Jones and Australian Federal Police (Freedom of information)
[2016] AATA 329
•20 May 2016
Jones and Australian Federal Police (Freedom of information) [2016] AATA 329 (20 May 2016)
Division
GENERAL DIVISION
File number
2015/4683
Daniel Jones
APPLICANT
And
Australian Federal Police
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member Date 20 May 2016 Place Canberra The decision of the Australian Federal Police on 3 June 2015 is affirmed.
................................[sgd]........................................
James Popple, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION — request for access to documents relating to Australian Federal Police Professional Standards Investigation — whether documents conditionally exempt from disclosure — whether disclosure would have substantial adverse effect on the proper and efficient conduct of the operations of the agency — whether disclosure would be contrary to the public interest — decision under review affirmed.
LEGISLATION
Australian Federal Police Act 1979, ss 4(1), 24, 38, 40RC, 40RD, 40RH, 40RP, 40ZA, 60A
Bail Act 1992 (ACT), s 9D
Freedom of Information Act 1982, ss 3, 3A, 4(1), 11A(5), 11B(3), 15, 22, 31B, 37, 47C, 47E(c), 47E(d), 47F, 47G, 54L, 54W(b), 61(1)(b), 64(1), 93A
CASES
Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr 11
British American Tobacco Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19
Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962
Francis and Department of Defence (2012) 59 AAR 35
Re Jones [2014] ACTSC 248
Leigh and Australian Federal Police [2016] AATA 330
Rovere and Secretary, Department of Education and Training [2015] AATA 462
Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945
SECONDARY MATERIALS
Australian Federal Police, Australian Federal Police Commissioner’s Order on Professional Standards, Commissioner’s Order 2 (26 August 2013)
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (October 2014)
REASONS FOR DECISION
Dr James Popple, Senior Member
20 May 2016
Summary
I affirm the decision of the Australian Federal Police (the AFP) to refuse the applicant access to documents he requested under the Freedom of Information Act 1982 (the FOI Act). The documents requested are conditionally exempt under s 47E of the FOI Act, and access to the documents at this time would, on balance, be contrary to the public interest.
Background
On 21 November 2014, Mr Daniel Jones applied to the AFP under s 15 of the FOI Act for access to specified documents. Some of the events that led to Mr Jones’s FOI request are summarised in the reasons for a decision of the Supreme Court of the Australian Capital Territory on 29 July 2014. Mr Jones was in custody and Refshauge J was considering an application to grant him bail:
On 24 December 2013, an indictment was filed against Daniel Paul Jones, charging him with nineteen offences, including twelve counts of assault occasioning actual bodily harm, three counts of sexual intercourse without consent, one count of sexual assault in the second degree, one count of an act of indecency, one count of unlawful confinement, one count of threat to kill and six counts of contravention of a protection order. …
On 21 March 2014, Mr Jones was arrested and charged with a further five offences. Due to the earlier charges, he was subject to operation of s 9D of the Bail Act 1992 (ACT), which required special and exceptional circumstances to justify a grant of bail for those further offences. He did not apply for bail and was remanded in custody where he has remained since that time. The complainant in respect of each of these offences is a former partner of Mr Jones. In many cases, she appears from the police Statement of Facts to be the main or only witness to the events the subject of the particular charges.
Since Mr Jones has been in custody, the complainant has been making further allegations against him and his family, suggesting that they have engaged in various activities interfering with her and her property, including burglary, trespass, harassment and property damage.
Police, however, have instigated various inquiries as a result and, as a consequence, installed a number of surveillance devices in her property, including her motor vehicle. This resulted in suspicions about three complaints made by the complainant. As a result of the investigation, she has now been charged with two counts of making a false allegation of an offence and one count of causing public mischief.
This, it is said, raises significant suspicions as to credibility of the complainant, which, for the reasons to which I have already referred, would be very relevant to the charges faced by Mr Jones. This is said to raise significant questions about the strength of the Crown case and the reliability of the evidence to support the charges preferred.[1]
Refshauge J was satisfied that the circumstances were special or exceptional, and granted Mr Jones bail.[2] Mr Jones had spent more than four months in custody. On 20 November 2014, the indictable charges against Mr Jones were dropped. The remaining summary charges were dismissed on 15 December 2014.
[1] Re Jones [2014] ACTSC 248 per Refshauge J at [1]–[5].
[2] See Re Jones [2014] ACTSC 248 per Refshauge J at [7]–[12].
Mr Jones’s FOI request sought access to:
Copies of all documents … which relate in any way whatsoever to any Australian Federal Police Professional Standards Investigation relating to the conduct of [a named AFP appointee[3]] … in relation to the investigation of allegations made by [a named woman] against Daniel Paul Jones … giving rise to proceedings SCC 68 of 2014 and SCC 97 of 2014[4] in the Supreme Court of the Australian Capital Territory.
The AFP appointee named in the FOI request was the informant in those proceedings. I will call him X. The woman named in the request was the complainant to whom Refshauge J referred: a former partner of Mr Jones, charged with making false allegations and causing public mischief. I will call her Y.
[3] Australian Federal Police Act 1979, s 4(1) defines “AFP appointee” to include an AFP employee (see s 24).
[4] The decision in Re Jones [2014] ACTSC 248 was in the proceedings numbered SCC 97 of 2014.
In these reasons, I will adopt the shorthand of referring to a document that is wholly comprised of exempt matter[5] as wholly exempt; and to a document that contains, but is not wholly comprised of, exempt matter as partly exempt. Strictly speaking, under s 31B of the FOI Act, the whole document is exempt if one of the exemptions in Division 2 of Part IV applies; or if one of the conditional exemptions in Division 3 of Part IV applies and access to the document would, on balance, be contrary to the public interest.[6] However, s 22 provides for an FOI applicant to be given access to an edited copy of a partly exempt document, modified by the deletion of the exempt matter.
[5] Section 4(1) of the FOI Act provides that “exempt matter means matter the inclusion of which in a document causes the document to be an exempt document”.
[6] See also the definitions of “conditionally exempt” and “exempt document” in s 4(1).
On 3 June 2015, the AFP made a decision on Mr Jones’s request. The AFP identified 32 documents which fell within the scope of his request. The AFP decided that six of those documents were wholly exempt, 25 were partly exempt, and one was not exempt.[7] The AFP gave Mr Jones access to the non-exempt document and redacted copies of the exempt documents—copies modified by the deletion of exempt matter.
[7] The AFP decided that that document was not exempt because—presumably, after further consideration—it was actually outside the scope of Mr Jones’s request. Mr Jones was given access to the document nonetheless.
On 2 July 2015, Mr Jones applied to the Information Commissioner under s 54L of the FOI Act for IC review of the AFP’s decision. An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under Part VII of the FOI Act.[8] On 18 August 2015, the Information Commissioner decided, under s 54W(b), not to undertake an IC review on the basis that the interests of the administration of the FOI Act made it desirable that the IC reviewable decision be considered by the Tribunal.
[8] FOI Act, s 54G.
On 7 September 2015, Mr Jones applied to the Tribunal, under s 57A(1)(b) of the FOI Act, for review of the IC reviewable decision.
Decision under review
The decision under review is the AFP’s decision on 3 June 2015 not to grant Mr Jones access to all of the documents that he requested.
Documents in dispute
As noted above, the AFP decided that 31 documents were wholly or partly exempt. The AFP also decided that six pages from two of the partly exempt documents were outside the scope of the request. I do not need to consider those out-of-scope pages in this review. At the hearing, I required the AFP to produce to the Tribunal unedited copies of all of the documents.[9] I have examined them. I agree that the six out-of-scope pages are irrelevant to Mr Jones’s request. Because of s 22 of the FOI Act, the AFP can provide Mr Jones with edited copies of documents with irrelevant matter deleted. I do not need to consider whether exemptions apply to that irrelevant matter.
[9] See FOI Act, s 64(1).
I will refer to the 31 documents that the AFP says are wholly or partly exempt—excluding the six out-of-scope pages from partly exempt documents—as the documents.
Issues
The AFP says that the documents are exempt because of s 47E of the FOI Act (about certain operations of agencies)—specifically ss 47E(c) and (d). The AFP says that the documents are also exempt because of:
·s 37(1)(b)—about disclosing the existence or identity of a confidential source of information (in relation to 18 of the documents);
·s 37(2)(b)—about disclosing lawful methods or procedures for investigating breaches or evasions of the law (3 documents);
·s 47C—about disclosing deliberative matter (1 document);
·s 47F—about the unreasonable disclosure of personal information (27 documents); and
·s 47G—about unreasonably affecting a person adversely in their business or professional affairs (3 documents).
So, the issues in this review are:
·Are some of the documents exempt because of exemptions in Division 2 of Part IV of the FOI Act? That depends on whether the documents are exempt under s 37(1)(b) or s 37(2)(b).
·Are some or all of the documents exempt because of public interest conditional exemptions in Division 3 of Part IV of the FOI Act? That depends on:
owhether the documents are conditionally exempt under s 47C, s 47E, s 47F or s 47G; and
oif they are conditionally exempt, whether access to those documents would, on balance, be contrary to the public interest (s 11A(5)).
Because of s 61(1)(b) of the FOI Act, the AFP has the onus of establishing that its decision was justified.
Are the documents conditionally exempt under the certain operations of agencies exemption (s 47E)?
Section 47E of the FOI Act relevantly provides:
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
The AFP says that the documents are conditionally exempt because of s 47E(c) and (d).
The AFP says that the documents “were created by, or provided to, the AFP Professional Standards investigation unit” (the PRS) “for the purpose of an AFP Professional Standards investigation into an AFP appointee [X] that was initiated following a complaint about that AFP appointee’s conduct”. The investigation was into two “conduct issues”. The first arose from the complaint that X had made a “threat of violence” against another AFP appointee. The second arose because:
The PRS Investigator had, in the course of his investigations, discovered email correspondence to an AFP Occupational Therapist employed as a rehabilitation case manager. The Report [of the investigation] records that the email uses aggressive, rude and inappropriate language and this matter was incorporated into the investigation as a “second conduct” issue.
Having examined unedited copies of the documents, I can confirm that the AFP’s description is accurate: the documents relate to a PRS investigation of X in relation to those two conduct issues.
The PRS was established by the AFP Commissioner under s 40RD of the Australian Federal Police Act 1979 (the AFP Act). Section 40RD(1) provides:
40RD Unit to be constituted
(1)The Commissioner must constitute, within the Australian Federal Police, a unit to undertake investigations of:
(a) AFP conduct issues that are category 3 conduct issues; and
(b) corruption issues that relate to conduct engaged in by AFP appointees.
Section 40RH of the AFP Act provides that an “AFP conduct issue” is an issue of whether an AFP appointee has engaged in conduct that contravenes the AFP professional standards, or engaged in corrupt conduct. The AFP Commissioner determines the professional standards by issuing orders under s 38 of the AFP Act.[10] Section 40RP defines “category 3 conduct” to be serious misconduct, or conduct that “raises the question whether termination action should be taken in relation to an AFP appointee” or conduct that “involves a breach of the criminal law, or serious neglect of duty”, but not conduct that raises a “corruption issue”.
[10] See AFP Act, s 40RC.
Sections 40ZA and 60A of the AFP Act make it an offence to divulge information obtained in the course of, or for the purposes of, an investigation of a category 3 conduct issue or a corruption issue, except in certain circumstances. A Commissioner’s Order forbids AFP appointees from directly or indirectly disclosing any information coming to their attention as a result of a complaint (including a complaint to the PRS), except for the purposes of complaint management or where there is lawful authority.[11] As the AFP says, “this means AFP appointees who are aware of a PRS investigation are not allowed to inform other people that they even know about the existence of an on-going PRS investigation”.
[11] Australian Federal Police, Australian Federal Police Commissioner’s Order on Professional Standards, Commissioner’s Order 2 (26 August 2013), ss 18.1 and 18.2.
The AFP says that disclosing the documents would have a substantial adverse effect on the management or assessment of its personnel (s 47E(c)), and a substantial adverse effect on the proper and efficient conduct of its operations (s 47E(d)). This, it says, is because confidentiality is crucial to the integrity of its professional standards framework:
Confidentiality is enshrined in the AFP’s legislation and policies and is crucial to the proper and efficient conduct of the AFP’s statutory function of investigating and maintaining professional standards.
The AFP says that its professional standards framework relies on frank and fearless reporting, which would be affected if complaints were not treated confidentially. It says that this applies even though there is an obligation on AFP appointees to make complaints in certain circumstances. The AFP says that the framework relies on reporting—including self-reporting—in circumstances where there might be some doubt about whether the conduct in question is misconduct. It is important in such circumstances, the AFP says, to err on the side of caution and that “having a culture where these matters are raised and identified and assessed thoroughly and confidentiality is crucial”.
The Australian Information Commissioner has issued guidelines (the FOI Guidelines) under s 93A(1) of the FOI Act. Section 93A(2) provides that “regard must be had” to the FOI Guidelines for the purposes of performing a function, or exercising a power, under the FOI Act. The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary.[12]
[12] See Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962 at [33] per Bennett J; Francis and Department of Defence (2012) 59 AAR 35 at 39–40 [18] per Jarvis DP; Rovere and Secretary, Department of Education and Training [2015] AATA 462 at [12]. But see also Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945 at [23]–[27] per Forgie DP.
In relation to s 47E(c), the FOI Guidelines explain that:
The predicted [substantial adverse effect on the management or assessment of personnel] must arise from the disclosure of the documents that are being assessed. The decision maker may also need to consider the context of the document and the integrity of a system that may require those documents, such as witness statements that are required to investigate a workplace complaint …[13]
In relation to s 47E(d), the FOI Guidelines explain that:
The exemption may also apply to documents that relate to a complaint made to an investigative body. The disclosure of this type of information could reasonably affect the willingness of people to make complaints to the investigative body, which would have a substantial adverse effect on the proper and efficient conduct of the investigative body’s operations.[14]
The predicted effect must bear on the agency’s “proper and efficient” operations, that is, the agency is undertaking its expected activities in an expected manner. Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the public interest factors of accountability and transparency are further weighted towards disclosure.[15]
[13] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (October 2014) at [6.107], notes omitted.
[14] For examples of the application of the exemption to complaints processes see Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr 11; British American Tobacco Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19.
[15] FOI Guidelines at [6.111]–[6.112].
I agree that the AFP’s professional standards framework relies on complaints being treated confidentially. And I accept that people making complaints, or providing information, to a PRS investigation have an expectation that their complaints, or that information, will be treated confidentially. However, that is not determinative of the question. The FOI Act can require the disclosure of information even though it was obtained in circumstances where there was an expectation of confidentiality.[16] And the disclosure of such confidential information will not always have a substantial adverse effect on the management or assessment of an agency’s personnel, or on the proper and efficient conduct of an agency’s operations. For example, as the FOI Guidelines note,[17] disclosure will not have the requisite adverse effect if it reveals unlawful activities.[18] Similarly, the effluxion of time may mean that disclosure of information (even information obtained in circumstances where there was an expectation of confidentiality) will have no adverse effect on the agency: the disclosure might happen so long after the relevant events that it does not dissuade anyone from making a complaint, or providing information, in the future. And, a person may consent to the disclosure of their name and the information they provided.
[16] See, for example, Leigh and Australian Federal Police [2016] AATA 330 at [53]–[54], where the disclosure of personal information, obtained in circumstances where there was an expectation of confidentiality, was not unreasonable for the purposes of s 47F of the FOI Act because of the context provided by a document that had already been disclosed.
[17] FOI Guidelines at [6.112], quoted at [20] above.
[18] I note that this applies where the disclosure reveals unlawful activities in the investigation process, not unlawful activities that are the subject of an investigation.
However, I agree with the AFP that, in this review, disclosure of the documents would have a substantial adverse effect on the proper and efficient conduct of the AFP’s operations. I have come to that view having regard to the content of the documents, and to the following:
·the documents contain information that was obtained in circumstances where there was an expectation of confidentiality;
·the documents do not reveal any unlawful activity in the PRS’s investigation process;
·the documents relate to events in the recent past; and
·the people who provided information to the PRS investigation have not consented to the disclosure of that information.
To adopt the words of the FOI Guidelines,[19] disclosure of the documents could reasonably affect the willingness of people to make complaints, or provide information, to the PRS, which would have a substantial adverse effect on the proper and efficient conduct of the AFP’s operations.
[19] FOI Guidelines at [6.111], quoted at [20] above.
The documents are conditionally exempt under s 47E.
Are the documents conditionally exempt under other conditional exemptions?
Because of my conclusion that the documents are conditionally exempt under s 47E, I do not need to consider whether they are also conditionally exempt under s 47C, s 47F or s 47G.
Would access to the documents be contrary to the public interest (s 11A(5))?
Section 11A(5) of the FOI Act provides that, if a document is conditionally exempt, it must be disclosed “unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest”. As the FOI Guidelines point out, “[t]he pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure”.[20]
[20] FOI Guidelines at [6.12]. The objects of the FOI Act are set out in ss 3 and 3A.
Factors favouring access
Section 11B(3) of the FOI Act provides:
11B Public interest exemptions—factors
…
Factors favouring access
(3)Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
The AFP concedes that access to the documents would promote the objects of the Act (s 11B(3)(a)), specifically the promotion of “Australia’s representative democracy by contributing towards … increasing scrutiny, discussion, comment and review of the Government’s activities”.[21]
[21] Section 3(2)(b).
Mr Jones says that disclosure would also inform debate on a matter of public importance (s 11B(3)(b)). This matter of public importance relates to his having been in custody for four months on charges that were eventually dropped. As his counsel put it at the hearing, it is of public importance “[w]hether citizens are being left in custody notwithstanding that the police might know that there’s a good chance they shouldn’t be there”.
In its supplementary submissions, the AFP says:
It appears that [Mr Jones] assumes that the [PRS] conducted an investigation into the appropriateness of actions taken by an AFP appointee [X] in the course of an AFP investigation (Operation Verdigris) which led to the prosecution and custody of [Mr Jones] in relation to offences that [he] did not commit.
This is not an accurate characterisation of the PRS investigation. PRS investigated [X] in relation to two specific “conduct issues”, neither of which allegations were or are directly connected with [Mr Jones’s] predicament. The first issue related to a threat made by one AFP appointee [X] against another. The second issue related to an allegation that [X] had used rude, offensive and inappropriate language whilst corresponding with an AFP rehabilitation case manager. That was the framework within which PRS conducted its investigation, conducted interviews, inspected material, and prepared a report.
Having examined unedited copies of the documents, I can confirm that this description of the PRS investigation is consistent with the contents of the documents. The documents relate to actions that X took while Operation Verdigris was underway,[22] including during the time that Mr Jones was in custody. But they do not directly relate to the conduct of Operation Verdigris, or to Mr Jones. I do not think that the disclosure of the documents would inform debate on the matter of public importance that Mr Jones has identified.
[22] The AFP says that “Operation Verdigris police investigation has been finalised although the events to which it relates are still before the Court”. I assume that this is a reference to the charges against Y (see [2]–[3] above).
Mr Jones’s misapprehension about the contents of the documents is understandable. He requested “[c]opies of all documents … which relate in any way whatsoever to any [PRS] Investigation relating to the conduct of [X] in relation to the investigation”—that is, Operation Verdigris—“of allegations made by [Y] against [Mr Jones] giving rise to proceedings” in the ACT Supreme Court.[23] The AFP has taken a broad interpretation of the scope of Mr Jones’s request, which is entirely consistent with the objects of the FOI Act.[24] The AFP has presumably considered the documents to be within the scope of Mr Jones’s request because they relate to X’s conduct during the time that Operation Verdigris was underway, even though they do not relate to X’s conduct in relation to Operation Verdigris.
[23] See [3] above.
[24] See FOI Act, ss 3 and 3A.
The FOI Guidelines include a non-exhaustive list of further factors favouring access. Mr Jones says that two of those factors are relevant to this review:
·access would allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official; and
·access would reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[25]
I agree that these factors are relevant to this review. The documents relate to alleged misconduct by X, who was an AFP appointee and, therefore, an official of the AFP.
[25] FOI Guidelines at [6.25], subparagraphs (a)(ii) and (a)(iii).
Factors against access
The FOI Act does not specify any factors against giving access to documents. The FOI Guidelines include a non-exhaustive list of such factors. The AFP says that three of those factors are relevant to this review:
·access could reasonably be expected to prejudice the protection of an individual’s right to privacy;
·access could reasonably be expected to prejudice an agency’s ability to obtain confidential information; and
·access could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future.[26]
I agree, and I think that the following two factors listed in the FOI Guidelines are also relevant to this review:
·access could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency; and
·access could reasonably be expected to prejudice the management function of an agency.[27]
[26] FOI Guidelines at [6.29], paragraphs (a), (h) and (i).
[27] FOI Guidelines at [6.29], paragraphs (g) and (m).
The AFP says that the following factors, not listed in the FOI Guidelines, are also factors against giving access to the documents:
·access could reasonably be expected to undermine the integrity of an important system for investigating and maintaining professional standards in the AFP; and
·access could reasonably be expected to undermine or interfere with the conduct of active AFP policing investigations and processes designed to promote the safety and security of staff.
I agree, and I note that these two factors are similar to the issues that I had regard to in deciding that the documents are conditionally exempt under s 47E.[28]
[28] See [21]–[22] above.
Balancing the factors favouring and against access
There is a general public interest in the disclosure of the documents. Access to the documents would increase scrutiny, discussion, comment and review of the AFP’s activities. It would also assist public inquiry into possible deficiencies in the conduct of an AFP appointee, and might reveal that the AFP appointee engaged in misconduct. (I do not confirm or deny whether the documents reveal any such misconduct.)
But access would prejudice the protection of various individuals’ right to privacy. And access would probably have some adverse effect on the integrity of the AFP’s professional standards framework, and the processes designed to promote the safety and security of AFP staff. This is because (for the reasons I gave above in relation to s 47E[29]) access could reasonably be expected to prejudice the PRS’s ability to obtain similar confidential information in the future. I think that there is a real possibility that, if the documents are disclosed, some people may be reluctant to complain to, or provide information to, the PRS.
[29] See [22] above.
In balancing these factors—for and against access—I give the greatest weight in this review to the factors against access. I find that access to the documents at this time would, on balance, be contrary to the public interest.
Are the documents exempt under the law enforcement exemption (s 37)?
Because of my conclusion that the documents are conditionally exempt under s 47E, and that access to the documents would be contrary to the public interest, I do not need to consider whether they are also exempt under s 37(1)(b) or s 37(2)(b).
Delay in processing Mr Jones’s FOI request
It took more than six months for the AFP to make a decision on Mr Jones’s FOI request.[30] He says that this delay amounts to procedural unfairness. Even allowing for the consultation that the AFP conducted with affected third parties,[31] this is a long time. However, this is not something that I can consider in this review. It is open to Mr Jones to complain to the Information Commissioner or the Ombudsman[32] about the time that it took the AFP to process his FOI request.
[30] From 21 November 2014 until 3 June 2015 (see [2] and [5] above).
[31] See FOI Act, s 27A and s 53C(1), table item 3.
[32] See FOI Act, Part VIIB.
Conclusion
The documents are conditionally exempt under s 47E of the FOI Act. Access to the documents at this time would, on balance, be contrary to the public interest. Accordingly, the documents are exempt (s 31B of the FOI Act).
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple .................................[sgd].......................................
Associate
Dated 20 May 2016
Date of hearing 10 March 2016 Date final submissions received 24 March 2016 Counsel for the Applicant Mr Steven Whybrow Solicitors for the Applicant Aulich Civil Law Counsel for the Respondent Mr John Bird Solicitors for the Respondent Clayton Utz Lawyers
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