Harinder Kharbanda and Australian Federal Police
[2009] AATA 514
•7 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 514
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3572
GENERAL ADMINISTRATIVE DIVISION
)
Re
Harinder Kharbanda
Applicant
And
Australian Federal Police
Respondent
DECISION
Tribunal
Ms N Isenberg, Senior Member
Date7 July 2009
PlaceSydney
Decision
The decision under review is set aside in respect of document 21. In respect of all other documents, the decision under review is affirmed.
..........[sgd]....................................
Ms N Isenberg
Senior Member
CATCHWORDS:
FREEDOM OF INFORMATION –whether certain documents are exempt from disclosure to Applicant –..whether information would reasonably be regarded as irrelevant to the request – whether document could be characterised as an internal working document and whether its release would be contrary to the public interest – whether release of document would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency – whether release of documents would involve unreasonable disclosure of personal information – decision under review set aside in respect of Document 21 – decision under review affirmed in respect to all other documents.
LEGISLATION:
Freedom of Information Act 1982: ss 22, 36, 40, 41
CITATIONS:
Attorney-General's Department and Anor v Cockcroft (1986) 12 ALD 468
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re James and Australian National University (1984) 6 ALD 687
Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588
Re Brennan and Law Society (ACT) (1985) 8 ALD 10
Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139
Re Sutherland Shire Council and DISR and DOFA (2001) 33 AAR 508
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39.
Re Murtagh and Federal Commissioner of Taxation (1984) 54 ALR 313
Re Lianos and Department of Social Security (1985) 7 ALD 475
Re Telstra and ACCC [2000] AATA 71
Harris and Australian Broadcasting Tribunal (1983) 50 ALR 567
Re Haneef and Minister for Immigration and Citizenship (2008) 103 ALD 336
Re Haneef and Australian Federal Police [2009] AATA 51
Department of Social Security, v Dyrenfurth (1968) 15 ALD 232
Boehm v Commonwealth Ombudsman (1985) 8 ALN N29
Fryar v AFP (1988) 17 ALD 25
Lynch v HREOC (1992) 27 ALD 647
In Attorney-General's Department and Anor v Cockroft (1986) 10 FCR 180
Ascic and AFP (1986) 11 ALN N184
Re Dyrenfurth and Department of Social Security (1987) 12 ALD 577
Re Thies and Department of Aviation (1986) 9 ALD 454
Wallace and Merit Review Agency (1995) 38 ALD 773
James and Australian National University (1984) 6 ALD 687Petroulias and Others v Commissioner of Taxation (2006) 62 ATR 1175
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Hall and Australian Federal Police [1986] AATA 451
REASONS FOR DECISION
7 July 2009
Ms N Isenberg
1. The Applicant, Harinder Kharbanda, seeks review of a decision made by the Respondent, the Australian Federal Police (AFP), to refuse access to documents or parts of documents under the Freedom of Information Act 1982 (“the FOI Act”).
2. Mr Kharbanda made his FOI request in a letter dated 17 June 2008 in the following terms:
1.Under the Freedom of Information Act 1982 I request you to kindly release:
(A)(A)All record on me available under the Act including but not limited to:
(i) Copies of all the documents created by the AFP on me.
(ii) Copies of all the documents received by the AFP on me.
(iii) Copies of all the documents created or received on someone else but in which my name is explicitly or implicitly involved.
(iv) Copies of all recorded telephone conversations including (but not limited to) the record of telephone conversation with Mr Adrian Craft on Tuesday, 05/Feb/2008 at about 13:40.
(B)Copy of the department's FOI Manual.
(C)Copy of all the documents such as any current and or proposed agreement/s or Memorandum of Understanding between DIAC and Australian Federal Police and NSW Police regarding the policing of the Commonwealth Places such as Villawood Immigration Detention Centre.
2.For the purpose of this application the word "document" has the same meaning as defined in section 4 of the FOI Act and the meaning of the word AFP includes all the officers, employees, contractors, subcontractors and the employees of the contractors and subcontractors of the department.
…
3. Some documents were provided to Mr Kharbanda in full, and some were redacted.
4. On 20 July 2008, the Respondent issued an internal review decision in which the original decision was affirmed.
5. Mr Kharbanda now seeks review of that decision and the parties have consented to that review occurring on the papers filed at the Tribunal.
CONSIDERATION OF THE EVIDENCE
6. The Respondent claimed exemption from production of documents or parts of documents on various grounds under the FOI Act:
§Section 36(1)(a) – matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth (part document 29)
§Section 40(1)(d) – substantial and adverse effect on the proper and efficient conduct of the operations of the agency and disclosure would be contrary to the public interest (part document 21)
§Section 41(1) – personal information about third parties (document 434566187 as marked in yellow T1.7 and ff and noting if part of document only eg “part document 6”))
§Section 22(1)(a)(ii) – outside the scope of request (part document 28)
ISSUE BEFORE THE TRIBUNAL
7. The issue before the Tribunal is the question whether documents or parts of documents held by the Respondent are exempt from disclosure under under ss 36(1 )(a), 40(1)(d); 41(1) of the FOI Act or are outside the scope of the request under s 22(a)(ii) of that Act?
CONSIDERATION OF EVIDENCE AND FINDINGS
8. By way of introduction, I note that the object of the FOI Act is “to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth”: s 3 of the FOI Act. Documents may be exempt from release on limited bases.
Document 28 (part): exemption claimed under S 22(1)(a)(ii)
9. Document 28 is the diary notes of AFP Officer Adrian Craft.
10. Section 22(1)(a)(ii) of the FOI Act permits the deletion of information that would be “reasonably regarded” as irrelevant to the request.
11. Deputy President Forgie in Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683, considered the expression “would be reasonably regarded” with reference to the Full Federal Court’s decision in Attorney-General's Department and Anor v Cockcroft (1986) 12 ALD 468 and stated at [32]:
… it seems to me that I must consider whether disclosure of certain information might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request for access made under the Act.
…
12. The relevance of documents should be considered in the context of the Applicant's request and the Respondent is to bear in mind that the documents requested may be in broad terms and should not be interpreted in the same detail that one would interpret legislation or pleadings (Cockcroft at [34]).
13. I was provided with an unredacted version of the document. It is clear from the face of the part of the document over which the exemption is claimed, that it relates to other non-related policing duties of Officer Craft. I am satisfied that the deleted information from the material provided to Mr Kharbanda is “reasonably regarded” as irrelevant to his request.
Document 29: exemption claimed under s 36(1)
14. The Respondent advised that Document 29 is “part” of a proposed Memorandum of Understanding (MOU) between the AFP and the Department of Immigration and Citizenship (DIAC) and potentially other agencies, although this was not clear on the face of the document. The draft MOU was said to be “in its infancy in terms of development” and that the contents of the document were said not to be the subject of any final agreement, and as such, would therefore be misleading.
15. Firstly, Mr Kharbanda did not accept that the AFP holds only an incomplete copy of the MOU dated 2002 and therefore the search for the document was not adequately conducted.
16. The Respondent’s position was that in response to Mr Kharbanda’s request, all reasonable steps were taken to locate and identify the documents requested. It conducted physical and electronic searches of its holdings in relation to Mr Kharbanda in order to identify documents that fell within the scope of his request and the statement of reasons sets out details of the search process. Specifically, in relation to a more detailed draft or final version of the MOU which Mr Kharbanda said is missing, having regard to the breadth of the search outlined in the statement of reasons, the evidence satisfies me as to the extent of the search and the documents appear to have been diligently extracted and provided to Mr Kharbanda: Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138. On balance therefore I am satisfied that “reasonable” steps have been taken to “locate” all of the documents the subject of Mr Kharbanda’s request.
17. Secondly, in support of his contention that the draft MOU is not properly exempted from production the Applicant submitted, in summary, that responsibility for the investigation of criminal conduct in immigration detention centres is passed between agencies and that evidence is being suppressed by the AFP, DIAC and New South Wales Police to promote an impression that the current mandatory detention policy is in the national interest.
18. Section 36 of the FOI Act provides:
36.Internal working documents
(1)Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b)would be contrary to the public interest.
…
(3)Where a Minister is satisfied, in relation to a document to which paragraph (1)(a) applies, that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.
…
19. While s 36 is headed “internal working documents”, s 36(1)(a) refers to documents which might disclose the “deliberative processes” of government. This is to be construed widely: Re James and Australian National University (1984) 6 ALD 687 at 694. Having said that though, it has been said that “deliberative processes” is synonymous with “policy-forming processes”, the “thinking processes” involving weighing up or evaluating competing arguments or considerations that may have a bearing on a course of action, decision or proposal: Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at 605. Not every document on an agency file will fall into this category: Re Brennan and Law Society (ACT) (1985) 8 ALD 10 at 16.
20. Examples of documents which might fall within the definition of “internal working documents” were considered in Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435. The whole document is to be read in forming a view. Further, the surrounding circumstances are to be considered: Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139.
21. The term “public interest” is not defined in the FOI Act, but it is open to the Minister to conclusively establish that the disclosure of that document would be contrary to the public interest: s 40(2). In this matter though, no certificate has been provided by the Minister in relation to this document.
22. I note that in Subramanian the Tribunal referred to “public interest” as the “principal thrust of the Act”. The emphasis though is whether disclosure would be “contrary to” the public interest: Re Sutherland Shire Council and DISR and DOFA (2001) 33 AAR 508. Disclosure which may expose the Department to public discussion and criticism and possibly embarrassment does not suffice to preclude disclosure of a document: Commonwealth v John Fairfax& Sons Ltd (1980) 147 CLR 39.
23. It comes then to a question of balance: would the release of document impair the AFP’s thinking process to such a degree to that it outweighs the benefit to the public of release of the document?: Re Murtagh and Federal Commissioner of Taxation (1984) 54 ALR 313.
24. On the one hand, there is the general public interest in obtaining access to government-held information (Re Lianos and Department of Social Security (1985) 7 ALD 475) and in particular, the public being able to scrutinise the AFP's operations with respect to the Villawood Detention Centre and to make its own judgement as to whether the agency is discharging its functions properly (Re Telstra and ACCC [2000] AATA 71).
25. On the other hand, as the Respondent submits, premature release of preliminary, tentative and partially considered matters may mislead and encourage ill-informed speculation (Harris and Australian Broadcasting Tribunal (1983) 50 ALR 567).
26. I was referred to Re Haneef and Minister for Immigration and Citizenship (2008) 103 ALD 336, where the Tribunal held (at 345) that it would be contrary to the public interest to disclose information which may be misconstrued. In Re Haneef and Australian Federal Police [2009] AATA 51, the Tribunal at [61] that, in the context of the particular document, it would be against the public interest to disclose “an authentic précis of police investigation techniques as well as the problems of enforcement in relation to ... crime”.
27. In the statement of reasons, the decision-maker noted that if such information was disclosed, it would restrict the AFP's ability to communicate freely and openly with other agencies in the development of MOUs; and that if information concerning the draft MOU was revealed it may damage relations with other government agencies with regard to cooperative arrangements involving law enforcement. Mr Kharbanda submitted that the AFP should not be allowed to communicate freely and openly ‘if there are certain laws which apply some restrictions upon the agencies”, which I infer means he considers agencies should not communicate freely. He also submitted that it is in the public interest that the members of public are able to scrutinise whether the officers of the agencies have acted within the limits of law in communicating with the other agencies in any matter, including the development of MOUs. I reject that contention because in situations where more than one agency has a role in respect of a government service it would be poor governance, by any standard, not to co-operate in the delivery of that service.
28. Mr Kharbanda also submitted that there is no reason that release of MOU will damage the relations of AFP with other government agencies because there must already be a lack of “cooperative arrangements” between AFP, DIAC and New South Wales Police if the MOU is still in draft form after so many years. One can only speculate as to what has transpired such that no final MOU has been reached, but, in my view, nothing turns on this.3
29. There are three major factors which have affected my decision in relation to this document. Firstly, it is a draft; secondly, it is incomplete; and thirdly, it is still in draft form – now nearly seven years after its creation. Those factors weigh heavily in coming to my view that the document is only preliminary in its nature and that it may mislead members of the public and encourage ill-informed speculation.
30. Mr Kharbanda also submitted that concerned members of the public who may be affected should have input into drafts of MOUs. This is quite a bizarre proposal. While many aspects of government may involve consultation with members of the public, there are limited circumstances where this is mandatory. If it were otherwise, the business of government would grind to a halt.
31. Mr Kharbanda accepted that an incomplete document “could” mislead some people but contended that a mere “possibility” is not enough to justify the claim of exemption. He speculated that the document may help in exposing or highlighting the evidence of the incompetence or corruption within the AFP and other agencies. I do not accept Mr Kharbanda’s contention that misleading information may not necessarily be contrary to public interest. I find the document is exempt from production.
Document 21 (part): exemption claimed under s 40(1)(d)
32. Document 21 is an email between an FOI officer of DIAC and an FOI officer of AFP.
33. The Respondent contends that when processing FOI requests containing information obtained from other Commonwealth agencies, it is of utmost importance that free and frank communication between those agencies occurs to ensure the efficient processing of requests for information. Disclosure of such communications could reasonably be expected to hamper the exchange of matters relevant to the agencies, which would in turn diminish the quality of decision making in relation to the release of information to FOI applicants.
34. Mr Kharbanda contends that there is no legislative basis for the Respondent’s claim, and, in any event, the Respondent has not explained how free and frank communication was of utmost importance for ensuring the efficient processing of his FOI request.
35. Section 40 provides as follows:
(1)Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency;
(2)This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
…
36. The relevant test is the effect of disclosure of the information rather than the subject matter of the information (Department of Social Security, v Dyrenfurth (1968) 15 ALD 232; Boehm v Commonwealth Ombudsman (1985) 8 ALN N29, Fryar v AFP (1988) 17 ALD 25 and Lynch v HREOC (1992) 27 ALD 647).
37. The decision-maker's function is “to attempt to form an opinion, on the evidence, as to what can reasonably be expected to happen if disclosure occurs” (Attorney-General's Department and Anor v Cockroft (1986) 10 FCR 180 at 190). In this matter, however, there was no evidence as to what could reasonably be expected to happen as between AFP and DIAC if this information were released.
38. As to “substantial adverse effect”, the Tribunal has adopted different approaches as to what constitutes substantial. See, for example: Ascic and AFP (1986) 11 ALN N184; Re Dyrenfurth and Department of Social Security (1987) 12 ALD 577; Re Thies and Department of Aviation (1986) 9 ALD 454; and Wallace and Merit Review Agency (1995) 38 ALD 773. Here though there was no evidence of any adverse effect, let alone a substantial one.
39. In referring me to James and Australian National University (1984) 6 ALD 687 and Petroulias and Others v Commissioner of Taxation (2006) 62 ATR 1175, the Respondent contended, in effect, that the provision of information under the FOI Act is an “operation” of the AFP and that release of the information would have an adverse effect on the “operations” of the AFP. I do not accept that to be the case. The provision of information under the FOI Act is not part of the AFP’s core business which might generally be described as the prevention of crime in the Commonwealth arena, but rather, an obligation that flows from the nature of its role as a government agency.
40. The Respondent did not explain how the disclosure of such communication in Mr Kharbanda’s case could hamper the exchange of lawful matters relevant to the agencies and thereby diminish the quality of decision-making with respect to the release of information to FOI applicants. I do not accept that disclosure of such communication would hamper proper and lawful exchange of matters relevant to the agencies and consequently would not diminish the quality of the decision-making with respect to the release of information to FOI applicants.
41. I note that in Re Brennan the Tribunal rejected an argument that s 40(1)(d) could be invoked to facilitate confidential communications on “sensitive” matters necessary for the proper and efficient conduct of the operations of an agency, regardless of content. In this matter, it could not, in my view, even be said there was any “sensitivity” about the information sought to be exempted.
42. The Respondent also invited me to consider whether the exempted information in Document 21 is irrelevant to the Applicant's request, but did not elaborate on this contention. I reject this submission. The information clearly relates to the manner in which Mr Kharbanda’s FOI request was managed.
43. I find the document is not exempt from production.
Documents 6, 7, 9, 10, 11, 12, 13, 14, 18, 20, 38, 39, 40, 41, 42, 43, 44, 46, 48, 49, 50, 52, 54, 55, 57 and 58: exemption claimed under section 41(1)
44. Exemption was claimed under s 41 in respect of parts of these documents on the basis that the documents contain personal information of third parties. That information was in two main categories: the mobile phone numbers of Commonwealth officers and information about detainees at the Villawood Detention Centre other than Mr Kharbanda.
45. A document is an exempt document if its disclosure under the FOI Act would involve the unreasonable disclosure of personal information about a person: s 41(1). “Personal information” is defined in s 4 of the FOI Act as:
… information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
…
46. I was referred to Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at n259, which identifies several factors as to whether disclosure would be unreasonable, including:
§the nature of the information that would be disclosed;
§the circumstances in which that information was obtained;
§the likelihood of the information being information that the person concerned would not wish to have disclosed without consent; and
§whether the information was of any current relevance.
47. Documents 6, 7, 9, 10, 11, 12, 13, 14 and 18 contain the mobile phone numbers of Commonwealth officers. Mr Kharbanda contends that there is no evidence as to why the release of personal information would be unreasonable. I was informed that the Respondent has released to Mr Kharbanda the official office numbers and contact details of those officers, and this appears to be the case from the information provided in the balance of the documents. As to the mobile phone numbers of Commonwealth officers involved in the matter, I reject Mr Kharbanda’s submissions. It is irrelevant whether the mobile phone numbers of the Commonwealth officers are their personal numbers or if the phones are issued by the government. While DIAC is responsible for the detention services and detainees round the clock, an individual officer is not. There was no evidence of any obligation on officers to be available to detainees and their well-wishers outside office hours. To provide that personal information would clearly be unreasonable.
48. Documents 20, 38, 39, 40, 41, 42, 43, 44, 46, 48, 49, 50, 52, 54, 55, 57 and 58 contain information about detainees at the Villawood Detention Centre other than Mr Kharbanda.
49. Mr Kharbanda did not make detailed contentions in respect of this category of information.
50. I was referred by the Respondent to Colakovski vAustralian Telecommunication Corporation (1991) 29 FCR 429 at 438, where Lockhart J found that the term “unreasonable disclosure of information” for the purposes of s 41(1) to have, at its core, public interest considerations. However, the test to be applied is not one of pure public interest.
51. In considering whether disclosure is unreasonable, I considered all relevant factors as outlined in Re Chandra and balanced those against the legitimate interests of the public.
52. In Re Kahn and Australian Federal Police (1985) 7 ALN N190, the Tribunal accepted that it would be unreasonable to disclose a third party person's name as appearing on police files, notwithstanding that the Applicant in that matter was able to produce statutory declarations from the third parties named in the documents, which stated that those third parties consented to all of their personal information being provided to the Applicant. In this matter, in any event, there was no evidence that the third parties would have consented. I also observe, as in Re Hall and Australian Federal Police [1986] AATA 451, that people who wish to know whether their names appeared in AFP files could, as Mr Kharbanda has done, make appropriate application under the Act.
53. I find that documents 6, 7, 9, 10, 11, 12, 13, 14, 18, 20, 38, 39, 40, 41, 42, 43, 44, 46, 48, 49, 50, 52, 54, 55, 57 and 58 are exempt from disclosure.
DECISION
54. The decision under review is set aside in respect of document 21. In respect of all other documents, the decision under review is affirmed.
I certify that the fifty four (54) preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed:.................[sgd]......................................... Renee Wallace, Associate
Date of Hearing: Hearing on the Papers
Date of Decision: 7 July 2009
Solicitor for the Applicant: Self represented
Solicitor for the Respondent: Ms V Kanellopoulos, AFP
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