Hammal and Department of Veterans Affairs

[2007] AATA 1946

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1946

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/1233
  2007/1886

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROQUE (‘CHINA’) HAMMAL

Applicant

And DEPARTMENT OF VETERANS’ AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date13 November 2007

PlaceSydney

Decision

The Administrative Appeals Tribunal sets aside the decisions under review and in substitution for the decisions set aside, decides that only some of the documents or parts of documents for which exemption was claimed are exempt from disclosure under the Freedom of Information Act 1982.   

For ease of reference, where part only of a document is exempt from release, a marked up version of the page of the document with deletions, is attached to this decision.

The Respondent is to provide to the Applicant a complete copy of all non-exempt documents considered by this decision and any partially exempt documents with deletions in accordance with this decision.

  ...................[sgd].....................

  Ms N Isenberg
  Senior Member

CATCHWORDS

ADMINISTRATIVE LAW – Freedom of Information – consideration of whether certain documents are exempt from disclosure to Applicant – consideration of whether the release of exempt documents would reveal identity of a confidential source of information in relation to the enforcement or administration of law – consideration of evidence and findings - the decision under review is set aside.

Freedom of Information Act 1982 ss 3, 4, 7(2A), 24A, 36(1), 36(3), 37(1)(a), 37(1)(b), 40(1)(d), 41(1), 42(2)

Re James and Australian National University (1984) 6 ALD 687

Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588

Re Brennan and Law Society of ACT (1985) 8 ALD 10

Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435

Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139

Commonwealth v John Fairfax & Sons Ltd (Defence Papers Case) (1980) 147 CLR 39

News Corp Ltd v National Companies and Securities Commission (1984) 5 FCR 88

Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429

Re Bayliss & Department of Health and Family Services (1997) 48 ALD 443

REASONS FOR DECISION

13 November 2007 Ms N Isenberg, Senior Member

1.             Mr Hammal is an ex-serviceman who received a pension at the Special Rate (“TPI”) under the Veterans’ Entitlement Act 1986 (“VEA”).  An investigation was conducted by the Special Investigations Group (“SIG”) of the Department of Veterans’ Affairs (“the Department”) and, as a result, in February 2006, Mr Hammal was given a notice to show cause why his TPI should not be revoked.  In order to respond he requested the following in his first Freedom of Information (“FOI”) request:

1.     A true copy of my full Service Medical Records.

2.     A true copy of my full Service Personal Files.

3.     A true copy of my DVA files from the first date of my application for my Disabilities Pension applications to the last entry of my file including any of your Departmental notes and medical report’s (sic) in my file.

4.     A true copy of my DVA files from the first date of my application for my Service Pension applications to the last entry of my file including any of your Departmental notes and medical report’s (sic) in my file.

5.     A true copy of any investigations reports or request for on going investigations of me.

2.             Only some documents were provided to him.  The Department claimed exemption from production of other documents on various grounds under the Freedom of Information Act1982 (“FOI Act”):

·   Subsection 37(1)(a) - disclosure would be prejudicial to a current investigation

·   Subsection 37(1)(b) - disclosure of a confidential source

·   Subsection 40(1)(d) - Substantial and adverse effect on the proper and efficient conduct of the operations of the agency and disclosure would be contrary to the public interest

·   Subsection 41(1) - personal information about third parties

·   Section 42 – legal professional privilege

3.             The decision was affirmed on review and Mr Hammal now seeks review of that decision.

4.             Notwithstanding that Mr Hammal’s FOI request had not been concluded, thereby impeding his response to the notice to show cause, he was formally advised that his TPI was to be revoked in December 2006.  At the same time he was also informed that his matter had been referred to the Department of Public Prosecutions (“DPP”).

ISSUE BEFORE THE TRIBUNAL

5.             The issues to be considered by the Tribunal are whether:

· The documents or parts of documents are exempt from disclosure under the FOI Act; and

· All reasonable steps have been taken to locate missing documents: s 24A of the FOI Act.

THE HEARING

6.             Prior to the hearing an affidavit by Mr Catt, the SIG investigator, was filed.  It was foreshadowed that a confidentiality order would be sought in respect of the document, but this was not pressed at the hearing.  The affidavit, the only evidence provided by the Respondent, was unhelpful in that it did no more than state the bases on which exemption was claimed in respect of each of the documents which the Respondent had originally declined to release to Mr Hammal.

7.             In commencing the review of the documents it was apparent that some, at least, contained information which was available as a matter of public record or had been extracted from Mr Hammal’s own service or medical documents.  The matter was adjourned so that an attempt could be made by the Respondent to identify documents or parts of documents which were not properly the subject of a claim for exemption.  As a result, whole documents and portions of other documents were released to Mr Hammal. 

8.             Some documents relating to an earlier investigation in which Mr Hammal said he had been “exonerated” were also missing from the papers.

9.             At the hearing it also became apparent that the “investigation” about which Mr Hammal was concerned was that which led to the revocation of his TPI.  The “investigation” referred to by the Department was that which had been referred to the DPP in relation to Mr Hammal’s alleged fraudulent activities.  The revocation of Mr Hammal’s TPI was, according to the Department, a “related but separate administrative action”.

10.           I note too that I called for the notice to show cause and the decision to revoke his TPI, both of which refer to documents upon which the decision-maker in relation to the revocation relied, and which had not been provided to Mr Hammal.

11.           When I first adjourned the matter the Respondent was asked to review the documents also in the light of the clarification of Mr Hammal’s concerns.  As a result, further documents or part documents were provided to Mr Hammal and a fresh set of documents compiled in respect of which exemption was still pressed.

12.           At the resumed hearing still further documents (or parts of documents) were no longer the subject of a claim for exemption.

13.           By this time, having regard to the significant concessions made by the Respondent as to the documents or parts of documents it was pressing, it became clear that Mr Catt’s affidavit, to the extent that it might ever have been helpful, was by and large irrelevant.

14.           At the conclusion of the hearing I sought from the Respondent a marked up version of the documents reflecting its final position in relation to the exemption claimed for each.

15.           In the course of the hearing it became evident that not only was Mr Hammal seeking the information relied on in issuing the notice to show cause, but the additional information relied on in reaching the decision to revoke his TPI. 

16.           The relevance of the documents relied on to found the notice to show cause was somewhat overtaken by the material relied on for the revocation itself.  As information was being collated between the time of the notice to show cause and the revocation decision, the document prepared by the SIG investigator, Mr Catt (“the Catt document”) which was relied on in the revocation decision, was not yet in existence at the time of Mr Hammal’s FOI request. 

17.           I therefore took the unusual course of adjourning the first FOI application so that Mr Hammal could formally seek access to the Catt document.

CONSIDERATION OF EVIDENCE AND FINDINGS

18.           In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

19. By way of introduction I note that the object of the FOI Act is “to extend as far as possible the right of the Australian community to access to information in the possession of the Commonwealth”: s 3 of the FOI Act.

20.           Documents may be exempt from release on limited bases.  A large number of itemised exemptions were claimed in relation to the documents sought by Mr Hammal.  Exemption was claimed in relation to most items on multiple bases and sometimes changed in the course of the hearing, from the (amended) schedule provided by the Department.  It was therefore necessary to address each of the documents or parts of documents (which remained after multiple and ongoing deletions) seriatim, rather than grouped by category of claimed exemption.  Some general observations can be made, however, in relation to the submissions under the various categories of claimed exemptions, having regard to the submissions and the circumstances of the matter. 

Section 7(2A)

7  Exemption of certain persons and bodies

(2A)     An agency is exempt from the operation of this Act in relation to a document        that has originated with, or has been received from, the Australian Secret    Intelligence Service, the Australian Security Intelligence Organisation, the         Inspector‑General of Intelligence and Security or the Office of National       Assessments, or the Defence Imagery and Geospatial Organisation, the           Defence Intelligence Organisation or the Defence Signals Directorate of the         Department of Defence

21.           Documents which “originated with” or are “received from” an exempt agency are exempt from production under s 7(2A).  This does not mean that documents which refer to an exempt agency fall within the exemption, as was the submission in relation to some documents.

Section 36(1) & (3)

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.

…

(3)       Where a Minister is satisfied, in relation to a document to which      paragraph (1)(a) applies, that the disclosure of the document would be         contrary to the public interest, he or she may sign a certificate to that effect       (specifying the ground of public interest in relation to which the certificate is        given) and, subject to the operation of Part VI, such a certificate, so long as it       remains in force, establishes conclusively that the disclosure of that document          would be contrary to the public interest.

22.           Firstly, no certificate was provided by the Minister in relation to any of the documents for which this exemption was claimed.

23.           Some documents, it was claimed, were internal working documents and release of those documents would be contrary to the public interest. 

24. While s 36 is headed “internal working documents”, s 36(1)(a) refers to documents which might disclose the “deliberative processes” of government. This is to be construed widely: Re James and Australian National University (1984) 6 ALD 687. Having said that though, it has been said that “deliberative processes” is synonymous with “policy-forming processes”: Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588. Not every document on an agency file will fall into this category : Re Brennan and Law Society (ACT) (1985) 8 ALD 10.

25.           Other examples of the documents which might fall within the definition of “internal working documents” were considered in Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435 and the whole document is to be read in forming a view. Further, the surrounding circumstances are to be considered: Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139.

26.           As to what amounts to public interest I note that in Subramanian the Tribunal referred to “public interest” as the “principal thrust of the Act”.  Disclosure which may expose the Department to public discussion and criticism and possibly embarrassment does not suffice to preclude disclosure of a document: Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39.

Section 37(1)(a)

37  Documents affecting enforcement of law and protection of public safety

(1)       A document is an exempt document if its disclosure under this Act           would, or could reasonably be expected to:

(a)       prejudice the conduct of an investigation of a breach, or   possible breach, of the law, or a failure, or possible failure, to   comply with a law relating to taxation or prejudice the   enforcement or proper administration of the law in a particular   instance;

27.           Many documents were sought to be exempted under s 37(1)(a) on the basis that they would disclose the “direction, manner and style” of the investigation into Mr Hammal’s service and his entitlement to the TPI. 

28.           It was discussed at the hearing that the SIG’s investigation had led to the revocation of Mr Hammal’s TPI and that the investigation brief had been referred to the DPP, apparently in December 2006.  The solicitor for the Department agreed that there was no offence under the VEA.  An appropriate charge, if any, is under Part 7.3 of the Criminal Code.  So far as I could ascertain, there has been, even by the last hearing date, no decision by the DPP whether or not to prosecute, and in the absence of a limitation period for possible offences there would appear to be no urgency for the DPP to make a decision.  In any event, as the brief has been submitted to the DPP, the investigation by the SIG is concluded, subject only to further evidence which might be gathered at the request of the DPP. The DPP itself does not have an investigative role.  I therefore do not accept that release of documents relating to the “investigation” would, or could reasonably be expected to prejudice the conduct of the “investigation” as the “investigation” has concluded.  The Respondent did not provide any evidence as to how it was alleged that the investigation would be prejudiced.  I note that actual prejudice, not the mere risk of possibility of prejudice is required: News Corp Ltd v National Companies and Securities Commission (1984) 5 FCR 88.

Section 37(1)(b)

37  Documents affecting enforcement of law and protection of public safety

(1)       A document is an exempt document if its disclosure under this Act           would, or could reasonably be expected to:

….

(b)       disclose, or enable a person to ascertain, the existence or   identity of a confidential source of information, or the   non‑existence of a confidential source of information, in   relation to the enforcement or administration of the law;

29.           Exemption for a large number of documents was claimed under this section on the basis that the “name of a witness or potential witness” would be disclosed.  This however, is not the test.

30.           The proper test turns on whether a confidential source of information might be disclosed. 

31.           There was no evidence that information had been provided about Mr Hammal in the expectation of confidentiality: Re Bayliss & Department of Health and Family Services (1997) 48 ALD 443. Indeed, many of the “potential witnesses” were ADF or Department members or were otherwise professionally engaged in historical research. I note though that many of the statements are unsigned. Whether those persons adhere to their draft statements is no doubt a matter Mr Hammal may take the opportunity to explore elsewhere.

32.           In a different category are references in the documents to persons other than Mr Hammal. 

33.           Most claims under this subsection were coupled with claims under s 41.  Where only s 37(1) (b) was relied on I also considered s 41 (whether claimed or not) in case personal information would possibly be disclosed in the event the exemption under s 37(1) (b) did not apply.

Section 40(1)(d)

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:

…

(d)       have a substantial adverse effect on the proper and efficient   conduct of the operations of an agency;

34.           In Re Brennan the Tribunal rejected an argument that s 40(1)(d) could be invoked to facilitate confidential communications on “sensitive” matters necessary for the proper and efficient conduct of the operations of an agency, regardless of content.

35.           There is no doubt that the revocation of a TPI pension from any veteran is a sensitive matter in the Department’s relationships with that veteran and even with members of the largely close-knit veteran community.  That is not to say that that information should not be made available to the veteran about whom the revocation is mooted.  The Department cannot hide behind its claim of sensitivity.

36.           In Re Brennan it was said that “the primary focus … is upon the effect that disclosure of the document would, or could reasonably be expected to, have upon the way in which the agency conducts its operations”.  It seems to me that in circumstances where the Department has reservations about a decision which has been made and which it later decides to review under s 31 of the VEA, it has a clear obligation to investigate its concerns.  How it goes about that investigation is reasonably straightforward: it tests a veteran’s contentions against the available evidence.  By necessity, this is largely a fact-finding inquiry.  Only after that information is to hand could the Department form a view on whether a veteran continues to be entitled to acceptance of conditions under the VEA, and then the consequential appropriate rate of pension.  The process, I would think, will be similar in most cases. 

Section 41(1)

41  Documents affecting personal privacy

(1)       A document is an exempt document if its disclosure under this Act           would involve the unreasonable disclosure of personal information                about any person (including a deceased person).

37. Personal information is defined in s 4 of the FOI Act as:

“personal information” means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

38.           Some of the documents relied on under this exemption were witness statements, both signed and unsigned versions.  I consider that disclosure of the name of a person who had made the statement, given that the information in the statement may have been used in coming to a decision to consider the revocation of Mr Hammal’s TPI, not to be unreasonable.  In this regard I note Colakovski v Australian Telecommunications Corp (1991) 23 ALD 1, where Lockhart J said at 7:

… ss 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person's private life in the sense of his personal life which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person's “personal affairs”. Such a document would therefore prima facie answer the description of one which relates to the “personal affairs” of a person within s 41(1).

39.           It is unreasonable, however, to include personal particulars about the person, for example a home address, service number, occupation and age range.

Section 42(2)

42  Documents subject to legal professional privilege

(1)  A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal        professional privilege.

(2)      A document of the kind referred to in subsection 9(1) is not an exempt      document by virtue of subsection (1) of this section by reason only of the         inclusion in the document of matter that is used or to be used for the purpose    of the making of decisions or recommendations referred to in subsection 9(1).

40.           There are two branches of common law legal professional privilege. It is attracted by:

(1)      Communications between a client and lawyer for the dominant purpose                 of seeking and receiving legal advice (the so-called “advice privilege”);   and

(2)      Communications between a lawyer and client or third party for the   dominant purpose of providing legal services in connection with   pending or anticipated proceedings (the so-called “litigation   privilege”).

See Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49

Remaining Items for which Exemption was Claimed: Matter N2006/1233

41.           I turn now to review those documents (or parts of documents) for which exemption continued to be claimed.

Item 1 (part) - Synopsis by SIG

42.           The claim relied upon s 37(1)(a).  Four segments of the document were in contention: parts of pages 2, 4, 16 and 17.  In respect of each entry, and for the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal.

43.           The whole of the document is to be released to Mr Hammal.

Item 4 (part) - Handwritten notes relating to investigation

44.           The claim relied upon ss 37(1)(a) and 40(1)(d).  Five segments of the document were in contention: parts of pages 10, 11, 12 and 13.

45.           Page 10 is a plan of an interview.  Pages 11 to 13 are the investigator’s notes of interview with Mr Hammal. 

46.           In respect of each entry, and for the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal.

47.           As to s 40(1)(d) there is no evidence that disclosure would have a substantial adverse effect on the operations of the Respondent. 

48.           A portion of page 12, however, contains personal information about persons who are potential witnesses.  It is not clear if the names were provided by Mr Hammal or if they were merely recorded on the same sheet as the interview notes.  In any event, none of the material before me suggests these persons have provided statements or that any information has been obtained from them or otherwise relied on.  In those circumstances, the personal information is exempted from release under s 41(1) and a marked-up copy of page 12 is herewith attached.

49.           The whole of the document, other than the attached marked up copy of page 12 is to be released to Mr Hammal.

Item 6 (whole) - Handwritten notes: plan of investigation following interview and   notes from interview with potential witnesses    

50.           The claim relied upon ss 37(1)(a), 37(1)(b) and 40(1) (d).  The whole of the document was in contention.

51.           Pages 1-3 relate to the plan of the investigation by the SIG.  They outline the plan of the investigation and identify some sources of inquiry. A portion of page 2 however, contains personal information about persons who are potential witnesses.  It is not clear if the names were provided by Mr Hammal or if they were merely recorded on the same sheet as the interview notes.  In any event, none of the material before me suggests these persons have provided statements or that any information has been obtained from them or otherwise relied on.  In those circumstances, the personal information is exempted from release under s 41(1) and a marked-up copy of page 2 is herewith attached.

52.           For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the balance of information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

53.           Similarly, for the reasons discussed at paragraphs 34 to 36 in relation to s 40(1)(d) I do not consider that the balance of information disclosed would have a substantial effect on the proper and efficient conduct of the operations of the agency.

54.           Page 4 records the name of a potential witness. It is unclear as to what the balance of the information on that page relates, although it is possibly information provided by that person. In any event, none of the material before me suggests this person has provided a statement or that any information has been obtained from him/her or otherwise relied on.  In those circumstances, the personal information is exempted from release under s 41(1) and a marked-up copy of page four is herewith attached.

55.           For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

56.           The whole of the document, other than marked up versions of pages two and four as noted above,  is to be released to Mr Hammal.

Item 7 (part) - Unsigned draft witness statement  

57.           The claim relied upon ss 37(1)(a), 37(1)(b), and 41(1).  The part of the document in respect of which exemption was claimed relates to the name and occupation of the witness: parts of pages 6 and 7. 

58.           For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

59.           For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

60.           However, page 6 of the document - the first page - contains the witness’ occupation, age range, and some service details.  That personal information is exempted from release under s 41(1).

61.           The witness contextualizes his statement by describing his duties and his posting insofar as it relates to the time of Mr Hammal’s service.  That information is not properly exempted under s 41(1).

62.           Similarly, on page 7 – the second page of the document – the witness describes his duties insofar as they related to Mr Hammal.  That information is not subject to an exemption under s 41(1).

63.           The whole of the document, other than the attached marked up copy of page 6 is to be released to Mr Hammal.

Item 8 (part) – Unsigned draft witness statement  

64.           The claim relied upon ss 37(1)(a), 37(1)(b), and 41(1).  Segments of the document were in contention: parts of pages 8 – 17.

65.           The first page contains the witness’ occupation, age range, and some service details.  That personal information is exempted from release under s 41(1). 

66.           On page 12 the witness describes the service numbers of other members.  That personal information is exempted from release under s 41(1). 

67.           For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal.

68.           For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

69.           The whole of the document, other than the attached marked up copy of pages 8 and 12 is to be released to Mr Hammal.

Item 11 (part) – Unsigned draft witness statement       

70.           The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1).  Segments of the document were in contention: parts of pages 28 – 36.

71.           For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

72.           For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

73.           However page 28 of the document - the first page - contains the witness’ age range, and work history.  That personal information is exempted from release under s 41(1). 

74.           On the same page the witness contextualizes his statement by describing his professional role (“occupation”).  That information is not subject to an exemption under s 41(1).

75.           Elsewhere in the document exhibits were referred to, namely Reports of Proceedings in relation to various HMA Ships and the transcript of the Board of Enquiry into the Skyhawk Jet accident of May 1974.  No claim was made for exemption in respect of the references to those exhibits.  On the basis of those exhibits the witness came to some views about ships movements and effectively summarized some of the findings of the Board of Enquiry and these are the subject of a claim for exemption.  30 year old ships’ movements are a matter of public record.  Exemption was not pressed in relation to the Board of Enquiry, which has already been produced to Mr Hammal. 

76.           There is no reason that the whole of the document, other than the attached marked up copy of page 28, should not be released to Mr Hammal.

Item 12 (whole) - Signed statement of potential witness (containing personal   information on a third party)          

77.           The claim relied upon ss 41(1), 37(1)(a) and 37(1)(b). The whole document was in contention.

78.           The statement was made by a person, apparently in support of his claim for acceptance of a condition under the VEA, and extracted from his Departmental file.  There was no evidence as to the circumstances whereby it came to be extracted from his file so as to form part of documents said to be relevant to Mr Hammal. 

79.           I am satisfied that the document should not be released to Mr Hammal in accordance with s 41(1).

Item 13 (whole) - Handwritten notes- notes from contact with potential witness     

80.           The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1).  The whole of the document was in contention.

81.           The document relates to the same person as in item 12 and appears to be a note of a telephone conversation with him.  There is no evidence as to the circumstances by which that document was created but it may have been in association with his own claim.  In the absence of that information, on balance, I am satisfied that the document should not be released to Mr Hammal in accordance with s 41(1).

Item 14 (part) - Unsigned draft witness statement        

82.           The claim relied upon s 37(1)(a), s 37(1)(b), and s 41(1).  Segments of the document were in contention: parts of pages 40 – 44.

83.           The document is an earlier version of Item 54.  See my comments at paragraphs 151 - 168 below.

84.           The whole of the document, other than the attached marked up copy of page 40 is to be released to Mr Hammal.

Items 15 and Item 16 (whole) - Printouts from Veterans Information Enquiry Window   containing personal information on a third party   

85.           The claims relied upon s 41(1).  The whole of each document was in contention.

86.           Each document contains the name, date of birth, rank, services details and address of persons.  As such, the personal information is exempted from release under s 41(1), and the whole of each document is not to be released.

Item 18 (whole) - Letter from DVA to a third party containing personal information

87.           The claim relied upon s 41(1).  The whole of the document was in contention.

88.           The document related wholly to a person, who may have been a former partner of Mr Hammal.  There was no evidence as to the circumstances whereby it came to form part of documents said to be relevant to Mr Hammal but it was submitted that the document had been located in Mr Hammal’s Departmental file.  There was no evidence that she was in fact Mr Hammal’s former partner.  The document refers to “your” file number, giving rise to an inference that the document originated on her Departmental file, rather than that the document was sent to her in her capacity as Mr Hammal’s partner.  There was no evidence that Mr Hammal had ever been shown that document by her. 

89.           I am satisfied that the document should not be released to Mr Hammal in accordance with s 41(1).

Item 25 (part) - Internal DVA Minute from SIG to Deputy President- update on   investigation 

90.           The claim relied upon ss 36, 37(1)(a) and 37(1)(b).  Segments of the document were in contention: parts of pages M22 and M23.

91.           The claim under s 36 apparently was not pressed as no exemption was claimed in respect of the vast majority of the document.  Also, for the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

92.           Exemption was claimed in respect of a portion of page M22.  The segment refers to the reason for the investigation.  While there is reference to “a denunciation” of Mr Hammal there is no information whatever in the claimed paragraph which would identify the person or persons responsible.  For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information. 

93.           Exemption was claimed in respect of most of page M23. 

94.           Page M23 contains a reference to another witness whose statement has been released (with minimal exemption) to Mr Hammal.  That reference should be released to Mr Hammal. 

95.           That page contains material as to a source of information – a person who had been contacted and was said to have provided a statement, although this could not be located in the papers. I consider that there is no reason that information should not be disclosed to Mr Hammal.

96.           Also on page M23 there is a reference to another witness whose statement has been released (with minimal exemption) to Mr Hammal.  That reference should be released to Mr Hammal. 

97.           Also at page M23 are references to the captain of HMAS Swan, a person holding a position in an organisation and a person holding a position at the RAN Diving School.  It refers to the possibility of statements.  While it is unknown if those statements were ever provided, there was no suggestion whatever that that information related to a confidential source of information (per s 37(1)(b)).  On the contrary the information was to be provided by virtue of the witness’ professional role. 

98.           The whole of the document is to be released to Mr Hammal.

Item 30 (whole) – email from Senior Lawyer, Australian Government Solicitor to DVA

99. The claim relied upon s 42(2). The document is an email from a Senior Lawyer in the Australian Government Solicitor’s to an officer in the Department, seeking information in relation to Mr Hammal’s claim under the Military Rehabilitation and Compensation Scheme (“MRCS”). It is a document of a type to which legal professional privilege would attach.

100.          The whole of the document is to be exempted from release: per Dwyer & Department of Finance (& Superannuation Fund Investment Trust) (1985) 8 ALD 474

Item 33 (part) - SIG Running Sheet         

101.          The claim relied upon ss 37(1)(a) and 40(1)(d).  Segments of the document were in contention: parts of pages 1, 2 and 3. 

102.          The document sets out activities undertaken in the course of the SIG investigation.  For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

103.          For the reasons discussed at paragraphs 34 to 36 in relation to s 40(1)(d) I do not consider that the information disclosed would have a substantial effect on the proper and efficient conduct of the operations of the agency.

104.          The whole of the document is to be released to Mr Hammal.

Item 34 (part) – Defence File Re Sky Hawk Accident 16 May 1974  

105.          The whole of the document was released other than pages which contained photographs of body parts.  Mr Hammal did not press for production of the photographs and they need not be released.

Item 42 (part) - Email attaching two s 128 notices to external agencies and print out   of one s 128 notice attached to email

106.          The claim relied upon ss 37(1)(a) and 40(1)(d).  Segments of the document were in contention: parts of pages 1 and 2.

107.          One segment in respect of which exemption was claimed (page 1) was the email showing to whom notices under s 128 of the VEA were addressed. 

108.          In respect of the notice (pages 2 and 3) the segment for which exemption was sought was the addressee of the notice only. 

109.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

110.          For the reasons discussed at paragraphs 34 to 36 in relation to s 40(1)(d) I do not consider that the information disclosed would have a substantial effect on the proper and efficient conduct of the operations of the agency.

111.          The whole of the document is to be released.

Item 43 (part) – Print out of second s 128 notice attached to email in item 42        

112.          The claim relied upon ss 37(1)(a) and  40(1)(d).  Only one segment of the document was in contention: the addressee of the notice.

113.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

114.          For the reasons discussed at paragraphs 34 to 36 in relation to s 40(1)(d) I do not consider that the information disclosed would have a substantial effect on the proper and efficient conduct of the operations of the agency.

115.          The whole of the document is to be released.

Item 45 (part) - Email attaching one s 128 notice to external agency and print out of   attached s 128 notice

116.          The claim relied upon ss 37(1)(a) and 40(1)(d).  Segments of the document were in contention: parts of pages 22, 23, 24 and 25.

117.          In respect of the notice (pages 23, 24 and 25) the segment for which exemption was sought was the addressee of the notice, current security requirements (and attachment) and the questions asked. 

118.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

119.          I consider that the information disclosed in relation to current security requirements would be likely to have a substantial effect on the proper and efficient conduct of the operations of an agency and for that reason should not be released to Mr Hammal: s 40(1)(d).

120.          The whole of the document, other than the attached marked up copy of page 23 is to be released to Mr Hammal.

Item 47(part) - Email attaching draft witness statement and print out of attached                    draft witness statement (same as Item 7)        

121.          The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1).  Segments of the document were in contention: parts of page 1.

122.          As to page 1, the email itself, there is no reason for that to be exempted.

123.          The attachment is a draft of Item 7; hence I repeat my decision in respect of that item (paragraphs 58 – 63).

Item 48 (part) - Email attaching draft witness statement and print out of attached                    draft witness statement (same as Item C)

124.          The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1).  Segments of the document were in contention: parts of page 2.

125.          As to page 2, the email itself, there is no reason for that document to be exempted, other than the email address of the addressee: s 41(1).

126.          The attachment is the same as Item C; hence see my decision at paragraphs 228 - 233 in respect of that item below.

Item 49 (part) - Email attaching PDF copy of signed witness statement and print   out of attached signed witness statement (same as Item C)  

127.          The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1).  Segments of the document were in contention: parts of page 3.

128.          There was no claim for exemption in respect of the email.

129.          The attachment is the same as Item C; hence see my decision at paragraphs 228 - 233 in respect of that item below.

Item 50 (part) - Email attaching draft witness statement and print out of attached draft witness statement (same as Item D)

130.          The claim relied upon ss 37(1)(a), 37(1)(b), and 41(1).  Segments of the email (parts of pages 4) and segments of the draft witness state (Item D) were in contention.

131.          As to the email, for the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

132.          For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

133.          The attachment is the same as Item D; hence see my decision at paragraphs 234 - 236 in respect of that item below.

134.          The whole of the email is to be released to Mr Hammal.

Item 51 (part) - Email to witness with three attachments including print out of attached draft witness statement (same as Item 14), print out of attached extract from diving register (same as Item 119AQ) and print  out of attached extract from clearance driver training course log  (same as Item 119AR)         

135.          The claim relied upon ss 37(1)(a), 37(1)(b), and 41(1).  Segments of the email and of the witness statement were in contention.

136.          As to page 5, the email itself, there is no reason for that document to be exempted, other than the email address of the addressee: s 41(1).

137.          Pages 5A to 5E of one attachment is a draft of Item 14, hence I repeat my decision in at paragraphs 82 - 84 in respect of that item.

138.          The whole of Page 5F was initially in contention in that it related to other persons as well as Mr Hammal.  I was informed that the document, other than the names and service numbers of the other persons was to be released to Mr Hammal. 

139.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

140.          However, the service numbers are personal information and are exempted from release under s 41(1). 

141.          The whole of Page 5F, other than the names and service numbers of other persons is to be released to Mr Hammal.

142.          Page 5G contains information in respect of other persons and, to the extent that the document does not refer to Mr Hammal, should not be disclosed to Mr Hammal: s 41(1).The whole of the document, other than the attached marked up copy of page 5G is to be released to Mr Hammal.

143.          Page 5H is an extract from a clearance driver training course log in relation to Mr Hammal.  There is no reason pursuant to ss 37(1)(a), 37(1)(b), 40(1)(d) or 41(1) why that information should not be released to Mr Hammal. The whole of the document is to be released to Mr Hammal. 

Item 52 (part) - Email correspondence with potential witness 

144.          The claim relied upon ss 37(1)(a), 37(1)(b), and 41(1).  Segments of the email were in contention: parts of pages 6 and 7.

145.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal.

146.          For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

147.          The email, however, details the person’s email address, position and phone numbers.  That personal information is exempted from release under s 41(1). 

Item 53 (part) - Email to potential witness with one attachment and print out of   attached draft witness statement (same as Item 11)    

148.          The claim relied upon ss 37(1)(a), 37(1)(b), and 41(1).  Segments of the document (parts of pages 8 to 8I) but not the email were in contention.

149.          The whole of the email is to be released to Mr Hammal.

150.          The attachment is a draft of Item 11; hence I repeat my decision at paragraphs 70 - 73 in respect of that item.

Item 54 (part) - Email from potential witness with one attachment and print out of   attached draft witness statement 

151.          The claim relied upon ss 37(1)(a), 37(1)(b), and 41(1).  Segments of the document were in contention: parts of pages 9 to 9E.

152.          The email contains personal information about the witness, namely his email address and telephone numbers.  Other than those matters the document is to be released to Mr Hammal: s 41(1). 

153.          The attachment is a draft statement by a person who, by virtue of his role (“occupation”) is able to provide information about divers in the Navy.  He claimed to have “a very good understanding and knowledge of the types of divers employed in the navy [sic], the duties associated with each type of diver and the training required to be a diver”.  On the basis of his experience he made observations about these matters and these were not the subject of a claim for exemption.

154.           Exemption was claimed (page 9C) in respect of “regulations” affecting the use of a ship’s diver and records to be kept.  There was no discernable difference between the information over which exemption was claimed and the rest of the document.  Exemption was also claimed (pages 9D and 9E) in relation to observations by the person after examination of Mr Hammal’s diving qualification record and a clearance diving course record.  No claim was made for exemption in respect of the references to those records.  There was no suggestion whatever that that information related to a confidential source of information (per s 37(1)(b)).  On the contrary the information was provided by virtue of the witness’ professional role. 

155.          Also, for the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

156.          However page 9A of the document - the first page - contains the witness’ age range and service history and that personal information is exempted from release under s 41(1). 

157.          The witness goes on to contextualize his statement by describing his professional role.  That information is not properly exempted under s 41(1).

158.          The whole of the statement, other than the attached marked up copy of page 9A is to be released to Mr Hammal.

Item 56 (part) - Email regarding information from external agency    

159.          The claim relied upon s 37(1)(a).  All documents relying solely on exemption under s 37(1)(a) are to be released in full: see paragraph 28 in relation to s 37(1)(a).

Item 57 (part) - Email regarding information obtained from external agency with   one attachment and print out of attached reply to request for   information under s 128 (same as Item A)

160.          The claim relied upon s 37(1)(a).  All documents relying solely on exemption under s 37(1)(a) are to be released in full: see paragraph 28 in relation to s 37(1)(a).

161.          The attachment is the same as Item A hence see my decision at paragraphs 221 - 225 in respect of that item below.

Item 58 (part) - Email correspondence with potential witnesses regarding   information obtained from external agency        

162.          The claim relied upon ss 37(1)(a), 37(1)(b)  and 41(1).  Segments of the document were in contention: parts of pages 4 and 5.

163.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

164.          For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

165.          The document contains some personal information about the author, other people and telephone and fax numbers and email addresses.  That personal information is exempted from release under s 41(1). 

166.          The whole of the document, other than the attached marked up copy of pages 4 and 5 is to be released to Mr Hammal.

Item 59 (whole) - Email regarding response from external agency and print out of   attached letter from external agency re request for information         

167.          The claim relied upon ss 37(1)(a) and 7(2A) - attachment only.  Page 7 attaches a document originating from an exempt agency.  While the email refers to the exempt agency the document neither originated with, nor was received from an exempt agency as required by s 7(2A).  Also for the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal.  The whole of page 7 is to be released.

168.          Page 8 is the attachment to page 7 and is a document from an external agency and is exempt from production: s 7(2A).

Item 61 (part) - Email regarding obtaining access to HMAS report with one   attachment and attached official access authorisation for DVA Officer   to defence records in custody of AWM and NAA (including personal                    information on DVA officer)

169.   The claim relied upon s 41(1).  Segments of the document (page 4) in relation to a person’s security clearance were in contention.  That is personal information which is exempted from release under s 41(1). 

170.          The whole of the document, other than the attached marked up copy of page 4 is to be released to Mr Hammal.

Item 62 (part)- Email attaching  PDF copy of  signed witness statement (same as Item D)          

171.          The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1). Segments of the document were in contention: parts of pages 5. No claim for exemption was made in relation to the email, only the attachment.

172.          The attachment is the same as Item D; hence see my decision at paragraphs 234 - 236 in respect of that item below.

Item 63 (part) - Email to external agency requesting HMAS reports with one   attachment and attached official access authorisation for DVA Officer   to defence records in custody of AWM and NAA (includes personal   information on DVA Officer)           

173.          The claim relied upon s 41(1). Segments of the document were in contention: parts of pages 7A.

174.          This document is the same as Item 61, hence I repeat my decision at paragraphs 169 - 170 in respect of that item.

Item 66 (part) - Email to potential witness attaching three HMAS reports and   attached copy of HMAS Melbourne Report of Proceedings (same as   Item 119AN), copy of HMAS Perth Report of Proceedings May 1974   (same as Item 119AM) and copy of HMAS Torrens Report of   Proceedings May 1974 (same as Item 119AO)

175.          The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1). Page 10.

176.          The segment of the email that was in contention was an email address.  That personal information (page 10) is exempted from release under s 41(1). 

177.          The whole of the document, other than the attached marked up copy of page 10 is to be released to Mr Hammal.

Item 67(part) - Email to potential witness with one attachment and attached print out   of document provided by applicant showing security clearance details

178.          Although the claim relied upon s 37(1)(b) the only segment of the document that was in contention was the email address of the recipient.

179.          The recipient’s email address (page 1) is personal information and is therefore exempted from release under s 41(1).

180.          The whole of the document other than the attached marked up copy of page 1 is to be released to Mr Hammal.

Item 68 (part) - Email correspondence with potential witness 

181.          The claim relied upon s 37(1)(b).  Only part of the document was in contention: parts of pages 2 and 3.

182.          For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that that the information disclosed relates to a confidential source of information.

183.          However pages 2 and 3 contain personal information, email addresses and phone numbers. That personal information is exempted from release under s 41(1).

184.      The whole of the document, other than the attached marked up copy of pages 2 and 3  is to be released to Mr Hammal.

Item 69 (whole) - Email correspondence with external agency regarding security   level clearance of applicant           

185.          The claim relied upon ss 7(2A) and 37(1)(a). The whole of the document was in contention.

186.          For the reasons discussed at paragraph 167 in relation to s 7(2A) the document is not exempt merely because it refers to an exempt agency.

187.     For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

188.          Page 5 contains personal information, email addresses and phone numbers. That personal information is exempted from release under s 41(1).

189.     The whole of the document, other than the attached marked up copy of page 5 is to be released to Mr Hammal.

Item 72 (whole) - Email correspondence with Australian Government Solicitor   (related to Item 30) 

190. The claim relied upon s 42(2). The whole of the document was in contention.

191.          The document is a series of emails including between a Senior Lawyer in the Australian Government Solicitor’s to an officer in the Department, seeking information.  It relates to Mr Hammal’s proceedings under the MRCS.  It is a document to which legal professional privilege would attach.  The whole of the document is not to be released: see Dwyer (supra).

Item 74 (whole) - Internal DVA email related to investigation 

192.          The claim relied upon ss 36 and 37(1)(a).  The whole of the document was in contention.

193.          For the reasons discussed at paragraphs 22 to 26 in relation to s 36, I do not accept that the information disclosed would, or could reasonably be expected to disclose the deliberative processes of an agency. 

194.          Neither, for the reasons discussed at paragraph 28 in relation to s 37(1)(a), do I accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

195.          The whole of the document is to be released to Mr Hammal.

Item 75 (whole) - Internal DVA email related to investigation 

196.          The claim relied upon ss 36 and 37(1)(a).  The whole of the document was in contention, it being submitted that it was not in the public interest that an internal working document be released.

197.          For the reasons discussed at paragraphs 22 to 26 in relation to s 36 I do not accept that the information disclosed would, or could reasonably be expected to disclose the deliberative processes of an agency. 

198.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

199.          The whole of the document is to be released to Mr Hammal.

Item 76 (part) – Email to potential witness regarding information being obtained from external agency

200.          The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1).  Segments of the document were in contention: Part of page 14.

201.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

202.          For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

203.          Page 14 contains an email address. That personal information is exempted from release under s 41(1).

Item 77 (whole) - Internal DVA email relating to investigation

204.          The claim relied upon ss 36 and 37(1)(a).  The whole of the document was in contention, it being submitted that it was not in the public interest that an internal working document be released.

205.          For the reasons discussed at paragraphs 22 to 26 in relation to s 36, I do not accept that the information disclosed would, or could reasonably be expected to disclose the deliberative processes of an agency. 

206.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

207.          The whole of the document is to be released to Mr Hammal.

Item 80 (part) – Email regarding information obtained from external agency          

208.          The claim relied upon s 37(1)(a).  The whole of the document was in contention.

209.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

210.          The whole of the document is to be released.

Item 119AG (part) - File note of telephone conversation with potential witness

211.          The claim relied upon s 41(1). Segments of the document were in contention: part of page 2 only.

212.          A phone number was the only aspect of the document that was in contention. That personal information is exempted from release under s 41(1). 

213.          The whole of the document, other than the attached marked up copy of page 2 is to be released to Mr Hammal.

Item 119AQ (part) – Extract from Diving Qualifications Register December 1970

214.          The claim relied upon ss 37(1)(a) and 41(1). Segments of the document were in contention: part of page 1 only.

215.          This item is the same as page 5F of item 51: a print out of an extract from diving qualifications register. The whole of Page 5F was initially in contention in that it related to other persons as well as Mr Hammal.  I was informed that the document, other than the names and service numbers of the other persons was to be released to Mr Hammal. 

Item 119AR (part) - Extract from Clearance Diver Training Course Log

216.          The claim relied upon s 37(1)(a). Segments of the document were in contention: part of pages 1 and 2.

217.          Page 1 contains information about other persons and is exempt under section 41(1). Page 2 is an extract from clearance driver training course log in relation to Mr Hammal.  There is no reason pursuant to ss 37(1)(a), 37(1)(b), 40(1)(d) or 41(1) why that information should not be released to Mr Hammal. The whole of the document is to be released to Mr Hammal.

Item 119AS (part) - Transcript from Board of Enquiry into Sky Hawk Accident May   1974 (also part of Defence File at Item 34)        

218.             The claim relied upon s 41(1). Segments of the document were in contention: part of pages 176 - 182.

219.          The item is the same as Item 34.

220.          The whole of the document was released other than pages which contained photographs of body parts.  Mr Hammal did not press for production of the photographs and they need not be released.

Item A (part) - Response from potential witness to s 128 notice requesting   information from external agency.            

221.          The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1).  Segments of the document were in contention: parts of pages 2, 3, 4 and 5.

222.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

223.          For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

224.          Page 2 of the document contains a phone number. That personal information is exempted from release under s 41(1).

225.          The whole of the document, other than the attached marked up copy of page 2 is to be released to Mr Hammal.

Item B (whole) - Response to s 128 notice requesting information from external   agency          

226.          The claim relied upon ss 7(2A) and 37(1)(a).  The whole of the document was in contention.

227.          The document originated with the Defence Intelligence Organisation and is therefore exempt from production under s 7(2A).

Item C (part) - Signed witness statement

228.          The claim relied upon ss 37(1)(a), and 41(1).  Segments of the document were in contention: parts of pages 7 and 8.

229.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

230.          However the first page of the statement contains the witness’ age range, and work history and current salary level.  That personal information is exempted from release under s 41(1). 

231.          The witness contextualizes his statement by describing his professional role.  That information is not subject to an exemption under s 41(1). 

232.          I consider that the information disclosed on the second page of the statement in relation to current security requirements would be likely to have a substantial effect on the proper and efficient conduct of the operations of an agency and for that reason should not be released to Mr Hammal : s 40(1)(d)

233.          The whole of the document, other than the attached marked up copy of each page is to be released to Mr Hammal. 

Item D (part) - Signed witness statement

234.          The claim relied upon ss 37(1)(a), 37(1)(b), and 41(1).  Segments of the document were in contention: parts of pages 1 and 2.

235.          The first page contains the witness’ occupation, age range, service number and work history.  That personal information is exempted from release under s 41(1). 

236.          The whole of the document, other than the attached marked up copy of the first page is to be released to Mr Hammal.

Items for which Exemption was Claimed: Matter 2007/1886

Item 4 (part) – Statement of Trevor Dean Catt dated 16 November 2006

237.          The claim relied upon s 37(1)(a).  Segments of the document were in contention: parts of pages 9, 10, 11 and 12.

238.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

239.          The document contains information about personal attributes. That personal information about another person is exempted from release under s 41(1) (although not claimed on that basis).

240.          The whole of the document, other than the attached marked up copy of page 12 is to be released to Mr Hammal.

Item 8 (part) – Statement of witness dated 3 March 2006

241.          This item is identical to Item C in the first FOI application. See my reasons in paragraphs 228 - 233   above.

Item 9 (part) - Email correspondence with Defence Security Authority

242.          This item is identical to Item 68 in the first FOI application. See my reasons in paragraphs 181 - 184   above.

Item 10 (part) – Special Investigations Group running sheet

243.          This item is identical to Item 33 in the first FOI application. See my reasons in paragraphs 101 - 104   above.

Item 11 (part) – Email correspondence with potential witness at Directorate of Sailors’ Career Management

244.          This item is identical to Item 67 in the first FOI application. See my reasons in paragraphs 178 - 180   above.

Item 12 (part) – Email correspondence with potential witness at Directorate of Sailors Career Management with attached draft unsigned witness statement

245.          The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1).  Segments of the email and of the statement were in contention: parts of pages 36 – 46.

246.          The witness statement is identical to Item 8 in the first FOI application. See my reasons in paragraphs 64 - 69 above.

247.          The email contains personal information about another person and email addresses. That personal information is exempted from release under s 41(1).

248.          The whole of the document, other than the attached marked up copy of page 36 is to be released to Mr Hammal.

Item 13 (part) – Email correspondence with potential witness at Directorate of Sailors’ Career Management

249.          The claim relied upon s 37(1)(b).  Segments of the document were in contention: parts of page 47.

250.          For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

251.          The email contains personal information about another person, email addresses and phone numbers. That personal information is exempted from release under s 41(1).

252.          The whole of the document, other than the attached marked up copy of pages 47 and 48 is to be released to Mr Hammal.

Item 14 (part) – Email correspondence with potential witness at Directorate of Sailors’ Career Management

253.          This item is identical to Item 52 in the first FOI application. See my reasons in paragraphs 145 - 148   above.

Item 15 (whole) – Email correspondence with Defence Intelligence Organisation regarding contact with Directorate of Sailors’ Career Management

254.          This item is identical to Item 69 in the first FOI application. See my reasons in paragraphs 185 - 189   above.

Item 16 (part) – Statement of witness dated 11 April 2006

255.          The claim relied upon ss 37(1)(a), 37(1)(b) and 41(1).  Segments of the document were in contention: parts of pages 53 – 62.

256.          For the reasons discussed at paragraph 28 in relation to s 37(1)(a), I do not accept that the information disclosed would, or could reasonably be expected to prejudice the conduct of an investigation in relation to Mr Hammal. 

257.          For the reasons discussed at paragraphs 29 to 31 in relation to s 37(1)(b), I do not accept that the information disclosed relates to a confidential source of information.

258.          Page 53 contains the witnesses’ service information and age range. Page 57 contains the service numbers of other people. That personal information is exempted from release under s 41(1).

259.          The whole of the document, other than the attached marked up copy of pages 53 and 57 is to be released to Mr Hammal.

Item 17 (part) – Defence File- Board of Enquiry into Skyhawk Crash May 1974

260.          This item is identical to Item 34 in the first FOI application. See my reasons in paragraph 106 above.

Item 18 (part) – Email correspondence with Department of Defence

261.          This item is identical to Item 58 in the first FOI application. See my reasons in paragraphs 162 - 166   above.

Item 19 (part) – Unsigned draft witness statement dated April 2006

262.          This item is identical to Item 11 in the first FOI application. See my reasons in paragraphs 70 - 76 above.

Item 22 (whole) – Signed statement of potential witness

263.          This item is identical to Item 12 in the first FOI application. See my reasons in paragraphs 77 - 79   above.

Item 23 (whole) – handwritten notes from contact with potential witness

264.          This item is identical to Item 13 in the first FOI application. See my reasons in paragraphs 80 - 81   above.

Item 24 (part) – Handwritten notes of Mr Catt from telephone conversation with Mr James

265.          This item is identical to Item 119AG in the first FOI application. See my reasons in paragraphs 211 - 213   above.

Item 25 (part) – Email correspondence with Mr James regarding statement

266.          The claim relied upon s 41(1).  Segments of the document were in contention: parts of page 97.  

267.          Page 97 contains an email addresses. That personal information is exempted from release under s 41(1).

268.          The whole of the document, other than the attached marked up copy of page 97 is to be released to Mr Hammal.

DECISION

269.          The Administrative Appeals Tribunal sets aside the decision under review and in substitution for the decision set aside, decides that only some of the documents or parts of documents for which exemption was claimed are exempt from disclosure under the Freedom of Information Act 1982.

270.          For ease of reference, where part only of a document is exempt from release, a marked up version of the pages of the document, with deletions, is attached to this decision.Where multiple versions of the same document were in contention, only one copy of the marked up version is attached.

271.          The Respondent is to provide to the Applicant a complete copy of all non-exempt documents considered by this decision and any partially exempt documents with deletions in accordance with this  decision.

I certify that the 271  preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed:  Niamh Kinchin, Associate

Dates of Hearing               6 February 2007
  18 June 2007
  13 August 2007
Date of Decision  13 November 2007
Representative for the Applicant               Self-represented   
Solicitor for the Respondent  Ms K King of Department of Veterans’   Affairs Legal Services Group   

INDEX

SCHEDULE OF PARTIALLY EXEMPTED DOCUMENTS
(MARKED UP COPIES)

(deleted)