, Annexure BCF-3.
It was submitted by Mr Francis that one reason why the AFL and ASADA did not want the players’ names and test dates revealed was “because it will show that the AFL’s commitment to drug testing is a façade in contrast to athletes such as Sally Pearson. No one who follows AFL football would believe all AFL players are not tested each season.” – Exhibit 4 para 21.
Mr Francis contended that he contacted the inaugural CEO and Chairman of ASADA, Mr Richard Ings about ASADA’s competitiveness in the collection market. Mr Ings, according to Mr Francis, made the following observation – Exhibit 4 para 24:
“There are other companies that use sports drug testing. One is IDTM who do in-competition testing for International Federations. Now IDTM could, of course, pick up an AFL testing contract but I would suggest that it is hard for IDTM to compete commercially against ASADA. ASADA by my estimate would do 100% of the WADA compliant domestic sports drug testing in Australia. The only testing I am aware that IDTM does is International Federation testing. This makes sense as IF’s don’t always trust the home-town NADO to test their own athletes. So, in conclusion, there is absolutely no reason why dates of tests could not be released for commercial reasons.”
Mr Francis also contended that it was “inconceivable” that the AFL would not continue to utilise ASADA for the following reasons – Exhibit 4 para 26.1 – 26.4:
(a)the AFL is recipient of huge amounts of direct and indirect funding from various levels of Government ($3 billion), including the Commonwealth Government. It is inconceivable, in Mr Francis’ submission, that the AFL would risk Commonwealth Government funding because ASADA is required to provide the dates of 6 EFC players’ doping tests;
(b)the AFL and ASADA are, in Mr Francis’ submission, “partners in crime”. Mr Francis annexed to his affidavit of 10 May 2018 a letter dated 1 February 2018 he forwarded to the Victoria Police regarding the AFL – Exhibit 4 BCF-10. Mr Francis contended that it is incomprehensible that ASADA and the AFL would have a “fallout” over ASADA releasing the dates of the testing of the six remaining EFC players;
(c)on 9 February 2013, ASADA, the AFL and the then Gillard Commonwealth Government broke the law when they collaborated to pre-determine the result of the ASADA-AFL joint investigation;
(d)during the said joint investigation “the AFL pulled ASADA’s strings like a puppeteer. As there is always a threat of a future ASADA investigation into AFL players, it is inconceivable that the AFL and ASADA would fallout over a make believe issue such as the names and dates of six players’ doping tests that WADA gave ASADA official permission to publish.”
ASADA’S SUBMISSIONS
ASADA submits that it is under an obligation of confidence in relation to the dates (RS para 8).
First, ASADA submits (RS para 8.1) that at the time the dates were collected, they comprised “contract services personal information” which was protected information under s 72 of the ASADA Act (as it was). At the time when the dates were collected, ASADA had a statutory obligation not to disclose them.
At the times the dates were collected, there were contracts in place between ASADA and the AFL ensuring that the dates comprised information that was subject to the contractual confidentiality clauses.
ASADA submits (RS para 8.3) that it has at all times held out that information obtained through anti-doping activities will not be disclosed. In particular, ASADA has made representations to the AFL and to players that it will not disclose such information, including in the Doping Control Notification Form.
ASADA submits (RS para 8.5), then, that these circumstances give rise to an equitable obligation of confidence.
Second (RS para 9), disclosing the dates would breach ASADA’s obligation of confidence in relation to them. The AFL has not consented to the disclosure of the dates and such disclosure is inconsistent with both the AFL’s expectations and ASADA’s assurances.
Third (RS para 12), disclosing the dates will cause detriment to the AFL. The nature of the detriment was explained in both the affidavit of Anthony Keane and also in his testimony given at the Hearing. Mr Keane deposed as follows – Exhibit 7 para 11:
“In my view, if confidential information obtained by ASADA in the course of its performance of services for the AFL in the conduct of the AFL’s anti-doping program was disclosed, that would potentially have a highly detrimental effect on the efficacy of the conduct of the AFL’s program. My concerns in this regard are not limited to information set out in the Doping Control Forms or doping control forms generally but confidential information generally that was obtained by ASADA. My concerns arise because, if the Doping Control Forms are disclosed to the Applicant, I would also hold serious concerns that other confidential information that was provided to ASADA in connection with the AFL’s anti-doping program was also at risk of public disclosure.”
Fourth (RS para 13), disclosing the dates could reasonably be expected to damage ASADA’s relationship with the AFL. The potential consequences of disclosure were outlined by Mr Keane as follows – Exhibit 7 paras 13 – 16:
“13. The AFL is not obliged to retain ASADA for the purpose of conducting doping control tests but elects to do so.
14. In connection with the provision of services by ASADA to the AFL in connection with the AFL’s anti-doping program, ASADA and the AFL work cooperatively and collaboratively and have good lines of communication as to the program and the way in which it is implemented and the results of testing. The AFL values highly the relationship that it has with ASADA and ASADA has demonstrated expertise with respect to the conduct of anti-doping programs and a sophisticated understanding of applicable laws, regulations and codes that apply to anti-doping programs in Australia.
15. That said, I am aware that there are private companies in Australia that offer the types of services that the AFL requires in connection with its conduct of the anti-doping. I anticipate that such private companies would not be an ‘agency’ for the purpose of FOI Act (or other freedom of information legislation) and as such they would not be subject to a request of the nature underlying the Application. I note that the AFL currently uses private companies (i.e. not ASADA) for the purpose of testing players in connection with the AFL’s Illicit Drugs Policy.
16. If the Application is successful and access to the Doping Control Forms is granted to the Applicant, I anticipate that the AFL would consider that ASADA cannot deliver on a fundamental requirement of the AFL in the provision of testing services. As such, I anticipate that the AFL would give serious consideration to engaging an alternative supplier for the conduct of the testing required in connection with the AFL’s anti-doping program, in particular if engagement of that alternative supplier of anti-doping services meant that it was more likely that confidentiality of aspects of the AFL’s anti-doping program would be maintained.”

Fifth (RS para 14), damaging the relationship with AFL could reasonably be expected to have a substantial adverse effect on ASADA’s operations. This was said to arise because of the damage to the relationship of trust and confidence between ASADA and the AFL and the potential reduction in the availability of doping intelligence concerning the sport of Australian Rules Football, particularly at the elite level Ms Annear gave the following testimony at the Hearing – Tr. 03.07.2018 p. 55:
“I think the functions of ASADA go beyond testing, so what we’re talking about, and what I’ve spoken about in the affidavit, is not only would we lose that funding, which would have an impact on the scope and breadth of our testing regime, but it would also have an impact on our ability to gather intelligence across the board, particularly from the AFL. The interactions that we have with the AFL and the AFL players provide us with invaluable intelligence with regard to the picture of doping in that sport, which is a significant sport in Australia. So, the effects of losing that contract would be more far reaching than the funding that comes with it.”
Sixth (RS para 15), ASADA submitted that disclosing the dates will otherwise damage its operations. This, it was said, may include losing user pays testing contracts with other organisations, resulting in both a loss of revenue and intelligence gathering opportunities. Presumably, the other sporting organisations who may reconsider using ASADA’s services would include the Australian Rugby Union, Cricket Australia, and the National Rugby League – Exhibit 2 para 58.
Disclosure of the dates would, it was submitted (RS para 16), be expected to encourage or assist players or officials to predict doping test patterns.
Finally, it was submitted (RS para 17), that on balance, it is contrary to the public interest to disclose the dates.
ASADA submitted (RS para 30) that there is little public interest in favour of disclosing the dates as the disclosure would not contribute materially to public analysis or understanding of the Essendon supplements program nor the CAS decision.
First, there is already a substantial body of discussion in the public domain including court decisions (including three Federal Court decisions), a book (The Straight Dope by Chip Le Grand) and copious contributions by Mr Francis. Given this, ASADA submits, the value and relevance of the public potentially knowing the dates on which a cohort of six players were tested, is not clear.
Second, the contention by Mr Francis that the CAS misdirected itself does not bear any rational connection to the dates.
Conversely, it is submitted (RS para 31) there are substantial matters in the public interest which weigh against disclosure of the disputed information, namely it is not in the public interest:
(a)to diminish the willingness of players and sports to engage in anti-doping activities with ASADA. This would diminish the efficacy of the national anti-doping framework;
(b)to diminish trust and confidence which players and sporting codes have in the confidentiality of anti-doping activities;
(c)to incentivise sporting codes to move their testing business to the private sector, thereby reducing ASADA’s ability to fund its anti-doping activities through user-pays testing;
(d)to disclose information that may contribute to or encourage players and clubs predicting, or trying to predict, doping testing patterns with a view to circumventing them;
(e)to prejudice Australia’s ability to comply with its responsibilities under the Convention and the Code, including the obligation to undertake ‘no advance notice testing’.
ISSUES
ASADA contends, and it is not seriously disputed, that the documents sought by Mr Francis are exempt from disclosure under the Act on the following grounds:
(a)pursuant to s 45, namely that the documents sought, if disclosed under the Act, would found an action, by a person (other than an agency, the Commonwealth or Norfolk Island) for breach of confidence; and
(b)if the Tribunal does not find in favour of ASADA pursuant to s 45, the documents are conditionally exempt pursuant to s 47E(d), namely disclosure would have a substantially adverse effect on the proper and efficient conduct of the operations of ASADA; and
(c)pursuant to s 11A(5) the disclosure of the documents would be contrary to the public interest.
CONSIDERATION
Introduction
General Outline
Pursuant to s 15(1) of the Act, a person who wishes to obtain access to a document of an agency or an official document of a Minister, may request access to that document.
That process is founded on the right of access which is contained in s 11. Subsection 11(1) provides that, subject to the Act, every person has a legally enforceable right to obtain access to non-exempt documents of an agency and non-exempt official documents of a Minister. Moreover, s 11(2) provides that a person’s right of access is not affected by any reasons the person gives for seeking access or an agency or Minister’s belief as to what are his or her reasons for seeking access.
Subsection 11(2) is important as it explicitly ensures that a person’s access to documents cannot be withheld by reason of a person’s interest or motive in seeking access – Russell Island Development Association Inc and Department of Primary Industry and Energy (1994) 33 ALD 683 at 695.
So far as is relevant to this matter, “exempt document” is defined in s 4 to mean:
“(a) a document that is exempt for the purposes of Part IV (exempt documents)…”
Part IV of the Act (ss 31A – 47J) is basically divided into two parts: Division 2 which lists ten generic types of documents that are generally exempt and Division 3 which lists public interest conditional exemptions.
Documents containing material obtained in confidence (s45) is contained in Division 2, whereas the other possible heads of exemption raised by ASADA (specifically, operations of an agency – s47E) are contained in Division 3.
If a document is found to be conditionally exempt under Division 3, an agency or Minister is required to give the applicant access unless it would, on balance, be contrary to the public interest – s 11A(5). As the FOI Guidelines note (at 6.8) the “pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighed towards disclosure.”
Section 11B(3) set out the factors favouring access to the document in the public interest, namely whether access to the document would do any of the following:
(a)promote the objects of the Act;
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.
FOI Guidelines
Subsection 93A(1) of the Act provides that the Information Commissioner may, by instrument in writing, issues guidelines for the purposes of the Act. Subsection 93A(2) further provides that for the performance of a function, or the exercise of a power, under the Act, regard must be had to any guidelines issued by the Information Commissioner.
It is important to focus on the requirement in s 93A that “regard must be had” to such guidelines by a decision-maker.
The Information Commissioner has issued guidelines (the FOI Guidelines) and whilst the FOI Guidelines are not binding on decision-makers, they provide assistance to them and should be applied unless there is a cogent reason otherwise – see, e.g. Francis and Department of Defence (2002) 59 AAR 35 at 40 per Deputy President Jarvis.
Section 45 – breach of confidentiality
Introduction
The Butterworths Australian Legal Dictionary (1997) defines “breach of confidence” as “the failure of a confidant to preserve the confidential character of information which has been communicated in circumstances giving rise to an obligation of confidence: Coco v A N Clarke (Engineers) Ltd [1969] RBC 41…”
The starting point in determining if an action for breach of confidence (and thus s 45) is founded, is consideration of the criteria explained by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 at 443 (Corrs Pavey Whiting):
“As I have indicated the case is to be approached in terms of the general law, not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity. It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information…It may also be necessary….that unauthorised use would be to the detriment of the plaintiff.”
The FOI Guidelines state: “the following five criteria must be satisfied in relation to the information” – para 5.159.
Before applying the criteria outlined by Gummow J, it is desirable to set out the history of s 45 and how “breach of confidence” has been interpreted by the Tribunal.
Section 45 was amended in 1991 and the changes brought about by the amending legislation were designed to reflect Gummow J’s interpretation of the provision. In the Explanatory Memorandum circulated with the Bill, the following reasons were given:
“Clause 32 implements a Senate Committee recommendation that the breach of confidence exemption in the Act be amended to make clear that it provides exemption where, and only where, the person who provided the confidential information would be able to prevent disclosure under the general law relating to breach of confidence. The amendment overcomes decisions by the Administrative Appeals Tribunal which have created uncertainty as to the scope of section 45 and which have expanded the exemption to protect some confidences that the general law does not protect, such as information about a crime or fraud. Clause 32 amends sub-section 45(1) to provide that a document is an exempt document if its disclosure under the Act would found an action by a person, other than the Commonwealth, for a breach of confidence.”
Shortly after s 45 was amended to refer to founding an action for breach of confidence, the Full Bench of the Tribunal (President O’Connor J and Members Attwood and Julian) in Kamminga and Australian National University (1992) 26 ALD 585 considered the effect of those amendments.
The Tribunal noted (at 591) that prior to the amendments, s 45 was not limited in its application to situations where disclosure would be actionable at general law. The insertion of the words “found an action” established that this was no longer the case.
The Tribunal then made the following observations (591 – 592):
“23. The question for the tribunal then is whether disclosure could found an action for ‘breach of confidence’. The dissenting judgement of Gummow J in Corrs Pavey (above at 449 [AAR 203] expressed the view that ‘the term ‘breach of confidence’ is used in s 45 in the sense well known to the law as the description of a particular class of legal proceeding: see, for example, F Gurry, Breach of Confidence 1984 p 25; ‘The English Law Reform Commission’s Report on Breach of Confidence’ (Law Com No 110), 1981, Pt III.’ The tribunal notes that there may be some ambiguity in the term ‘breach of confidence’; in particular, it is not clear whether it covers the situation where there is a contractual right of confidence. It may be that it does so in all situations, or it may be that it does so only in those situations where a plaintiff could invoke the auxiliary jurisdiction in equity in relation to a breach of confidence.
24. In the present case there would appear to be no contractual or proprietary basis for any claim of confidentiality. It follows that the question for the tribunal is whether the referees who wrote the reports would, if the reports were disclosed, have an action in equity against the University for breach of confidence…”
The Tribunal’s reasoning was subject to a lengthy and erudite analysis by the then Queensland Information Commissioner, Mr F Albeitz, in Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279. Mr Albeitz made following helpful observations (at [43]):
“As in Kamminga, the circumstances of the present case are such that an action for breach of confidence to restrain disclosure of the information in issue could only be founded in the independent jurisdiction of equity (since the parties to the communication of the information in issue did not stand in a contractual relationship) and the words ‘found an action for breach of confidence’ in s 46(1)(a) of the Queensland FOI Act undoubtedly cover the equitable action for breach of confidence. It is therefore not essential that I decide whether s 46(1)(a) extends to a cause of action for breach of a contractual obligation of confidence….I consider that the better view is that the words ‘found an action for breach of confidence’ in s 46(1)(a) of the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance is placed on one or more the following causes of action:
(a)a cause of action for breach of contractual obligation of confidence;
(b)a cause of action for breach of an equitable duty of confidence;
(c)a cause of action for breach of a fiduciary…duty of confidence and fidelity…”
Accordingly, s 45 is of limited compass. The exemption does not apply to confidential information per se – Re Maher and Attorney-General’s Department (No. 2) (1986) 13 ALD 98 at [78]/109. If it did, then the exemption would trespass into many of the other exemption provisions contained in Part IV. It is limited to disclosure of information that would found an action for breach of confidence. It may be that the disclosure of confidential information could be embarrassing, or it may be that it could found an action based on the tort of negligence or breach of a statutory duty. Indeed, the range of possible actions, or interlocutory proceedings, that the disclosure of confidential information may launch are legion. But it is only if the disclosure of the information may found an action of breach of confidence, whether founded in contract or equity, that enlivens the operation of the exemption in s 45.
In determining if such an action may be open, attention again must be given to the criteria outlined by Gummow J above.
Criterion 1: the information must be specifically identified
The first requirement, namely that the information can be identified with specificity, is satisfied. It is not disputed that the information sought are the dates of testing in the doping control forms and those dates have been specifically identified.
Criterion 2: Quality of confidentiality
It is trite law that something which is common knowledge cannot be confidential – Salman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215 per Lord Green MR. However, it is also the case that matters of common knowledge can acquire a confidential status because of their association with a particular context – Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 93 per Roskill J. Further, the fact that information has been the subject of limited publication does not of itself mean that the information has lost its confidentiality – G v Day [1982] 1 NSWLR 24 at 40 per Yeldham J.
The Tribunal’s attention was also drawn to a recent decision of the Court of Appeal of Singapore, Woon v HT RSL [2017] SGCA 23 (Woon). In that case emails containing undoubtedly privileged and confidential information were uploaded onto the internet. One of the questions that the Court of Appeal had to determine was whether, by the fact of the emails being placed in the public domain, they had lost their confidential character.
Their Honours first referred to the duty of confidentiality being subject to the principle that once information has entered into the “public domain”, as a general rule, it is no longer amenable to the protection of the law of confidence. However, their Honours made the following observation (at [31]):
“We stress, however, that the ‘public domain’ principle as formulated in Spycatcher is not a freestanding rule to be mechanistically applied…First, it is expressed as a general and not an absolute rule…Secondly, the ‘public domain’ principle is merely an aspect of the scope of the duty of confidentiality. In other words, it is but one factor to be considered when determining whether a person’s conscience ought to require him to treat information as confidential. Thus, the question for the court in each case is whether the degree of accessibility of the information is such that, in all the circumstances, it would not be just to require the party against whom a duty of confidentiality is alleged to treat it as confidential…”
The Court of Appeal went to explain that it is basically a common sense inquiry (at [35]):
“Ultimately, it is very much a common sense inquiry whether the information has become so accessible and/or accessed that it would not be just in all the circumstances to require the party against whom confidence is asserted to treat it as confidential.”
The nature of that inquiry was explained as follows (at [36] – [37]):
“Further, it is important to focus not only on the extent to which the information in question has become accessible but also on the extent to which it has in fact been accessed by the general public. As we have said, the essence of a confidence or secret is that it is not publicly known. Potential, abstract accessibility is vastly different from access in fact. This is particularly so, given the proliferation of information in the globalised Internet age of today. Paradoxically, much of the information on the Internet, although accessible, is not in fact accessed by the public, whether from lack of interest or time or even ignorance.
Accordingly, the circumstances of each case must be examined. Consideration must be given to such factors as the likelihood of the information being accessed by the public, the degree to which the information has in fact been accessed and the extent to which the information may be appreciated and/or understood only with the specialised skills or expertise of the party seeking to make use of the information. Merely making confidential information technically available to the public at large does not necessarily destroy its confidential character. Public media, in particular the Internet, must not be the gateway through which all confidentiality is dissolved and destroyed.”
The FOI Guidelines provide the following guidance regarding this aspect of Gummow J’s judgment:
“5.162 For the information to have the quality of confidentiality it must be secret or only known to a limited group. Information that is common knowledge or in the public domain will not have the quality of confidentiality. For example, information that is provided to an agency and copied to other organisations on a non-confidential or open basis may not be considered confidential.
5.163 The quality of confidentiality may be lost over time if confidentiality is waived or the information enters the public domain. This can occur if the person whose confidential information it is discloses it generally. The obligation of confidence may also only relate to a limited time period.”
It is a matter of public record that the doping control forms were disclosed during proceedings before the AFL Tribunal and the CAS. However, the extent of disclosure was strictly limited to the parties and decision-makers in each of those proceedings. Ms Annear deposed in her affidavit of 9 March 2018 as follows – Exhibit 2 par 49:
“Ms Gangemi (who is an AGS lawyer) further informs me that copies of the doping control forms were disclosed to the parties and decision-makers in each matter. I am told by Ms Gangemi that such disclosures were made in expectation that the documents would not be disclosed further and would be kept confidential. In particular, copies of the forms included in the Court Book for each proceeding were marked ‘CONFIDENTIAL Provided under Section 71 of the ASADA Act’. I have been shown copies of correspondence serving copies of the Court Book on the parties to the AFL Tribunal and AFL Appeals Board which reiterated that the information contained in the documents was disclosed pursuant to s 72 of the ASADA Act.”

Mr Francis accepted the accuracy of the information provided by Ms Gangemi to Ms Annear – Exhibit 5 para 49.
Ms Annear further deposed – Exhibit 2 para 50:
“In addition to the statement of confidentiality on the face of each doping control form disclosed, it is my belief from reviewing the transcripts of the AFL Tribunal proceeding that each counsel participating and their instructing solicitor gave an undertaking that:
50.1 the evidence and documents before the Tribunal would only be used for the purposes of the proceedings,
50.2 to the extent that information has to be revealed to other people for the purpose of the conduct of the proceeding, they would obtain agreement from the other person to treat the information confidentially.”
Mr Francis also accepted the accuracy of this statement, although he did not understand its relevance – Exhibit 5 para 50.
Ms Annear also referred to rule 43 of the CAS Procedural Rules, which provide – Exhibit 2 para 51:
“Proceedings under these Procedural Rules are confidential. The parties, the arbitrators and CAS undertake not to disclose to any third party any facts or other information relating to the dispute or the proceedings without the permission of CAS. Awards shall not be made public unless all parties agree or the Division President so decides.”
Mr Francis did not contest the accuracy of this statement – Exhibit 5 para 51.
It is, then, tolerably clear that the dates sought by Mr Francis are not publicly known. There has been a limited circulation of the information during the legal proceedings referred to above, but as Ms Annear’s affidavit of 9 March 2018 illustrates, that disclosure was to a strictly limited number of people and clothed with obligations of confidentiality.
It is not the case that the quality of confidentiality possessed by the dates has been degraded by the ventilation in public, or to a broad circle of persons in an unrestricted manner. On the contrary, the dates retain their quality of confidentiality because they have not entered into the public domain in a random and freely accessible manner and have remained within the knowledge of a small circle of persons, almost all of whom have either a contractual, statutory or equitable duty of confidentiality.
Mr Francis submits (Concluding Submission of the Applicant Part ‘A’ (CSA ‘A’) that irrespective of the above, the small amount of information sought is not confidential and (at para 7) “there isn’t a statistician in the world who could identify a pattern, programme or methodology from six tests out of approximately one thousand tests over 366 days and if we use the AFL tests or 7196 if we use the total ASADA tests. It should also be noted that this was six years ago and many of the tests were randomly selected.”
As ASADA pointed out in the Respondent’s Submissions in Reply (RSR) at paras 1 – 2, Mr Francis views the information without regard to its context. The dates were obtained as part of a broader collection process that was held out to be a confidential process.
Further, the issue is not whether the information is short in compass. Confidentiality is not determined by the length or brevity of the information.
Also, confidentiality attaches to the information and the context of its generation and circulation. The use that can be made of the information, its utility or other questions about the nature or quality of the information, are secondary questions and not determinative of whether it has a confidential character.
ASADA also made the following submission, with which the Tribunal agrees – RSR para 3:
“Secondly, while other information collected at the same time will not also be disclosed, the Dates still speak to, and of, the testing of 6 players whose identities are known to the applicant. What the Dates disclose in isolation is imprecise, in that no specific date can be attributed to any particular player. But the applicant will learn that he cohort of 6 named players were collectively subjected to a precise number of tests on precise dates. That information, necessarily derived from the documents held by ASADA, comprises information known by ASADA only through its testing activities – activities it undertakes on a promise, and understanding, that information is confidential.”
Mr Francis properly concedes (Applicant’s Closing Submission Part ‘B’ at para 7) that “the information is not readily available to the public at large”, however he goes on to contend “that so many people know the dates that none can possibly be considered confidential.”
As was highlighted by the Court of Appeal in Woon, even if information has entered into the public domain it does not necessarily follow that it has lost its confidential character. It is only if information has become public knowledge that, as a matter of common sense, the confidential character of the information disappears. The Court of Appeal, properly and eloquently, highlighted the practical and common sense nature of the inquiry required.
In this matter, it is clear that the dates have not entered into the public domain. They are not a matter of public knowledge. There are a relatively small number of people who have had access to this information, but, as will be discussed below, that access is covered by a veil of strict confidentiality born from statutory, contractual and equitable sources.
It follows that the second criterion is established.
Criterion 3: Mutual understanding of confidence
The FOI Guidelines state as follows – paras 5.164, 5.166 and 5.167:
“5.164 The information must have been communicated and received on the basis of a mutual understanding of confidence. In other words, the agency needs to have understood and accepted an obligation of confidence. The mutual understanding must have existed at the time of the communication. The most obvious example is a contractual obligation of confidence…
5.166 It may be clear from an agency’s actions whether the agency accepted an obligation of confidence and is maintaining that obligation. For example, an agency may mark a document as confidential, keep it separate from other documents that are not confidential and ensure that the material is not disclosed to third parties without consent.
5.167 An obligation of confidentiality may be express or implied…”
To ascertain if there was a mutual understanding of confidence requires an objective assessment of all the material presented to the decision-maker. In this weighing exercise, the fact that one of the indicia of confidentiality outlined above is present is not necessarily determinative. For example, the fact that a document is marked “confidential” is not determinative of the question whether an agency has accepted an obligation of confidence – Re B and Brisbane North Regional Health Authority (1994) 1 QAR 271 at [70].
In this matter, reference can first be made to the contractual relations entered into by ASADA and the AFL to undertake anti-doping testing. The relevant contracts are annexed to the affidavits of Ms Annear of 9 March 2018 (Exhibit 2) and 23 March 2018 (Exhibit 3).
As previously noted, the 2011 contract specifically required ASADA not to disclose any confidential information to a third party without the prior written consent of the AFL. Exceptions were made for authorised disclosures – cl 5.1, 5.3.: Exhibit 2 Annexure JA-1 pp. 20 – 21.
“Confidential information” was broadly defined as “information that is by its nature confidential” and included information that “c. a party knows or ought to know is confidential”, but excluded “information which is or becomes public knowledge other than by breach of the contract or any other confidentiality obligation” – Exhibit 2 Annexure JA-1 pp. 18 – 19. Furthermore, Clause J.1 which is headed “ASADA’s and the Commonwealth’s Confidential Information”, includes “All contract services personal information as defined under the ASADA Act and ASADA Regulations” – Exhibit 2 Annexure JA-1 p. 23.
In short, ASADA submits that there is a contractual duty placed on ASADA not to disclose to third parties, without the written consent of the AFL, confidential information, which includes the dates.
Mr Francis contests this. He does not accept (Exhibit 5 para 15) that the players’ names and date of tests are confidential. However, in advancing this contention, Mr Francis draws the Tribunal’s attention not to the terms of the Contract but to the terms of the Code.
Nonetheless, cl 5.1.1. of the 2011 Contract makes it clear that the duty not to disclose is subject to, inter alia, disclosures authorised by the Code. Mr Francis relies on cl 14.4 of the Code, which, as previously noted, provides that Anti-Doping Organisations shall, at least annually, publish a statistical report of their anti-doping activities. Clause 14.4 provides that the reports “may” show the name of each athlete tested and the date of each testing. In short, cl. 14.4 does not require an anti-doping organisation to publish the name and dates of the tested players, it simply provides that they may do so. In this instance, such a liberty has to be read in the context of the contractual and statutory obligations imposed on ASADA.
The Tribunal, therefore, does not accept that the operation of cl. 14.4 of the Code negates or diminishes the duty of confidentiality as to the disclosure of the names and dates of players subjected to anti-doping testing imposed on ASADA by is contractual relations with the AFL.
Next, ASADA relies on its obligations under the Code. As previously discussed, the Tribunal has been provided with extracts from both the 2009 and 2015 versions of the Code. To all intents and purposes the differences between these versions in Art. 14 are not significant. The provisions referred to below are contained in the 2015 version of the Code as contained in Annexure JA-3 to Exhibit 2.
Article 14 of the Code deals with confidentiality and reporting. At the outset Art. 14 refers to the “respect for the privacy of all Athletes or other Persons”- Exhibit 2 Annexure JA-3 p. 35.
Article 14.1 relates to information concerning adverse analytical findings, atypical findings and other asserted anti-doping rule violations. The various headings of the sub-articles are as follows:
(a)Art. 14.1.1: notice of anti-doping rule violations to athletes and other persons;
(b)Art. 14.1.2: notice of anti-doping rule violations to national anti-doping organisations, international federations and WADA;
(c)Art. 14.1.3: content of an anti-doping rule violation notice; and
(d)Art. 14.1.4: status reports.
Importantly Art. 14.1.5, which is headed “Confidentiality”, provides – Exhibit 2 Annexure JA-3 p. 36:
“The recipient organizations shall not disclose this information beyond those Persons with a need to know (which would include the appropriate personnel at the applicable National Olympic Committee, National Federation, and team in a Team Sport) until the Anti-Doping Organization with results management responsibility has made Public Disclosure or has failed to make Public Disclosure as required in Article 14.3.”
Reference needs to be made to Art. 14.3 which deals with public disclosure.
Article 14.3.1 provides that the identity of any athlete who is asserted by an anti-doping organisation to have committed an anti-doping rule violation may only be publicly disclosed after notice has been provided to the athlete in accordance with the Code.
Where an anti-doping violation is upheld or not challenged, the anti-doping organisation must publicly report “the disposition of the anti-doping matter including the sport, the anti-doping rule violated, the name of the Athlete or other Person committing the violation, the Prohibited Substance or Prohibited Method involved and the Consequences imposed.”
Conversely, where it is determined that an athlete has not committed an anti-doping violation, the decision may only be published with the consent of the athlete or other person who is the subject of the decision – Art. 14.3.3.
The statistical reporting provision (Art. 14.4) has already been discussed. There is, however, another provision which is headed “Data Privacy” – Art. 14.6:
“When performing obligations under the Code, Anti-Doping Organizations may collect, store, process or disclose personal information relating to Athletes and third parties. Each Anti-Doping Organization shall ensure that it complies with applicable data protection and privacy laws with respect to their handling of such information, as well as the International Standard for the protection of privacy that WADA shall adopt to ensure Athletes and non-athletes are fully informed of and, where necessary, agree to the handling of their personal information in connection with anti-doping activities arising under the Code.”
The Tribunal has also been provided with extracts from the International Standard for the Protection of Privacy and Personal Information (the International Standard) which is dated January 2015 – Exhibit 2 Annexure JA-5.
Sections 8.1 and 8.2 deal with disclosure of personal information from one anti-doping organisation to another. Section 8.3 deals with disclosure to a third party. It provides as follows:
“8.3 Apart from the disclosures referenced in Sections 8.1 and 8.2 above, Anti-Doping Organizations may disclose Personal Information to Third Parties where such disclosures:
(a)are required by law, regulation or compulsory legal process;
(b)take place with the informed, express and written consent of the relevant Participant; or
(c)are necessary to assist law enforcement or governmental or other authorities in the detection, investigation or prosecution of a criminal offence or breach of the Code, provided that the Personal Information is reasonably relevant to the offence in question and cannot otherwise reasonably be obtained by the authorities.”
Both the Code and the International Standard place a high premium on maintaining the confidentiality of information gleaned from players undergoing anti-doping testing. Whilst the Code requires the publication of the name of any player who has engaged in an anti-doping rule violation, together with details of the sport, the rule violated, the prohibited substance or method involved and the consequences imposed (Art 14.3.2), this is an exception to the general rule that the privacy and confidentiality of the players’ participation in anti-doping tests is paramount. Sensibly the Code and International Standard recognise that ASADA and the AFL are not islands unto themselves and must, in a society based on the rule of law, be subject to competing legal obligations: whether criminal or civil. Moreover, the Code also recognises that it is in the public interest that ASADA publish statistics about its anti-doping activities. However, the golden thread that links all of these provisions is the explicit recognition that every effort should be made to maintain the privacy of the players’, for it is only with their active cooperation that the anti-doping testing regime which underpins the Code and the International Standard can be successfully maintained on an ongoing basis.
The Tribunal’s attention was also drawn to the requirements of Part 8 (Information management) of the ASADA Act.
Subsection 67(1) imposes a general duty of secrecy on an entrusted person who has obtained protected information in that person’s capacity as an entrusted person. The disclosure of such information to another person, other than the person to whom the information relates, carries with it a criminal penalty of two years imprisonment.
Subsection 67(2) provides that s 67(1) does not apply if disclosure is permitted or required by law.
Section 68 provides various examples of how an entrusted person may disclose protected information. Relevantly, s 68(b) provides for disclosure if it is required or permitted by the Code. As previously noted, Art. 14.4 of the Code allows for the disclosure of confidential information, which would include the dates. However, whilst that provision allows for disclosure it does not compel disclosure, and the exercise of the discretion would, necessarily, be subject to any overriding equitable duty of confidence.
Further disclosure is permitted with the consent of the person to whom the protected information relates – s 68A. Other exceptions include where disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual (s 68C), if the information is publicly available (s 68D) or is in response to public comments (s 68E).
Overall, then, Part 8 reinforces the view that the disclosure of information relating to the anti-doping testing of players’ is regarded as a serious issue and subject to strict controls, not only to protect the players’ but also to protect the integrity of the anti-doping regime.
Finally, attention needs to be given to what information was given to the players by ASADA, EFC and the AFL about the confidentiality of the anti-doping program.
Primary reliance is placed by ASADA in Ms Annear’s affidavit of 9 March 2018 (Exhibit 2). There are some problems with the affidavit in that Ms Annear deposes to events, actions and perceptions on the basis of supposition rather than direct knowledge. This was, properly, raised by Mr Francis in his affidavit of 10 May 2018 – Exhibit 5 paras 40 – 44.
Nonetheless, insofar as Ms Annear deposes to what is ASADA’s standard practice, it can be reasonably inferred that it would have been adopted when the Essendon players’ were subjected to anti-doping testing in the relevant period.
Ms Annear deposed that in her opinion any AFL player who was the subject of doping control activity would have known of ASADA’s obligation to keep the doping control information confidential – Exhibit 2 para 41. The reason for this belief was stated to be as follows.
First, at the time the players’ were subjected to anti-doping tests, they were provided a copy of the Privacy Notice. Ms Annear deposes that this would have occurred as it is ASADA’s standard practice to provide these notifications as provided in the Sample Collection Manual – Exhibit 2 para 42.
A copy of the Privacy Notice is contained in Exhibit 1 (pp. 102 – 103), and under the heading “Disclosures” provides as follows:
“Your Personal Information may be made available to authorised ADOs, for instance, designated national ADOs, your international or national sporting federations, sporting administration bodies or major games organisers, in accordance with the NAD Scheme and the Code and processed in accordance with the anti-doping provisions of the NAD Scheme and the Code.
Your personal information may also be made available, in part, to WADA, which will need to process certain information in order to fulfil its obligations and responsibilities under the Code.
WADA-accredited laboratories will need to receive your specimens and possibly other data relating to you; however, such laboratories will only be provided with de-identified, key-coded data and specimens that will not enable the laboratories to identify you.
Your personal information may also be disclosed in accordance with the NAD Scheme to relevant government sports agencies (such as the Australian Sports Commission, Australian Olympic Committee and State and Territory sporting academies) and other relevant government agencies (such as the Australian Federal Police, Australian Customs Service, Therapeutic Goods Administration or State and Territory law enforcement bodies).
ADOs, WADA and accredited laboratories will process your personal information only for the purpose of ensuring harmonised, coordinated and effective anti-doping programs in sport.
Prior to ASADA disclosing any of your personal information to external bodies, ASADA must ensure that the external body has completed a written undertaking that your personal information will be treated in confidence. ASADA must also take reasonable steps to ensure that the information will not be disclosed in a way that would be unfairly prejudicial to your interests.”

Further, the Doping Control Notification Form which is required to be signed by a tested player contains three Declarations. The third Declaration is as follows – Exhibit 1 p. 105:
·“I consent to this information being used and disclosed for purposes as identified in the ASADA Athlete Privacy Information Notice”.
Earlier in the Form, there is an Athlete’s Statement, and the second of the three statements is as follows:
“I acknowledge that I have received and read ASADA’s Athlete Privacy Information Notice.”
It is clear from the above that the information sought was communicated and received on the basis of a mutual understanding of confidence. ASADA was acutely aware, and accepted, that the information it received from the EFC players was veiled with the strictest of confidence. The actions of ASADA highlight that it accepted the obligation of confidence and has maintained that obligation throughout these proceedings. The obligation was not a vague one, or to be inferred by the circumstances. Rather, it was explicitly accepted and articulated in the Privacy Notice and the terms of the Doping Control Notification Form. The requirement of confidentiality is also set out expressly in the Act and in the Code. In short, there are numerous mutually reinforcing mechanisms that were designed to ensure that the confidentiality of the players when undergoing anti-doping tests would be respected, subject to disclosure in the event of a proved doping violation.
It follows that the third criterion is established.
Is disclosure threatened without authority?
The FOI Guidelines provide the following guidance – para 5.168 – 5.169:
“5.151 The information must have been or been threatened to be disclosed without authority. The scope of the confidential relationship will often need to be considered to ascertain whether disclosure is authorised.
5.152 For example, the agency may have told the person providing the information about the people to whom the agency would usually disclose such information. The law may require disclosure to third parties in the performance of an agency’s functions, which will amount to authorised use and/or disclosure. Similarly, a person providing confidential information to an agency may specifically permit the agency to divulge the information to a limited group.”
ASADA submits (SFIC para 40) that the disclosure in the doping control forms, subject to an obligation of confidence, would be a misuse.
It is clear from what has been outlined above that any disclosure would be in breach of the obligation of confidence, and without authority, and thus satisfies this criterion.
Will the disclosure of the dates cause detriment?
Gummow J left open in Corrs Pavey Whiting whether detriment must be established before s 45 is enlivened. While his Honour subsequently cast doubt on the need to establish detriment in Smith, Kline and French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1991) 28 FCR 291, the better approach, until the Federal Court holds to the contrary, is to assume that detriment is an element in successfully claiming the exemption enshrined in s 45.
The nature of the detriment is also a matter of debate, however it is tolerably clear that the detriment contemplated by Gummow J is not limited to financial detriment, but is of much broader import and can include embarrassment, distress, public ridicule or public criticism. Reliance can be placed on the following discussion by Deputy President Forgie in Callejo and Department of Immigration and Citizenship (2010) 51 AAR 308 at 372/[174]:
“there is more than one basis upon which breach of confidence may be established in equity. In analytical terms, one is to protect property, and information is regarded as property. The other is, in effect, to ensure that the confidant acts in a way that is consistent with good conscience and not unconscionably. If that is the case, the detriment may be the disclosure itself in circumstances in which the disclosure is neither consented to nor otherwise justified. That disclosure may be accompanied by embarrassment, distress or the like or by tangible loss or it may simply be unconscionable.”
Mr Keane deposed to the following detrimental consequences which he believed would flow to the AFL and players should the dates be disclosed – Exhibit 7 paras 11 – 12:
“11. In my view, if confidential information obtained by ASADA in the course of its performance of service for the AFL in the conduct of the AFL’s anti-doping program was disclosed, that would potentially have a highly detrimental effect on the efficacy of the conduct of the AFL’s program. My concerns in this regard are not limited to information set out in the Doing Control Forms or doping control forms generally but confidential information generally that was obtained by ASADA. My concerns arise because, if Doping Control Forms are disclosed to the Applicant, I would also hold serious concerns that other confidential information that was provided to ASADA in connection with the AFL’s anti-doping program was also at risk of public disclosure.
12. My concerns include the following matters:
(a) In circumstances where a player is obliged to list all prescription and non-prescription medications taken by them in the previous 7 days, public disclosure of such information (which, for example, may relate to the players undisclosed physical and/or mental illness, sexual dysfunction, medication for which a player has a Therapeutic Use Exemption etc) may subject a player to stigmatism and/or ridicule and ultimately discourage players from fulsomely and candidly completing such forms;
(b) The disclosure of confidential information that may disclose logistical arrangements associated with the conduct of the anti-doping program such as that relates to the dates, times, places, frequency and other matters that provide insights into the manner in which the anti-doping program is administered, potentially comprise the efficacy of that program;
(c) The disclosure of confidential information that may disclose, or provide insights on, the testing plan, strategy or methodology that may be adopted with respect to testing of certain players may potentially compromise the efficacy of such plans or strategies;
(d) More generally, it is my view that there is an expectation of confidentiality on the part of players and clubs with respect to the conduct of the AFL anti-doping program. Whilst there are mechanisms in place to allow the disclosure of information where a breach of the AFL Anti-Doping Code is proven and a penalty imposed, if confidentiality does not otherwise attach to the conduct of the program that may result in a lack of confidence in the program. In particular, such an outcome may have a significant negative effect on the relationship between the AFL and the players (including the AFL Players’ Association) to the overall detriment of the harmonious and productive conduct of the AFL competition. Further, such an outcome may result in there being a media and/or public perception that the AFL’s anti-doping program has been compromised.”
Whilst Mr Keane’s statement is not exhaustive of the possible detriment that disclosure of the dates may cause, it is illustrative of the proposition that the Tribunal has been presented with sufficient evidence to establish that such the disclosure of the dates will cause detriment to, inter alia, the AFL and ASADA.
Conclusion
The Tribunal is satisfied that the dates are exempt documents pursuant to s 45 as their disclosure would found an action for breach of confidence.
CONCLUSION
As the Tribunal has determined that the material in issue is exempt from disclosure pursuant to s 45 of the Act, it is not necessary to consider whether the material is also exempt from disclosure pursuant to s 47E(d) and to apply the public interest test.
Although not necessary, it is desirable to ventilate a further matter.
Mr Francis was not legally represented, and, as previously noted, has devoted much of his private time and energy in seeking to expose all that transpired during the EFC supplements program investigation and subsequent legal proceedings. The Tribunal formed a very positive view of Mr Francis, who appeared as a dedicated and intelligent gentleman who, despite his advanced years and bad health, presented his case with vigour and erudition.
It is in this context that it is appropriate to deal with one key issue. Mr Francis was at pains to make clear that all he sought to be disclosed was the dates of anti-doping tests on six EFC players. He did not seek their names and he did not seek other more personal information. In short his request was very limited and he made it clear that his interests were firmly on the side of the players and he was not seeking information for any selfish or commercial purpose – see, for example, Exhibit 1 pp 1 – 2.
At various times during the Hearing, and in his submissions, Mr Francis, properly, raised with the Tribunal whether in actuality any practical harm would be directly done to anti-doping from the disclosure of this information. This is an important matter and it is squarely dealt with in Respondent’s Submissions in Reply.
In the chapter headed “Deriving patterns” the following information is provided:
“13. In this case, the 6 dates may disclose a pattern, or an absence of a pattern; in either case something is revealed. Combined with other known dates of tests, they may disclose a pattern, or an absence of a pattern. Combined with further known dates of other events, eg match days (broken down further into home games and away games), training camps, and the like, more may become apparent. Combined again with data about other tests known by officials at other clubs, something else may be revealed. Comparing dates from this period to dates in more recent times, another pattern may emerge. It is in the nature of mosaic analysis that one may not be aware of the extent of information known to the person who seeks to compose the whole. As such a precautionary approach is warranted.
14. Ms Annear is a professional data analyst, experienced in the field of sports anti-doping. It is difficult to conceive of a person more qualified to assist the Tribunal to assess the likely impact of disclosing the Dates. Her evidence was that the Dates could be used to more confidently predict testing patterns, especially by filling out what is already disclosed in (for example) Chip Le Grand’s book The Straight Dope or which may otherwise be available to people with an interest in establishing testing patterns.
15. Her evidence was consistent with the head of integrity at the AFL. This is another person who could be expected to be a reliable source of knowledge on the question whether a person could use the Dates to undermine the integrity of the AFL’s testing regime. His answer was an unreserved ‘yes’. No-one else gave evidence relevant to this issue. While from a lay perspective it may be difficult to see the patterns clearly, the evidence of those whose job involves seeing such patterns have assisted the Tribunal to understand that the Dates, combined with other available information, reveal something of value to those who are minded to look.”
The above explanation satisfies the Tribunal that the disclosure of the dates could, inadvertently, have negative consequences for ASADA and the AFL’s anti-doping testing regime. In matters such as these, where issues of security, criminality and integrity are involved, a precautionary approach is preferable: McKnight and Australian Archives (1992) 28 ALD 95 at 112.
Finally, it is necessary to deal with one procedural matter. On 13 July 2018 I made orders prohibiting the publication of certain material produced by the Applicant and forming part of his case. The Respondent asserted that the material was confidential.
The Order does not prevent the Applicant from publishing information he is legally entitled to publish. In that regard, Paragraph 5 of the Order provides:
“the Applicant is not prohibited by this order, or any other order made under section 35(4) of the Act in this proceeding, from otherwise publishing information contained in any document to which the Applicant has lawful access and which the Applicant is otherwise lawfully entitled to publish.”
It is somewhat of a paradox that an applicant in a FOI matter is the recipient of an Order preventing him from publishing information. Nonetheless, the Order was made by the Tribunal to ensure that the proceedings could be conducted properly and without the possibly prejudicial public release of information during the course of the proceedings.
The delivery of this decision concludes the Tribunal proceedings. The rationale for the Order of 13 July 2018 remaining likewise has passed. If the Respondent is concerned about the Applicant publishing information, then it has a number of remedies it can explore in a court of competent jurisdiction.
In order that no prejudice results from this decision, the Tribunal determines that the Order of 13 July 2018 will remain in force for 28 days after the date of this decision. If the Respondent wishes to make a non-revocation application, it can present its case before another Member of the Tribunal or seek an appropriate remedy in another place.
DECISION
The Tribunal determines:
(a)the decision under review is affirmed; and
(b)the Order of 13 July 2018 will lapse 28 days from the date of this decision.

I certify that the preceding 184 (one hundred and eighty – four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.........................[Sgd]...............................................
Associate
Dated: 4 January 2019

Date of hearing:

Date of Final Submissions:

3 July 2018

28 August 2018

Applicant:

Counsel for the Respondent

Solicitors for the Respondent

In person

Mr J Davidson

Australian Government Solicitor