Francis and Sport Integrity Australia (Freedom of information)

[2020] AATA 3314

Francis and Sport Integrity Australia (Freedom of information) [2020] AATA 3314 (27 August 2020)

Division:Freedom of Information Division

File Number(s):2020/2706      

Re:Bruce Francis  

APPLICANT

Sport Integrity AustraliaAnd  

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:27 August 2020

Place:Brisbane

1. Pursuant to subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) the publication or other disclosure of the redacted information contained in the following Tribunal Documents (lodged with the Tribunal in these proceedings on 12 June 2020):

·T31 on page 125

·T32 on pages 127-128

·T33 on page 129

·T36 on page 133

·T37 on page 135

·T42(a) on pages 242-256

·T49 on page 290

·T49(b) on page 292

·T50 on page 293

·T51 on page 294

·T52 on page 295

·T52(b), on page 298

·T57(a) on page 307

·T59 on page 309

·T60 on pages 310-311

·T64(a) on pages 356-358

·T66(a) on pages 366-367

·T67(a) on page 370; and

·T72 on page 553;

is restricted to:

(a)the Respondent and any officers of Sport Integrity Australia authorised by the Respondent to have access to the information;

(b)the legal representatives of the Respondent;

(c)a Member of the Tribunal as constituted in this proceeding or a member of staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; and

(d)a member of staff of the Tribunal’s recording and transcription provider in the course of the performance of his or her duties as a member of that staff.

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

Member D K Grigg

Catchwords

FREEDOM OF INFORMATION – Confidentiality Order – Freedom of Information Act 1982 – Claim exempt documents containing material obtained in confidence (section 45, Freedom of Information Act) – Claim disclosure of document would disclose deliberative matter (section 47C, Freedom of Information Act ) or would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency (section 47E(d), Freedom of Information Act) –– Confidentiality Order Granted

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)

Cases

News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88

OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293

Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247

Secondary Materials

Office of the Australian Information Commissioner , Guidelines issued by the Australian  Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth).

REASONS FOR DECISION

Member D K Grigg

27 August 2020

INTRODUCTION

1. The Respondent, Sport Integrity Australia[1] (“SIA”) seeks an order pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) restricting the disclosure of:

   1.1.redacted portions of documents which are relevant to the decision under review; and

   1.2.redacted portions of documents which are not relevant to the decision under review.

   [1] Formerly known as the Australian Sports Anti-Doping Authority.

2. SIA seeks to restrict the publication and disclosure of the redacted documents to members and staff of the Tribunal and to SIA and its representatives.

3. The effect of the order requested will be that the Applicant, Mr Bruce Francis, will not be permitted to view the redacted portions of the documents.

   BACKGROUND

4. Mr Francis made a request for access to documents from SIA pursuant to the Freedom of Information Act 1982 (Cth) (“FOI Act”) on 22 June 2016.[2]

   [2] T-Documents, T3, pages 22-63, Decisions under review, comprising: FOI request 17-31 dated 2 November 2018, FOI request 18-27 dated 21 December 2018, FOI request 18-28 dated 21 December 2018 and FOI request 19-1 dated 31 January 2019.

5. The documents requested by Mr Francis concern details of SIA’s investigations into “the legality of the Essendon Football Club's supplements program during the 2012 Australian Football League season and the preceding preseason”.[3]

   [3] T-Documents, T2, page 12, Email from the Office of the Australian Information Commissioner 24 April 2020.

6. SIA has described the investigation as follows:[4]

   Operation Cobia was ASADA's extensive and high-profile confidential investigation into allegations of anti-doping rule violations (ADRVs) in both the National Rugby League and AFL. Operation Cobia involved more than 300 formal interviews with witnesses and support personnel which were crucial to ASADA's ability to gather actionable intelligence to support its function of maintaining the integrity of Australian sport through anti-doping measures.

   [4] T-Documents, T3, pages 22-63, Decisions under review, comprising: FOI request 17-31 dated 2 November 2018, FOI request 18-27 dated 21 December 2018, FOI request 18-28 dated 21 December 2018 and FOI request 19-1 dated 31 January 2019; T24, page 114, Email from Mr Jess to ASADA confirming consent to release documents (first page only) dated 12 September 2018.

7. On 2 November 2018 SIA decided to refuse to grant Mr Francis access to certain documents/portions of documents pursuant to section 42 of the FOI Act.[5] SIA asserts that the documents are exempt from disclosure on one or more of the following grounds:

   7.1.the document was obtained in confidence (section 45, FOI Act);

   7.2.the documents disclose deliberative processes and it would not be in the public interest to disclose them (section 47C, FOI Act);

   7.3.the documents disclose certain operations of agencies and it would not be in the public interest to disclose them (section 47E(d), FOI Act); or

   7.4.the documents contain sensitive personal information and it would not be in the public interest to disclose them (section 47F, FOI Act).

   [5] T-Documents, T3, pages 22-63, Decisions under review, comprising: FOI request 17-31 dated 2 November 2018, FOI request 18-27 dated 21 December 2018, FOI request 18-28 dated 21 December 2018 and FOI request 19-1 dated 31 January 2019.

8. Mr Francis sought internal review of the SIA’s decision and subsequently a review by the Office of the Australian Information Commissioner (“OAIC”)[6]. Ultimately the IC’s delegate decided to exercise a discretion to not undertake the review in accordance with s 54W(b) of the FOI Act.[7]

   [6] T-Documents, T3, pages 22-63, Decisions under review, comprising: FOI request 17-31 dated 2 November 2018, FOI request 18-27 dated 21 December 2018, FOI request 18-28 dated 21 December 2018 and FOI request 19-1 dated 31 January 2019.

   [7] T-Documents, T2, pages 4-21, Email from the Office of the Australian Information Commissioner 24 April 2020.

9. On 6 May 2020, Mr Francis applied to the Tribunal for a review pursuant to section 57A of the FOI Act and advised that the OAIC had determined that the decision made by the SIA should be referred to the Tribunal for review.[8] Pursuant to the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (“FOI Guidelines”) at [10.88] – [10.89]:

   The Information Commissioner can decline to undertake a review if satisfied ‘that the interests of the administration of the [FOI] Act make it desirable’ that the AAT consider the review application (s 54W(b)).

   [8] T-Documents, T1, pages 1-3, Application for Review lodged with the Freedom of Information Division of the Administrative Appeals Tribunal.

10. The IC advised Mr Francis that it considered “the interests of the administration of the FOI Act make it desirable that the IC reviewable decisions be considered by the Administrative Appeals Tribunal”.[9]

    [9] T-Documents, T2, page 5, Email from the Office of the Australian Information Commissioner 24 April 2020.

11. On 12 June 2020, as part of the preparation for the review by the Tribunal, SIA, in accordance with its obligations under section 37 of the AAT Act, lodged documents relevant to the review (known as the “T Documents”). The T Documents contained redacted versions of document numbers:

    ·T31 on page 125

    ·T32 on pages 127-128

    ·T33 on page 129

    ·T36 on page 133

    ·T37 on page 135

    ·T42(a) on pages 242-256

    ·T49 on page 290

    ·T49(b) on page 292

    ·T50 on page 293

    ·T51 on page 294

    ·T52 on page 295

    ·T52(b), on page 298

    ·T57(a) on page 307

    ·T59 on page 309

    ·T60 on pages 310-311

    ·T64(a) on pages 356-358

    ·T66(a) on pages 366-367

    ·T67(a) on page 370; and

    ·T72 on page 553.

12. On 12 June 2020 SIA applied, pursuant to section 37(1AF) of the AAT Act, for an order under section 35(4) that disclosure of the redacted documents be restricted.

13. By the time of this interlocutory hearing, the parties had agreed that the redacted sections of the following documents:

    ·T31 on page 125

    ·T32 on pages 127-128

    ·T33 on page 129

    ·T36 on page 133

    ·T37 on page 135

    ·T42(a) on pages 242-256

    ·T49 on page 290

    ·T49(b) on page 292

    ·T50 on page 293

    ·T51 on page 294

    ·T52 on page 295

    ·T52(b), on page 298

    ·T57(a) on page 307

    ·T59 on page 309

    ·T72 on page 553

    should be the subject of a confidentiality order as requested by SIA.

14. The remaining redacted sections of the following documents are still to be considered:

    ·T52(b), on page 298

    ·T57(a) on page 307

    ·T60 on pages 310-311

    ·T64(a) on pages 356-358

    ·T66(a) on pages 366-367

    ·T67(a) on page 370

15. Prior to the interlocutory hearing held on 30 July 2020, the parties exchanged respective outlines of submissions.[10]

    [10] Applicant’s submission dated 13 July 2020 and Respondent’s submission dated 20 July 2020.

16. Mr Francis submits that without being made privy to the redacted parts of the documents he is unable to submit whether a confidentiality order should be granted.

    LEGAL PRINCIPLES

    FOI Act

17. A person has a right of access to the documents of an agency unless the document is an “exempt document” as defined under the FOI Act.

18. An “exempt document” is one which does not need to be given to a requesting party under the FOI Act and includes documents exempt under Part IV of the FOI Act which includes, relevantly here, documents subject to claims governed by sections 45, 47C and 47E(d) of the FOI Act.[11]

    [11] See FOI Act  s 4.

19. Section 45 of the FOI Act is concerned with documents containing material obtained in confidence and provides:

    (1)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

20. Section 47C of the FOI Act is concerned with documents which disclose deliberative processes and provides:

    General rule

    (1)  A document is conditionally exempt if its disclosure under this Act would disclose matter ( deliberative matter ) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

    (a)  an agency; or

21. Section 47E(d) of the FOI Act is concerned with documents which disclose certain operations of agencies and provides:

    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.

    Power of the Tribunal

22. The power of the Tribunal to make an order restricting the publication or disclosure of a document derives from section 35 of the AAT Act. Section 35(4) of the AAT Act provides:

    (4)  The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

    (a)  relates to a proceeding; and

    (b)  is any of the following:

    (i)  information that comprises evidence or information about evidence;

    (ii)  information lodged with or otherwise given to the Tribunal.

23. The FOI Act sets out what matters the Tribunal must have regard to when considering whether to make an order under section 35(4) of the AAT Act. Section 63(1) of the FOI provides relevantly as follows:

    (1) In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975 , the Tribunal must:

    (a)  have regard to:

    (i)  the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate;

    (Emphasis added)

    Relevance of procedural fairness

24. In considering whether to make a confidentiality order under s 35 of the AAT Act, the Tribunal is, pursuant to section 35(5), to take as the basis of its consideration the principle that it is desirable:

    (a)  that hearings of proceedings before the Tribunal should be held in public; and

    (b)  that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

    (c)  that the contents of documents lodged with the Tribunal should be made available to all the parties.

    However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

25. Section 39 of the AAT Act relevantly provides:

    …Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

26. Section 39 of the AAT Act enshrines the general principles of procedural fairness and natural justice that all parties are entitled to have a reasonable opportunity to present their case and inspect documents. It is important to note however, that section 39 is subject to, among other things, any order that is made under section 35.

27. In Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 (“Pochi”), at 273, Brennan J said:

    ...an applicant’s interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.’

28. In News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88 the applicant sought access to a schedule of documents which was said to disclose matters claimed to be exempt under the FOI Act. Part of the hearing before the Tribunal was held in the absence of the applicant and his representative. On appeal the majority of the Full Federal Court held that there had been no denial of procedural fairness and that section 39 of the AAT Act is expressly subject to section 35 of the AAT Act.

29. In OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293 Deputy President Boyle noted (at [30]) that it is a common occurrence in FOI matters before the Tribunal that the application will not have a copy of the documents that are the subject of the FOI request, but that this “does not mean that there is a denial of procedural fairness, it is simply an obvious necessity given the nature of the application”.

    CONTENTIONS

30. The redacted portions of the documents still in dispute can be conveniently grouped into three bundles:

    (1)Documents T52(b) (at page 298 of the T Documents) and T57(a) (at page 307 of the T Documents);

    (2)Documents T60 (at pages 310-311 of the T Documents), T66(a) (at pages 366-367 of the T Documents) and T67(a) (at page 370 of the T Documents); and

    (3)Document T64(a) (at pages 356-358 of the T Documents).

31. I will deal with each bundle in turn.

    Documents T52(b) and T57(a)

32. Document T52 in the T Documents is an email from a representative of SIA to the Australian Criminal Intelligence Commission (ACIC) ("Email 1"). The Email attaches two pages of a document SIA had received from the then Australian Crime Commission (ACC). The two pages are part of a document known as the CEO Recommendation Show Cause Pack (“Show Cause Pack”) and is the document which is in dispute in this proceeding.

33. SIA describes the Show Cause Pack as follows:[12]

    The CEO Show Cause Pack was generated in relation to potential ADRVs by the 34 Essendon players and includes sensitive and confidential material gathered throughout the Operation Cobia investigation.

    [12] T-Documents, T3, pages 22-63, Decisions under review, comprising: FOI request 17-31 dated 2 November 2018, FOI request 18-27 dated 21 December 2018, FOI request 18-28 dated 21 December 2018 and FOI request 19-1 dated 31 January 2019; T24, paged 114, Email from Mr Jess to ASADA confirming consent to release documents (first page only) dated 12 September 2018.

34. In the email SIA requests ACIC’s views on whether the disclosure of some of the material in the Show Cause Pack was exempt under section 46(b) of the FOI Act. SIA asked whether the ACIC objected to the release of the information at paragraph 4 on page 2 of the Show Cause Pack (which is T52(b) of the T Documents).

35. SIA seeks a confidentiality order over paragraph 4 on the grounds that it is information that SIA contends is exempt from disclosure pursuant to sections 45, 47C and 47E(d) of the FOI Act, and, consistent with section 63(1) of the FOI Act, a confidentiality order should be made in order to preserve the efficacy of the proceeding.

36. The Tribunal has been provided with an unredacted version of T52(b) for the purpose of making an assessment. The Tribunal agrees with SIA that paragraph 4 of T52(b) should not be disclosed to the Applicant on the basis that it would render the proceedings a nullity and is a potentially exempt document pursuant to section 47C of the FOI Act.

37. Document T57 is an email from SIA to the Australian Football League (“AFL”) asking for the AFL’s views about proposed redactions of certain pages of the CEO’s show cause report (“Email 2”). SIA seeks a confidentiality order over paragraphs 27 and 28 of the Show Cause Report attached to Email 2 on the basis that SIA had exempted those paragraphs, and disclosure of those paragraphs would reveal exempt material or material which the respondent asserts is exempt.

38. The material contained within those paragraphs is not information which is publicly available and discloses the deliberative process of SIA. It is not in the public interest that that information be disclosed.

39. The Tribunal agrees with the Respondent that paragraphs 27 and 28 of T57 should not be disclosed to the Applicant on the basis that it would render the proceedings a nullity.

    Documents T60, T66a, T67(a)

40. Document T60 is an email from ACIC to SIA in response to Email 1 (“Email 3”). In Email 3 the ACIC informs SIA that it does object to the release of information in paragraph 4 of the Show Cause Pack and states that disclosure of that information “would prejudice the ACIC’s methods and procedures for obtaining relevant and useful intelligence information from a range of sources”.

1. SIA claims that this information is therefore exempt.

2. The Tribunal agrees with the Respondent that if that information were released to Mr Francis now it would reveal information that SIA asserts is exempt, and which is the subject of the proceeding.

3. The relevant part of Document T66a is the same as T60, and therefore a similar confidentiality order will be made.

4. Document T67 is an email from SIA to OAIC enclosing material in confidence and “noting that the ACIC has not provided its consent for the material to be disseminated any further. The material is provided in confidence on the request of the ACIC and was delayed due to the need for the ACIC to redact what it considered to be sensitive information”.

5. The redacted portions in the attachment to Document T67 essentially contains information of the same nature as appears at T60 and T66(a). Therefore a confidentiality order should be made to prevent disclosure of information that would reveal information that the respondent asserts is exempt and which is the subject of the proceeding.

   Document T64(a)

6. T64(a) is an email from SIA to ACIC enclosing an agreement between AFL and SIA “in relation to the sharing of information. In particular I note that ASADA is relying on item 16 of that agreement whereby we agree to keep information confidential”.

7. An issue in dispute in this proceeding is whether certain information is exempt from disclosure pursuant to section 45, on the basis that it was information provided to SIA in confidence. As a result, SIA requests that certain parts of this agreement be redacted and not disclosed.

8. The AFL informed the SIA (see document T65) that:

   The AFL is happy for the letter of agreement to be provided to the Information Commissioner on a confidential basis only in support of your submission and at this stage is not to be provided to the applicant.

9. SIA says the portions over which a confidentiality order is sought are not relevant to this proceeding and they have not been provided to Mr Francis.

10. I have reviewed the relevant portions and agree with SIA that a confidentiality order should be made.

    CONCLUSION

11. The Tribunal considers it appropriate to give directions prohibiting and restricting the disclosure of redacted T documents.

    DECISION

12. Pursuant to subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) the publication or other disclosure of the redacted information contained in the following section 37 T Documents:

    ·T31 on page 125

    ·T32 on pages 127-128

    ·T33 on page 129

    ·T36 on page 133

    ·T37 on page 135

    ·T42(a) on pages 242-256

    ·T49 on page 290

    ·T49(b) on page 292

    ·T50 on page 293

    ·T51 on page 294

    ·T52 on page 295

    ·T52(b), on page 298

    ·T57(a) on page 307

    ·T59 on page 309

    ·T60 on pages 310-311

    ·T64(a) on pages 356-358

    ·T66(a) on pages 366-367

    ·T67(a) on page 370; and

    ·T72 on page 553

    is restricted to

    (i)the Respondent and any officers of Sport Integrity Australia authorised by the Respondent to have access to the information;

    (ii)the legal representatives of the Respondent;

    (iii)a Member of the Tribunal as constituted in this proceeding or a member of staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; and

    (iv)a member of staff of the Tribunal’s recording and transcription provider in the course of the performance of his or her duties as a member of that staff.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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

Associate

Dated: 27 August 2020

Date(s) of hearing:	30 July 2020
Applicant:	By telephone
Advocate for the Respondent:	Ms Melissa Gangemi, Solicitor, Australian Government Solicitor (by telephone)
Solicitors for the Respondent:	Australian Government Solicitor