Haneef and Secretary, Department of Prime Minister and Cabinet

[2009] AATA 777

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 777

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4299  

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHAMED  HANEEF

Applicant

And SECRETARY, DEPARTMENT OF PRIME MINISTER AND CABINET

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date9 October 2009

PlaceBrisbane

Decision

The Tribunal:

1.     affirms, varies and sets aside the decisions under review in accordance with the schedule below:

Doc	Exemption Claimed	Decision
5	ss 41 and 22 - last two dot points on page 1 (including the sub-dot point) - information about third person at bottom of attachment A s 33(1)(a)(i) - last sentence of 2nd dot point under first two named people in attachment A - last sentence of 3rd dot point under last heading in attachment A s 37(2)(b) - last sentence of 2nd dot point and whole of 4th dot point under first two named people in attachment A - last sentence of 3rd dot point and whole of 5th dot point under last heading in attachment A Conceded by applicant:[1] - 3rd to 8th paragraphs on page 2 - Attachment B, C and D	Operation and implementation of decisions under review stayed until further order. Decisions and written reasons restricted until further order.
6	s 22 - all text in entry 3 except for the heading "APEC" on page 3 - text in entry 7 except for heading "Other Business" on page 3 Conceded by applicant: - name of third attendee - location of meeting	Sets aside the decision to delete all the text in entry 3 except for the heading “APEC” on page 3 pursuant to s 22 and remits to the respondent for reconsideration in accordance with the written reasons. Otherwise affirms the decision under review.
7	s 22 - third last dot point in entry 2(c) on page 3 - all text in entry 4 other than the heading "Other Business" on page 4 and 1st dot point (including 5 sub-dot points) s 36 - 1st dot point in entry 4 including 5 sub-dot points s 33(1)(a)(i) - 3rd and 4th word of 2nd line of last dot point on page 2 s 41 - 6th dot point in entry 2(a) on page 2 - name of person other than Dr Haneef in 2nd last dot point on page 2 - name of person other than Dr Haneef in entry 2(c) on page 3 - last sentence of second dot point in entry 2(c) on page 3 Conceded by applicant: - name of third attendee - location of meeting	Sets aside the decision to delete all text in entry 4 other than the heading "Other Business" on page 4 and 1st dot point (including 5 sub-dot points) pursuant to s 22 and decides in substitution that the material not be deleted. Sets aside the decisions to exempt the: - 1st dot point in entry 4 including 5 sub-dot points pursuant to s 36; - name of person other than Dr Haneef in entry 2(c) on page 3 pursuant to s 41; - last sentence of second dot point in entry 2(c) on page 3 pursuant to s 41; and decides in substitution that the material is not exempt. Varies the decisions to exempt the 6th dot point in entry 2(a) on page 2 pursuant to s 41 in accordance with the written reasons. Otherwise affirms the decision under review.
12	s 33(1)(a)(iii) - last sentence of paragraph 2	Affirms the decision under review.
13	s 22 - 1st and 2nd heading and paragraphs under them on page 2 s 41 - second last heading on page one and paragraph immediately under it	Sets aside the decision to delete the 1st and 2nd heading and paragraphs under them on page 2 pursuant to s 22 and remits to the respondent for reconsideration in accordance with the written reasons. Varies the decision to exempt the second last heading on page one and paragraph immediately under it pursuant to s 41 in accordance with the written reasons.
14	s 22 - all text after and including 2nd heading on page 3 of the talking points - page 4 of the talking points - all text above heading "IF ASKED" and 1st sentence after it on page 5 of talking points - pages 7 to 11 of talking points	Sets aside the decision to delete pages 7 to 11 of talking points pursuant to s 22 and remits to the respondent for reconsideration in accordance with the written reasons. Otherwise affirms the decisions under review.
15	Entire document exempt under s 42	Affirms the decision under review.
16	s 22 - 3rd paragraph under heading "Background" s 36 - the last two paragraphs of page 2 s 41 - paragraph after and including the 1st heading on the second page - in paragraph immediately under 2nd heading on page 2 name of person other than Dr Haneef	Set aside the decision to exempt the last two paragraphs of page 2 pursuant to s 36 and decides in substitution that the material is not exempt pursuant to s 36. Varies the decision to exempt the paragraph after and including the 1st heading on the second page pursuant to s 41 in accordance with the written reasons. Otherwise affirms the decisions under review.
17	s 22 - page 2 - all text on page 3 under "Other key issues" - 2nd and 3rd  sub-dot points on page 1 under dot point titled "Persons of Interest in Australia" s 36 - 4th sub-dot point under dot point titled "Australian investigations" and all text under it on page 1 s 41 - 2nd and 3rd  sub-dot points on page 1 under dot point titled "Persons of Interest in Australia"	Sets aside the decision to delete 2nd and 3rd sub-dot points on page 1 under dot point titled "Persons of Interest in Australia" pursuant to s 22 and decides in substitution that the material should not be deleted pursuant to s 22. Varies the decision to exempt - the 2nd and 3rd sub-dot points on page 1 under dot point titled "Persons of Interest in Australia" pursuant to s 41; and - the 4th sub-dot point under dot point titled "Australian investigations" and all text under it on page 1 pursuant to s 36; in accordance with the written reasons. Otherwise affirms the decisions under review.
19	s 22 - whole of pages 3 and 4 (except for last dot point in entry 8 on page 4 including sub-dot points) s 36 - last dot point in entry 8 on page 4 (including sub-dot points) ss 33(1)(a)(iii) and 33(1)(b) - entry 3 on page 3 s 41 - second last dot point in entry 2(a) on page 2 Conceded by applicant: - location of meeting - name of 3rd and 14th attendee - agency of the 14th attendee	Sets aside the decision to exempt the last dot point in entry 8 on page 4 (including sub-dot points) pursuant to s 36 and decide in substitution that the material is not exempt pursuant to s 36. Otherwise affirms the decisions under review.
23	s 36 - all text after the line beginning "Bullet point 1" and before the line beginning "I hope this is helpful" on page 2	Affirms the decision under review.
24	Entire document exempt under s 36	Affirms the decision under review.
25	s 22 - 2nd last heading on page 1 and three paragraphs under it - text after the first paragraph and before the paragraph beginning "Comments" on page 2 s 41 - 2nd last heading on page 1 and three paragraphs under it	Varies the decision to exempt the 2nd last heading on page 1 and three paragraphs under it pursuant to s 41 in accordance with the written reasons. Otherwise affirms the decisions under review.
26	s 22 - 1st three sub-dot points under the dot point titled "Persons of Interest" on page 1 - 2nd and 3rd sub-dot points under the dot point titled  "Australian investigations - current status" on page 1 - 2nd sentence on page 2 - all text after heading "APEC" on page 2 - all text under line on page 3 s 36 - all text above line on page 3 s 41 - 1st three sub-dot points under the dot point titled "Persons of Interest" on page 1 - 2nd and 3rd sub-dot points under the dot point titled "Australian investigations - current status" on page 1	Varies the decision to exempt all text above line on page 3 pursuant to s 36 in accordance with the written reasons. Otherwise affirms the decisions under review.
28	s 22 - second last dot point in point 2 a) on page one - all text in point 2 d) on page one - whole of page 2 ss 33(1)(a)(iii) and 33(1)(b) - entry 3 on page 2 s 41 - second last dot point in point 2 a) on page 1 Conceded by applicant: - location of meeting - name of person in point 2 b)	Sets aside the decisions to delete - the text in point 2 d) on page one; and - the whole of page two; pursuant to s 22 and decides in substitution that the material is not deleted pursuant to s 22. Otherwise affirms the decisions under review.
30	s 22 - 4th to 7th dot points in entry 2(a) on page 2 - entry 4 and 5 on page 3 - entry 6 on page 4 - entry 7 on page 4 except for the title "Other Business" ss 33(1)(a)(iii) and 33(1)(b) - 4th dot point in entry 3 on page 3 Conceded by applicant: - names of 3rd and 21st attendees - agency of 21st attendee - location of meeting	Sets aside the decision to delete the 4th to 7th dot points in entry 2(a) on page 2 pursuant to s 22 and remits the matter to the respondent for reconsideration in accordance with the written reasons. Otherwise affirms the decisions under review.
32	s 36 - all text under section titled "Background" on page 1 - all text above section titled "Comments" on page 2	Affirms the decisions under review.
33	s 22 - title of attachment B in 1st paragraph on page 1 - 3rd paragraph on page 1 - paragraph after heading "Broader policy implications" on page 2 s 36 - last paragraph above heading "Broader policy implications" on page 2	Sets aside the decisions to delete - the title of attachment B in 1st paragraph on page 1; and - the 3rd paragraph on page 1; pursuant to s 22 and decides in substitution that the material should not be deleted pursuant to s 22 Sets aside the decision to exempt the last paragraph above heading "Broader policy implications" on page 2 pursuant to s 36 and decides in substitution that part of the document be released. Otherwise affirms the decisions under review.
34	Entire document exempt under s 42 except for first page	Affirms the decision under review.
35	s 22 - 2nd to 5th sub-dot points under dot point beginning "Persons of interest" on page 1 - all text under line "Any further consular access?" on page 1 - all text after line "Any reports from New Delhi mission" on page 2 - pages 3 and 4 - all text below line on page 5 s 36 - all text above line on page 5 s 41 - 2nd to 5th sub-dot points under dot point beginning "Persons of interest" on page 1 - all text under line "Any further consular access?" on page 1 - all text above "UK liaison" on page 2	Varies the decisions to exempt:   - all text under line "Any further consular access?" on page 1 pursuant to s 41; and - all the text above line on page 5 pursuant to s 36; in accordance with the written reasons. Otherwise affirms the decisions under review.
39	s 22 - entry 3(a) on page 2 - all text in entry 4 apart from heading and entries 5 to 9 s 41 - 5th dot point in entry 2(a) on page 2 Conceded by applicant: - location of meeting - names of 3rd and 21st attendees - agency of 21st attendee	Sets aside the decision to delete all text in entry 4 and entries 5 to 9 pursuant to s 22 and remits to the respondent for reconsideration in accordance with the written reasons. Varies the decision to exempt the 5th dot point in entry 2(a) on page 2 pursuant to s 41 in accordance with the written reasons. Otherwise affirms the decisions under review.
41	ss 33(1)(a)(iii) and 33(1)(b) - all text under summary on page 1 - all text above paragraph 7 on page 2 except for the heading "Comment"	Affirms the decisions under review.
42	s 42 All text after the first sentence on page one until signature block on the last page	Affirms the decisions under review.
43	ss 22 and 36 - last eight lines on page one - whole of page 2 except for last 5 lines of text	Affirms the decisions under review.
44	s 37(2)(b) - 4th to 6th lines of hand-written notes on left side of page s 22 - 4 sub-dot points under "Dr Mohammed Haneef" on first page - hand-written notes on left side and bottom of first page - text at bottom of page 1 concerning a person other than Dr Haneef - all of page 2 except for 3rd dot point and sub-dot points under it and the 4th dot point and two sub-dot points immediately under it s 41 - 4 sub-dot points under "Dr Mohammed Haneef" on first page - text at bottom of page 1 concerning a person other than Dr Haneef - 2nd sub-dot point under 2nd dot point on page 2	Sets aside the decision to delete hand-written notes on left side and bottom of first page pursuant to s 22 and decides in substitution that the material should not be released pursuant to s 22. Otherwise affirms the decisions under review.
45	s 22 - 2nd and 3rd words in 1st question on page one	Sets aside the decision to exempt the 2nd and 3rd words in 1st question on page one pursuant to s 41 and decides in substitution that the material is not exempt pursuant to s 41. Otherwise affirms the decision under review.
47	s 22 - last dot point in entry 4 on page 3 - all substantive text on page 4 s 41 - second last dot point in 2(a) Conceded by applicant: - location of meeting	Affirms the decisions under review.
48	s 22 - text on page 4 after the 1st paragraph and before the heading "Comments" s 36 - all text under heading "Options available" on page 1 - whole of page 2 - text above second last heading on page 3 s 41 - text under heading "Issues - other people of interest" on page 3	Varies the decision to exempt the text under heading "Issues - other people of interest" on page 3 pursuant to s 41 in accordance with the written reasons. Otherwise affirms the decisions under review.
51	s 22 - last 11 words in 1st sentence in 2nd email on page 1 - 1st, 2nd, 3rd and 5th dash points in 2nd email on page 1	Affirms the decisions under review.
52	s 22 - second sub-heading and dash point under it on page 1 - second dash point under heading "ASIO" on page 1 - third dash point under heading "DIAC" on page 1 - dash points under heading "Media" and "Next Meetings" on page 1 - four lines of text under heading "Priority NSD Products" on page 2 s 41 - second sub-heading and dash point under it on page 1 - third dash point under heading "DIAC" on page 1	Affirms the decisions under review.
53	s 22 - text in entry 5 s 41 - last dot point under 2 a) s 33(1)(a)(iii) and (b) - last two dot points in entry 3 Conceded by applicant: - name of person under point 2 b) - location of meeting	Sets aside the decision to delete the text in entry 5 pursuant to s 22 and remits to the respondent for reconsideration in accordance with the written reasons. Otherwise affirms the decision under review.
55	s 22 - 2nd and 3rd dot points in entry 4(a) on page 3 - 2nd and 3rd dot points in entry 5 on page 3 - whole of entry 6 on page 3 Conceded by applicant: - name of 3rd attendee - location of meeting	Affirms the decisions under review.
60	s 33(1)(a)(iii) - 2nd and 3rd dot points in email - paragraph immediately under last dot point in email	Affirms the decisions under review.
62	s 22 - 2nd sub-heading and dash point under it on page one - second dash point under heading "ASIO" on page one - last two sub-headings on page 1 and dash points under them on page one - 4 lines of text on page two under heading "PRIORITY NSD PRODUCTS" s 41 - 2nd sub-heading and dash point under it on page one	Sets aside the decision to delete the last two sub-headings on page and dash points under them on page one pursuant to s 22 and remits to the respondent for reconsideration in accordance with the written reasons. Otherwise affirms the decisions under review.
63	s 22 - 4th and 5th headings on page three and paragraphs under them s 36 - all text under heading "Options available" on page one - whole of page two s 41 - text under heading "Issues - other people of interest" on page 3	Affirms the decision under review.
65	s 33(1)(a)(iii) - last 11 words of second last line and whole of last line of 1st paragraph in 2nd email on page one - all substantive text on page 2 except for last three sentences - dot points on page 3	Affirms the decisions under review.
70	s 33(1)(a)(iii) - 1st and last sentence of summary - last sentence of paragraph 1 - paragraphs 2 and 9 - last two sentences of paragraph 6 - text between dashes in last line of last sentence of paragraph 8 s 33(1)(b) - paragraph 2 - last two sentences of paragraph 6	Affirms the decisions under review.
71	s 33(1)(a)(iii) - last sentence of summary - paragraphs 4, 5 and 9 - first sentence of paragraph 10 s 33(1)(b) - last sentence of summary - paragraphs 4 and 5	Affirms the decisions under review.
73	s 36 - top email s 42 - 3rd to 7th lines of text in body of second email	Sets aside the decision to exempt the top email pursuant to s 36 and decides in substitution that the material is not exempt pursuant to s 36. Otherwise affirms the decision under review.
74	ss 22 and 41 Two dot points under the heading "Other persons of interest in Australia"	Affirms the decisions under review.
76	s 33(1)(a)(iii) - 2nd sentence in summary - paragraphs 4, 5, 6, 7 and 8 s 33(1)(b) - paragraphs 4, 5, 6, 7 and 8 s 41 - last sentence in summary - paragraph 11	Sets aside the decision to exempt the 2nd sentence in summary pursuant to s 33(1)(a)(iii) and decides in substitution that the material is not exempt pursuant to s 33(1)(a)(iii). Varies the decisions to exempt those parts of the paragraphs 4, 5, 6, 7 and 8 pursuant to ss 33(1)(a)(iii) and 33(1)(b) in accordance with the written reasons. Otherwise affirms the decisions under review.
78	s 22 - all substantive text on 1st page - text on second page above last paragraph	Affirms the decisions under review.
79	s 33(1)(a)(iii) - last four words in 3rd line and first word of fourth line of paragraph under heading "Summary" - first 4 words of the 2nd line of paragraph 2 - last two sentences of paragraph 5	Sets aside the decisions to exempt: - the last four words in 3rd line and first word of fourth line of paragraph under heading "Summary"; and - the first 4 words of the 2nd line of paragraph 2; pursuant to s 33(1)(a)(iii) and decides in substitution that the material is not exempt pursuant to s 33(1)(a)(iii). Otherwise affirms the decision under review.
82	ss 22 and 41 - first dot point under title "Bilateral Indian issues (DFAT)"	Affirms the decisions under review.
85	s 33(1)(a)(iii) - 1st paragraph and final sentence of third paragraph on last page s 33(1)(b) - final sentence of third paragraph on last page	Sets aside the decision to exempt those parts of the document pursuant to s 33(1)(a)(iii) and decides in substitution that the material is not exempt pursuant to s 33(1)(a)(iii). Otherwise affirms the decision under review.
91	s 33(1)(a)(iii) - last sentence of paragraph 10	Affirms the decision under review.
92	Entire document exempt under s 33(1)(a)(iii) except for text above line on page 1 and last sentence of paragraph 7	Varies the decision under review in accordance with the written reasons.
93	s 22 - third last dot point on page one	Affirms the decision under review.
95	s 22 - entries dated prior to 2 July 2007 (page 1 and 1st three entries on page 2) - last two entries on page 3 - 5th entry on page 4 - 2nd and 3rd entries on page 5 - 9th, 13th and 18th entries on page 6 - 4th entry on page 7 s 41 - 5th entry on page 4 Conceded by applicant: - location of NCTC meetings	Sets aside decision to exempt the 5th entry on page 4 pursuant to s 41 and decides in substitution that the material is not exempt pursuant to s 41. Otherwise affirms the decision.
96	s 22 - on page 1, all text other than the heading information and item 1 - whole of page 2	Affirms the decisions under review.
97	Exempt in full under ss 33(1)(a)(iii) and 33(1)(b)	Affirms the decisions under review.
98	Exempt in full under ss 33(1)(a)(iii) and 33(1)(b)	Varies the decision under review in accordance with the written reasons.
108	s 22 - second last dot point on page 1	Affirms the decision under review.
112	s 22 - first underlined heading on page one of the attachment and two dot points under it - all text after first dot point on second page of attachment - pages 3 to 8 of the attachment	Affirms the decisions under review.

[1]Whenever the words "conceded by applicant" appear in this schedule in the "Exemptions Claimed" column it means that while the material has not been disclosed, access to that material is no longer sought by the applicant.

2.decides that these decisions shall take effect 14 days after 9 October 2009.

......................[Sgd]........................

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – Access to documents – Whether access would disclose information that would be reasonably regarded as irrelevant – Exempt documents – Whether documents affect national security – Whether documents affect international relations – Whether documents are internal working documents – Whether documents affect enforcement of law – Whether documents affect personal privacy – Whether documents are subject to legal professional privilege – Decisions affirmed, varied and set aside in accordance with the schedule

Freedom of Information Act 1982 (Cth) ss 22, 33(1)(a)(i), 33(1)(iii), 33(1)(b), 36, 37(2)(b), 41, 42

Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; (2007) 163 FCR 414

Re Haneef and Australian Federal Police [2009] AATA 51

Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15

REASONS FOR DECISION

9 October 2009 Senior Member Bernard J McCabe         

1.          Dr Mohamed Haneef (“the applicant”) is using the Freedom of Information Act 1982 (“the Act”) in his quest to obtain access to documents held by various branches of the Commonwealth government. He is looking for documents that shed light on the circumstances surrounding decisions to detain him and cancel his visa in July 2007. These proceedings deal with a request under the Act that was directed to the Secretary to the Department of Prime Minister and Cabinet (“the respondent”). A number of documents, or portions of documents, have already been released. But the parties are still arguing about a number of documents, or portions of documents, that have not been released. The applicant has asked the Tribunal to reconsider the matter.

2. The Tribunal was provided with unexpurgated copies of the unreleased material. The portions of the documents which are in dispute (and which have not been disclosed to the applicant or his lawyers) were highlighted for my benefit. The final schedule of documents in dispute (Exhibit 2) identifies the grounds of exemption under Pt IV of the Act that are relied upon in each case. The respondent has also declined to release portions of some of the documents pursuant to s 22 of the Act on the basis that they are irrelevant.

3.          I do not propose to discuss the factual background to the case in exhaustive detail. That is well known and is in any event set out in the Full Federal Court’s decision in Minister for Immigration and Citizenshipv Haneef [2007] FCAFC 203; (2007) 163 FCR 414 and the Tribunal’s decision in Re Haneef and Australian Federal Police [2009] AATA 51. A detailed history and narrative is also found in report of the Clarke Inquiry. I will therefore begin by setting out the terms of the applicant’s request before turning to the schedule of documents to consider each document and the respondent’s arguments.

The terms of the applicant’s request under the act

4.          The applicant’s original request is contained in a letter from his solicitors addressed to the respondent’s Freedom of Information Officer dated 12 June 2008. The terms of the request are as follows:

Our client seeks all documents, created or brought into existence, or received by your Department, on or after 2 July 2007, to the present date, relating to:

1.    the cancellation of his visa subclass 457 Business (long stay) (Class C), which had an expiry date of 30 August 2010;

2.    the decision to detain our client, and his ongoing detention;

3.    the issue of a Criminal Justice Stay Certificate, or any other Criminal Justice Certificate in relation to our client, and/or any associate criminal justice visa;

4. the making of a residence determination under subdiv.B, Div.7, Part 2 of the Migration Act, in favour of our client;

5.    communications with other government Departments or agencies, regarding our client.

5.          There was a further exchange of correspondence between the applicant’s solicitors and the respondent which sought to clarify the scope of the original request. The applicant did not change the terms of his request, although his solicitors agreed some documents falling within its scope (eg, press releases that were already publicly available and duplicates of emails and other documents) did not have to be disclosed. The applicant also clarified that the time-frame of the request was from 2 July 2007 to 16 June 2008.

The claims for exemption: looking at each document in the schedule

6.          I turn then to Exhibit 2. That Exhibit incorporates the respondent’s final contentions in respect of the disputed material in each document (although a few additional concessions were made during the course of the hearing). I will address each document below.

Document 5

7.          Decision and written reasons stayed and not published until further order. 

8.          Decision and written reasons stayed and not published until further order.

9.          Decision and written reasons stayed and not published until further order.

10.        Decision and written reasons stayed and not published until further order.

11.        Decision and written reasons stayed and not published until further order.

12.        Decision and written reasons stayed and not published until further order.

13.        Decision and written reasons stayed and not published until further order.

14.        Decision and written reasons stayed and not published until further order.

15.        Decision and written reasons stayed and not published until further order.

16.        Decision and written reasons stayed and not published until further order.

17.        Decision and written reasons stayed and not published until further order.

18.        Decision and written reasons stayed and not published until further order.

19.        Decision and written reasons stayed and not published until further order.

20.        Decision and written reasons stayed and not published until further order.

21.        Decision and written reasons stayed and not published until further order.

Document 6

22. Document 6 in the bundle of unreleased material is comprised of three pages. Material has been deleted from the first two pages with the agreement of the applicant. The respondent says two entries on the third page are irrelevant to the request. It wants to delete that material pursuant to s 22. I will deal with the second entry first, which is the text appearing under the heading “Other Business”.

23.        I agree the material in question is irrelevant to the request. The redacted material deals with the scheduling of further meetings to discuss the progress of the investigation. While one might argue information about the investigation process involving meetings of an inter-agency committee that preceded the cancellation decision fits within the request for information about the cancellation decision itself, I am not persuaded this purely administrative note falls within the terms of the request.

24.        I fail to see how the material referred to in the earlier entry under the heading “APEC” could be regarded as being irrelevant to the request. The material notes what appears to be information that could reasonably be regarded as being central to the decision to cancel the applicant’s visa.

25.        I am satisfied the material listed under the heading “3. APEC” should be released to the applicant in the absence of another claim for an exemption in respect of that part of the document. The decision to exempt that part of the document is set aside and remitted to the respondent for reconsideration.

Document 7

26.        This document is a record of outcomes from a National Counter-Terrorism Committee meeting on 3 July 2007. I understand this was the committee’s second meeting of the day. (Document 6 records the outcomes of the earlier meeting.) The applicant has conceded he does not need to see a number of entries. The respondent says various other entries are exempt from disclosure for different reasons. I will deal with each in turn, starting at page 2 of the document.

27. The first issue arises under the heading “Incident Update” at dot point 6. The respondent claims the entry is exempt pursuant s 41.The entry provides information about a named person assisting police with their inquiries. The individual in question was one who has been identified in press reports, although it is unclear how much detail has been provided about him in the public arena. While the fact his identify has already been revealed counts in favour of disclosure, the other information is more sensitive in that it describes in a little more detail the extent of his involvement with the police. A person might be intensely embarrassed by that sort of report, and there is no compelling public interest in allowing members of the community to make that link. I think the material could be disclosed if the subject’s name were deleted together with the words in the second sentence in the entry after the sixth word. That material should be deleted because the details, which are innocuous in and of themselves, might identify the person to an alert reader with a passing familiarity with the progress of the investigation. Alternatively, release of the material might result in someone being mistakenly identified.

28.        I accept is it is appropriate to delete the name of the individual referred to in the tenth dot point on the same page. That individual may have been discussed in the press; I do not know for sure. But there is no interest in publicly linking his name with the details of the investigation in circumstances where he has not been charged with a crime. His right to privacy outweighs the public’s interest in knowing the information. The public’s interest is adequately served by disclosing the material with the name deleted.

29.        There are two words deleted from the 11^th dot point pursuant to s 33(1)(a)(i). More accurately, the entire text between the words “AFP” and “officers” on the second line has been deleted. (There is some minor ambiguity here: the schedule refers to two words, but there is additional text which appears to have been deleted from the unexpurgated copy of the documents which was provided to me. I assume the claim for an exemption is made in respect of the entire missing text.)

30. This missing text excited a good deal of interest during the course of the hearing. I heard evidence from an ASIO officer who used the pseudonym “Keith Drummond” in closed session in the absence of the applicant’s representatives. Mr Drummond provided open and closed affidavits. The respondent relied on Mr Drummond’s evidence as the basis for its claim that the words in question were exempt from disclosure by reason of s 33(1)(a)(i).

31.        Mr Drummond spoke about the sensitivity of the text in question. The applicant’s Statement of Facts and Contentions speculated what that text might say but added in any event it was unlikely that the disclosure of the deleted material could damage national security. It is only a small amount of text, after all.

32.        After careful consideration, I am satisfied that the redacted material should not be disclosed. While a reasonable observer might not be surprised if he or she learned what was in the text, the text might communicate information that reveals or at least confirms details on the modus operandi of Australian law enforcement agencies. In those circumstances, disclosure might reasonably be expected to damage the security of the Commonwealth.

33. There are two entries under the heading “DIAC” on page 3 of the document. In both entries, the respondent says the information is exempt pursuant to s 41 because it contains personal information. The individuals named in the entries are referred to on page 1 of document 5. There is little additional material disclosed in the entries in document 7. I would release all of the material in the first two dot points under the heading “DIAC” on page 3 on the same basis. The material is probably already in the public domain.

34.        The respondent says all of the text following the sixth dot point under the heading “DIAC” should be deleted because it is irrelevant. The entry deals with the number of foreign doctors in Australia. It is of general interest only and does not bear on the issues raised by the request. I think the material could be reasonably be regarded as irrelevant to the request.

35. The text following the last dot point on page 3 of document 7 was originally redacted. The respondent relied on s 33(1)(a)(i). The respondent conceded at the hearing that it no longer wished to press that claim. The material should therefore be released.

36. The last page of the document includes redacted material under the heading “Other Business”. The respondent says that material is irrelevant pursuant to s 22. I disagree. In my view, it is impossible to say that material is irrelevant to the request. The material should be released.

37. At the hearing, the respondent added that the material (or, to be more accurate, the first dot point under the heading “Other Business” including 5 sub-dot points) should be exempt under s 36 because it was in the nature of an internal working document. The material in question identifies a set of potential outcomes from the larger investigation. The respondent says disclosure of the material would (a) have the effect of disclosing an opinion, advice or recommendation supplied in the course of a deliberative process (b) in circumstances where that disclosure is contrary to the public interest.

38. I have difficulty accepting the material in question constitutes “opinion”, “advice” or “recommendation” in the sense that those words are used in s 36. The material is comprised of a range of alternative scenarios that might arise. It is little more than a list of what might occur, with only a limited discussion of potential responses. On one view, the document does not really form part of a deliberative process; it essentially foreshadows a deliberative process that might occur at some future point depending on the identified potential outcomes from the investigation. The list was more in the nature of a “heads up” warning to the various bodies that might have input into a future deliberative process that would actually lead to a decision. But even if I accept the material is properly regarded as coming within the terms of s 36, I must be satisfied that disclosure is not in the public interest.

39. I do not accept that any and all working papers or drafts are inevitably exempt from disclosure under s 36. The question about public interest must be answered in relation to each document in all the circumstances of each case. The applicant’s Statement of Facts and Contentions says the respondent has not identified any particular detriment that might flow from disclosure. The applicant says there may even be a public benefit because the public will be educated about the deliberative process.

40. Mr Campbell gave evidence on behalf of the respondent on the issues surrounding the exemption under s 36. Although his affidavit did not expressly address document 7, I take it the arguments he put are intended to apply to this material as well. He expressed concern (at [12] of his affidavit (Exhibit 7)) that disclosing this material in draft form might cause public servants to be less forthright in the future in giving advice. He also said the documents did not necessarily reflect a final view of the department or agency and might mislead the public.

41. As it happens, I do not think the public will obtain many insights into the deliberative process (such as it is) by reviewing the documents in question. I do not accept the public would be misled or misinformed about what was going on behind closed doors, either. The content of the material – the various options that were noted – are so limited that they cannot have been a surprise to anyone. I acknowledge the first sub-dot point does contain the expression of a preliminary opinion, but it is difficult to see how disclosure of that opinion will mislead the public or cause the unidentified public servant who offered it to become more circumspect in his or her advice. I am not persuaded that disclosure is contrary to the public interest. The claim for exemption under s 36 is not made out.

Document 12

42.        The respondent says the last sentence of numbered paragraph 2 in document 12 should not be released pursuant to s 33(1)(a)(iii). That provision enables the decision-maker to withhold material that would, or could reasonably be expected to, damage the international relations of the Commonwealth.

43.        Ms Stokes gave evidence on behalf of the respondent in relation to this ground of exemption. She is a senior diplomat. She pointed out that diplomatic officers were expected to liaise with officials and others who are well-placed to know information that might be in Australia’s interests. She explained it would be obviously difficult to do that if the information and its sources were readily available.

44.        Document 12 is a diplomatic cable. It includes what might be described as an editorial comment on the material discussed in the cable. Ms Stokes said it was important that diplomatic personnel overseas provide that sort of assessment.

45.        Mr Keim SC pointed out Ms Stokes’s affidavit merely said disclosure “could” damage Australia’s international relations. He also pointed out Ms Stokes might, in effect, be too close to the relationship to make an objective assessment of the dangers. He said she was likely to be “risk averse” precisely because she was charged with maintaining and improving a relationship that the government has said is important to Australia.

46.        The risk that public officials might lose perspective is ever present. The practical value of bringing disputes before a fresh pair of eyes in the person of the Tribunal is clear. An objective assessment of all the circumstances is particularly important in a case like this where the stakes appear to be high and public officials are under enormous pressure.

47.        As it happens, I accept Ms Stokes is correct in her assessment of the material. The material could reasonably be expected to cause damage to Australia’s international relations. Most obviously, disclosure of the assessment might embarrass the Australian diplomat who expressed the view. That official would probably have a harder time obtaining useful information and assessments in the future. The exemption under s 33(1)(a)(iii) in relation to the redacted portion of numbered paragraph 2 in document 12 is made out.

Document 13

48. The respondent says the redacted material on page 1 of document 13 is exempt under s 41 because it contains personal information. The information relates to an individual who has already been discussed in other documents, and I have explained that his identity should not be suppressed – most obviously because the information in question is already publicly available. In the case of this extract, there are two additional pieces of information that may or may not be publicly available. I refer firstly to the last word on the first line of the entry and the first three words of the second line. That information should not be released because it is not widely known and the interests of privacy demand that it be kept secret. I also refer to the second last sentence of the redacted entry. There is an argument that the information in question is not so much personal information as information about an investigation into the person. Perhaps more precisely, it could be described as information about an investigation into personal information provided by that individual. In the circumstances, I am inclined to treat the second last sentence of the redacted text on page 1 of document 13 as personal information which is exempt from disclosure. The balance of the entry should be released.

49. The second page of document 13 includes text under two headings. The first deals with Australia’s threat level and does not refer to the investigation in question. It is irrelevant to the request. The second heading refers to press speculation over the issue of visas to foreign-trained doctors. It is, at most, of marginal relevance, although it has to be said that the press speculation only arose because of the applicant’s detention. Given the views I express below in relation to some of the material in document 14, I am satisfied the decision to delete the material pursuant to s 22 should be set aside, although I would remit the decision to the respondent for the purpose of considering whether any of the material is exempt on another basis.

Document 14

50.        Document 14 is an email and attachments. The attachments include talking points for government officials. Some of the comments relate to the investigation of Dr Haneef. But there are also large portions which have been deleted on the basis that they are irrelevant.

51. Some of the information is plainly irrelevant for the purposes of s 22. On page 3, the redacted material talks generally about Australia’s response to terrorism. The material on page 4 offers advice to a spokesperson on how to deal with questions about extremist individuals and groups within Australia. The bulk of the material on page 5 refers to a travel advisory issued by the relevant government department. The second, smaller tranche of redacted material on page 5 talks about Australia’s planning to cope with terrorist threats. I am satisfied that information should not be released.

52. The material on page 7 falls into a different category. The talking points deal with questions about visa applicants, like doctors. The material actually refers to the impact of “this arrest” on the process. The link between that reference and the applicant’s request is clear. The balance of the material on page 7 and the first two dot points on page 8 put that information in context. All of it should be released as I am not satisfied it is irrelevant to the request. I would set aside the decision to delete the material pursuant to s 22, but I remit the matter to the respondent for reconsideration of whether another exemption should be claimed.

53. The rest of the material in the talking points is irrelevant within the meaning of s 22. That material includes general information about public security and anti-terror measures. There is no clear connection between that material and the applicant’s request.

Document 15

54. Document 15 contains legal advice from a senior government lawyer. It is clearly exempt under s 42. But there is a question as to whether the privilege has been waived. The applicant pointed out that the Minister released a legal opinion from the Solicitor-General at a media conference on 31 July 2007. The applicant says document 15 should be released now if its substance was released at the press conference.

55.        The Solicitor-General’s advice released on 31 July 2007 deals with the decision to cancel the applicant’s visa. The advice in document 15 relates to a different aspect of the case. The Minister’s release of the Solicitor-General’s opinion does not amount to a waiver of the privilege in relation to document 15.

Document 16

56. The next document is a briefing note addressed to the Prime Minister. Page 1 includes a paragraph of material that is said to be irrelevant within the meaning of s 22. I agree. The material deals with threat levels and travel advisories. It is unrelated to the request. The third paragraph on page 2 of the document contains a brief summary of the details of another person who has already been identified in the media and in the report of the Clarke Inquiry. While a claim has been made for an exemption under s 41, I do not think the claim is made out, with one exception: the last three words on the first line of the entry and the first three words of the second line. That information may not be publicly available and the public interest militates against releasing it. I can see no basis for withholding the balance of the information about this individual. His privacy has already been compromised by media reports. The material should be released.

57. The fourth paragraph on page 2 includes the name of another individual. It is unclear whether his name is widely known. I agree his interest in maintaining his privacy is such that his name should be excluded pursuant to s 41.

58. The respondent says the final two paragraphs on page 2 should be exempt on the basis that it forms part of an internal working document under s 36. The extract sets out what appears to be a preliminary list of options that may be open, depending on what happened with the investigation. The material appears under the heading “Comments”. I accept the material meets the definition of “advice” for the purposes of s 36, although the advice in question does not indicate which option should be preferred or the advantages and disadvantages of each course. The real question is whether release would be contrary to the public interest.

59.        I have already noted that this issue was addressed in the affidavit of Mr Campbell. He said (at [12]) that the advice was not in its final form and risked misleading the public. He also argued (at [14]) that releasing the material would discourage public servants from offering frank and useful advice to the government of the day. Subsequently, he repeated (at [15]-[17]) his concern that the advice was of a preliminary nature and did not represent the considered or final view of the department. He said release of the information would mislead the public.

60.        I disagree. The limited discussion of options contained in the extract gives a clear and (I would have thought) uncontroversial picture of the bureaucracy’s thinking at a particular point in time. The nature of the information and the context in which it is provided make it clear that it is not a final view. There is little danger of it misleading anyone. Its disclosure would not deter diligent public servants from making similar comments in the future. In all the circumstances, I do not accept that release of the material would be contrary to the public interest.

Document 17

61.        The origin, purpose and author of document 17 are unclear. It appears to be some sort of briefing paper.

62. Three people are identified as persons of interest. One, of course, is the applicant. The second has been named elsewhere, including in the media and the report of the Clarke Inquiry. The third has been named in other documents, but his identity has been suppressed. The respondent says the information about the other two individuals is irrelevant to the applicant’s request and should be deleted pursuant to s 22. It also says the other two names are personal information that should be exempt pursuant to s 41.

63. I do not accept the names of the other individuals caught up in Operation Rain are necessarily irrelevant. They may be caught up and mentioned precisely because of their connection with the applicant and the investigation into him. I do not think s 22 prevents the release of their names.

64. I do not think the s 41 exemption is available in respect of the second-named individual. His identity has already been released. But the third individual’s name may not have been widely publicised. I accept the third individual’s identity is a private detail that should not be released.

65. The respondent says s 36 exempts the material under the heading “Australian Investigations” which follows the fourth dot point. I disagree, with one exception. The bulk of the material is advice in relation to options. It is essentially the same material I discussed in relation to document 16, and the same argument applies. The only material that is exempt is the highlighted material in the last two lines at the bottom of the page. Although the information is raised in the form of a question, it raises a question over process that is more contentious. It is conceivable that a public servant might be more fearful of raising this question were the material to be disclosed. The public interest might not be served by releasing that information. The extract should therefore be released without the highlighted material at the foot of the page.

66. The material on the second page of the note is of a more general nature. It refers to the security situation generally. It does not refer to the investigation or the applicant. The respondent says it is irrelevant within the meaning of s 22. I agree. The same can be said of the material on the third page of the document.

Document 19

67.        This document records outcomes of a meeting of the Australian government members of the National Counter-Terrorism Committee held on 5 July 2007. I turn firstly to the second page at paragraph 2(a). There is yet another reference to an individual caught up in the investigation whose name is already in the public domain. The information that accompanies his name may not be publicly known. On balance, I think the individual’s privacy would be compromised if the material were released. Merely releasing the individual’s name establishes nothing. The exemption is made out in respect of the entire entry.

68. The respondent has made a blanket claim under s 22 over the whole of pages 3 and 4 (except for the last dot point in entry 8 on page four and its sub-dot points). I agree that numbered paragraphs 4, 5 and 6 contain information of a general nature that does not refer to this investigation. Numbered paragraph 7, which extends to the following page, is in the same category, as in numbered paragraph 9 which deals with the timing of future meetings. All of that information is properly regarded as irrelevant under s 22 and may be deleted.

69. The information in numbered paragraph 3 is different. It refers to the progress of the investigation in the United Kingdom. The applicant is not mentioned but the material is clearly relevant to the applicant’s request. I am not satisfied the s 22 argument is made out in respect of that material. But the respondent also says the material is exempt from production on two bases. I was referred to s 33(1)(a)(iii), which refers to documents that might damage international relations if released, and s 33(1)(b), which refers to documents containing information provided in confidence by a foreign government.

70.        Mr Appleby, in his affidavit, says the information in question was provided in confidence by the Metropolitan Police Service (“the MPS”) in the United Kingdom, although he accepted during cross-examination that some or all of the information may subsequently have been released into the public domain. He spoke about the relationship with the MPS at some length. He pointed out that information from agencies like the MPS was vital to the work of the Australian Federal Police (“the AFP”). He explained (at [8]):

Disclosure of sensitive information requires a high level of trust as abuse or careless use of information can cause substantial problems for the country providing the information and for individual informants. Accordingly, a regular supply of high quality information from one country requires, as a fundamental principle, a relationship of trust and an understanding of the circumstances of the countries and agencies providing the information. … As a result of this trust, the AFP receives a significant amount of information from foreign law enforcement agencies.

71.        He said the relationship with the MPS was close and productive, and the information and advice received from the organisation was particularly valuable in light of its experience in dealing with terrorism. He said (at [15]-[17]) any release of information provided by the MPS in confidence would disrupt the close working relationship between the Australian authorities and the MPS.

72.        Mr Appleby was questioned in some detail at the hearing about his opinions. He suggested that information contained in press clippings or in a media transcript should not be released if it were supplied to the Australian authorities by the MPS under the terms of its agreement with MPS. He said it made no difference if the information had entered the public domain through other means; he said it was essential that the AFP be scrupulous in observing the wishes of the MPS, lest the relationship be endangered. 

73.        I was provided with a copy of the Memorandum of Understanding between the AFP and the MPS (Exhibit 22). I was told the document was not confidential, and I have made no orders in relation to it, even though I understand orders were sought in relation to that document in earlier proceedings. In any event, the document does impose some obligations on the AFP in relation to information supplied under the agreement. These obligations are explained in the following paragraphs:

4.2.5 Each Participant will subject to its domestic law protect any information provided by the other Participant from unauthorised access or disclosure and will comply with any terms and conditions imposed by the other Participant in respect of such information.

…

4.2.13 Information, criminal intelligence assistance and documents obtained under this MOU may not be used for any purposes other than those for which they were requested and provided, or provided to third parties, without the prior permission of the Participant providing them.

4.2.14 The requested Participant may require that the product of a request executed on the basis of this MOU be kept secret or used only under the conditions specified. If the requesting Participant accepts the product of the executed request under these conditions, they will do everything possible to comply with the conditions.

74.        Mr Appleby’s affidavit said (at [10]) he understands that all information provided by the MPS is provided in confidence and must not be disseminated outside the agency without permission. Mr Appleby’s understanding of the position appears to be broadly consistent with clause 4.2.13 of the agreement. He added (at [11]) that the AFP are expected to make a “mutual assistance request” of the United Kingdom government if it is proposed to make any public use of the information – for example, in a trial or other public statement. As Mr Keim SC was able to demonstrate during cross-examination, that practice was not always followed. Mr Appleby was referred to numerous examples of information provided by the MPS under the terms of the agreement being disclosed without the benefit of a mutual assistance request. Mr Appleby explained that was possible because one of the MPS officers attached to the Australian investigation had given verbal permission.

75.        The evidence does not make clear whether the AFP have made a mutual assistance request with respect to the information in document 19 so that it can be released in response to the applicant’s request or in any other connection.

76.        Mr Keim SC also asked Mr Appleby whether he was aware of any other prosecutions pending in the United Kingdom that might be threatened by the release of any information at this point. The British authorities might be understandably concerned that nothing should be said or done in Australia that complicate its efforts to try persons accused of involvement in the Glasgow attacks. But Mr Keim SC suggested to Mr Appleby that the individuals connected to that attack have now been dealt with. Mr Appleby declined to comment on that proposition.

77.        I shall deal firstly with the claim under s 33(1)(a)(iii). Mr Appleby’s affidavit identified the damage in question: he said the trust that existed between the two agencies would be compromised and the flow of intelligence could be interrupted. I accept that outcome amounts to damage if it occurs. The more difficult question is whether disclosure of what is, in document 19 at least, relatively uncontroversial information “would, or could reasonably be expected to, cause” the damage in question. Mr Appleby is in no doubt that the disclosure of information would have that effect. He said (at [10]) the MPS was “particularly sensitive about the handling of information provided by them to overseas agencies”.

78.        Mr Appleby’s affidavit and oral evidence is the only material before me that can assist me in forming a view of the likely reaction of the MPS to any disclosure. Ideally, I would have been provided with evidence from someone in the MPS. That may not have been possible. Mr Appleby’s evidence indicates the MPS prefers to be secretive and may be seriously risk averse when it comes to disclosure. I have no reason in the circumstances to doubt that characterisation.

79.        There is nothing in document 19 that should cause the MPS any difficulty, but that is not the test. I am not entitled to assume the MPS is committed to the same standards of openness that we try to observe in this country. Indeed, I am not entitled to assume the MPS will behave reasonably or consistently or helpfully. The focus is on how that organisation is likely to respond if the disclosure occurs. All I have is the guidance of Mr Appleby, and that guidance suggests the response is likely to be damaging. I note that the MPS does not appear to have reacted unfavourably to other disclosures, but Mr Appleby explained those disclosures as being, in effect, authorised by the MPS through its liaison officers. I am troubled by the conclusion, but there it is: the exemption is made out.

80. I turn now to the other claim for exemption under s 33(1)(b). Deputy President McPherson pointed out in Re Haneef and Australian Federal Police [2009] AATA 51 (at [40]) that the information in question does not have to be confidential in and of itself. The information might in fact be publicly available. The test, rather, is whether that information was provided in confidence. The learned Deputy President reached that view after reviewing the Full Court’s decision in Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15. I accept that view.

81.        Mr Appleby said the information in document 19 was provided by the MPS. He said it did not originate from any other source. While he was not able to specifically identify who supplied the information to whom or in what circumstances, he said it was his understanding that all of the information provided was provided in confidence. I have no other evidence before me to contradict that assertion, and I accept it. In those circumstances, the exemption is made out and the redacted portion of the document should not be released.

82. There is one further claim for exemption in document 19. The respondent says the text in numbered paragraph 8 on page 4 is exempt by reason of s 36. The entry records a more extensive list of future options. I accept these options have been prepared in connection with a deliberative process, albeit one that is anticipated but which has not commenced. The respondent says disclosure would be contrary to the public interest. The public interest in question was discussed in Mr Campbell’s affidavit. I have already referred to that affidavit.

83.        I do not think disclosure of this material would result in the public being misled about the deliberative process or the government’s intentions. The information is largely factual in that the entry lists the potential outcomes and responses without opining as to which options and responses are more likely or preferred. I suppose the selection and presentation of options is never entirely objective: the options might shape as well as reflect the direction of the government’s thinking. But I think the list is clearly of a preliminary nature and does not pretend to represent a concluded view. I do not see how the disclosure would have the effect of chilling or discouraging the provision of advice. I do not accept it would be against the public interest to disclose the material.

Documents 23 and 24

84. The respondent says portions of document 23 and all of document 24 are exempt from disclosure on the grounds that they are internal working documents within the meaning of s 36. The documents contain advice as to the drafting of certain documents. They obviously qualify as “opinion, advice or recommendation” that has been prepared in connection with a deliberative process. I think it would not be in the public interest to release that information because the advice is both technical and of a more strategic nature. It is exactly the sort of advice that should be protected from disclosure in order to preserve open lines of communication between the public service and decision-makers. I am satisfied the material in both extracts should not be released.

Document 25

85. The first page of this briefing note provides personal information about three individuals other than Dr Haneef. The personal information contained in the first two paragraphs is already widely known. For reasons stated earlier, it is hard to see how the material can be exempted under s 41. The third paragraph is a different matter. It includes information about another individual who may not have come to public attention. The disclosure of his personal details would be unreasonable in the circumstances.

86. As it happens, I do not think any of the information is relevant to the request. While I have previously accepted that the disclosure of some of the material in relation to one of the individuals might have at least a passing relevance to the applicant’s request, the information in this document is presented in a context that breaks that link. All of it should be deleted pursuant to s 22.

87. The material on page 2 of the document is also general (and uncontroversial) information about visas and threat levels. It is unrelated to the request or any aspect of the investigation. It is irrelevant for the purposes of s 22 and should not be released.

Document 26

88.        On page 1 this document refers to four individuals as persons of interest for the purpose of the investigation. One of them is the applicant. The respondent says the identity of the other three is irrelevant and their personal details are exempt from unreasonable disclosure.

89. I agree that the details of the third- and fourth-named individuals are not well known. The information in the middle of that page relates to one of them, although it may also relate to another individual. I accept that this information about those individuals should not be released because it would be unreasonable to compromise their privacy through disclosure. The information about them is in any event irrelevant to the request. The second-named individual has been discussed more widely but not necessarily in precisely this context. On balance, I think disclosure of his identity would be unreasonable for the purposes of s 41. I am also prepared to accept the material is irrelevant in the context.

90.        The second line of page 2 of the document is said to be irrelevant. After careful consideration, I agree it does not fall within the terms of the applicant’s request. The second tranche of material on that page is also clearly irrelevant: it contains general information about other individuals, visas and terrorism.

91. The third page sets out a list of options like that which appears in document 19. The respondent says the information is exempt by reason of s 36. I disagree for the reasons I gave in relation to the similar list in document 19. With one exception: the highlighted text in the last two lines at the foot of the entry does not appear in document 19. It raises a question that might be regarded as a question of communication strategy. I am inclined to accept the highlighted material should be exempt under s 36. It is probably irrelevant under s 22 in any event, although I understand the respondent did not take that point.

92. The final paragraph on page 3 of the document has been deleted on the basis that it is irrelevant within the meaning of s 22. I agree. The text refers to a number of general issues that do not arise out of the investigation and which are not covered under the terms of the request.

Document 28

93. This document is a meeting agenda for the National Counter-Terrorism Committee meeting held on 6 July 2007. The first deleted extract is found in the middle of the first page. The extract contains a reference to an individual together with a comment. I am satisfied the information should not be released pursuant to s 41. Disclosure of the man’s identity together with the information would not be reasonable since the information is not widely known. The release of the individual’s name without more would be meaningless, although it might bring unwelcome attention to that individual. The information may also be irrelevant within the meaning of s 22 in any event.

94. The respondent says the deleted entry at the bottom of the first page is also irrelevant for the purposes of s 22. Read as a whole, the text probably refers to a general issue. But on another view, it deals with an issue that was squarely raised in the applicant’s request. I set aside that part of the decision and decide that part of the material should not be deleted. The two lines and the heading at the foot of the first page should be released although the name of the individual referred to in the text might be excluded in order to protect his privacy. I take the same view in relation to the material at the top of the next page (sub-paragraph 2(e)). The text refers to the need for a briefing on developments, but there is no reason to seek that briefing unless it relates to the investigation into the applicant. While the two names in the extract should be withheld in order to protect the privacy of the individuals pursuant to s 41, the entry should other wise be released.

95. Numbered paragraph three – the second extract on the page two of the document – is the subject of a number of claims for exemption. The extract sets out information about the progress of the investigation in the United Kingdom. It may or may not be irrelevant within the meaning of s 22, but I am satisfied in any event that disclosure would damage international relations. It is essentially the same material contained in document 19. I find it is exempt from disclosure pursuant to s 33(1)(a)(iii) for the same reasons that I explained in the discussion of the exemption in relation to document 19. I am also satisfied the exemption under s 33(1)(b) is also made out for the same reasons as I gave in relation to that claim in document 19.

96. The remainder of that page of the document has been deleted under s 22. I accept that is appropriate. The information is of a general nature and does not relate to the investigation nor is it covered by the terms of the applicant’s request. It deals with threat levels and travel advisories. It is irrelevant.

Document 30

97. This document is a record of outcomes of the National Counter-Terrorism Committee meeting of 6 July 2007. The second page includes a number of entries that have been deleted on the basis that they are irrelevant within the meaning of s 22. I am not satisfied the material in question falls outside the terms of the applicant’s request, although I accept the material is unlikely to be of great interest. The respondent has not made any other claims in respect of that material. The decision to delete the material pursuant to s 22 should be set aside but the matter should be remitted to the respondent to reconsider whether another exemption is available.

98.        Numbered paragraph 3 on the third page summaries information concerning the investigation in the United Kingdom and the extent of cooperation between the AFP and MPS. The material is similar in nature to the material discussed in document 19. I am satisfied the exemptions in ss 33(1)(a)(iii) and 33(1)(b) are available and should apply for the reasons I have already discussed.

99. Numbered paragraphs 4, 5, 6 and 7 are irrelevant for the purposes of s 22. The material is of a general nature, although there are references in numbered paragraph 7 to the progress of the United Kingdom investigation. I think the material was properly deleted.

Document 32

100. This document is a briefing note provided to the Prime Minister. The respondent says a significant portion of the text on the first and second pages is exempt on the basis that it is a working document within the meaning of s 36. I accept the information is properly construed as opinion, advice or recommendation within the meaning of the legislation. The more difficult question relates to whether the release of the document would be contrary to the public interest.

101.      I have been reluctantly persuaded that disclosure of the material would be contrary to the public interest. While most of the information is simply a reference to options, there is some commentary by the authors of the document which goes beyond merely identifying what could occur. Public servants might be discouraged from providing written advice of this nature if they knew it could be disclosed. The fact that some of the advice in question is cautionary points to the value of open communication between public servants and decision-makers. I am satisfied the exemption is made out.

Document 33

102. Document 33 is another briefing note for the Secretary to the department. The first page includes two extracts that have been deleted because the respondent says they are irrelevant within the meaning of s 22.

103.      I have some difficulty with the first extract. The information in the extract does not relate directly to the investigation, but it has clearly arisen out of the applicant’s detention. It might be relevant to the terms of the request which deals with visas. In the circumstances, I think it is appropriate to err on the side of disclosure. The material should be released.

104. Portions of the second extract should also be released on the basis that they are not irrelevant within the meaning of s 22. The third, fourth and fifth sentences in the entry deal with the fate of other individuals in the United Kingdom. That information is plainly outside the terms of the request. But the rest of the entry deals with the progress of the Australian investigation. The last sentence clearly relates directly to the applicant and the investigation into him. It is not irrelevant. It follows that the entry should be released with the exception of the third, fourth and fifth sentences after the heading.

105. I am satisfied the entry on the second page under the heading “Broader policy implications” is irrelevant to the terms of the request. It deals with border security issues that do not arise directly out of Dr Haneef’s case. The material should be deleted pursuant to s 22.

106. The respondent says the entry in the fourth paragraph of page 2 is exempt from disclosure on the basis of s 36. I accept the material amounts to advice, opinion or recommendations that are provided in the course of a deliberative process. But I do not accept it would be contrary to the public interest to release the material given the limited nature of the summary of options. The summary is, in fact, more limited than other summaries I have already considered in document 19 and elsewhere. I would release it for the same reasons I gave in relation to those extracts.

Document 34

107.      This document incorporates an email from the Australian Government Solicitor’s office with an attachment that provides advice. The respondent released the first page of the document at the hearing. In relation to the second page, the respondent says the advice is exempt from disclosure because it attracts legal professional privilege. I do not need to embark on an extensive discussion of the various types of privilege at this point: it is plain that the document attracts the privilege. The only real issue is whether the advice can be said to have been waived.

108. The applicant asks the Tribunal to consider whether the advice was released to the media by the Minister in the course of his media conference of 31 July 2007. The Solicitor-General’s advice deals with the Minister’s power to cancel a visa under s 501 of the Migration Act 1958. The opinion in the material before me deals with a different matter. I am satisfied that the privilege has not been waived. The material is therefore exempt pursuant to s 42 of the Act.

Document 35

109. This document is described as a “Key Issues Brief”. The first heading refers to a number of individuals who are persons of interest or “assisting with investigations in Australia” apart from Dr Haneef. I have already dealt with the position of two of the other named individuals in document 26. I decided there that the disclosure of their names was not reasonable, and therefore exempt pursuant to s 41. I take the same view here, for the same reasons. The individuals referred to in the fourth and fifth dot points are not identified, but there is no reason to believe they have any direct connection with the applicant or are covered by the terms of the request. They are simply individuals who came to the attention of authorities during the course of Operation Rain. I think the material in those fourth and fifth dot points is irrelevant.

110. I am also satisfied the material in the first portion of the second extract on the first page of the briefing document should not be disclosed pursuant to s 41. The extract reveals additional details about the investigation into a named individual’s affairs. Those details are not widely known. His privacy might be unreasonably compromised if that information were released. I am satisfied the material is exempt pursuant to s 41. It is probably irrelevant on any fair reading of the applicant’s request in any event. I do not accept that the information about the category of individuals identified in the second portion of the extract attracts the operation of s 41. There are no personal details provided as such. But the information is irrelevant since it is not covered by the terms of the applicant’s request. The information relates to people who do not appear to be connected to the applicant, and who reside far away. They are simply individuals who were caught up in Operation Rain as it progressed. I accept that the information about them – such as it is – is irrelevant for the purposes of s 22 and should be deleted.

111. Turning to the second page, we find the personal details of another individual and his wife under a heading. I cannot conceive of any reason why the heading should be exempt under s 41, but the balance of the entry is a different matter. The named persons have not, as far as I am aware, been identified publicly. I think it would be unreasonable to disclose their identities because their privacy will be seriously compromised. It is impossible to release the information without the names because most of the information relates to them and could be traced back to them. The exemption under s 41 is made out. I am satisfied that the information (including the heading) is all irrelevant in any event. It is not covered by the terms of the request. It should be deleted pursuant to s 22.

112. The second extract stretches over pages two, three and four. It has been deleted on the basis that it is irrelevant pursuant to s 22. I agree. Most of the material is of a general nature about the level of resources, threat assessments, travel advisories and the progress of the investigation in the United Kingdom. It has been discussed in other documents and I have found it is irrelevant. I reach the same view here.

113. The last claim relating to this document relates to page 5. The first extract is subject to a claim for exemption under s 36. With the exception of the two sentences following the last dot point, the material is essentially the same as that referred to in document 19. It is a bare list of options. The material following the last dot point may fall into a different category. It raises a more delicate question. If the material following the last dot point were released, it might give public servants pause in the future before committing their advice to paper. That material should be exempt but the balance of the material should be released for the same reasons as I gave in relation to the material in document 19.

114. That leaves the extract at the bottom of page 5. The material is of a general nature. It does not refer to the investigation. It should be excluded because it is irrelevant within the meaning of s 22.

Document 39

115. The next document is a record of outcomes of the National Counter-Terrorism Committee meeting held on 9 July 2007. The first claim for an exemption comes in numbered paragraph 2. The respondent says the information in question is personal information that is exempt by reason of s 41. The information contained in the last four words in particular is presumably not widely known. It is the name that is properly subject to the claim for an exemption: the rest of the information does not qualify as personal details except to the extent that disclosure of the information might provide clues as to the individual’s identity. I accept it would be unreasonable to release the name in light of the impact on the individual’s privacy but think it would be possible to release the whole of the entry without the name.

116. The respondent says numbered paragraphs 3(a) and 5-9 (I note there are two paragraphs numbered nine, although nothing turns on this anomaly) contain irrelevant information and should be deleted pursuant to s 22. I agree. The material is of a general nature and relates to threat levels, the progress of the investigation in the United Kingdom and other matters. It is not covered by the terms of the applicant’s request. The material in numbered paragraph 4 falls into a different category. Although the bulk of it is of a general nature, it was clearly prompted by the fact of the investigation in the applicant and may have some tangential relevance. I set aside the decision to delete the material pursuant to s 22 but remit the matter to the respondent to reconsider whether an exemption is available.

Document 41

117. This document is a communication from the Australian mission in New Delhi. It contains information about the cooperation between Australian and Indian authorities. The respondent says it is exempt from release by reason of s 33(1)(a)(iii), which deals with damage to international relations, and s 33(1)(b), which deals with information communicated in confidence by a foreign government.

118.      Ms Stokes speaks to these issues in her affidavit. She said the information in the redacted portion of the document contains comment and frank judgements about Indian government processes. She said that release of the information might embarrass individual officials or the government as a whole and make them less inclined to cooperate in the future.

119.      I accept Ms Stokes’s evidence on this point. The material is mostly factual in nature, but there is commentary added by the author of the document that might generate controversy in the relationship. Apparently confidential or informal sources of information would also be compromised in ways that would harm the legitimate interests of the Commonwealth. I stress that I am not suggesting the information provides evidence that anyone acted improperly. Even so, frank assessments and open disclosure would be problematic for this country’s relationship with India. In those circumstances, I am satisfied the claims for exemption under ss 33(1)(a)(iii) and 33(1)(b) are made out.

Document 42

120. The respondent says document 42 is exempt under s 42 because it is the subject of a claim for legal professional privilege. I was told the author is a legally qualified public servant within the International Legal Branch of the Department of Foreign Affairs and Trade. I understand he has been admitted to practice. The material on its face is legal advice. Given the qualifications of the author, I accept the material attracts the privilege. I am not aware of any suggestion that the privilege has been waived: the subject matter of the advice, which is generally identified in the released portion of the document, was not considered in the course of the Solicitor-General’s opinion that was released to the public on 31 July 2007. I accept the claim for an exemption under s 42 has been made out.

Document 43

121. This document is an email between senior advisers foreshadowing the matters that would be considered in a range of meetings over the days that followed. The respondent says a significant portion of the material following the fourth dot point under the heading “Thursday 12 July” is exempt because it is an internal working document within the meaning of s 36. It adds the material should be deleted in any event because it is irrelevant under s 22.

122. I will say at once that I am satisfied the material in question is irrelevant. It is not covered by the terms of the applicant’s request. The information relates to what might be described as “structural issues” in the government’s approach to dealing with border security and other threats. It should be deleted pursuant to s 22.

123. As it happens, I am also satisfied the material is exempt under s 36. While much of it is factual, it also includes some evaluation of options. It is clearly opinion, advice or recommendation. It would be contrary to the public interest if it were released because it might make officials less frank in their assessments and more guarded in their advice.

Document 44

124. Much of the material in document 44 is found in other documents that I have already discussed. The entry at the top of the first page, which the respondent says is exempt pursuant to s 41 and irrelevant within the meaning of s 22, is identical to the entry in document 35. I am satisfied the entries should be deleted for the same reasons that I gave in relation to the entry in document 35.

125. There are a number of hand-written notes in the margin of the document. The respondent says the information in those notes is irrelevant for the purposes of s 22. During the course of the hearing, I was told of a further claim for exemption under s 37(2)(b) in relation to one of the words. I was told that the word was extremely sensitive and that its disclosure would be very damaging to national security. The same claim was made in Re Haneef and Australian Federal Police [2009] AATA 51. Deputy President McPherson discussed the claim at [86]. I was surprised when I received the submission as I recall reading the word in a newspaper story some months beforehand. It seemed to me the secret was already out. Even so, I took the claim under consideration. I was subsequently surprised to read the same word in a document that had been released to the applicant in the course of separate proceedings before this Tribunal against the AFP and the Commonwealth Director of Public Prosecutions. I raised this apparent anomaly with Dr Renwick, counsel for the respondent in both sets of proceedings. After obtaining instructions, he was able to inform me that the respondent no longer regarded the release of the word in question as being damaging. The claim in respect of that word under s 37(2)(b) was withdrawn.

126. Should the hand-written notes be deleted on the basis that they are irrelevant? I accept they should be with the exception of the first three lines. The information in the first three lines may be covered by the terms of the request in that it appears to be evidence supporting suspicions over Dr Haneef’s involvement in a plot. It should not be deleted. The rest of the information in the hand-written notes refers to someone else. It is irrelevant and should not be released pursuant to s 22.

127. The text in the final paragraph of page one is also irrelevant. It refers to other individuals and is not covered by the terms of the applicant’s request. I do not think it would be reasonable to release the information in any event. It is personal information relating to other named persons. Release of the information would seriously compromise their privacy. I am satisfied the exemption under s 41 is made out.

128. The first entry on page two of the document also contains irrelevant information. For the most part, the information relates to other individuals caught up in Operation Rain. Only three individuals are named. The respondent says those names are exempt from disclosure under s 41. I agree. Their names are not widely known, and it would be unreasonable to disclose them in circumstances where the individuals’ privacy might be seriously compromised. Dr Haneef is named in the extract as well, but only insofar as he has a relationship with the individuals. Notwithstanding the fact he is mentioned, I do not accept the information is relevant to the request. The information about Dr Haneef could not be disclosed in any event without identifying the other two individuals. I accept the information should not be released because the exemption under s 41 is made out, and because the information is irrelevant under s 22.

129. I am satisfied the second entry on page two is also irrelevant. Most of the information deals with general issues, like the progress of the investigation in the United Kingdom. I have some hesitation in reaching that view in relation to the material in the fifth dot point (the second dot point in the material that has been deleted), but I ultimately accept the material is not covered under the terms of the request. It should not be released by reason of s 22.

Document 45

130. This document is a draft that anticipates a number of scenarios. The respondent has only made one claim for an exemption. It is on the first page. An individual is named. The respondent says disclosing his name would amount to unreasonable disclosure of personal information. I do not agree: this individual’s name has been discussed widely in the press. I do not see how the release of this information would be unreasonable within the meaning of s 41. His privacy is already compromised. I am satisfied the information is irrelevant, however. It is not covered by the terms of the applicant’s request. The material should be deleted under s 22.

Document 47

131.      This document is the record of outcomes of another meeting of the National Counter-Terrorism Committee – Australian Government that was held on 11 July 2007.

132. The respondent says material in numbered paragraph 2(a) is exempt under s 41 on the basis that it discloses personal information about an individual. I agree that the information is personal. The individual has been named elsewhere, but the information accompanying the name is not widely known. It would be an unreasonable breach of the individual’s privacy to release that information. I accept the exemption is made out. The information is irrelevant in any event, but the respondent has not made any submissions to that effect.

133. Material has also been deleted from numbered paragraphs 4, 5, 6 and 7 on the basis that it is irrelevant for the purposes of s 22. I agree. The material is not covered by the terms of the applicant’s request. It is general information that does not relate directly to the Haneef investigation.

Document 48

134.      This document is a briefing note to the Prime Minister. I understand from the evidence that it was never sent; it is a draft document. The respondent says a large portion of pages one and three and the whole of page two is exempt from release because it is an internal working document.

135.      I accept the material in the redacted passages is opinion, advice or recommendation that has been prepared in accordance with a deliberative process. I do not think it matters that the document was only in draft form and was never used for its intended purpose. The question is whether it would be contrary to the public interest for the material to be released.

136. The redacted portions of the document set out various scenarios of what might occur at the conclusion of the investigation. Some of this material is purely factual; but some of it involves analysis and discussion of implications. Some of the options are considered in more detail than others. I think the material should be suppressed on the basis that disclosure might threaten the willingness of advisers to communicate frankly with the government. In reaching that view, I take into account the fact that the document is in draft form. The fact the material is in draft form makes it harder to ascertain whose views are represented in the draft. There is a danger that this material could mislead the public about the decision-making process. The exemption under s 36 is made out.

137. There is a claim under s 41 with respect to the material under the heading “Issues – other people of interest”. I think the first two lines of the entry can be released. The individual in question has already been named in the media. His privacy, sadly, has already been compromised. It would not be unreasonable to provide the information in the first two lines of the entry. The whole of the second paragraph with the exception of the person named should also be released. Although this individual has been named elsewhere, the extent of any relationship with visa applicants does not appear to have been the subject of media speculation. It would be unreasonable to release that information in those circumstances. The third paragraph should also be released apart from the last sentence. The last sentence may have the effect of providing additional detail that is not necessarily widely known or understood, and may therefore compromise the privacy of the named individuals. But the disclosure of the balance of the material is not unreasonable.

138. The fourth page includes material that the respondent says is irrelevant. I agree it is irrelevant to the terms of the request and should be deleted pursuant to s 22. It relates to other matters.

Document 51

139.      This document is an email from an adviser to the Attorney-General seeking information about a range of topics. The respondent says the deleted material is irrelevant. I agree. The redacted material contains a request for information about a wide range of matters relevant to the Attorney’s portfolio. The only aspects of the request that are covered by the terms of the applicant’s request have been released. The rest of the material should be deleted.

Document 52

140. A number of entries in this document have been deleted on the basis that they are irrelevant. I have examined them all and agree they are not covered under the terms of the applicant’s request. Most of the matters discussed in the redacted portions of the document are general in nature, obviously unrelated or relate to administrative processes like the timing of future meetings. An individual is named and the respondent says the exemption under s 41 should apply. I am inclined to agree. While the individual’s name is known, the information about that person may not be. All of the material is properly deleted.

Document 53

141. The respondent says disclosure of the material in the fifth dot point under heading 2(a) of the document is exempt from disclosure by reason of 41. I agree. Although the individual in the entry has been named elsewhere, the information that accompanies his name may not be widely known. It would be an unreasonable imposition to disclose the material. The exemption under s 41 is made out.

142.      An exemption has also been claimed in respect of the material on page 2 under heading 3. The material includes a brief summary of the investigation in the United Kingdom. The respondent relies on ss 33(1)(a)(iii) and 33(1)(b). The material in question is in similar form to that which appears in document 19 and other documents – indeed, it may be a cut-and-paste of that information. I am satisfied the exemptions are made out with respect to this material for the same reasons I gave in the discussion of document 19.

143. The last page includes material that the respondent says is irrelevant. I am not satisfied that the first two sentences are irrelevant. Out of an abundance of caution, I would set aside the decision to delete the material pursuant to s 22 and remit the matter to the respondent to reconsider whether an exemption should be claimed, although the names of the two individuals should be removed to protect their privacy in any event. The rest of the material seeks updates of a more general nature. I do not think it is relevant and it should not be released.

Document 55

144. This document is another record of outcomes of a meeting of the National Counter-Terrorism Committee on 12 July 2007. The respondent says the material in numbered paragraphs 4, 5 and 6 is irrelevant. At the hearing, some of the material was released on the basis that it plainly was relevant. I am satisfied that the balance of the material is irrelevant. It does not discuss the investigation into the applicant and is not covered by the terms of the request. Subject to the respondent’s concession, the material should be deleted pursuant to s 22.

Document 60

145.      This email communication refers to plans for a phone conversation between the Prime Minister and his Indian counterpart. The respondent says the material which has been deleted is exempt from disclosure because its release would damage international relations: s 33(1)(a)(iii). The applicant noted the document refers to talking points and asked whether release of the material could do any damage now that the discussion has occurred.

146.      The description “talking points” does not adequately describe the material. Some of the material is comprised of advice on how best to approach the discussion. I am satisfied that release of that material would be embarrassing and potentially damaging to the relationship between this country and India. I am satisfied the claim for an exemption is made out.

Document 62

147.      This document includes several entries that have been deleted on the basis that they are irrelevant. The respondent says the first entry is also exempt on the basis that it contains personal information.

148. I am satisfied that all of the material with one exception is irrelevant. The material does not arise directly out of the Dr Haneef investigation and does not come within the terms of the request. The exception is found in the third entry at the bottom of the first page. The third line of the text underneath the first heading (commencing at the second dash point) does appear to refer to the investigation and reports of its progress. In order to make sense of the entry, the heading should also be released. While the heading is not relevant in and of itself, it is necessary to provide context for the entry that I have decided should not be deleted pursuant to s 22. I set aside the decision to delete the material pursuant to s 22. I remit that decision to the respondent to consider whether an exemption should be claimed.

Document 63

149. I was told this briefing document was prepared in draft form but never finalised or sent to the Prime Minister. The respondent claims a large portion of the first page and the whole of the second page is exempt on the basis it is an internal working document within the meaning of s 36.

150. I am satisfied the deleted material contains opinion, advice or recommendations within the meaning of s 36. The information is largely factual, but there is some canvassing of options and a rudimentary discussion of their implications and advantages. The document was obviously prepared for the purposes of a deliberative process of a minister of the Crown. The question is whether disclosure of the deleted portions of the document would be contrary to the public interest.

151. I have already discussed the meaning of the expression “public interest” in this context. The respondent says there is a risk in releasing draft documents because they do not necessarily convey the concluded view of the author on the issues in question. There is a danger that, taken out of context, the draft document might convey a misleading impression of the government’s thinking. There is something to be said for that argument, although it may be relatively easy to put the document in context. There may also be a public interest in seeing how the government’s view evolved. As it happens, I do not need to resolve those questions here as I am satisfied the exemption is made out under s 36 for the same reasons that I gave in relation to the claim in respect of document 32. The material in this document is of the same kind as the material in document 32.

152. The third page of document 63 also includes material which is the subject of a claim for exemption under s 41. The information about one named individual in particular is plainly sensitive. Release of that information would seriously compromise the privacy of the individual concerned. There is no public interest served by releasing the information. The claim for an exemption in respect of the entire entry is made out.

153. The last deleted entry on page 3 of document 63 refers to irrelevant material. It has been properly deleted pursuant to s 22. The material is unconnected to the investigation into Dr Haneef. It is outside the terms of his request for information. The deleted material should not be released.

Document 65

154.      This document is a chain of email correspondence. It records and refers to information provided by the Australian High Commissioner to India. The respondent says the material is exempt because its release would harm Australia’s international relations: s 33(1)(a)(iii).

155.      I have had regard to the affidavit by Ms Stokes. The material which is subject to the claim for an exemption is plainly the sort of sensitive information that she fears might damage the relationship with India if it were to be made public. There is nothing salacious or explosive or disparaging in the material, but it is easy enough to see how the frank discussion would irritate and embarrass officials of a sensitive foreign government. That irritation would damage Australia’s relationship with an important power in our region. The exemption is made out.

Document 70

156. Document 70 is a cable from the Australian High Commission in New Delhi. Large portions of it are subject to a claim for an exemption under s 33(1)(a)(iii), although there are also two portions that the respondent says are exempt because they contain information conveyed in confidence by a foreign government: s 33(1)(b). The respondent withdrew its claim for exemption with respect to numbered paragraph 10 at the hearing. I agree that was appropriate since there is nothing in that paragraph that could possibly upset anyone.

157.      The balance of the material is plainly of a kind that would damage the relationship between Australia and India for the same reasons I gave in relation to the material in document 65. If anything, the information in this note is even more sensitive, so that the damage that would follow its release would be all the greater. There is no doubt the claim for an exemption under s 33(1)(a)(iii) is made out. For the sake of completeness, I would add I am satisfied the claim under s 33(1)(b) is also made out. The material over which the exemption is claimed is plainly sensitive information conveyed to Australian officials on the basis that it would remain confidential.

Document 71

158.      This document, from the Australian High Commission in New Delhi, contains more material that is subject to a claim for an exemption under ss 33(1)(a)(iii) and  33(1)(b).

159.      This material includes expressions of opinion and other information that would be embarrassing to the Australian and Indian governments if it were released. It also includes information that, on its face, was obviously communicated in confidence. I am satisfied the claims for exemption have been made out.

Document 73

160. This document includes two emails. An exemption was originally claimed under s 36 in respect of the first email. My notes show that claim was withdrawn and the document was released at the hearing. The respondent maintains that the bulk of the second email is exempt on the basis that the contents of the email attract legal professional privilege.

161.      The applicant points out in his Statement of Facts and Contentions that a claim for legal professional privilege cannot be made where the material in question is merely a record of a communication about legal advice.  The wording of the email is odd. On its face, it suggests it may in fact be a comment on the legal advice. But a careful reading of the language of the email persuades me that the material forms part of an exchange of queries between a lawyer and his client clarifying the advice that has been given.

162. The applicant also pointed out that a claim under s 42 cannot be made if the privilege has been waived. I have already noted the Solicitor-General’s advice of 31 July 2007 was released to the public by the Minister. A reading of that advice shows that the matters raised in the email were not covered directly in that opinion. I am satisfied the claim for an exemption under s 42 is made out.

Document 74

163. This document is a “Key Issues Update”. It was created on 16 July 2007. There is only one entry with deleted information, which refers to “Other Persons of Interest in Australia”. The respondent had made a claim under s 41. I do not see how the information contained in the second line qualifies as personal information. The identity of the individual named in the first line is obviously personal information. As it happens, I do not think it is necessary to decide whether the material is exempt as I am satisfied it is irrelevant for the purposes of s 22 and should be withheld on that basis.

Document 76

164. This document is another communication from the Australian High Commission in New Delhi. There have been several extracts redacted from the released document. The respondent says two extracts – one on page 1 and the second on page 3 – are exempt pursuant to s 41 because they contain personal information that should not be released. The extracts both refer to a single-named individual. I agree the information is personal information of the kind described in s 41. Given I am not aware that the individual in question has otherwise been named in connection with these proceedings and his privacy might be compromised to no particular end, I think it would be unreasonable to disclose that information. The exemption under s 41 is made out.

165.      There are three other sections of deleted material. An exemption has been claimed under s 33(1)(a)(iii) in respect of all three entries. The respondent says the information in the deleted entries would damage Australia’s international relations were it to be released. I note Ms Stokes has spoken about this material.

166. I am at a loss to understand how the material in the first entry or the second entry could damage Australia’s international relations. The material is, for the most part, platitudinous. There is nothing remarkable or embarrassing in what is said. After careful consideration, I do not think there is anything problematic about the release of paragraphs five and six, which are also subject to a claim for exemption under s 33(1)(a)(iii). I accept the material in numbered paragraphs seven and eight may be more contentious – especially the material in paragraph eight, which contains commentary from the High Commission – and there should be a claim for an exemption under s 41 over the personal details of the individual named in paragraph eight. On balance, I am satisfied the exemption under s 33(1)(a)(iii) does not apply to the material contained in the summary and in numbered paragraphs four, five and six.

167. The respondent has also claimed an exemption under s 33(1)(b) in respect of numbered paragraphs four, five, six, seven and eight. The respondent says the material was information or matter communicated in confidence by or on behalf of a foreign government. The text of the cable makes it clear the discussion took place in private. But that does not mean the material was necessarily communicated in confidence. It is necessary to look at the objective nature of the material and the circumstances in which it was communicated before reaching the conclusion that it was communicated in confidence.

168. I turn firstly to numbered paragraph four. The first sentence is obviously not communicated in confidence. The second sentence looks as if it was. The third sentence does not appear to be of a confidential nature. The fourth sentence is more sensitive and probably was intended to be confidential. I am satisfied the exemption under s 33(1)(b) should only be available in respect of the second and fourth sentences in that paragraph.

169.      I do not see anything in numbered paragraph five that bears the hallmarks of confidentiality. There is nothing embarrassing in the material. For the most part, it is of a general nature. There is no reason to believe it was sensitive information or that it was intended to remain a secret. The exemption should not be available in respect of that material.

170. The material in numbered paragraph six is more complicated. The first and second sentences do not bear the hallmarks of confidentiality. The third sentence is arguably more sensitive; the fourth sentence is only sensitive in so far as it sheds light on what the preceding sentence says. The last two sentences are not obviously sensitive and there is no reason to believe they were communicated in confidence (as opposed to communicated in private). The exemption under s 33(1)(b) should only be available with respect to the third and fourth sentences of paragraph six.

171. The material in numbered paragraphs seven and eight is more sensitive. It refers to a number of matters that, while not damaging in their own right, were still apparently discussed in confidence. I reach that conclusion on the basis of the nature of the matters that were discussed and the way in which the comments were recorded. The exemption under s 33(1)(b) should apply in respect of this material.

Document 78

172. The respondent says this memorandum to the Prime Minister from one of his advisers is irrelevant and should therefore be deleted pursuant to s 22. In the circumstances, I think the material is irrelevant. While it does not make for edifying reading, the note arises out of events surrounding the investigation but does not arise out of the investigation itself. It says nothing about the decision to detain the applicant or cancel his visa. It does not even qualify as a communication about the applicant. The material should not be released.

Document 79

173.      There are three comments deleted from document 79. The respondent relies on s 33(1)(a)(iii) in respect of all three comments. The first two – one in the summary and the second in paragraph two – are practically the same. I do not see how the release of this information could be damaging. I did not read anything in Ms Stokes’s affidavit that would persuade me to a contrary view. The comments themselves are unremarkable, as is the fact they were made. They could not embarrass either government. The exemption should not be available in respect of those two entries.

174.      I take a different view in relation to the third entry. The comment there is more contentious. If it were released, it would rankle and embarrass. I am satisfied its release would be damaging to international relations. The exemption under s 33(1)(a)(iii) is made out in respect of that comment.

Document 82

175. There were originally two entries that were subject to claims for exemption. The claim in respect of the first entry was withdrawn at the hearing. The second entry refers to a named individual. The respondent says it would be contrary to the public interest to release that individual’s personal details: s 41. It also says the information is irrelevant within the meaning of s 22. I agree on both counts. The individual has not been named in the public domain so far as I am aware. There is no compelling public interest that would offset the damage done to his privacy. The material is in any event unrelated to the terms of the request. It should not be released.

Document 85

176.      These talking points were apparently prepared for the Foreign Minister in anticipation of his telephone conversation with his Indian counterpart. The respondent says the first paragraph on page three under the heading “Background” would damage international relations within the meaning of s 33(1)(a)(iii) if the information were released. I do not see how its release would be damaging in the circumstances. There is nothing obviously explosive, uncomplimentary or damaging about the material. I certainly cannot be satisfied the material “would, or could reasonably be expected to” damage Australia’s international relations. The exemption should not be available in respect of that material.

177. I would be inclined to a similar view in relation to the material at the end of the third paragraph. The information should not be subject to an exemption under s 33(1)(a)(iii). But the respondent also asserts that part of the material was supplied in confidence by or behalf of a foreign government. The objective nature of the comment suggests it was intended to be a confidential assurance that should not be released. I think the material should not be released pursuant to s 33(1)(b).

Document 91

178.      This diplomatic communication from the Australian High Commission in New Delhi contains a single expression of opinion in numbered paragraph 10 that the respondent says should be exempt under s 33(1)(a)(iii). The frank nature of the comment is such that it is easy to understand why it would be damaging to international relations. It should not released in those circumstances.

Document 92

179. This communication from the Australian High Commission recounts a conversation with a prominent figure. The comments recorded were clearly made in confidence. The respondent says the material is exempt pursuant to ss 33(1)(a)(iii) and 33(1)(b). The material in paragraphs one through four is obviously exempt pursuant to s 33(1)(b). Paragraph five is insubstantial and reveals nothing. It should be released. However paragraphs six and seven discuss the implications of the preceding paragraphs. The information is more telling. I am satisfied it could reasonably be expected to damage Australia’s international relations, quite apart from identifying the individual who made the comments in the earlier paragraphs. That material should be exempted pursuant to s 33(1)(a)(iii).

Document 93

180. Document 93 includes a brief comment about a case that is unconnected with the applicant and the investigation. It is plainly irrelevant within the meaning of s 22. It should be deleted from the material.

Document 95

181. This document is an incident log. A number of matters have been deleted on the basis they are irrelevant. There is also an entry on 10 July 2007, which the respondent says contains personal information that is exempt from disclosure pursuant to s 41. I am not persuaded the personal information in question should be exempted pursuant to s 41 because the information is already in the public domain, and the individual’s privacy has already been compromised. But I am satisfied that the information about that individual is not relevant to the terms of the applicant’s request.

182. Indeed, I reach that view in relation to all of the other material that has been deleted pursuant to s 22 in this document. A large number of other matters that arose in the weeks following the Glasgow bombing are recorded in this document; those of them that do not relate to the applicant and do not fall within the terms of his request are irrelevant.

Document 96

183. The bulk of the information in this document has been deleted on the basis that it is irrelevant within the meaning of s 22. A quick perusal of the document confirms that the deleted material does not relate to the applicant or the terms of his request. The material should not be released.

Document 97

184. This document is a letter from a foreign official. The respondent says the document should be exempt pursuant to ss 33(1)(a)(iii) and 33(1)(b). The content of the letter is obviously intended to be confidential. I am satisfied that it was communicated in confidence and should not be released pursuant to s 33(1)(b). The claim under s 33(1)(a)(iii) is less clear cut, although in the circumstances it does not matter. The document is exempt from production.

Document 98

185. This document is a diplomatic cable. The respondent relies on ss 33(1)(a)(iii) and 33(1)(b). The nature of the material contained in the text of the cable makes it clear the information in question was communicated in confidence. It is also easy to see how the release of that information would compromise Australia’s relationship with India. I am satisfied both exemptions are available in respect of the paragraph of text under the heading “Summary”. It is unclear how the information contained in the second half of the first page and extending over to the second page satisfies the requirements of either exemption which has been claimed, although I suppose there is an argument that the material is irrelevant pursuant to s 22. In the absence of a valid claim for an exemption, I would vary the decision to release the balance of the material.

Document 108

186. This string of email communications contains one entry that has been withheld on the first page on the basis that it is irrelevant. I agree that it is irrelevant; it does not relate to the investigation into the applicant or fall within the terms of his request. It should be withheld pursuant to s 22.

Document 112

187. The last document in the bundle sets out a summary of actions against suspected terrorists that were on foot at the time in Australian courts. The information does not relate to the applicant or his investigation, nor does it fall within the terms of his request. It should be deleted pursuant to s 22.

Conclusion

188. I have set out my formal decision in a schedule. The schedule notes where aspects of the decision have been affirmed, varied or set aside. I have decided to remit for reconsideration a number of the decisions where I have rejected the respondent’s contention that material is irrelevant for the purposes of s 22. I have done so because I was told during the hearing that the respondent had not necessarily claimed any and all exemptions it said were open if it also argued the material was irrelevant. I am certainly not inviting the respondent to make further claims in relation to those documents. Even so, I felt constrained to give it the opportunity to at least consider the question in circumstances where I was told, in effect, that the respondent had not turned its mind to other claims.

189.      The decision does not take effect until 14 days after these reasons have been published to the parties.

I certify that the 189 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:..............................[Sgd]................................................
  Michael Buckingham, Associate

Dates of Hearing  28-30 April 2009
Date of Decision  9 October 2009
Counsel for the applicant          Mr S Keim SC
  Mr G Rebetzke
Solicitor for the applicant          Maurice Blackburn Lawyers
Counsel for the respondent      Dr J Renwick
Solicitor for the respondent      Australian Government Solicitor