Francis and Chief Executive Officer, Sport Integrity Australia (Freedom of information) - [2024] AATA 2687

Francis and Chief Executive Officer, Sport Integrity Australia (Freedom of information) [2024] AATA 2687 (24 June 2024)
Division:FREEDOM OF INFORMATION DIVISION
File Numbers: 2020/2706
2020/6399

Re:Bruce Francis
APPLICANT

AndChief Executive Officer, Sport Integrity Australia
RESPONDENT

DECISION
Tribunal:Deputy President R I Hanger AM KC
Date:24 June 2024
Place:Brisbane

The decision under review is affirmed.
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Deputy President R I Hanger AM KC
Catchwords
FREEDOM OF INFORMATION – request for access – right of access to documents – whether document is exempt from disclosure – whether document is lawfully available – whether document is in the public domain – whether a leak constitutes public disclosure- whether there has been a breach of confidence
Legislation
Australian Sports Anti-Doping Authority Act 2006 (Cth)
Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Act 2020 (Cth)
Freedom of Information Act 1982 (Cth)
Sport Integrity Australia Act 2020 (Cth)
Cases
Ascic v Australian Federal Police [1986] FCA 260.
Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434
Cullen v Australian Federal Police [1991] AATA 671
Essendon Football Club v The Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019
REASONS FOR DECISION
Deputy President R I Hanger AM KC
24 June 2024
INTRODUCTION

The Applicant made four applications under the Freedom of Information Act (FOI Act) in relation to a joint investigation by Sport Integrity Australia (SIA), formerly known as Australian Sports Anti-Doping Authority (ASADA), and the AFL, regarding allegations surrounding the provision of supplements in connection with Essendon Football Club, players and officials during the 2012 season.
The Parties have worked together to resolve which documents remain in issue. There are three documents or bundles thereof that call for determination (in total about 450 pages with some repetition).
DOCUMENTS IN ISSUE
The first document is called a Show Cause Pack dated 30 May 2014. It contains a collation of evidence, or summaries and analysis of evidence obtained during the joint ASADA and AFL investigation, and a report based on the information obtained.
Ms Emma Johnson in an affidavit affirmed on 2 November 2020, stated that the purpose of the report was for ASADA personnel to make a recommendation to the ASADA CEO to issue notices to various players at the Essendon Football Club about possible anti-doping rule violations.
The second document, known as the Lovett-Murray Transcript, is a transcript of an interview conducted as part of the ASADA and AFL joint investigation into possible anti-doping rule violations. Mr Nathan Lovett-Murray was interviewed by ASADA and AFL investigators pursuant to his obligations under the AFL Anti-Doping Code.
Ms Johnson describes the third document as the Anti-Doping Rule Violation Panel Pack. This contains documents considered by the Anti-Doping Rule Violation Panel when determining whether to make findings against Essendon Football Club players. The pack was prepared in relation to Mr Lovett-Murray, but it also contains evidence received from other Essendon players, coaches, support staff and the individuals involved in the manufacturing and supply of substances to the club.
The documents in question have been released to the Applicant in part and withheld in part. The material, which is the subject of this application, is material that reveals information about either players, an official, Essendon Football Club, or third parties connected with matters that were under investigation in the course of ASADA/SIA performing its anti-doping functions under its Act.
The Respondent claims that the documents presently sought by the Applicant are wholly or partially exempt documents pursuant to the provisions of section 38 and section 45 of the FOI Act.
RELEVANT LEGISLATION
Section 11 of the FOI Act provides:
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document…
Section 38 of the FOI Act, so far as is relevant, provides as follows:
(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment…;
and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that enactment or law or any other enactment…
(1A) A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment or law concerned or any other enactment...
Section 45(1) provides:
A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.
On 6 March 2020, the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Act 2020 (Amending Act) was assented to. It specified that from 1 July 2020, ASADA was renamed as Sport Integrity Australia (SIA). In addition to this, from 1 July 2020, the Australian Sports Anti-Doping Authority Act 2006 (Cth) was renamed the Sport Integrity Australia Act 2020 (Cth) (SIA Act).
The Amending Act inserted section 67 of the SIA Act into Schedule 3 of the FOI Act.
Section 67 of the SIA Act provides as follows:
(1) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) the person obtains protected information in the person’s capacity as an entrusted person; and
(c) the person discloses the information to another person (other than the person to whom the information relates).
The term “entrusted person” is defined in section 69 of the SIA Act. It includes members of the Sport Integrity Australia staff and to put it simply, persons working on its behalf.
The term “protected information” is defined in section 4 of the SIA Act to mean information that:
(a) was obtained under or for the purposes of this Act or a legislative instrument made under this Act; and
(b) relates to the affairs of a person (other than an entrusted person); and
(c) identifies, or is reasonably capable of being used to identify, the person.
The Amending Act provides that information that was protected information under the ASADA Act would also be taken to be protected information under the SIA Act. That information is information obtained in relation to the administration of the NAD scheme or relates to the administration of that scheme.
Section 68A of the SIA Act authorises disclosure of information in accordance with the consent of the person to whom the protected information relates.
Section 68D of the SIA Act authorises disclosure where the information has already been “lawfully made available to the public.”
The effect of the legislation is that the staff and people working on behalf of the Respondent are considered entrusted persons under the SIA Act.
The information they obtained falls within the definition of protected information, and the Respondent submits that to disclose that information would involve committing an offence under section 67 of SIA Act. That is clearly correct.
If that is the case, it submits that it has satisfied the provisions of section 38(1)(a) of the FOI Act.
It submits that it has satisfied the provisions of section 38(1)(b) of the FOI Act because the ASADA/SIA Act is listed in Schedule 3 with reference to section 67.
Section 38(1A) of the FOI Act gives rise to the question as to whether disclosure is prohibited by the SIA Act.
Section 67 of the SIA Act makes it an offence to disclose information.
The Applicant has provided substantial material to the Tribunal, but his concluding submissions of 11 May 2022, include an executive summary which I set out hereunder:
“1.SIA Act (2020) was irrelevant because it was gazetted after the proceedings commenced.
2. Section 38 of the FOI Act was irrelevant because it relied upon the SIA (2020) Act.
3.The ASADA Act was the relevant act and it made no distinction between lawfully gained information and how information appeared in the public domain.
4.Deputy President Sosso set a precedent in AAT 2017/6886 when he said if it [information] were in the public domain, it didn’t matter how it got there.
5.All the information I requested was in the public domain.
6.The Herald Sun published a link to the 18-day transcript of the AFL Anti-Doping Tribunal hearing, which ensured all the information was in the public arena.
7.SIA did not attempt to substantiate that a single redaction met any of the five criteria that had to be met for section 45 to apply.
8.SIA, as required, did not produce a single player or support person or third-party person or third-party organisation who objected to the information being released.
9.No person or organisation supplying information was told that it was confidential.
10.Essendon coach James Hird was told before his ASADA-AFL interview his information wouldn’t be confidential, which established the ground rules for everyone else.
11.AFL CEO Andrew Demetriou acknowledged that the process wasn’t conducted in a confidential way.
12.Neither the AFL nor ASADA/SIA produced any evidence that it suffered any detriment over the last eight years as a result of information appearing in the public domain.
13.Neither the AFL nor ASADA/SIA produced any evidence that it would suffer any detriment if the Deputy President ruled in my favour.
14.SIA didn’t produce any evidence that a single player or third-party officially complained in the past about information being in the public domain.”
He also refers to a newspaper article and states he has written over 2 million words about the problem; devoted over 15,000 hours, and has accumulated over 100 arch lever folders and containers with about 40,000 pages in them.[1] He states that he has written a 258-page report on the saga.[2]
[1] Affidavit of the Applicant sworn 23 November 2020, page 5, paragraph 18
[2] Affidavit of the Applicant sworn 23 November 2020, page 5, paragraph 21.
I should add that the material provided to me exceeds 4000 pages, which includes about 400 pages that are in dispute. The Applicant submits that I must consider every sentence on every page and make a ruling in respect of each sentence. I do not think that that is necessary given the conclusion which I have reached about the documents.
The Applicant’s assertions are supported by affidavits by Mr O’Dea, who asserts his strongly held belief that the documents should be made available, and by Mr Hird, who refers to many media articles, raises the issue as to ASADA failing to stop leaks that were occurring when it was aware of them, and complains that the Respondent has failed to act as a model litigant. Whether or not any of these assertions are justified, my task is to determine the application with regard to the legislation outlined above.
The Applicant’s main contention is that virtually all the material is in the public domain.
He asserts somewhat crudely but wittily that the media has received more ASADA and AFL leaks “than the MCG does on a hot Boxing Day test between Australia and England.” While one may praise his prose style, that is not a matter on which I am able to make a finding.
It is however common ground that there is an enormous amount of material concerning the so-called doping scandal in the public domain. The investigations attracted extensive media reports, official reports, online blogs and decisions of adjudicative bodies and books.[3]
[3] The Affidavit of Ms Johnson affirmed 2 November 2020, indicates that two of the proposed leaks include the transcripts and decisions of the AFL Anti-Doping Tribunal and the AFL Notice of Charges to the Essendon Football Club.
In particular, there are decisions of the Federal Court and an award of the Court of Arbitration for Sport (CAS). There are also publicly available media releases issued by ASADA, the AFL and the Essendon Football Club.[4]
[4] Affidavit of Ms Johnson affirmed 2 November 2020, page 8, paragraph 42.
Ms Johnson, the Deputy Chief Executive Officer, Education, Legal and Engagement at SIA, has the responsibility for managing the agency’s anti-doping testing program. She has examined all the documents in issue in these proceedings.
She deposes to the fact that a great deal of information is in the public arena by virtue of leaks. That includes the transcripts and decision of the AFL Anti-Doping Tribunal and the AFL notices of charges relating to the Essendon Football Club.
She said that ASADA/ SIA, nor to her knowledge Essendon Football Club or the AFL, have confirmed the accuracy of information published through unofficial means. She says that if the documents in issue were disclosed, even with names redacted, it would lend significant credence to any similar information that had been unofficially published. The unofficial information could potentially be used to re-identify the individuals in the documents.[5]
[5] Affidavit of Ms Johnson affirmed 2 November 2020, pages 8 to 9, paragraphs 42-46.
Ms Johnson deals with the material in relation to Mr Lovett-Murray. He has consented to the release of his personal information, and to that extent, the information he has provided has been made public lawfully subject to the redaction of information concerning other people.
There is other information in the documents that is referred to in the CAS award and to the extent that that information appears in the CAS reasons, the information has lawfully been made available to the public and is not claimed as protected information of the Respondent.
Other than that, the Respondent asserts that it is not aware of other lawful publications that bear on the content of the documents in issue. Ms Johnson, having considered the documents and redactions in question, says that she is not aware of any basis upon which the Respondent would be authorised to disclose information which it considers falls within the application of section 67 of the SIA Act. All of the information in question obtained by the Respondent was obtained by ASADA/SIA in performing its anti-doping functions under its Act. That is not controversial.
Mr Keane, Head of Integrity and Security at the AFL, in his affidavit affirmed 2 November 2020, sets out the confidentiality arrangements between the AFL and ASADA/SIA. In 2007, the AFL entered into an agreement with ASADA detailing the steps the AFL would take to assist ASADA in performing its anti-doping functions.
That agreement contains clauses relating to the information to be shared by the AFL with ASADA. It requires the AFL to advise ASADA of possible violations of the Australian Football Anti-Doping Code and to provide information in relation thereto reasonably required by ASADA. Under the 2007 agreement, ASADA is required to keep confidential any information that either SIA or ASADA obtained in the course of any AFL anti-doping investigation.[6]
[6] Clause 16 of Exhibit AR K1 referred to in the Affidavit of Mr Keane affirmed 2 November 2020.
Mr Keane deposes to a further agreement dated 9 May 2014 and a further agreement dated 17 October 2014, both of which agreements are to the effect that the AFL would keep confidential material disclosed by ASADA to the AFL. On reviewing the documents, Mr Keane says that both ASADA/SIA and the AFL were and are obliged to keep information relating to anti-doping investigations confidential.
In relation to the joint investigation conducted by AFL and ASADA, Mr Keane says that the interviews were conducted by ASADA and facilitated by the AFL as part of its anti-doping program and material was obtained by ASADA in the course of its functions under the 2007 agreement.
In relation to the Show Cause Pack, he says that the exempted material comprises direct reproduction or summaries of investigative material obtained by ASADA in the course of the joint investigation and that the investigation proceeded on the basis that ASADA would keep the investigative material confidential.
In relation to the Lovett-Murray Transcript, Mr Keane says that SIA would ordinarily be obliged to keep the whole document confidential, but that Mr Lovett-Murray consented to the information about himself being disclosed to the Applicant and that therefore, the AFL did not expect SIA to maintain its confidentiality so far as it related to Mr Lovett-Murray. He said the same applies to the Anti-Doping Rule Violation Panel Pack relating to Mr Lovett-Murray.
In short, he has examined the documents and redactions in issue and considers that, to the extent claimed by the Respondent, each of the passages form part of, or reveal, investigative material collected in the course of the investigation. He considers that the Respondent is obliged to keep the material confidential having regard to the terms of the agreement between them.
In the view of the AFL, the unauthorised publication of certain information does not affect the obligation of SIA to keep information obtained in the course of the joint investigation confidential.
Mr Keane asserts that if the application in these proceedings is successful and access to the documents in issue is granted, it will have a highly detrimental effect on the AFL anti-doping program. Players and officials expect that information gained in respect of the anti-doping program would be managed confidentially, subject to such disclosure as necessary for the administration of the program. If the players and officials do not have trust in the system to keep material confidential, there will be a reduction in goodwill and co-operation which makes the program harder to administer. He also expresses a concern that disclosure of the documents would have a significant negative effect on the relationship between the AFL and the players, and the Players Association to the overall detriment of the AFL competition.
He said that if the documents were released, the AFL would have to carefully examine what information it would provide SIA in the context of future investigations and would likely consider withdrawing from the current agreement.
I am satisfied that the information sought by the Applicant is information relating to the affairs of the players, members of staff of the Essendon Football Club, the Club itself, the AFL, and a third-party individual. Information was obtained in circumstances where the participants providing the information and the participants receiving the information were doing so on a confidential basis, even if as the Applicant asserts, each player was not advised that their conversations would be confidential. The context of the interview was such that they would know that. Nor are the players parties to this application. It is the SIA that makes the claim that the disclosure should not be made. Disclosure of the information would constitute a breach of section 67(1) of the SIA Act and therefore section 38(1) of the FOI Act applies, subject to a possible exception that might be created by reference to section 68A and section 68D of the SIA Act.
With respect to section 68A of the SIA Act, Mr Lovett-Murray consented to the disclosure of his personal information to the Applicant, and the Respondent has conceded that subject to isolating matters in his material relating to other people, the material has been disclosed to the Applicant.
That leaves the question as to whether the material subject of this application has lawfully been made available to the public, and therefore is not exempt material pursuant to the provisions of section 68D of the SIA Act.
The onus is on the Applicant to show that the documents are lawfully in the public domain.

The Applicant agrees that he cannot do so.[7] The Respondent, on the other hand, has provided sworn evidence as to documents that have lawfully been made available to the public. The Respondent’s witnesses were cross-examined and nothing in the cross-examination detracted from my accepting of the truthfulness or reliability of their evidence.
[7] Transcript Day 1, page 79.
It would appear that most documents that are publicly available have been leaked and have not been put into the public domain with authority. A leak does not constitute a lawful disclosure. They are not therefore in the public domain lawfully, and it can be concluded that section 67D of the SIA Act does not apply.
THE APPLICATION OF SECTION 45 OF THE FOI ACT
It must be considered whether the disclosure of information sought, found an action for breach of confidence.
Under the provisions of the FOI Act, this Tribunal must have regard to guidelines issued by the office of the Australian Information Commissioner under section 93A of the FOI Act.
Guidelines 5.186 to 5.190 deal with the issue of breach of confidence.
Guideline 5.189 provides as follows:
To found an action for breach of confidence (which means section 45 may be applied by an agency or minister), the following 5 criteria must be satisfied in relation to the information:
·it must be specifically identified;
·it must have the necessary quality of confidentiality;
·it must have been communicated and received on the basis of a mutual understanding of confidence;
·it must have been disclosed, or threatened to be disclosed, without authority;
·unauthorised disclosure of the information has or will cause detriment.
These guidelines adopt the approach taken by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs.[8]
[8] (1987) 14 FCR 434 at [443].
The documents or parts of the document are without doubt specifically identified.
In relation to the documents having the necessary quality of confidentiality, the Respondent relies on its agreement with the AFL that it would keep information about its investigation confidential. The Respondent submits that the fact that so much information has been made public, other than through authorised channels, is an irrelevant question. Instead, it must be considered whether the information in issue retains a quality of confidentiality because unapproved disclosures are as a matter of law, not considered sufficient to rob otherwise confidential information of its confidential quality.[9]
[9] Cullen v Australian Federal Police [1991] AATA 671; Ascic v Australian Federal Police [1986] FCA 260.
Under the World Anti-Doping Agency Code, SIA is required to protect and ensure security of personal information collected as part of the doping control process. That includes all steps and processes from test distribution planning through to ultimate disposition of any appeal including all steps and processes in between such as provision of whereabouts information, sample collection and handling, laboratory analysis, therapeutic use exemptions, results management and hearings.[10]
[10] Affidavit of Ms Johnson affirmed 2 November 2020, page 4, paragraph 20.
The relationship between the relevant anti-doping organisations was referred to by Middleton J in the following passage:
“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.”[11]
[11] Per Middleton J in Essendon Football Club v The Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019, paragraph 321.
Ms Johnson deposes to the fact that documents provided to the AFL Tribunal, AFL Appeals Board and the CAS, are all embedded with a watermark stating that they are confidential under section 71 of the ASADA Act. She affirms that it is her belief that information contained in the documents provided to the AFL Tribunal, AFL Appeals Board and CAS have only been disclosed to a limited number of individuals and ASADA took necessary steps to ensure the information was only disclosed when it was authorised to do so.[12]
[12] Affidavit of Ms Johnson affirmed 2 November 2020, page 13, paragraph 75.
She says that her review of the documents in issue indicate that a significant amount of the information in them relates to the affairs of individuals, as well as the Essendon Football Club. She says people are named and that even without names, by virtue of the context coupled with information already in the public domain, individuals concerned could be identified with ease. She expresses the opinion that even redacting the names of individuals would not protect individuals from being identified.
In 2007, the ASADA CEO entered into an agreement with the AFL.
Clause 10 of that agreement provided that:
“…as soon as the AFL becomes aware that a possible violation of the AFL Anti-Doping code may have occurred, the AFL will immediately advise ASADA of the possible violation. The AFL will provide ASADA with all information pertaining to the possible violation and will, as may be reasonably required…”[13]
[13] Affidavit of Ms Johnson affirmed 2 November 2020, page 9, paragraph 51.1.
Clause 16 provided:
“ASADA undertakes to keep all information received whilst exercising the functions and powers the subject of this agreement confidential unless otherwise required by law and/or to the extent required under the ASADA Act and the NAD scheme and the AFL’s Anti-Doping Code.”[14]
[14] Affidavit of Ms Johnson affirmed 2 November 2020, page 9, paragraph 51.2.
Ms Johnson further deposes in her affidavit to various agreements and correspondence between ASADA and AFL, to the effect that there was a relationship of confidence purposefully established between AFL and ASADA that information shared with ASADA be kept in strict confidence.
She concludes that during the joint investigation conducted by ASADA and AFL, information was provided pursuant to a mutual understanding and obligation that the information would be kept confidential.
I have no reason to doubt that, and I accept that evidence.
The Respondent also called the evidence to similar effect that it was certainly an expectation that players names and confidential information will remain confidential.[15]
[15] Transcript Day 1, page 40.
Mr Keane also gave evidence that release of information would affect administration of the program. That seems to me also as a matter of common sense. It is important that the Respondent is able to perform its statutory functions in such a way that confidentiality of its work is not restricted by a concern that people interviewed by it, may be reluctant to implicate other possible wrongdoers because they believe that what they say may become public. The work of SIA would be impeded if that were the case.[16] Confidence in SIA work would accordingly be reduced.
[16] See for example the evidence of Mr Keane in Transcript Day 1, page 43.
The Respondent has satisfied each of the guidelines set out above.
CONCLUSION
It may well be the case that there is very little about the Essendon investigations that is unknown. However, it would appear that most of the information in the public arena is there because of unauthorised leaks and is not there lawfully. While the policy of the Freedom of Information legislation is to make information freely available generally speaking, it cannot be the case that because a document or information has been published unlawfully or in breach of confidence, that the act of publication means that the material should then become available under the Freedom of Information legislation. That simply encourages or otherwise, rewards wrongdoing.
The Tribunal affirms the decision under review.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM KC

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Associate
Dated: 24 June 2024

Date(s) of hearing: 6 and 7 December 2021

Date final submissions received: 1 June 2023

Applicant: In person

Counsel for the Respondent: J Davidson

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	6 and 7 December 2021
Date final submissions received:	1 June 2023
Applicant:	In person
Counsel for the Respondent:	J Davidson
Solicitors for the Respondent:	Australian Government Solicitor