Latimer and Australian Federal Police (Freedom of information)

[2015] AATA 994

Latimer and Australian Federal Police (Freedom of information) [2015] AATA 994 (21 December 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6126
Re	Franklyn Latimer
APPLICANT
And	Australian Federal Police
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	21 December 2015
Place	Perth

The decision under review is varied only to the extent that the particular information identified in paragraph 43 of this decision must be released, but it is otherwise affirmed.

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Mr S. Webb, Member

CATCHWORDS

FREEDOM OF INFORMATION – exemption from release – meaning of ‘would, or could reasonably be expected to’ - disclosure ‘reasonably likely to’ prejudice the effectiveness of lawful methods or procedures – grounds for conditional exemption – effect of disclosure on Commonwealth State relations – information communicated in confidence – effect of disclosure on the proper and efficient conduct of the operation of an agency’ - personal information – public interest - decision varied

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 42D

Freedom of Information Act 1982 (Cth), s 3, 11, 11A, 11B, 26A, 27A, 33, 37, 47B, 47E, 47F

Community Protection (Offender Reporting) Act 2004 (WA), s 81, 82

REASONS FOR DECISION

Mr S. Webb, Member

21 December 2015

1. Franklyn Latimer requested access to certain information concerning himself from the Australian Federal Police (AFP). He was provided with access to some but not all of the information he sought. He applied for review by the Office of the Australian Information Commissioner, but no decision was made and Mr Latimer applied for review by this Tribunal.

2. At first hearing, matters came to light concerning the release of information by the Western Australia Police (WAPOL). I issued orders allowing time for these materials to be filed and for the AFP to consider them. This was done. The documents released to Mr Latimer by the WAPOL are in Exhibit 6.

3. Subsequently, the AFP sought remittal of the application for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975. This was done and the primary decision was revised in a decision dated 19 August 2015.[1]

   [1] Exhibit 5.

4. The remittal decision addresses Mr Latimer’s 26 August 2013 request for information –

   “I request all documents and correspondence that the A.F.P. sent to their office in Thailand and/or sent to the Thai Immigration and Thai Police regarding myself.

   I also request all documents and correspondence between the A.F.P. and the W.A. Police Force Sex Offenders Management Squad (S.O.M.S) regarding myself.”[2]

   [2] T5 folio 100.

5. The remittal decision maker considered 25 documents, comprising 111 pages, within the scope of Mr Latimer’s request. The complete unexpurgated documents were handed up during the hearing. These are in Exhibit 1 and they are subject to confidentiality orders I issued previously.

6. Mr Latimer informed the Tribunal that he is not satisfied with the remittal decision and intends proceeding with his application.

7. Consequently, the application came on for hearing again.

8. In these circumstances, the remittal decision of the AFP is the decision presently under review.

   Issues

9. The issue for determination is whether the documents identified within the terms of Mr Latimer’s request should be released and, in particular, whether the documents, in whole or in part, are exempt from release.

10. These issues are to be determined under the Freedom of Information Act 1982 (the FOI Act).

    Legislation

11. Before considering issues in respect of specific heads of exemption under the FOI Act, it is important to recall the objects of this Act, set out in s 3, and the express intentions of the Parliament -

    (1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:

    (a) requiring agencies to publish the information; and

    (b) providing for a right of access to documents.

    (2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:

    (a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;

    (b) increasing scrutiny, discussion, comment and review of the Government’s activities.

    (3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

    (4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

12. The intention to create a right of access is given further expression in s 11 –

    (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

    (a) a document of an agency, other than an exempt document; or

    (b) an official document of a Minister, other than an exempt document.

    (2) Subject to this Act, a person’s right of access is not affected by:

    (a) any reasons the person gives for seeking access; or

    (b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.

13. These are important features of the scheme the FOI Act provides, with a legally enforceable right of access to documents on the one hand, and provisions for the exemption from release of a document, in whole or in part, on the other.

    The documents

14. The documents that are within the terms of Mr Latimer’s request may generally be described as law enforcement documents. They are documents containing information about Mr Latimer some of which is held within the Australian National Child Offender Register (ANCOR) within the National Child Offender System (NCOS). Additionally, the documents contain information in the form of reference numbers, email addresses, computer system addresses and personal information of persons other than Mr Latimer.

15. As I understand it, the ANCOR scheme is a cooperative legislative scheme that provides for information about child sex offenders to be shared between Commonwealth, State and Territory enforcement agencies, including the AFP and the WAPOL.

16. The legislation governing such information in Western Australia is the Community Protection (Offender Reporting) Act 2004 (the WA Act) – the provision of access to ANCOR information is subject to s 81 and s 82 of this Act.

17. Of the 25 documents (111 folios) in issue, only Documents 10 and 25 have been released in full. No part of Document 2 has been released and all remaining documents have been released with redactions.

    Exemptions

18. The AFP presses exemptions determined by the remittal decision-maker in respect of s 37 – law enforcement, s 47B – Commonwealth-State relations, s 47E – agency operations and s 47F – personal information. Initially, the AFP raised exemptions under s 33 in respect of international relations, but this was not pressed at hearing. Nonetheless, for completeness, I will deal briefly with this issue.

19. While the exemption of documents or parts of documents on grounds of damage to international relations under s 33 and on law enforcement grounds under s 37 are not subject to a public interest test, documents or parts of documents that are conditionally exempt on grounds of Commonwealth-State relations under s 47B, agency operations under s 47E and personal information under s 47F are subject to a public interest test – they must be released unless release is contrary to the public interest.

    International relations – s 33

20. Initially, the AFP asserted that parts of Document 24 are exempt under s 33(b) on grounds that the subject information was provided to Australian authorities by the Royal Thai Police on a confidential basis. This was not pressed at hearing.

21. Mr Latimer asserts that the document has been released in full, but the present evidence does not establish that is so. Nonetheless, the document has been released in very substantial part. As can be seen in T4 folios 109-110, it is a letter from an AFP officer to General Panu, Commissioner of the Royal Thai Police Immigration Bureau.

22. The materials before me do not establish that disclosure of this document would, or could reasonably be expected to cause damage to the international relations of the Commonwealth, or that disclosure would divulge information communicated on a confidential basis by a the Royal Thai Police or any other Thai government agency to the AFP or any other Commonwealth agency.

23. For this reason, the document is not exempt from release under s 33.

    Law enforcement – s 37

24. The AFP asserts that documents 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, 15, 16, 17, 18, 19, 21, 22, 23 and 24 contain information that is exempt under s 37(2)(b) –

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

    (a) …;

    (b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

    (c) ….

25. The exemption claimed relates to the names and telephone numbers of officers, police mail box addresses, generic headings and labels as well as detailed information relating to Mr Latimer.

26. The evidence of Commander Osborne, AFP commander of the Police Operations Coordination Centre, is that release of this information would disclose police methodology in respect of “the types of surveillance undertaken in relation to child sex offenders and the procedures and processes in place for cooperation between policing agencies”.[3] Furthermore, in his opinion “releasing this kind of information would enable a person to evade surveillance or monitoring” and “it would make cooperation between the state, territory and federal policing services more difficult” – “in particular,  I believe that state policing services would be unwilling to provide information in relation to child sex offenders to the AFP… if that information were [sic] not kept confidential”.

    [3] Exhibit 2, page 2.

27. Under cross-examination, Commander Osborne agreed that some parts of the material covered by the exemptions claimed could potentially be released without causing prejudice to the effectiveness of methods generally or in a specific case. As I understand Commander Osborne’s evidence, he was referring, in part, to material provided to the AFP by WAPOL that the AFP would not release without WAPOL agreement, and in other part, to information that is already in the public domain.

28. I note that under s 26A consultation is required prior to release of information generated by a state that is conditionally exempt under s 47B.

29. Commander Osborne’s evidence was given before material given to Mr Latimer by WAPOL came to light, and before the remittal decision was made to release additional information. He was not recalled.

30. Mr Latimer asserts that the names, identification numbers, telephone numbers and email addresses of public officials, including police, should properly be placed in the public domain – the point of identification numbers is to permit a person to be identified. Material of this kind should not be withheld, so the argument goes, as public disclosure would be highly unlikely to prejudice any law enforcement methods or processes.

31. Similar arguments were pressed in respect of information about the kinds of information retained in respect of child sex offenders – the kinds of information police collect and the kinds of surveillance, generally, that might be undertaken when monitoring sex offenders and others are widely understood and openly discussed in public discourse. In Mr Latimer’s submission, information of this kind should be disclosed and not withheld.

32. Additionally, Mr Latimer maintains that he already possess much of the information the AFP is presently withholding from release. In his submission, the AFP is wrong to press for exemption and all the information that is already in the public domain, or that is widely known, should be released

33. Mr Latimer argues, furthermore, that the public has a right to know about police methods, processes and procedures. This, he argues, is consistent with the objects and purposes of the Act.

34. Finally on this point, in Mr Latimer’s submission, the evidence of Commander Osborne is insubstantial conjecture and opinion that should not be relied upon or given any weight. He argues that there is no real evidence before the Tribunal to support the propositions being advanced by the AFP when pressing exemptions under s 37(2)(b).

35. I do not agree. Commander Osborne is a suitably qualified AFP officer, with relevant responsibilities and experience, to give evidence about matters presently in contest. And his evidence must be carefully considered and weighed when deciding whether or not particular exemptions are reasonably and properly made out.

36. The test to be applied is one that requires an assessment of whether disclosure ‘would, or could reasonably be expected to’ prejudice the effectiveness of law enforcement methods or procedures.

37. To my mind, public disclosure of the names, identification numbers, telephone numbers and email addresses of police officers directly involved in monitoring sex offenders that are not publicly known may reasonably be expected to have a deleterious effect on police operations, methods and procedures. While, for example, the name or identification number of an officer may have been released in one context, or on a document, releasing the name or identification number of the same officer in a different context, on a different document, may lead to disclosure of information that was not previously disclosed about the duties of the officer. On Commander Osborne’s evidence this may compromise police operations. Releasing contact information for individual police involved in monitoring sex offenders, covertly or not, that is not publicly available, may well enable sex offenders, or members of the public generally, to attempt communication with those officers. It is not difficult to accept that this would, or could reasonably be expected to prejudice police operations, methods and procedures in respect of sex offenders.

38. It may be that Mr Latimer is correct in his assertion that the kinds of information, monitoring and methods police employ, generally, when monitoring sex offenders are the subject of public discussion and reportage. Certainly, risk assessment tools for sex offenders have been released publicly and studied in universities and other institutions. I have no difficulty in accepting that general information of this kind should not be withheld from release unless there are compelling reasons to do so in a particular case.

39. But the disclosure of information about a particular case, including the kinds of monitoring, the methods employed and the information obtained by police must be approached very carefully. In considering these matters, it appears to me that information that should not be released may be disclosed by the release of contextual information -  for example, item X may be disclosed by its absence or by the presence of information that may otherwise be innocuous in a particular context.

40. It is one thing for information about generic tools, methods and processes that may be used by police to be canvassed in public discourse or studied in institutions, such as has occurred in respect of risk assessment tools for example, or for people to assume that police adopt a variety of surveillance and monitoring methods in the course of operations or normal duties, such as may appear in feature films or television programs. It is entirely another thing for information about the precise methods employed (or not employed) and the information obtained, retained (or perhaps overlooked) in a particular case to be divulged.

41. Even though it is not presently established that divulging information about generic information headings and labels ‘would’ prejudice the effectiveness of police methods and procedures, on Commander Osborne’s evidence I am reasonably satisfied that this result could be a reasonable likelihood. I accept that disclosing information about the information headings and labels of a system may divulge information about the information police collect and store in the system, which may assist a person seeking to avoid monitoring or detection to more readily do so.

42. I have considered the documents in Exhibits 3, 4 and 6. The content of these documents does not propel me to a different conclusion. Rather, the information in these documents tends to support the reasoning and reinforce the conclusion I have reached. Much was said by Mr Latimer about the letter from Mr Clancy-Lowe. Contrary to his assertion, the letter does not state that he has been provided with all of the information about him held by police in the ANCOR system. I am satisfied that Mr Clancy-Lowe’s letter is quite consistent with the findings I have made.

43. On balance, I am reasonably satisfied the exemptions claimed are made out with the following exceptions –

    (a)The words ‘OFFICIAL CAUTION SERVED 031210’ were released in folio 25 and identical exemptions pressed in respect of this information in folios 24, 28, 30, 31, 32, 33, 34, 35, 36, 56, 58, 59, 64, 65, 66, 68, 70, 72, 73, 74, 78, 82, 83, 84, 85, 88, 90 and 92 cannot be sustained.

    Commonwealth-State relations – s 47B

44. The AFP asserts that documents 1, 2, 6, 9, 13 and 18 contain information that is exempt under s 47B(a) and (b) –

    47B Public interest conditional exemptions—Commonwealth-State relations

    A document is conditionally exempt if disclosure of the document under this Act:

    (a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or

    (b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth;

45. As I have said, there is a requirement for consultation in certain circumstances under s 26A. The evidence of consultation between the AFP and WAPOL in this case is in the Attachment to Commander Osborne’s affidavit in Exhibit 2. As can be seen, this requests exemption from release of information “due to operational issues that apply to collection of the data held by SOMS in the ‘Register’ [the Community Protection Offender Register established under the WA Act]”. This consultation took place before information released by WAPOL to Mr Latimer under a separate freedom of information request.

46. The documents and information that is said to be exempt from release under s 47B is not the same as the information released to Mr Latimer by WAPOL.

47. All of the exemptions claimed under s 47B are in respect of ANCOR documents.

48. In view of WAPOL’s request for protection of information in the register, and Commander Osborne’s evidence about the probable damage that would be caused if the information is disclosed, I am satisfied that the information and documents covered by the exemptions claimed are made out to the extent that the material is conditionally exempt. Disclosure of ANCOR information over the express objection of WAPOL would or could reasonably be expected to damage relations between the Commonwealth and the State of Western Australia. Furthermore, information about Mr Latimer is communicated by WAPOL in confidence, via ANCOR, to the AFP.

49. That being so, under s 11A(5), access must be given to the documents, or parts of documents, that are conditionally exempt unless it is contrary to the public interest to do so.

50. In assessing the public interest the factors set out in s 11B(3) and (4), and Guidelines made under s 11B(5) must be considered –

    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.

    Irrelevant factors

    (4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:

    (a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;

    (aa) access to the document could result in embarrassment to the Government of Norfolk Island or cause a loss of confidence in the Government of Norfolk Island;

    (b) access to the document could result in any person misinterpreting or misunderstanding the document;

    (c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;

    (d) access to the document could result in confusion or unnecessary debate.

    Guidelines

    (5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.

1. The objects of the FOI Act may be served by providing access to the conditionally exempt information, particularly as some of this information would be within the meaning of ‘personal information’ of Mr Latimer. This weighs in favour of granting access.

2. There are powerful counterveiling considerations in this case, however.

3. Disclosure would mean stepping over the express request of WAPOL to protect the information from release. In all likelihood, this may be expected to undermine the effectiveness of the NCOS and ANCOR systems for monitoring child sex offenders and others. There is a strong public interest in the effective monitoring of offenders of this kind and for this to be done as seamlessly and effectively as possible across all Australian jurisdictions, and internationally.

4. It is conceivable that release of the documents may inform debate about the way in which child sex offenders are monitored, but I think that it is more probable that release of the documents would reveal aspects of Mr Latimer’s case, in particular, and the child sex offender monitoring arrangements under the ANCOR and NCOS systems, more generally. While this may be of interest to Mr Latimer, I am not persuaded that the public interest is served by providing access to this material. No doubt, there is a public interest in the protection of children from predatory child sex offenders. Arrangements to ensure the effectiveness police methods for monitoring child sex offenders across all jurisdictions and for the protection of children, and the community generally, from the commission of child sex offences are matters of public importance. This must be weighed against the public interest in ensuring appropriate accountability and oversight of police methods and procedures, and ensuring that the lawful rights of child sex offenders on whom justice has been served, and who have re-entered the community, are not ignored or abused.

5. On balance, the public interest factors against the provision of access to the documents that are conditionally exempt outweigh those that tend to favour release. I find that the provision of access to these documents would be contrary to the public interest.

6. It follows that the exemptions claimed are made out.

   Agency operations – s 47E

7. The AFP asserts that documents 21, 22, 23 and 24 contain information that is exempt under s 47E(d) –

   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:

   …

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

8. The parts of the documents that are said to be exempt under s 47E(d) contain information about persons and agencies assisting the AFP in monitoring the movement of child sex offenders.

9. I am satisfied that disclosure of these parts of documents would, or could reasonably be expected to have a substantial adverse effect on the AFP operations monitoring and tracking child sex offenders. This material is conditionally exempt under s 47E(d).

10. The public interest tests under s 11A(5) and the factors under s 11B(3), (4) and (5) must be considered.

11. I am satisfied that providing access to the parts of the documents that are conditionally exempt under s 47E(d) is contrary to the public interest. I have reached this conclusion for the same reasons given above – the public interest in the effective monitoring and tracking of child sex offenders across all Australian jurisdiction, and internationally, and the protection of children, and the community generally, from child sex offending behaviour, outweighs the public interest in the release of government information and personal information in pursuit of the objects of the Act. It also outweighs the public interest in increasing public scrutiny of police methods and procedures, even though those are matters of some public importance.

12. I am satisfied that the exemptions claimed under s 47E(d) are made out and that the provision of access to this material is contrary to the public interest.

13. The exemptions claimed under s 47E(d) are made out.

    Personal information – s 47F

14. The AFP asserts that documents 1, 6, 9, 13, 14, 15, 18, 20, 22 and 24 contain information that is exempt under s 47F –

    47F Public interest conditional exemptions—personal privacy

    General rule

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

    (2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:

    (a) the extent to which the information is well known;

    (b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;

    (c) the availability of the information from publicly accessible sources;

    (d) any other matters that the agency or Minister considers relevant.

15. The personal information over which exemption is claimed in these documents includes information that would identify persons other than Mr Latimer, including the names and other identification information.

16. The first test is whether disclosure of this information would be unreasonable.

17. I understand that no consultations have been undertaken under s 27A. The exemptions are pressed by the AFP alone.

18. There are two classes of person affected. The first group are enforcement officers. The second relates to a travelling companion of Mr Latimer.

19. I am satisfied that the disclosure of the names of enforcement officers involved in child sex offender monitoring would be unreasonable in the present circumstances. I do not think that the disclosure of the personal information of these people may expose them to pressures and risks that would not otherwise arise in the course of their duties. I do not think that this would be reasonable.

20. The second group, comprised of one person, raises different considerations. Mr Latimer may well know the personal information of this person. But that does not make in reasonable to release the personal information of the person to the world at large. I am satisfied that it is not. Release of personal information of this kind may expose the person to risks that would not otherwise arise.

21. It follows that I am satisfied that the personal information contained in the documents to which this head of exemption relates is conditionally exempt.

22. The public interest test under s 11A(5) must be applied, and the factors set out in s 11B(3), (4) and (5) must be considered.

23. There is a strong public interest in a person’s right to privacy and in protecting personal information that is not of public interest, and that is not publicly known in the context of the documents in question, or that cannot be accessed publicly, from general release. Against this the public interest in the release of government information pursuant to the objects of the Act, as described in s 3 and s 11, must be weighed.

24. Mr Latimer maintained that the names of public officials should not be secret, and that these can readily be accessed by members of the public.

25. This is a case in which general principle must give way to particular circumstance. I think, as I have said, that the public interest in maintaining effective measures for monitoring child sex offenders and for protecting children, and the community generally, from child sex offending behaviours, is not served by publicly releasing the names of officers and others who are actively involved in related monitoring and enforcement activities.

26. Mr Latimer’s arguments fall away in respect of the personal information of his travelling companion. That person is not a public official. I think that the public interest in protecting personal privacy, including the personal privacy of this person, outweighs the interest he represents in the public release of that information.

27. I am satisfied that public release of the personal information of people that may be identified in the parts of the documents subject to the exemptions claimed under s 47F is contrary to the public interest. For this reason this material is exempt from release.

    Decision

28. The decision under review must be varied to allow for release of the information I have identified in [43], but not varied otherwise.

I certify that the preceding 78 (seventy -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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Administrative Assistant

Dated 21 December 2015

Dates of hearing	9 July 2015 & 15 December 2015
Applicant	In person
Representative for the Respondent	Mr C Sibley
Solicitors for the Respondent	Clayton Utz