IVAN and SECRETARY, DEPARTMENT OF INNOVATION, INDUSTRY, SCIENCE AND RESEARCH
[2011] AATA 696
•7 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 696
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0691
GENERAL ADMINISTRATIVE DIVISION ) Re ZOLTAN IVAN Applicant
And
SECRETARY, DEPARTMENT OF INNOVATION, INDUSTRY, SCIENCE AND RESEARCH
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date7 October 2011
PlaceBrisbane
Decision The decision under review is affirmed. .................[Sgd]...................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – Freedom of Information Act 1982 (Cth) – Exemption provisions – Relevance of information contained in documents – Public interest considerations – Confidential information – Documents relating to business affairs – Breach of confidence exemption – All grounds for exemption made out in respect of relevant documents – Decision under review affirmed
Acts Interpretation Act 1901 (Cth) s 8
Freedom of Information Act 1982 (Cth) ss 22, 36, 37, 43, 45 (superseded)
Freedom of Information Act 1982 (Cth) ss 22, 37, 47C, 47E, 47G
Freedom of Information Amendment (Reform) Act 2010 (Cth)
Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 192 ALR 129; [2002] HCA 42
Campillo and Australian Customs Service (2005) 42 AAR 111; [2005] AATA 1196
Director of Public Prosecutions v Smith [1991] 1 VR 63
Esber v Commonwealth (1992) 106 ALR 577
Kamminga and Australian National University (1992) 26 ALD 585; [1992] AATA 84
LJXW and Australian Federal Police and QKDP [2011] AATA 187
Mangan and the Treasury [2005] AATA 898
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
Petroulias and Ors and Commissioner of Taxation [2006] AATA 333
Re Dale and Australian Federal Police (1997) 47 ALD 417
Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626
Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1993) 33 ALD 638
Re Telstra Corporation and Department of Broadband, Communications and Digital Economy (2010) 113 ALD 623
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
“SRAD” and Refugee Review Tribunal [2005] AATA 238
REASONS FOR DECISION
7 October 2011 Dr K S Levy RFD, Senior Member INTRODUCTION
1. The applicant, Zoltan Ivan, has sought access to documents of the Department of Innovation, Industry, Science and Research (“the Department”) following allegations he made of fraud against a recipient organisation and two of its Directors. The alleged fraud pertained to grant monies which the recipient has successfully obtained from the Commonwealth’s funding program titled ‘Commercialisation of Emerging Technology’.
2. The allegations were investigated by the Department’s Fraud Investigation Unit (“FIU”). The timeline involved the letter of allegations dated 3 February 2009, resulting in a final report of the investigation dated 6 May 2010.
3. On 17 September 2010, the applicant applied for information of a systemic nature about the number of fraud allegations, the number of investigations carried out by the FIU and resulting prosecutions. He also applied for all of the documents associated with the organisation and persons which formed part of the investigation relevant to his fraud allegations.
4. The request was partially satisfied, although there were many documents which were only partially released or regarded as fully exempt. Mr Ivan was advised of this outcome by letter dated 4 November 2010. He sought internal review on 5 November 2010. The internal review decision dated 16 December 2010 resulted in some further documents being released, but not all of the documents identified.
5. The applicant now appeals the decision to this Tribunal. It is noted that since the date of the decision under review, some amendments have been made to the relevant statute, the Freedom of Information Act 1982 (Cth) (“the Act”).
ISSUES
6. The issues for the Tribunal are as follows:
(1)What law should be applied to the review of the relevant documents; and
(2)Whether the documents in dispute are exempt or partially exempt, contrary to the decision under review.
EVIDENCE
The chronology of the relevant facts are:
·Mr Ivan made application to the Department dated 3 February 2009. His application made allegations of fraud against two of the Directors of the recipient organisation.
·The Department conducted an investigation. The final report was completed on 6 May 2010. On 14 May 2010, the Chief Internal Auditor of the Department advised Mr Ivan the investigation revealed insufficient evidence to commence criminal proceedings against the two Directors.
·On 17 September 2010, Mr Ivan sought access to documents under Freedom of Information Act 1982 (Cth) concerning:
(1)statistical information about fraud allegations, subsequent investigations and prosecutions; and
(2)all documents in relation to the investigation against the two Directors of the recipient organisation (other than documents he had provided to the Department).
·On 4 November 2010, Mr Ivan was provided with a schedule of documents released in full, in part and those documents over which exemption from release was claimed.
·On 5 November 2010, Mr Ivan sought internal review of the exempted documents.
·On 16 December 2010, the Internal Reviewer provided a determination and produced a schedule of documents to be released in full, in part or to be exempted.
·Since that time, additional documents have been released. There are now only 32 documents in issue.
7. Mr Ivan’s case is that it is in the public interest for the documents to be released. He pointed to the matters he referred for investigation by the Commonwealth Director of Public Prosecutions, of which only four proceeded to prosecution. The respondent’s case is that release of the documents claimed to be exempt would prejudice the Department’s operations. Mr Ivan’s response is that he cannot be sure the Department actually carried out the investigation.
8. Under cross-examination by Mr McCarthy of Counsel, Mr Ivan agreed documents were released to him (Folios 30 – 55 of T-Documents). However he would not accept that the documents allow a conclusion that an investigation had been conducted.
9. Mr Ivan, while not agreeing that an investigation was conducted, he would not go so far as to say any information was fabricated.
10. Mr Ivan was then referred to the letter of 14 May 2010 from the Chief Internal Auditor of the Department. He acknowledged the letter was not a “falsehood” and agreed an investigation was conducted.
11. Telephone evidence was taken from an officer of the Department, Mr Duffus. He referred to his affidavit (3 pages) and agreed with Counsel that it was correct. He was also referred to the outcome of the investigation and in particular, to certain documents (eg Folios 27, 30, 28). Mr Ivan cross-examined Mr Duffus.
12. Mr McCarthy made detailed submissions about each document in contention. These are dealt with below.
CONSIDERATION
Issue 1: What law should be applied?
13. The relevant provisions of the Act as they existed under the original decision are ss 22, 36, 37, 43 and 45. By Schedule 3 of the Freedom of Information Amendment (Reform) Act 2010 (Cth) (No 51 of 2010), s 22 was repealed and re‑written under the same section number. The re-written s 22 is similar in purpose and effect.
14. Sections 36 and 43 were repealed. Section 36 has been re-written in effectively the same terms and included as s 47C. Section 43 has also been effectively re-written in the same terms and included now as ss 43E and 47G of the Act.
15. The Parliament intended these provisions to apply after the date of commencement, 1 November 2010. However, that is subject to the proper view of the context of the former provisions with the substituted provisions. Section 8 of the Acts Interpretation Act 1901 (Cth) provides, relevantly:
Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)revive anything not in force or existing at the time at which the repeal takes effect; or
…
(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
…
16. In Esber v Commonwealth (1992) 106 ALR 577, it was confirmed by the High Court of Australia that in the absence of a contrary intention, an applicant has a substantive right of review protected by s 8 of the Acts Interpretation Act 1901 (Cth).
17. Applying that principle to this case, the applicant’s rights are not affected by the repeal of the provisions contained in the 2010 Amendment Act, “unless a contrary intention appears”. In other words, the applicant has an accrued right, and the respondent an accrued obligation, in accordance with the legislation as it existed at the time of the original decision “unless a contrary intention appears in the amending provisions”. As indicated above, the dominant effect of the repealed provisions has been retained in the revised s 22, and in respect of the repealed ss 36 and 43 the effect of those provisions have been maintained in the revised provisions now contained in s 47C and ss 47E and 47G respectively. That analysis is also to be consistent with the contemporary approach to statutory interpretation which requires the purposive approach to be used or the “wider frame of reference” in ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth) (see Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 192 ALR 129 per Kirby J at [114]).
18. Considering the repealed and current provisions and the interface of s 8 of the Acts Interpretation Act 1901 (Cth), while the substantive content of these provisions would result in the same conclusion to the documents in issue here, it is as a matter of statutory construction, the former provisions which should be used. I therefore examine the documents in dispute by reference to the present provisions in ss 37 and 45 (which have not been amended) and to the former provisions of ss 22, 36 and 43 (which have been amended).
Issue 2: Are the documents in dispute exempt or partially exempt, contrary to the decision under review?
19. The relevant provisions are:
Section 22
20. Section 22(1)(a)(ii) provided that where an agency or Minister decides the granting of access to a document requested “would disclose information that would reasonably be regarded as irrelevant to the request for access”, and it is possible for a copy of the document to be made and the exempt information to be deleted, then the exempt or irrelevant matter should be deleted from the copy , provided it is reasonable “having regard to the nature and extent of the work involved ... and the resources available for that work ...”.
21. Subject to the requirements of that section, it is clear that the applicant has a right under the Act, but only to documents held by the agency that are:
(a)within the scope of the request; and
(b)not exempt documents.
(LJXW and Australian Federal Police and QKDP [2011] AATA 187 at [110] and [113])
22. In determining whether information in a document ‘would reasonably be regarded as irrelevant’ under s 22(1)(a)(ii), it must be considered “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” (Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1993) 33 ALD 638 at [132]).
Section 36
23. Section 36(1) prescribed that an internal working document will be exempt where release:
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.
24. However, it will not be exempt only because of the “purely factual material” contained in the document [s 36(5)].
25. Section 36(1)(a) should not limit the ordinary meaning of the words in that section (subject to the deliberative processes and the ‘purely factual material’ mentioned in s 36(5)) (Re Telstra Corporation and Department of Broadband, Communications and Digital Economy (2010) 113 ALD 623 at [176]) (“Re Telstra”).
26. Section 36(1)(b) is the other limb to be satisfied under this section. A document which satisfies s 36(1)(a) will be exempt if it also satisfies s 36(1)(b), that is, it is “contrary to the public interest”. Mr McCarthy of Counsel referred me to this Tribunal’s decision in Re Telstra where reference is made to the Full Federal Court decision in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 (“McKinnon”) at 75 – 76. There, Tamberlin J cited Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75, where the Full Court of the Supreme Court of Victoria had given consideration to the meaning of “the public interest”. Their Honours said it included “matters … of standards of human conduct … accepted and acknowledged to be for the good order of society and the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals”.
27. That decision of the Tribunal in Re Telstra noted that “in trying to ascertain the public interest, a distinction must be drawn between the public interest and a matter of interest to the public ...” (at [195] and [205]).
28. In Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626 (“Re Howard”) Davies J, the then President of the Tribunal, said in considering the public interest element the whole of the circumstances must be taken into account but that, inter alia:
a)the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;
b)disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;
c)disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest; (at pp 634 – 635).
29. The respondent also submitted that the decision of Senior Member Allen in Campillo and Australian Customs Service (2005) 42 AAR 111 (“Campillo”) is relevant. There it was said that an element of the public interest which is of great importance is “the necessity to preserve the deliberative processes of government departments when investigating criminal offences” (at [17]).
Section 37
30. Section 37(1) exempts documents where their release could reasonably be expected to:
a)prejudice the conduct of an investigation of a breach…;
b)disclose the identity of a confidential source of information…; or
c)endanger the life or physical safety of any person.
31. Section 37(2) exempts documents where their release might reasonably be expected to disclose lawful methods or procedures for investigating breaches [s 37(2)(b)]; or where it might prejudice the maintenance or enforcement of lawful methods for the protection of public safety [s 37(2)(c)].
32. This section is concerned, not with whether the information in the document is confidential but rather “...the focus is upon the source of the information, whether it is confidential, and if so, whether disclosure would reveal its identity (Petroulias and Ors and Commissioner of Taxation [2006] AATA 333 at [15]). The paragraph is designed to protect the source of confidential information to ensure the continued cooperation of sources of information. It is a matter of public policy and of critical importance in the administration of the criminal law (Re Dale and Australian Federal Police (1997) 47 ALD 417 at 420).
Section 43
33. Section 43(1)(c) will exempt a document if its disclosure would reveal information (other than trade secrets) about the person’s business or professional affairs; and that the disclosure would unreasonably affect the person adversely in respect of its lawful business, commercial or financial affairs, or that could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of administration of the law.
34. It was submitted that in applying this section, there is no express public interest test applicable but public interest is a relevant factor in determining if the person would be “unreasonably” affected if the document was released (Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 125).
Section 45
35. This section will exempt a document “if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.
36. As stated in Mangan and the Treasury [2005] AATA 898 (“Mangan”), the criteria to be applied for s 45 were set out in Kamminga and Australian National University (1992) 26 ALD 585 (“Kamminga”). These were summarised in Mangan at [52] to [55] as:
1)“…the person claiming the exemption must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question…”.
2)“…the information has the necessary quality of confidentiality and is not, for example, common or public knowledge…”.
3)“the information was received in such circumstances as to import an obligation of confidence. It is not sufficient for that purpose to mark the document "confidential". The respondent must show that at the time of the communication, there was a mutual understanding that the information had been given and received in confidence…”.
4)“…there is actual or threatened misuse of the information or, to put it another way, that disclosure would constitute an unauthorised use.”.
(see also “SRAD” and Refugee Review Tribunal [2005] AATA 238)
Examination of the Documents
37. I note the respondent’s submission that it would be open to the Tribunal in its determination to note that the Department has released documents to the applicant since the original decision, and that it could release further documents. That seems eminently sensible, where there is a legal basis for doing so under the Act.
38. I turn now to the documents in dispute. I deal hereunder with the claims for various documents under the relevant provisions of the Act. I have examined each document and make the following determinations:
Section 22
Document 1
39. A name of a person unconnected with the evidence in this application appears twice in this document. It is a surname and two Christian names. I am satisfied it is irrelevant to the matter and therefore outside the scope of the request. That name should be deleted and therefore the document is exempt to that extent. The document is therefore partially exempt.
Document 2
40. This is an e-mail between an officer of the FIU to an officer of an outside agency which conducts information searches. This e-mail is within the scope of s 22(1)(a)(ii) and within the principle set out in LJXW and Australian Federal Police and QKDP [2011] AATA 187 (“LJXW”). I therefore find that Document 2 is partially exempt under s 22 on the basis of the e-mail dated 26 February 2009 at 2.42pm to the officer of the FIU.
41. I note additionally there is the name and e-mail address of the person in that communication who, it appears, is part of an external organisation and who would be irrelevant to this application. It seems to me that that information in the e-mail mentioned above (and the response e-mail from the officer of the FIU to the external organisation shown), dated 26 February 2009 at 3.13pm, would also be exempt under s 22, and potentially, under s 37. However, the respondent has not sought to redact that information. On that basis, I accept the respondent’s submission to the extent submitted.
Document 3
42. This refers to an organisation which is not of relevance to the application at hand. The respondent argued it is wholly exempt under s 22. I agree.
Document 5
43. This document is a further copy of the e-mail exchange between the same parties in Document 2 (e-mail dated 26 February 2009 at 2.42pm). I am satisfied that part of Document 5 is exempt to that extent. I find that Document 5 is partially exempt.
44. I reiterate my other comments under Document 2 above and which have relevance here also with respect to exemption under s 22 and potential exemption under s 37.
Document 6
45. With the exception of three one-line entries, the remainder of the document is argued by the respondent to be exempt. I find the document is partially exempt under s 22.
Document 11
46. This is a 14 page document (Folios 31 – 44). Exemption is claimed over an entity name in Folio 43. I agree it is exempt. The document is partially exempt under s 22 as claimed by the respondent.
Document 12
47. This is a 19 page document (Folios 45 – 63). It contains information about the entity mentioned in Documents 6 and 11 above, as well as images and personal information of other persons. It is claimed by the respondent to be wholly exempt under s 22. I find the document is wholly exempt under s 22.
Document 19
48. This document is a file note of the FIU. It is clearly information about a party of interest to the application but does not appear to be relevant to the scope of Mr Ivan’s request. I find it is exempt under s 22.
Document 20
49. The document is an e-mail and attachment. It is relevant to one of the parties named in the application. A comment is made on the first page of the document in an e-mail dated 11 March 2010 at 1.08pm. It is outside the scope of the request. To that extent it is exempt. I find the document is partially exempt under s 22.
Document 22
50. This is a three-page document (two pages containing two e-mails and a one page attachment). It is submitted that four words including a person’s name is irrelevant and should be deleted prior to the document being released. I agree the words claimed are exempt. The document is therefore exempt under s 22.
Document 27
51. This document refers to the conduct of investigation of the complaint. It is not entirely clear in the evidence that it is wholly irrelevant to the subject matter but it is apparent that it is not within the scope of the application. I find therefore it is wholly exempt under s 22. Even if this was not the case, I note it is wholly exempt under ss 36, 43 and/or 45. I find it is exempt under s 22.
Document 31
52. This document contains a record of information in relation to the investigation. It is not relevant to the scope of the applicant’s request under the Act. I find it is exempt under s 22.
Exemption Claims under Sections 36, 37, 43 and 45
Document 4
53. This document is a file note of the FIU. The respondent claims exemption for notations regarding internal action in connection with Mr Ivan’s complaint under s 36 and s 37(1)(b).
54. The material claimed to be exempt is clearly an internal working document (s 36). It contains not only factual material but refers to commercial organisations. It refers to the deliberative processes or consultation as part of the investigation. The information satisfies the “public interest” criteria in s 36(1)(b) as it is important to preserve confidentiality around investigatory processes involved in criminal or quasi‑criminal investigations (Campillo). I find it is an exempt document under s 36. It is clear also that the release of the part of the document highlighted to the Tribunal would disclose the identity of confidential sources of information under s 37(1)(b).
55. Therefore, to the extent claimed, that information is exempt. I find this document is partially exempt under s 36 and s 37(1)(b).
Document 7
56. This document is also included as Document 30. There is also a draft copy as Document 24 and a final copy at Document 28. It is the investigation report (draft and final). Document 7 is clearly an internal working document and records the outcomes of consultation and deliberation and provides recommendations for the purposes of the deliberation process of the Agency (s 36). To release the document would be contrary to the public interest as this function is for “the good order of society” (McKinnon) and it may tend to inhibit frankness in future communications (Re Howard). It is therefore exempt under s 36.
57. Release of the report would also disclose a confidential source of information under s 37(1)(b) and may inhibit assistance to authorities in the future (Re Dale and Australian Federal Police).
58. The naming of a witness could result in that person being adversely affected in his business affairs, or conversely, it could adversely affect the future supply of information to the Commonwealth (s 43). A consequential effect, it was submitted, could be an action for breach of confidence under s 45. The respondent must be able to provide sufficient specificity for the obligation of confidence to arise (Kamminga and Australian National University).
59. I am satisfied the report is exempt under ss 36, 37(1)(b), 43 and 45.
Document 8
60. This assessment is a record of evidence provided by a relevant person. It describes relevant commercial information, personal business information and disturbing personal action by others.
61. The information satisfies me that this document is exempt under s 37(1)(b) as it used and discloses the identity of a confidential source of information and may found an action for breach of confidence under s 45, ascertained earlier.
62. Mr McCarthy also submitted that s 36 and 43 are also grounds for exemption. It would satisfy the criteria of being an internal working document and it would be contrary to the public interest to release it. Section 43 would be satisfied. I find accordingly in respect of s 36 and 43 and exempt Document 8 under both ss 36 and 43 also. I find Document 8 is exempt under ss 36, 37(1)(b), 43 and 45.
Document 9
63. This is an extension of the concerns raised about Document 8 and is a legitimate part of the consultation process. I am satisfied the concerns are honestly held. The concerns are serious. For reasons stated under Document 8 above and earlier in these reasons, I find the document is exempt on reasonable grounds under ss 36, 37 and 45.
Document 10
64. This is an internal document and is evidence in the deliberative process. McCarthy withdrew a basis for exemption under s 37 as originally put by the respondent. However, I am satisfied it is exempt under s 36(1)(a).
Document 11
65. It was submitted that s 43 is now the only issue in dispute as much of this document has been released. There is no public interest in releasing the name shown in the document, as it may unreasonably affect the person named adversely in his business, commercial or financial affairs. Considering the content of the evidence as a whole, I find that the document is exempt under s 43.
Document 12
66. This document is the same entity as Document 11. The significance of the person named meets the requirement for exemption under s 36(1)(b) (not in the public interest); s 37(1)(b) (confidential source); and s 37(2)(b) (it would disclose lawful methods and procedures for investigating breaches).
67. Having regard to paragraph 19 of Campillo (pages 114 – 115), I find the document is exempt under the three statutory provisions above.
Document 13
68. This document reveals part of the consultation process. It is not in the public interest to release it. It meets the exemption provision under s 36(1)(a).
Document 14
69. This e-mail is part of the consultation process where the witness requests the document be kept confidential (pp 65 and 67 of documents). The document meets the exemption requirements of ss 36 and 37(1)(b).
Document 15
70. This document is an e-mail from the applicant, together with an associated cover e-mail from Mr Duffus to his supervisor. The cover e-mail refers to annotations he has made to various statements in the e-mails of the applicant, dated 5 March 2010. The respondent submits the annotations by Mr Duffus are exempt under ss 36 and 37.
71. Most of the annotations are electronically recorded although there is also a handwritten comment at the bottom of the first page of this document. The remainder of the document has been released.
72. The comments certainly fall within the bounds of s 36: working documents of an agency for the purposes of the deliberative process. While the comments are mostly, not highly sensitive, they are nevertheless the views of officials in the Department concerning the investigation. Taking the annotations in context and as a whole, it is not in the public interest to release the annotations. They are exempt under s 36(1)(a) and s 36(1)(b) (Re Howard).
73. The original claim by the Department also argued exemption of this material under s 37. This claim is difficult to sustain. Mr McCarthy submitted that the respondent does not now press that claim. I find that claim cannot be upheld.
74. I find the material claimed is exempt under s 36 of the Act and that the document therefore is partially exempt.
Document 16
75. This document is a series of e-mails with the security classification “In Confidence”. Some of it is a repeat of Document 14. Some of the e-mails are internal e-mails and are part of the deliberative process. The other documents relate to the investigation evidence and are also documents which have been supplied in confidence. The person supplying the document has expressed an intention elsewhere that he did not wish his information to be released.
76. I am satisfied for these reasons this document is exempt under ss 36, 37 and 45.
Document 17
77. This is an internal file note. It is clearly part of the deliberative process (s 36). It relates to the content of the investigation (s 37); it provides personal information or business information of one of the Directors, not disclosed by him.
78. Folio 74 only is exempt under ss 36 and 37. The document is therefore partially exempt.
Document 18
79. This is a file note revealing the content of the investigative process. Some information may be publicly available but the content also refers to the identity of a confidential source of information. Release of the document could constitute an unauthorised use of the information (Mangan and the Treasury [2005] AATA 898).
80. I find the document is wholly exempt under ss 36, 37 and 45 of the Act.
Document 19
81. This document has already been determined to be exempt under s 22. It is a “file note”, that is, an internal working document of the FIU. The respondent claims exemption for the same reason as Document 17.
82. The document contains the same or similar information to Documents 16, 17 and 18. The document is an internal working document of the FIU (s 36) and contains an attachment referring to an organisation, which would ground an exemption, under s 45. The file note could also be exempted under s 45.
83. The respondent also claimed an exemption under s 37(2)(b). That claim is a tenuous in terms of the material presented at least in the sense that such investigation procedures would be expected to be intuitively clear to most people. Nevertheless, in a strict sense, it is capable of satisfying s 37(2)(b).
84. Therefore, I find the document is exempt under ss 36, 37 and 45.
Document 20
85. The respondent advised that this document has already been released, with the exception of two lines which have been redacted. The information claimed for exemption relates to an organisation of interest to the investigation.
86. This information has already been found to be exempt as being irrelevant to the scope of the request (s 22). It is sensitive and could also ground an action against the Commonwealth under s 45. I find the document is partially exempt in relation to the two lines asserted by the respondent to be exempt. That partial exemption is made under s 45.
Document 21
87. This is a series of e-mails involving a person referred to in previous documents and which I have regarded as exempt under s 37 and 45. The other point of the document is a repeat of Document 14 and is also exempt under s 36.
I find this document is exempt under s 36, 37 and 45.
Document 23
88. This document is an e-mail from the applicant. There are handwritten annotations on Folio 100 which fall within s 36. These annotations also reveal the conduct of the investigation (s 37). Folio 98 is a handwritten document which falls within the bounds of s 36 and s 37. I find folio 98 and the annotations on folio 100 are exempt under sections 36 and 37. The document is partially exempt to cover Folios 98 and 100 as discussed above.
Document 25
89. This document is titled “Record of Conversation”. It is an internally generated two-page document at Folios 117 – 118. The majority of the document has been released but there are three areas highlighted which the respondent claims are exempt under s 36(1)(a).
90. After reading and considering the three areas claimed, it is clear that the content is concerned with deliberation by the investigator about the investigation conducted into Mr Ivan’s complaint. The areas highlighted are therefore exempt under s 36. The remainder of the document is not exempt.
Document 26
91. This is a “Record of Conversation” between an officer of the Department and a person who provided confidential information.
92. The respondent submitted the document meets the exemption requirements of being an internal document as part of the deliberative process (s 36(1)(a)); that it reveals the lawful investigation methods and procedures (s 37(2)(b)); that its release could adversely and unreasonably affect the business or financial affairs of a person or that the future supply of information to the Commonwealth might be adversely affected (s 43); and the disclosure would constitute an authorised use of confidential information (s 45; Mangan and the Treasury [2005] AATA 898).
93. I am satisfied that this document meets the requirements of the legislative provisions claimed by the respondent. I find the document is also exempt under s 37(1)(b) in that its release would reveal a confidential source of information.
94. The document is therefore exempt under ss 36, 37, 43 and 45.
Document 27
95. This document is a set of e-mails between Departmental officers and other external parties (government and private). One e-mail I have already determined to be exempt under s 22 (irrelevant to the scope of the applicant’s request). The respondent also claims it is exempt under s 36(1)(a), s 43 and s 45.
96. Folios 121 – 124, excluding the e-mail on Folio 122 which relates to s 22, are all internal working documents which meet the s 36 requirements. The respondent submits the folios of this document also disclose information about the business or professional affairs of a person who would be adversely affected if released (s 43). It is also contended by the respondent that release of this information would found an action under s 45. I have examined these folios and agree that they satisfy these provisions. I have also considered LJXW, which supports that conclusion.
97. I find Document 28 is wholly exempt under ss 36, 43 and 45.
Document 29
98. This document is an e-mail with a draft letter. It was unequivocally prepared as part of the deliberative process. The respondent says it is exempt under s 36. Having read the document, and in the context of it being part of the deliberative process, I agree it is exempt under s 36, including satisfying the “contrary to the public interest” test.
Documents 24, 28 and 30
99. This is the Final Investigation report. In respect of Document 24 and 28, there are annotations or markings on the report. A copy of the report also exists at Document 7 and I therefore find the report to be exempt under ss 36, 37(1)(b), 43 and 45.
100. Consistently with that previous analysis, I find these three documents are also exempt under ss 36, 37(1)(b), 43 and 45.
101. I note again the respondent’s submission that some documents have been released since the original decision. Any further provision of documents to Mr Ivan would be desirable in the interests of achieving the objects of the Act, where possible. However, I must make a decision about the documents submitted for determination. My reasoning is set out above in respect of each document.
DECISION
102. The decision under review is affirmed.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD
Signed: .................[Sgd].....................................................
AssociateDate/s of Hearing 4 August 2011
Date of Decision 7 October 2011
Applicant was self-represented
Counsel for the Respondent Mr Geoff McCarthy
Solicitor for the Respondent Mr Doug Galbraith
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