GROUNDS and AUSTRALIAN FEDERAL POLICE
[2011] AATA 358
•27 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 358
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4714
GENERAL ADMINISTRATIVE DIVISION ) Re MATTHEW GROUNDS Applicant
And
AUSTRALIAN FEDERAL POLICE
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date27 May 2011
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes a decision that access be granted to the applicant in accordance with Exhibit 2 in the proceedings subject to the following amendments:
(a) page 242 is released in full;
(b) only the last substantive paragraph on page 245 is exempt;
(c) only the three words immediately preceding “Complaint 3” on page 291 are exempt;
(d) the claims for exemption based on s 37(2) of the Freedom Of Information Act over pages 293 and 294 are upheld otherwise the pages are to be released;
(e) only the last sentence of the third complete paragraph on page 315 i.e. the sentence immediately before “Under SA law…”, is exempt;
(f) only the acronym in the fourth paragraph on page 317 is exempt;
(g) only the acronym in the last line on page 318 is exempt;
(h) only the first complete paragraph on page 319 is exempt.
..................Signed..............
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request for access – respondent claiming exemptions on documents – respondents claims affirmed and set aside
Freedom of Information Act 1982 (Cth) ss 22, 33A, 36, 37, 40, 41
REASONS FOR DECISION
27 May 2011 Deputy President P E Hack SC Background
Mr Matthew Grounds is an employee of the Australian Federal Police (AFP). In the early hours of 19 July 2009 Mr Grounds was involved in an incident at a nightclub in Adelaide. Members of the South Australia Police (SAPOL) attended the incident and undertook enquiries in relation to it.
Mr Grounds’ conduct in that incident resulted in a complaint being made to the AFP that Mr Grounds had breached the Professional Standards prescribed for members and employees of the AFP by Part V of the Australian Federal Police Act 1979 (Cth) (the AFP Act). The conduct was investigated by members of the Professional Standards unit. The investigations included interviews with colleagues of Mr Grounds conducted following directions, made under s 40VE of the AFP Act, to give information to investigators or answer the questions of the investigator.
In June 2010 Mr Grounds made an application for access pursuant to the Freedom of Information Act 1982 (Cth) (the FOI Act) to documents relating to the investigation.
The AFP’s initial searches located 120 documents that fell within the scope of Mr Grounds’ request. Mr Grounds was provided with access to a number of those documents, either in whole or in part, however the AFP claim that some documents were exempt, in whole or in part, by virtue of one or more of the grounds of exemption in Part IV of the FOI Act. The initial decision of 6 September 2010 was affirmed on internal review on 20 October 2010.
Mr Grounds seeks a review of that decision. In addition, he sought review of a decision refusing his request for partial relief from payment of processing fees. I understand that the latter part of the proceedings has been resolved and that the AFP have agreed to refund fees paid by Mr Grounds.
In the course of the Tribunal’s interlocutory processes further documents have been identified as coming within the scope of Mr Grounds’ request. Additionally, some alterations have been made to the extent, and the basis, on which exemptions are claimed by the AFP. There are now 124 documents that have been listed in a schedule prepared by the AFP’s lawyers[1]. Mr Grounds does not contest many of the claims made for exemption. Discussions in the course of the hearing identified that only a limited number of documents remained in issue. The documents that remain in issue, either in whole or in part, are Documents 30, 57, 63, 67, 81, 88, 89, 91, 92, 93, 94, 95, 102, 103, 109 and 111 and three DVD’s (122-124). A description of those documents, the extent of the exemption claimed and the basis of the claim are set out in the extract from the schedule which is appended to these reasons. As to the balance of the documents over which an exemption is claimed, it is sufficient for me to say that I accept that the exemptions claimed are properly claimed.
[1] Exhibit 2 in the proceedings.
The legislation
It is appropriate to start by noting that it is for the AFP to make good the claims for exemption; it bears the onus[2]. And it is to be remembered that Mr Grounds’ reasons for seeking access are irrelevant.
[2] See s 61, FOI Act.
A number of the exemptions in Part IV of the FOI Act are relied on by the AFP however it is convenient to set out those sections when considering particular documents.
The documents in issue
Document 30 is described as a case note entry dated 19 January 2010, I consider that it falls outside the scope of Mr Grounds’ request. In any event, and having regard to its contents, I have no doubt that it answers the description in s 41(1) of the FOI Act i.e. release of the document “would involve the unreasonable disclosure of personal information”. The claim for exemption over the whole of the document is thus made out.
Document 57 is said to be exempt on the basis of ss 33A(1)(b) and 37(2)(b) of the FOI Act. Those sections provide:
“33A Documents affecting relations with States
(1) Subject to subsection (5), a document is an exempt document if disclosure of the document under this Act:
(a)…
(b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.”
“37 Documents affecting enforcement of law and protection of public safety
(1)…
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) …;
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures...”
It is sufficient to say of the document that it details inquiries made by a member of the AFP Professional Standards Unit of that officer’s counterpart in SAPOL. Mr Byrnes, whose evidence I accept, explained that the enquiries made of SAPOL by the AFP were made in confidence, not expressly, but implicitly by the nature of the information sought and conveyed. I am then satisfied that document 57 is exempt in whole under s 33A(1)(b) of the FOI Act. It is unnecessary to decide the claim for exemption under s 37(2)(b) of the FOI Act.
Document 63 is a memorandum prepared by Mr Byrnes. Mr Grounds takes no issue with the matters claimed to be exempt on the first page of the document (page 137) and the second deletion made on the second page (page 138). What is in issue is a passage on the second page which is said to be exempt on the basis of ss 33A(1)(b) and 37(2)(b). The passage over which exemption is claimed is a summary of some of the information in Document 57. For the reasons I concluded that document 57 is exempt I conclude that this passage is also exempt under s 33A(1)(b) of the FOI Act.
Document 67 (pages 151-152) has been released in part. Mr Grounds accepts the claim for exemption on page 151. Exemption is claimed under ss 36(1) and 37(2)(b) over an extract from page 152. The former section provides:
“36 Internal working documents
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose 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 an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.”
It seems to me to be plain that that part of the document for which exemption is claimed answers the description in s 36(1)(a), of the FOI Act i.e. it is a recommendation made in the discharge of the AFP’s functions under Part V of the AFP Act. The only question, to my mind, is whether disclosure of it would be contrary to the public interest.
There is an evident public interest in the maintenance of high standards of behaviour and discipline on the part of AFP appointees. Equally then, there is an evident public interest in the maintenance an efficient and effective system for the investigation of allegations of breaches of those standards by AFP appointees. As against those considerations there is the public interest in the general right of access provided by the FOI Act. I consider that, on balance, the public interest tells against disclosure of this material having regard to the nature of the recommendation.
Document 81 (page 171) is a file note of an AFP investigation claimed to be wholly exempt under ss 37(1)(a) and 37(2)(b) of the FOI Act. It is enough to say that perusal of the document satisfies me that disclosure could reasonably be expected to disclose lawful methods or procedures for investigating breaches of the law, in this case, the obligations on AFP appointees to comply with the standards imposed by or through, the AFP Act. Disclosure of the document would, I consider, prejudice the effectiveness of those methods or procedures. I would uphold the claim for exemption over document 81.
Document 88 (pages 239-240) is subject to a claim for partial exemption on the basis of ss 36(1), 37(1)(a) or 37(2)(b) of the FOI Act. Page 239 is not in issue. All of page 240 is said to be exempt on one or more of those grounds. Whilst the document is different in form to that part of document 67 for which exemption is claimed, there is no difference in substance. For the reasons set out in paragraphs 12 and 13 above I consider the claim for exemption under s 36(1) of the FOI Act made out.
Document 89 (pages 241-247) is the final report of the Professional Standard unit investigators into Mr Grounds’ conduct. Exemption is claimed over passages on page 242 and 245 and over page 246 in its entirety.
The passage on page 242 is said to be exempt on the basis of ss 37(1)(a) or 37(2)(b) of the FOI Act. Given that the report is the product of the investigation I am unable to accept that disclosure would, or could reasonably be expected to prejudice the conduct of the investigation. Thus I do not accept that s 37(1)(a) of the FOI Act is engaged. Likewise I do not consider that the passage claimed to be exempt discloses methods on procedures for preventing, detecting, investigating or dealing with breaches of the law, a fortiori, that disclosure would actually or potentially prejudice the effectiveness of those methods or procedures. The claim made is akin to a claim that disclosure of the procedure of examining for fingerprints would or might prejudice the effectiveness of that procedure.
I do not accept either claim for exemption over the passage on page 242. That page should be released in full.
Two passages on page 245 are in issue. The second is, in effect, a summary of the information in document 81. For the reasons given in the connection with that document the second passage on page 245, that is, all of the text in the last substantive paragraph on the page is exempt.
The other passage on page 245 is claimed to be exempt on the basis of s 41(1) i.e. an unreasonable disclosure of personal information. Given that all of the information has been disclosed in document 34 (at page 85) and is an exhibit to Mr Byrnes’ affidavit I cannot agree that disclosure is unreasonable (even assuming it to be personal information about any person other than Mr Grounds). I thus reject the exemption claimed over the second “key points” passage on page 245.
Exhibit 2 wrongly identifies that exemption as claimed over all of page 246. Some minor parts have been disclosed and some other, and minor, parts are agreed by Mr Grounds to be exempt. The critical passage is the extract from the “Conclusion” from the second paragraph to the end of that section. That passage is claimed to be exempt on the basis of ss 36(1)(a) of the FOI Act. The passage sets out in long form the matters contained in summary form in Documents 67 and 88. For the same reasons as apply to the parts of those documents where s 36(1) of the FOI Act are relied on, I am satisfied that the claim under s 36(1) of the FOI Act is made out over this part of page 246.
Part only of document 91 (page 275) is claimed to be exempt under one or more of ss 36(1), 37(1)(a) or 37(2)(b). The passage in question is not different in substance to the passages in documents 67, 88 and 89 (page 246) and for the same reasons I uphold the claim.
Documents 92 (page 276) and 93 (pages 277-279) in my view fall outside the scope of Mr Grounds’ request which related to documents “in relation to the nightclub incident” and “the subsequent investigation” of that incident. Documents 92 and 93 cover matters not raised in Mr Grounds’ request. Section 22 of the FOI Act has no work to perform where, as here, the entirety of the documents is irrelevant. I uphold the refusal to provide access albeit on different grounds to those claimed.
Document 94 (pages 280-281) is subject to a claim for partial exemption on page 280. Page 281 has been released in full. The passage on page 280 is similar in substance to the passages in documents 67, 88, 89 and 91. It is, for the reasons set out in paragraph 23, exempt by virtue of s 36(1) of the FOI Act.
Document 95 (pages 282-283) is a copy of document 88. Page 282 is not in issue however page 283 is exempt to the same extent as document 88.
Document 102 (pages 290-291) is claimed to be exempt in part under s 36(1) of the FOI Act. I do not accept the claim. The matters that are the subject matter of the claim are factual matters, not matters of opinion, advice or recommendation. They satisfy the second limb of s 36(1)(a) i.e. the deliberative process, but not the first limb. The matters are “purely factual” as that term is used in s 36(5) to exclude the operation of s 36(1) of the FOI Act. I reject the exemptions claimed over document 102 on the basis of s 36(1) of the FOI Act.
Moreover I do not consider disclosure of this material to be contrary to the public interest. The document, having set out Mr Grounds’ account of events, details the facts that are said to contradict his account. I see no public interest in preventing disclosure of that material. Indeed there is, in my view, a public interest in a transparent disciplinary system for AFP appointees. That public interest is in favour of Mr Grounds knowing why his response is considered to be inadequate.
A portion of Document 102 (on page 291) is claimed to be exempt because of s 37(2) of the FOI Act. I do not understand Mr Grounds to challenge that claim.
Document 103 (pages 292-294) is the review of Mr Grounds’ response by a Team leader. Apart from page 292, which is released in full, the balance falls to be dealt with in the same way as document 102, that is, the claims for exemption under s 37(2)(b) of the FOI Act, which Mr Ground does not dispute, should be upheld, and those based on s 36(1)(a) comprising the team leader’s analysis of Mr Grounds’ response, should be rejected.
Document 109 (pages 311-312) has been released subject to a claim for exemption over part of page 312 on the basis of one or more of ss 22(1)(a)(ii), 37(1)(a) and 37(2)(b) of the FOI Act. I propose to say no more than that, having examined the material, and considered the claims, at least those under s 22(1)(a) and s 37(1)(a) of the FOI Act are made out.
Document 111 (pages 314-321) has been released in part. Pages 314 and 316 have been released in full. An extract from page 315 is claimed to be exempt on the basis of ss 33A(1)(b) or s 41(1) of the FOI Act. The latter may be readily dealt with. With the exception of the first sentence, the “personal information” contained in the extract, the subject of the claim is information already released in other documents e.g. documents 38 and 39. Disclosure of personal information cannot, in these circumstances, be unreasonable.
Similarly, the major part of the extract is not information conveyed in confidence by SAPOL. I infer that that is so because there is no evidence that it was and because no claim under s 33A(1)(b) of the FOI Act has been made in relation to Documents 38 and 39 which contain the same information.
The last sentences of the passage repeats material in Document 57 which I have determined is exempt under s 33A(1)(b) of the FOI Act. I reach the same conclusion in relation to the last sentence. Thus, with the exception of the last sentence of the third complete paragraph, page 315 ought be disclosed.
An extract from page 317 is claimed to be exempt on the basis of s 37(2)(b) of the FOI Act. I do not accept that release of the information could possibly prejudice the effectiveness of methods or procedures. I reject the claim for exemption. Page 317 ought be released with the exception of the acronym in the second last line of the paragraph commencing “Other information…”
Large parts from page 318 are claimed to be exempt on the basis of ss 36(1), 37(1)(a) or 37(2)(b) of the FOI Act.
I do not accept the claim under s 37(1)(a). The investigation has been concluded. Releasing material from the final report of the investigation could not possibly prejudice the investigation.
Nor do I accept the claim under s 37(2)(b). The material does not disclose methods or procedures; it is a discussion of the results of the investigation not the manner of that investigation.
The claim under s 36(1) of the FOI Act is not made out for the reasons explained in relation to Document 102.
It follows that page 318 ought be disclosed in its entirety subject only to the deletion of the acronym on the last line of the page.
Similar comments apply to most of the matters claimed to be exempt on page 319. By and large the matters on that page constitute a discussion of the results of the investigation and a rejection of Mr Grounds’ claims. There is, however, one passage over which I would uphold a claim under s 37(2) of the FOI Act and that is the first complete paragraph on page 319.
That part of pages 320 and 321 over which exemption is claimed is a repetition of the material in Document 109 (page 312) in respect of which I have, in paragraph 31, upheld the claim for exemption. Those parts of pages 320 and 321 are similarly exempt.
What remains are the DVD’s of interviews conducted by Professional Standards investigators with colleagues of Mr Grounds. The interviews took place following the making of a direction under s 40VE of the AFP Act requiring the interviewees to answer questions. No transcripts of the interviews have been prepared but a summary, described as “salient points”, of each interview has been prepared and disclosed.
Disclosure of the DVD’s is restricted on the basis of s 40(1)(c) and (a) and s 41. I find it unnecessary to decide the interesting question whether a DVD depicting a person being interviewed can constitute personal information because I accept that the exemption under s 40 is made out. That section, so far as is material, provides:
“40 Documents concerning certain operations of agencies
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b) …;
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;”
The evidence relied on by the AFP is that of Mr Byrnes. He explains[3] that s 40VC of the AFP “essentially compels an AFP appointee to assist with a Professional Standards investigation.” The examinees are obliged to answer and commit an offence if they do not do so. The power to compel is a valuable tool in the investigation of serious misconduct issues. Participants, says Mr Byrnes, are assured confidentiality because the subject of the investigation will almost invariably be a fellow AFP appointee. That confidentiality is the “consolation” to the interviewee for the compulsion of the interview. If the interviewees did not have faith in the integrity of confidentiality, Mr Byrnes says, the ability of the AFP to enforce professional standards would be substantially diminished.
[3] Exhibit 5, paragraph 8.
I consider that he is correct in that view. Policing police is notoriously difficult. For circumstances where interviewees are assured of confidentiality, knowledge that the subject of an investigation could obtain access to a DVD of the interview is likely to dissuade interviewees being as candid and cooperative as they ought about the subject matter of an investigation. It is not overstating the case to conclude that that could be expected to have a substantial adverse effect on the capacity of the Professional Standards unit to investigate misconduct or corruption and thus that part of the operations of the AFP.
And, where the “salient points” of the interview have been made available to Mr Grounds, the public interest in him having a proper opportunity to defend himself from allegations is satisfied. The countervailing public interest in an effective and efficient mechanism to investigate misconduct or corruption in the AFP transcends all else in my view.
Moreover the information obtained by a Professional Standards investigation is considered by the Human Resources section of the AFP, as the delegate of the Commissioner, to consider the continued employment suitability of the subject of the complaint. It, and the compulsory interview process, have a direct relationship to the assessment and management of personnel within the AFP. Steps that might diminish the willingness of examinees to cooperate fully are likely to have a substantial adverse effect on the assessment of personnel of the AFP.
I would then uphold the claim for exemption over the DVDs.
Conclusion
The result of all of this is that I will set aside the decision under review and substitute a decision that Mr Grounds is entitled to access to the documents listed in Exhibit 2 to these proceedings in accordance with that Exhibit subject to the following amendments to the Exhibit:
(a) page 242 is released in full;
(b) only the last substantive paragraph on page 245 is exempt;
(c) only the three words immediately preceding “Complaint 3” on page 291 are exempt;
(d) the claims for exemption based on s 37(2) of the Freedom Of Information Act over pages 293 and 294 are upheld otherwise the pages are to be released;
(e) only the last sentence of the third complete paragraph on page 315 i.e. the sentence immediately before “Under SA law…”, is exempt;
(f) only the acronym in the fourth paragraph on page 317 is exempt;
(g) only the acronym in the last line on page 318 is exempt;
(h) only the first complete paragraph on page 319 is exempt.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .......................Signed..................................................
AssociateDate of Hearing 21 March 2011
Date of Decision 27 May 2011
The Applicant was self-represented
The Respondent was represented by Ms Alicia Wright.SCHEDULE – APPENDIX 1
| Document No | Folio No | Date | Author/ Addressee | Description | Exemption/Public Interest Claimed | Reason |
| 30 | 74 | 19.01.2010 | AFP | Case note entry | Exempt in full: Folio 74 s.41(1) s 22(1)(a) | s.41(1) |
| 57 | 127 | 01.04.2010 | AFP | Case note entry | Exempt in full: Folio 127 s.33A(1)(b) s.37(2)(b) | s.33A(1)(b), s.37(2)(b) |
| 63 | 137 - 138 | 01.04.2010 | AFP | Correspondence | Released with deletions: | Further release |
| 67 | 151 - 152 | 01.04.2010 | AFP | Correspondence | Released with deletions: Folios 151, 152 s.33A(1)(b) 37(2)(b) s41(1) | Further release |
| 81 | 171 | 09.04.2010 | AFP | Case note entry | Exempt in full: Folio 171 s.37(1)(a) s.37(2)(b) | s.37(1)(a), s.37(2)(b) |
| 88 | 239 - 240 | 16.04.2010 | AFP | Correspondence | Released in full: Exempt in full: | s.36(1), s.37(1)(a) s.37(2)(b) |
| 89 | 241 - 247 | 16.04.2010 | AFP | Final report | Released in full: Released with deletions: Exempt in full: | Further release |
| 91 | 275 | 16.04.2010 | AFP | Case note entry | Released with deletions: Folio 275 s.36(1) s.37(1)(a) s.37(2)(b) | Further release |
| 92 | 276 | 16.04.2010 | AFP | Case note entry | Exempt in full: Folio 276 s.40(1)(c) | s.40(1)(c) |
| 93 | 277 - 279 | various | AFP | Emails/Notes | Exempt in full: Released in full: | s.40(1)(c) - Exempted material would disclose the methods used by the AFP for assessment of its personnel. Provision of this information would prejudice the effectiveness of those methods and have a substantial adverse effect on the assessment of personnel by the AFP. s.41(1) |
| 94 | 280 - 281 | 16.04.2010 | AFP | Case note entry | Released with deletions: Released in full: | s.36(1), s.37(1)(a) s.37(2)(b) |
| 95 | 282 - 283 | 16.04.2010 | AFP | Correspondence | Released in full: Exempt in full: | s.36(1), s.37(1)(a) s.37(2)(b) |
| 102 | 290 - 291 | 11.05.2010 | AFP | Case note entry | Released with deletions: Folios 290, 291 s.36(1) s.37(1)(a) s.37(2)(b) | Further release |
| 103 | 292 - 294 | 11.05.2010 | AFP | Correspondence | Released in full: Released with deletions: | Further release |
| 109 | 311 – 312 | 18.05.2010 | AFP | Correspondence | Released in full: | Further release |
| 111 | 314 – 321 | 21.05.2010 | AFP | Case review document | Released in full: Released with deletions: | Further release |
| 122 | 336 | AFP | DVD TROC – Fryer/Dimitrou | Exempt in full: s.40(1)(c), (d) s.41 | Exempt in full | |
| 123 | 337 | AFP | DVD TROC – Fryer/Green | Exempt in full: s.40(1)(c), (d) s.41 | Exempt in full | |
| 124 | 338 | AFP | Fryer/Kersten | Exempt in full: s.40(1)(c), (d) s.41 | Exempt in full |
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