Leigh and Australian Federal Police (Freedom of information)
[2016] AATA 330
•20 May 2016
Leigh and Australian Federal Police (Freedom of information) [2016] AATA 330 (20 May 2016)
Division
GENERAL DIVISION
File number
2015/3703
Andrew Leigh
APPLICANT
And
Australian Federal Police
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member Date 20 May 2016 Place Canberra 1.The decision of the Australian Federal Police on 4 June 2015, as altered on 16 November 2015, is varied so as to decide that:
(a)disclosing the names of the then members of staff in the office of the then Minister for Foreign Affairs that appear on page 5 of the Australian Federal Police’s post-operational assessment report (dated 10 May 2004) would not involve an unreasonable disclosure of personal information for the purposes of s 47F of the Freedom of Information Act 1982; and
(b)the applicant should be given access to a copy of that page (modified, under s 22 of the Freedom of Information Act 1982, by the deletion of exempt and irrelevant material) from which those names have not been deleted.
2.This decision does not come into operation until 17 June 2016.
..............................[sgd]..........................................
James Popple, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION — request for access to names of former staff of the Minister for Foreign Affairs contained in Australian Federal Police report — whether staff names are conditionally exempt from disclosure — whether disclosure would involve unreasonable disclosure of personal information — whether disclosure would be contrary to the public interest — decision varied.
PARLIAMENTARY PRIVILEGE — whether applicant can rely on Parliamentary proceedings and media references to Parliamentary proceedings — whether reliance on material would invite the drawing of inferences or conclusions contrary to s 16(3)(c) of the Parliamentary Privileges Act 1987 — applicant cannot rely on material.
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 43(5B), 44
Bill of Rights 1688, art 9
Freedom of Information Act 1982, ss 3, 3A, 4(1), 11(2), 11A(5), 11B(4), 15, 22, 27A, 31B, 47F, 53C, 54L, 54W(b), 60AA, 61(1)(b), 63(2), 64(1A), 67(2), 93A
Members of Parliament (Staff) Act 1984
Parliamentary Privileges Act 1987, ss 3(1), 16
Privacy Act 1988, s 6(1)
Public Service Act 1999
CASES
Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223
Anderson and Australian Federal Police (1986) 11 ALD 355
‘BA’ and Merit Protection Commissioner [2014] AICmr 9
British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123
Chandra and Minister for Immigration and Ethnic Affairs, unreported, Administrative Appeals Tribunal, 5 October 1984
Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962
‘FG’ and National Archives of Australia [2015] AICmr 26
Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435
Francis and Department of Defence (2012) 59 AAR 35
Henning v Australian Consolidated Press Ltd [1982] 2 NSWLR 374
Jones and Australian Federal Police [2016] AATA 329
Kahn and Australian Federal Police, unreported, Administrative Appeals Tribunal, 14 March 1985
Mundey v Askin [1982] 2 NSWLR 369
Rann v Olsen (2000) 76 SASR 450
Rovere and Secretary, Department of Education and Training [2015] AATA 462
Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945
Uren v John Fairfax & Sons Ltd [1979] 2 NSWLR 287
Wiseman and Defence Service Homes Corp (1987) 14 ALD 301
Wiseman v Commonwealth, unreported, Federal Court of Australia, Full Court, 24 October 1989
SECONDARY MATERIALS
Explanatory memorandum, Parliamentary Privileges Bill 1987
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
In late 2003 and early 2004, the Australian Federal Police (the AFP) conducted an investigation into the leaking, to a journalist, of a report of the Office of National Assessments (the ONA). As part of that investigation, the AFP interviewed members of staff of the office of the then Minister for Foreign Affairs (the Minister). The applicant sought access, under the Freedom of Information Act 1982 (the FOI Act), to documents relating to the leak and the AFP’s investigation. The AFP gave him access to, amongst other documents, a redacted copy of its post-operational assessment report of the investigation. The names of the staff of the Minister’s office who were interviewed by the AFP are redacted from that copy of the report. The applicant says that, under the FOI Act, he should be given access to those names.
The staff would have had an expectation, when they were interviewed, that their personal information would have been treated confidentially. And a person would suffer a certain level of opprobrium if named, without any context, as having been interviewed by the AFP in the course of a criminal investigation. However, provided that the names of those staff are considered in the context of the redacted report, disclosing their names would not involve an unreasonable disclosure of personal information for the purposes of s 47F of the FOI Act. This is because those staff would suffer little or no detriment if their names were disclosed. The report concludes that there was no direct and probative evidence that they were involved in the leak. It does not suggest that they came under unfavourable police attention. They were interviewed by the AFP because of their performance of their usual duties as staff of the Minister’s office. If the redacted report is considered as a whole, the information it contains about those staff is not prejudicial.
Background
On 15 April 2015, Dr Andrew Leigh MP applied to the AFP under s 15 of the FOI Act for access to “all documents … relating to the unauthorized leaking of the Office of National Assessments report ‘Iraq: humanitarian dimensions’”—which I will refer to as the ONA report—“and the subsequent AFP investigation into the unauthorized leak of the report”.
On 4 May 2015, the AFP wrote to Dr Leigh advising that it was satisfied that a practical refusal reason existed in relation to his request because the work involved in processing the request would substantially and unreasonably divert the resources of the AFP from its other operations.[1] The AFP advised Dr Leigh that it intended to refuse access to the documents he had requested, and commenced a request consultation process.[2]
[1] FOI Act, s 24AA(1)(a)(i).
[2] FOI Act, s 24AB.
On 25 May 2015, after some correspondence between his office and the AFP, Dr Leigh agreed to narrow the scope of his request to the “final reports and the letter to the referring party advising them of the outcome of their referral”.
In these reasons, I will adopt the shorthand of referring to a document that is wholly comprised of exempt matter[3] 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.[4] 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.
[3] 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”.
[4] See also the definitions of “conditionally exempt” and “exempt document” in s 4(1).
On 4 June 2015, the AFP made a decision on Dr Leigh’s request. The AFP identified four documents which fell within the scope of the revised request (the documents). The AFP decided that three of those documents were wholly exempt, and one was partly exempt. One of the wholly exempt documents was the AFP’s post-operational assessment report on “Operation Taupe” dated 10 May 2004 (the AFP report).
On 3 July 2015, Dr Leigh 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.[5] On 22 July 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.
[5] FOI Act, s 54G.
On 23 July 2015, Dr Leigh applied to the Tribunal, under s 57A(1)(b) of the FOI Act, for review of the IC reviewable decision.
On 16 November 2015, the AFP altered its decision of 4 June 2015 with the consent of Dr Leigh and the Tribunal, pursuant to s 26(1)(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The decision was altered so that Dr Leigh was granted access to edited copies of the documents, modified by the deletion of exempt matter.
Decision under review
The decision under review is the AFP’s decision on 4 June 2015, as altered on 16 November 2015, not to grant Dr Leigh access to all of the documents that he requested.
Issues
Dr Leigh seeks review of the AFP’s decision in only one respect, and only in relation to a single page of the AFP report: page 5. A redacted copy of the AFP report, which has been disclosed, refers to interviews that AFP officers conducted in December 2003 with then members of staff in the Minister’s office. Dr Leigh seeks access to the names of those staff members (the interviewed staff), though not the name of the Minister’s then chief of staff (who is referred to, by his job title, in the redacted copy of the AFP report).[6]
[6] The AFP has also redacted, from the edited copy of page 5, the names of individuals who were not interviewed staff. Dr Leigh does not seek access to those names.
The AFP says that page 5 is partly exempt, and the names of the interviewed staff have been edited from page 5, because the disclosure of those names would involve the unreasonable disclosure of personal information (s 47F of the FOI Act) and access to page 5 with those names included would, on balance, be contrary to the public interest (s 11A(5)).
In submissions in this matter, Dr Leigh sought to refer to Parliamentary proceedings, and media reports of Parliamentary proceedings, in support of his arguments about why the names of the interviewed staff should be disclosed. The AFP says that I cannot have regard to that evidence in making my decision.
So, the issues in this review are:
·Is page 5 partly exempt because it includes the names of the interviewed staff? That depends on:
owhether page 5 is conditionally exempt—that is, whether disclosure of those names would involve the unreasonable disclosure of personal information (s 47F of the FOI Act); and
oif page 5 is conditionally exempt, whether access to page 5 (with those names included) would, on balance, be contrary to the public interest (s 11A(5)).
·In deciding whether page 5 is partly exempt, can the Tribunal have regard to Parliamentary proceedings, and media reports of Parliamentary proceedings?
Because of s 61(1)(b) of the FOI Act, the AFP has the onus of establishing that its decision was justified.
Mr Josh Frydenberg MP
Dr Leigh speculates that Mr Josh Frydenberg MP is one of the interviewed staff. He points out that Mr Frydenberg was a member of the Minister’s staff at the relevant time.[7] Some of Dr Leigh’s arguments about why the disclosure of the names of the interviewed staff would not involve the unreasonable disclosure of personal information are premised on the assumption that Mr Frydenberg is one of the interviewed staff.[8] Dr Leigh also argues that, if Mr Frydenberg is one of the interviewed staff, the fact that Mr Frydenberg is now a Cabinet minister is relevant to a consideration of the public interest in access to page 5.
[7] Mr Frydenberg’s page at the Australian Parliament House website says that he was adviser to the Minister in 1999–2001 and a senior adviser in 2002–03: < See [24] below.
The AFP voluntarily produced to the Tribunal an unedited copy of page 5.[9] I have examined it. I do not confirm or deny that Mr Frydenberg is one of the interviewed staff. And, as discussed below,[10] it is not relevant to my decision in this review whether Mr Frydenberg (or any other specific person) is one of the interviewed staff.[11]
[9] See FOI Act, s 64(1A).
[10] See [45] below.
[11] This means that I do not have to consider a newspaper article that Dr Leigh provided which is not Parliamentary material (see [19]–[29] below) and which, he says, demonstrates that Mr Frydenberg was associated with the matters dealt with in the AFP report.
Parliamentary material
In his submissions, Dr Leigh referred to six occasions when Mr Frydenberg had been publicly referred to in relation to the leak of the ONA report: once in a question asked in the House of Representatives; once in a question asked in the Senate; and four times in newspaper articles reporting on those Parliamentary proceedings. He sought to rely on these public references (the Parliamentary material) in this review.
The AFP says that I cannot have regard to the Parliamentary material because of the operation of the Parliamentary Privileges Act 1987. Section 16 of that Act relevantly provides:
16 Parliamentary privilege in court proceedings
(1)For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2)For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee …
(3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
…
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
Section 3(1) of the Parliamentary Privileges Act provides that “House means a House of the Parliament”. The definition of “tribunal” in that same section clearly includes this Tribunal.[12]
[12] Section 3(1) provides that “tribunal means any person or body (other than a House, a committee or a court) having power to examine witnesses on oath …” The Tribunal has the power to take evidence on oath or affirmation: AAT Act, s 40(1)(a).
The AFP says that Dr Leigh cannot rely on the Parliamentary material because to do so would be to invite the drawing of inferences or conclusions wholly or partly from something forming part of proceedings in Parliament, contrary to s 16(3)(c). Similarly, the AFP says that I cannot take the Parliamentary material into consideration in this review because to do so would be to draw such inferences or conclusions, also contrary to s 16(3)(c).
Dr Leigh says that he seeks to rely on the Parliamentary material in a way that does not offend s 16(3)(c). He says that the Parliamentary material proves that Mr Frydenberg has been referred to in Parliament in relation to the leak of the ONA report, and that those references have been reported on by the media. Dr Leigh says that he is not inviting me to draw any inferences or conclusions from the Parliamentary material. He says he is only seeking to rely on the fact that these references to Mr Frydenberg were made in Parliament, and reported on.[13]
[13] See, for example, Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435 at 438–439 per Needham J; Uren v John Fairfax & Sons Ltd [1979] 2 NSWLR 287 at 289 per Begg J; Mundey v Askin [1982] 2 NSWLR 369 at 373 per Moffitt P, Reynolds and Samuels JJA; Henning v Australian Consolidated Press Ltd [1982] 2 NSWLR 374 at 375–376 per Hunt J; Rann v Olsen (2000) 76 SASR 450 at 515 [404] per Lander J. See also Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 226 per Beaumont J.
At the hearing, I came to the preliminary view that the AFP was correct, and I did not allow Dr Leigh to rely upon the Parliamentary material. That is still my view.
Section 47F(2) of the FOI Act (quoted below[14]) provides that, in determining whether the disclosure of the names of the interviewed staff would involve the unreasonable disclosure of personal information, I must have regard to (amongst other things):
·the extent to which the information is well known (s 47F(2)(a)); and
·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 (s 47F(2)(b)).
Dr Leigh says that the Parliamentary material establishes that it is well known that Mr Frydenberg was associated with the matters dealt with in the AFP report (s 47F(2)(b)). If Mr Frydenberg is one of the interviewed staff, the Parliamentary material would also be relevant to the question of the extent to which his personal information is well known (s 47F(2)(a)). Furthermore, if Mr Frydenberg is one of the interviewed staff, the Parliamentary material might well be relevant to the question whether access to page 5 would be contrary to the public interest (s 11A(5)).
[14] See [30] below.
Section 16(1) of the Parliamentary Privileges Act applies the provisions of Article 9 of the Bill of Rights 1688[15] in relation to the Parliament, which are taken to have (at least) the effect of the other provisions of s 16. Dr Leigh points out that Article 9 provides:
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament [sic].
He says that he seeks to rely on the Parliamentary material in a way that does not amount to impeaching or questioning Parliamentary proceedings. But s 16(3)(c) goes further than Article 9.[16] It prohibits drawing, or inviting the drawing of, inferences or conclusions from Parliamentary proceedings.
[15] 1 Will and Mary 2, c 2.
[16] See Rann v Olsen (2000) 76 SASR 450 at 461 [53] per Doyle CJ with whom Mullighan J agreed; at 492 [236] per Perry J.
The explanatory memorandum to the Bill for the Parliamentary Privileges Act includes “the following further exposition” of what became s 16(3)(c):
This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member’s speech in Parliament cannot be used to support an inference that the member’s conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in Parliament which establishes that fact, e.g., the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day.
These prohibitions express the limitations on the use of parliamentary proceedings which were held to flow from article 9 in the earlier court judgments.[17] Basically, what they prevent is proceedings in Parliament being “used against” a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person.[18]
[17] The explanatory memorandum makes it clear that the purpose of s 16 “is to avoid the consequences of the interpretation of article 9 of the Bill of Rights 1688” in certain specified judgments of the Supreme Court of New South Wales. The memorandum also specifies several earlier judgments which came to a different conclusion. This reference is to those earlier judgments. See explanatory memorandum, Parliamentary Privileges Bill 1987 at 9–11.
[18] Explanatory memorandum, Parliamentary Privileges Bill 1987 at 13–14, emphasis in the original.
In British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (BAT), the appellant had sought access to a document under the FOI Act. The Secretary decided that the document was exempt under s 42 because it would be privileged from production in legal proceedings on the ground of legal professional privilege. The appellant argued that privilege in the document had been waived because (amongst other reasons) aspects of the contents of the document had been referred to in a Government response that had been tabled in the Senate. As the Full Court of the Federal Court explained:
To avoid the threat presented by s 16(3) of the PP Act [the Parliamentary Privileges Act], the appellant is driven to say that it seeks to refer to the tabling of the Government Response in the Senate only to show that the words were published. However, if one does not go further and invite the inference that the reference reveals an inconsistency in the position of the respondent in now seeking to maintain legal professional privilege, then there can be no basis for the conclusion that the privilege has been waived. If the appellant seeks to show the inconsistency necessary to make good its waiver argument, it must be gored by s 16(3) of the PP Act.
In our opinion, it is not possible to avoid the conclusion that the appellant does indeed seek to make use of the tabling of the Government Response to permit the drawing of an inference adverse to the government. Since inconsistency in maintaining the privilege is the point on which waiver turns, for the appellant to succeed it must persuade the Court that the conduct of the respondent in insisting upon the privilege is inconsistent with the publication of the Government Response by tabling it in the Senate. That is precisely the kind of reflection which may not be made upon the conduct of those whose published statements are within the protection of s 16(3) of the PP Act.[19]
[19] British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123 at 138 [48]–[49] per Keane CJ, Downes and Besanko JJ.
On this point, I think that this review is analogous to BAT. Dr Leigh says that he seeks to rely on the Parliamentary material only to show that words were published—that Mr Frydenberg has been referred to, in relation to the leak of the ONA report, in Parliament and in media reports of Parliamentary proceedings. But Dr Leigh goes further. He wants me to use the Parliamentary material to draw one or more of the following inferences or conclusions:
·that it is well known that Mr Frydenberg was associated with the matters dealt with in the AFP report;
·(if Mr Frydenberg is one of the interviewed staff) an inference or conclusion about the extent to which his personal information is well known; and
·that access to page 5 would not be contrary to the public interest.[20]
Dr Leigh is effectively saying that s 47F does not apply to page 5 in the way that the AFP says it does. He seeks to persuade me that the AFP’s application of s 47F is inconsistent with the fact that Mr Frydenberg has been referred to, in relation to the leak of the ONA report, in Parliament and in media reports of Parliamentary proceedings.[21] I do not think it matters that Dr Leigh does not seek to use that material “to support a civil or criminal action against a person”.[22] To adopt the words of the explanatory memorandum,[23] he seeks to do more than prove a material fact by reference to a record of proceedings in Parliament which establishes that fact.
[20] See [24] above.
[21] This is not to suggest that the AFP does not have the onus of establishing that its decision was justified: see s 61(1)(b) of the FOI Act and [16] above.
[22] See Explanatory memorandum, Parliamentary Privileges Bill 1987 at 14, quoted at [26] above.
[23] Explanatory memorandum, Parliamentary Privileges Bill 1987 at 13, quoted at [26] above.
It follows that I cannot have regard to the Parliamentary material in this review, because of the operation of s 16(3) of the Parliamentary Privileges Act.
Is page 5 conditionally exempt under the personal privacy exemption (s 47F)?
Section 47F of the FOI Act relevantly provides:
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.
Section 4(1) of the FOI provides that “personal information has the same meaning as in the Privacy Act 1988”. Section 6(1) of the Privacy Act provides that:
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
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.[24]
[24] 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.
The FOI Guidelines explain that personal information “identifies, or could identify, a person”[25] but, to be personal information:
[t]he information needs to convey or say something about a person, rather than just identify them. The mere mention of a person’s name … may, however, reveal personal information about them depending on the context.[26]
The names of the interviewed staff do more than just identify them, because they are used in the context of the AFP report. The names are clearly personal information. So, if the disclosure of the names would be an unreasonable disclosure of that personal information, then page 5 is conditionally exempt under s 47F.
[25] 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 [6.116].
[26] FOI Guidelines at [6.125].
When will disclosure involve the unreasonable disclosure of personal information?
The Full Court of the Federal Court in Wiseman v Commonwealth said that “[w]hether or not disclosure would be ‘unreasonable’ is a question of fact and degree which calls for a balancing of all the legitimate interests involved”.[27] The FOI Guidelines provide some assistance on the question of when disclosure would be unreasonable. After referring to the matters listed in s 47F(2), to which a decision maker must have regard, the FOI Guidelines say:[28]
[27] Wiseman v Commonwealth, unreported, Federal Court of Australia, Sheppard, Beaumont and Pincus JJ, 24 October 1989.
[28] FOI Guidelines at [6.130]–[6.132], some notes omitted.
In considering what is unreasonable, the AAT in Re Chandra and Minister for Immigration and Ethnic Affairs stated that:
Whether a disclosure is “unreasonable” requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. …
… it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.[29]
[29] Chandra and Minister for Immigration and Ethnic Affairs, unreported, Administrative Appeals Tribunal, Hall DP, 5 October 1984; (1984) 6 ALN N257 at N259 [51]–[52]. I have taken the liberty of restoring here some of the words that the FOI Guidelines omit from this quotation, and correcting an error of transcription.
The Federal Court affirmed the approach provided in Re Chandra and stated that there are four factors for determining whether disclosure is unreasonable in all the circumstances.[30] The four factors are whether:
[30] It is not clear to me which Federal Court decision is being referred to here. I note that the Full Court in Wiseman referred to the Tribunal (in Wiseman and Defence Service Homes Corp (1987) 14 ALD 301) adopting the reasoning in Chandra and added that “no error of law on the part of the Tribunal … has been demonstrated”. But the Court in Wiseman does not enunciate the four factors referred to in the FOI Guidelines.
(a)the author of the document is identifiable[31]
[31] The FOI Guidelines point out (at [6.131], note 86) that s 11B(4)(c) of the FOI Act provides that, when the public interest test is considered, the fact that the author of the document was (or is) of high seniority is not to be taken into account.
(b)the documents contain third party personal information
(c)release of the documents would cause stress on the third party
(d)no public purpose would be achieved through release.
Other factors considered to be relevant include:
·the nature of the information, that is, whether it is common or disclosure would result in serious consequences
·how the information was obtained, that is, covertly, in confidence or using information gathering powers
·the current relevance or age of the information
·whether it would shed light on the workings of government.
For example, in Colakovski v Australian Telecommunications Corp, Heerey J considered that “… if the information disclosure were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed … disclosure would be unreasonable”.[32]
[32] Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 441 per Heerey J.
I note that Wiseman, Chandra and Colakovski were all decided before significant reforms were made to the FOI Act in 2010, including the introduction of conditional exemptions, like that in s 47F. In those cases, the relevant provision was s 41 (since repealed) which provided that “[a] document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person”.[33] The obvious similarities between that provision and s 47F explain why the FOI Guidelines refer to those earlier cases. I should have regard to the factors identified in the FOI Guidelines when deciding, in this review, whether disclosure of the names of the interviewed staff would be an unreasonable disclosure of that personal information.
[33] Section 29(1) of the Freedom of Information Amendment Act 1991 amended s 41(1) of the FOI Act by replacing ‘information relating to the personal affairs of’ any person with ‘personal information about’ any person, with effect from 25 October 1991. Section 41 was repealed, and s 47F inserted, by the Freedom of Information Amendment (Reform) Act 2010 with effect from 1 November 2010. Section 47F, quoted from at [30] above, also uses the term ‘personal information’.
In the 2015 IC review decision ‘FG’ and National Archives of Australia, the Australian Information Commissioner set out some of the “matters that can potentially be considered in deciding whether disclosure of personal information would be ‘unreasonable’”. He listed:
· the nature, age and current relevance of the information
· whether the information is well known or available from other public sources
· any detriment that disclosure may cause to the person to whom the information relates
· any opposition to disclosure expressed or likely to be held by that person
· the circumstances of an agency’s collection and use of the information
· whether disclosure of the information might advance the public interest in government transparency and integrity
· the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act.[34]
He continued:
Another matter to add to that list—consistently with the discussion in this case—is any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information.[35]
[34] [2015] AICmr 26 at [47] per Commissioner McMillan, citing s 47F(2), the FOI Guidelines at [6.127]–[6.135], and ‘BA’ and Merit Protection Commissioner [2014] AICmr 9 at [59]–[68] per Commissioner McMillan.
[35] [2015] AICmr 26 at [47] per Commissioner McMillan.
I think that the factors that the Information Commissioner listed in ‘FG’ subsume all of the factors listed in s 47F(2)—to which I must have regard—and those set out in the FOI Guidelines—which I should apply—with the possible exception of:
·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 (s 47F(2)(b)); and
·whether no public purpose would be achieved through release.
Accordingly, in this review, I will apply the factors listed in ‘FG’ plus those two extra factors, and any other matters that I consider relevant (s 47F(2)(d)) in deciding whether the disclosure of the names of the interviewed staff would involve the unreasonable disclosure of personal information.
Views of the affected third parties
When an FOI request is made for access to a document containing a person’s personal information, s 27A of the FOI Act requires the relevant agency to consult with that person in certain circumstances. Because of s 53C(1),[36] a person consulted in this way is termed an “affected third party” for the document.
[36] FOI Act, s 53C(1), table item 3.
On 26 August and 2 September 2015, the AFP wrote to the interviewed staff to advise them that Dr Leigh had made an FOI request,[37] and to give them each an opportunity to make an exemption contention: a contention that their names should not be disclosed. On 15 October 2015, the AFP wrote to the interviewed staff to notify them that Dr Leigh had applied to the Tribunal for review of the AFP’s decision.[38] The AFP has provided the Tribunal with copies of these letters, and correspondence it received from the interviewed staff in response. I have examined that correspondence.
[37] I note that this consultation occurred after the AFP had made its decision on Dr Leigh’s request (on 4 June 2015). Presumably consultation did not occur before the decision was made because the AFP had decided not to give access to the names of the interviewed staff. This means that there was no obligation on the AFP to consult: see s 27A(3).
[38] See FOI Act, s 60AA.
I do not say whether all of the interviewed staff who were consulted made an exemption contention. However, each of the interviewed staff who did respond objected to the disclosure of their name. Each contended that disclosure would be unreasonable. Their reasons included that the information is not well known; they are not known to have been associated with the matters dealt with in the AFP report; the AFP report was classified “highly protected”; and there is no public purpose that could be achieved through disclosure.
Would disclosure of the names of the interviewed staff involve the unreasonable disclosure of personal information?
In deciding whether disclosure of the names of the interviewed staff would involve the unreasonable disclosure of personal information, it is important to consider the context of that disclosure—the context in which the names appear in the AFP report.
The following is clear—or, at least, deducible—from the redacted version of the AFP report, which has already been disclosed:
·The AFP report is the AFP’s post-operational assessment on “Operation Taupe”. The aim of that operation was to “investigate a single apparent unlawful disclosure” of the ONA report to a journalist.
·On 23 June 2003, a newspaper article was published in which the journalist claimed to have access to the ONA report, and quoted directly from it. The article named, and was critical of, one of the ONA report’s co-authors (the co-author).
·The ONA report did not identify its authors. However, “[m]uch of the contents of the [ONA] report were put into the public arena by [the co-author], prior to the [journalist’s] article.”
·The ONA report had been “extensively distributed” on 17 December 2002. 84 copies had been distributed between that date and 9 September 2003. 66 of those copies were distributed outside the ONA.
·The AFP had considered not accepting the matter for investigation because of “[t]he wide distribution of the subject document in hardcopy and electronic format to numerous Commonwealth Departments, Authorities and Missions both nationally and internationally” (amongst other reasons).
·On 11 September 2003, the AFP accepted two referrals as active investigations. The AFP sought to “identify the receipt, storage, possible further distribution and destruction” of copies of the ONA report. The AFP wrote to various ministers, and to a Senator who had apparently used the ONA report during hearings of a Parliamentary committee. The AFP obtained the assistance of the Defence Security Authority in relation to the 19 copies that had been received by the Department of Defence. The AFP wrote to the receiving officers in other agencies.
·In the course of the investigation, the AFP “interviewed or obtained statements from over thirty persons”, conducted “[f]orensic document examination” and “telecommunications product analysis”.
·The Procedures for Handling ONA Publications required that recipients keep a register of incoming and outgoing ONA material, that ONA material not be copied, and that all ONA reports “be returned to ONA within one month unless special arrangements have been made for longer retention”. However, “there was widespread non-compliance with the ONA handling guidelines by recipients”.
·At least 27 of the 66 copies of the ONA report distributed outside the ONA were recorded as having been destroyed. There was a “likelihood this figure could be higher” because of “identified disparity in recording, distribution, return or destruction processes for the documents within receiving agencies”.
·Only two copies of the ONA report could not be “reasonably accounted for”. Neither of these was distributed to the Minister’s office.
·The Director-General of the ONA had made a media statement on 11 March 2003, which made reference to the ONA report and to the co-author. An ONA employee told the AFP that one of the Minister’s staff had rung the ONA on 20 June 2003, requesting “a copy of the report … that had been referred to in the Director-General’s statement”. The ONA employee “did not consider this request unusual”. A copy was provided.
·On 9 October 2003, the Minister’s chief of staff wrote to the AFP “outlining the position in relation to the three copies retained within the office”.
·On 17 October 2003, the AFP conducted a taped record of conversation with one of the interviewed staff, whom I will call X. X said that:
othe co-author had appeared before a Parliamentary Committee in the United Kingdom on 19 June 2003;
oX had requested the additional copy of the ONA report (on 20 June) after a conversation with another of the interviewed staff, whom I will call Y;
oX was not sure whether there were other copies of the ONA report in the Minister’s office at the time, and whether X had access to them; and
oX had provided the additional copy of the ONA report to Y.
·On 9 December 2003, the AFP conducted a taped record of conversation with Y. Y said that:
oY had asked X to obtain the additional copy of the ONA report;
othe appearance by the co-author before the UK Parliamentary Committee was the reason why Y had asked X to obtain that additional copy;
oY wanted to be in a position to brief the Minister on that appearance;
oY was not aware of other copies of the ONA report in the Minister’s office at the time; and
oY faxed a copy of the ONA report to the Minister on 21 June.
·The Chief of Staff confirmed that the Minister had disposed of the faxed copy in a suitable manner.
·The journalist referred to the ONA report as containing four pages of text. The additional copy that the ONA sent to the Minister’s office on 20 June 2003 had five pages of text “due to the introduction of a new IT system within the ONA”.
·The interviewed staff denied having any dealings with the journalist about the ONA report. Nothing in their telephone records linked them to the journalist.
The author of the AFP report concludes:
… there is no direct and probative evidence that would give reasonable cause to believe the document requested by [X] on 20 June 2003 was the source used in the [journalist’s] article. [X] and [Y] provided a plausible, though possibly not compelling, account of why they requested the document. The ONA lawfully provided it to them. Although conceded by [name redacted] it was not handled in strict accordance with the Protective Security Manual (PSM) guidelines, not many copies were, there is no evidence to suggest it was improperly passed to any unauthorised third party.
Disclosing the names of the interviewed staff on page 5 would reveal the names of X and Y. I do not think that that would involve the unreasonable disclosure of their personal information. I have come to that view having balanced the following factors.
I do not think that it would be unreasonable to disclose the names of the interviewed staff in the abstract—simply as people who worked in the Minister’s office at the relevant time. That is generally the case in relation to public servants. As the FOI Guidelines explain:
Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties.[39] Such information may often also be publicly available, such as on an agency website.[40]
I think that this applies to the personal information of ministers’ staff (employed under the Members of Parliament (Staff) Act 1984) as it does to that of public servants (employed under the Public Service Act 1999). X and Y were interviewed by the AFP (and their names appear in the AFP’s report) because of their usual duties or responsibilities—because of their performance of their duties in relation to the ONA report.
[39] Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 625 per Kirby P; at 638–639 per Mahoney JA.
[40] FOI Guidelines at [6.140].
In this review, the relevant information is not well known or available from other public sources,[41] because that information comprises the names of those of the Minister’s staff who were interviewed by the AFP. But that is not to say that the names of people who worked in the Minister’s office at the relevant time are not well known or available from other public sources.
[41] See FOI Act, ss 47F(2)(a) and (c).
I cannot discuss here the question whether each of the interviewed staff is known to have been associated with the matters dealt with in the AFP report[42] without disclosing their identity. However, even assuming that none of the interviewed staff is known to have been associated with those matters, I remain of the view that disclosing their names would not involve the unreasonable disclosure of their personal information.
[42] See FOI Act, s 47F(2)(b).
The AFP report was originally classified “highly protected”. The classification of a document is not conclusive of whether it is exempt.[43] And, in this case, the AFP has disclosed the vast majority of the document in redacted form, notwithstanding its original classification.
[43] See FOI Guidelines at [5.23] and [5.39], in relation to the exemption in s 33 (documents affecting national security, defence or international relations).
Those affected third parties who made an exemption contention have objected to the disclosure of their names. Certainly, if the names of the interviewed staff are disclosed, they may suffer some detriment by being associated with the AFP’s investigation. In Anderson and Australian Federal Police, the Tribunal commented that, generally:
… the release of any information with respect to persons recorded on police files could be potentially embarrassing or damaging to those persons …[44] The more prejudicial the information, the greater the likelihood that its disclosure would be unreasonable. In some cases the mere fact that the information emanates from police files may carry an implication that the person has come under unfavourable police attention.[45]
[44] Citing Kahn and Australian Federal Police, unreported, Administrative Appeals Tribunal, Balmford SM, Hallowes M and Sinclair M, 14 March 1985; (1985) 7 ALN N190.
[45] Anderson and Australian Federal Police (1986) 11 ALD 355 at 368 [53] per Hall DP.
If no context were provided, a person would suffer a certain level of opprobrium if named as having been interviewed by the AFP in the course of a criminal investigation. But, in the context of the redacted version of the AFP report, if the names of the interviewed staff were disclosed, the level of detriment they would suffer would be low or non-existent. A large number of copies of the ONA report were distributed. The AFP interviewed or obtained statements from more than thirty people. It is clear from the redacted AFP report that X and Y had handled a copy of the ONA report in the course of their duties, and were interviewed (and their statements summarised in the AFP report) because of the circumstances in which the additional copy of the ONA report was obtained by the Minister’s office. It is easy to infer from the redacted AFP report that the AFP investigators were initially suspicious of this, and were following a line of enquiry by interviewing X and Y. But the redacted AFP report concludes that, when the investigation was complete, there was “no direct and probative evidence” that the additional copy of the ONA report was leaked to the journalist. In fact, there is some evidence (regarding the formatting of that additional copy) that suggests that it was not the source of the leak. If the redacted AFP report is considered as a whole, the information it contains about the interviewed staff is not prejudicial; it does not carry an implication that the interviewed staff have come under unfavourable police attention (to adopt the Tribunal’s words in Anderson).
There are two other aspects of the AFP report which might be considered negative comments about the interviewed staff, and which could cause them some detriment if their names were disclosed. Firstly, the AFP report’s author says that the explanation that the interviewed staff gave for the Minister’s office having requested the additional copy of the ONA report was “plausible, though possibly not compelling”. This is a minor criticism—and I note that a reader of the AFP report can come to their own view about the plausibility of the explanation, based on details in the redacted AFP report itself. Secondly, the AFP report notes that the Minister’s office did not handle the additional copy of the ONA report in strict accordance with the PSM guidelines. This might reflect negatively on one or more of the interviewed staff. But this, too, is not a significant criticism, especially given that (as the redacted AFP report notes) “not many copies [of the ONA report] were [handled correctly]” and “there is no evidence to suggest [the additional copy] was improperly passed to any unauthorised third party”.
For these reasons, I think that the interviewed staff would suffer little or no detriment if their names were disclosed—provided that the references to the interviewed staff are considered in the context of the entire redacted AFP report. The FOI Act does not control or restrict any subsequent use or dissemination of information released under the Act.[46] So, it is possible that, if the names are disclosed, some members of the public may access the references to the interviewed staff out of context. But that is not a reason why the disclosure would be unreasonable. I note that s 11B(4) of the FOI Act provides that one of the factors that “must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest” is that “access to the document could result in any person misinterpreting or misunderstanding the document”.[47] Section 11B does not apply to a consideration whether disclosure would be unreasonable for the purposes of s 47F. But it reinforces my view that disclosure in this review would not be unreasonable simply because it is possible that references to the interviewed staff might be misinterpreted or misunderstood if taken out of context.
[46] See ‘FG’ and National Archives of Australia [2015] AICmr 26 at [47] per Commissioner McMillan.
[47] FOI Act, s 11B(4)(b). See also s 11B(4)(d): “access to the document could result in confusion or unnecessary debate”.
Dr Leigh has not indicated how he intends to use the information on page 5 if it is disclosed. Because of s 11(2) of the FOI Act, a person’s right of access is not affected by their reasons for seeking access, or the decision maker’s belief about those reasons. However, as the Information Commissioner explained in ‘FG’, a person’s reasons for seeking access may be relevant to the question whether disclosure would be unreasonable. But that is only in “circumstances in which it is appropriate to give preferential access to a particular applicant”.[48] That is not the case in this review.
[48] [2015] AICmr 26 at [42] per Commissioner McMillan.
Another relevant factor is that the AFP report is over 12 years old. It relates to events that occurred in the 17 months preceding its creation. However, although the AFP report is of little current relevance, it concerns a serious crime (the unauthorized leaking of the ONA report) in relation to which no-one has ever been charged. Dr Leigh says that there is a public interest in government transparency and integrity which supports his argument that disclosure of the names of the interviewed staff would not be unreasonable. As the FOI Guidelines explain:
The test of “unreasonableness” implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals. The test does not however amount to the public interest test of s 11A(5), which follows later in the decision making process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again when assessing the public interest balance.[49]
I agree with Dr Leigh that there is a public interest that supports his argument that disclosure in this review would not be unreasonable, but only to a limited extent. I think that the public interest in the disclosure of information about the conduct of the AFP’s investigation of the leak has been substantially satisfied by the release of the redacted AFP report. I do not think that disclosure of the names of the interviewed staff would achieve no public purpose, but I do not think that there is a significant public interest in that disclosure.[50] There is a significant public interest in knowing (for example) that the AFP interviewed staff in the Minister’s office, but there is a much less significant interest in knowing who was interviewed. Even so, disclosure of those names would do “more than excite or satisfy the curiosity of people”[51] about the interviewed staff, because there is some public interest in the disclosure of the names of people performing their duties in these circumstances.
[49] FOI Guidelines at [6.127].
[50] See also [58] below.
[51] See Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 441 per Heerey J, quoted at [33] above.
Also relevant to the question whether disclosure of the names of the interviewed staff would be unreasonable are the circumstances in which their personal information was collected and included in the AFP report. The AFP says, and I agree, that the interviewed staff would have had a reasonable expectation that their involvement in, and any information they provided to, the AFP investigation would remain confidential (unless or until the investigation resulted in criminal charges—which did not happen in this case). As the AFP says, “when information is obtained in circumstances where there was an expectation of confidentiality, this stands in favour of disclosure being unreasonable”. I agree, but this factor is not determinative of the question. A related argument by the AFP is that disclosing the names of the interviewed staff might affect the AFP’s capacity to conduct its future investigations, if people are reluctant to be interviewed for fear that their names might be disclosed.[52] This factor is also not determinative of the question.[53] Balancing these factors against the factors I have discussed above, and having regard to the pro-disclosure principle declared in the objects of the FOI Act,[54] I think it is not unreasonable to disclose the personal information of the interviewed staff.
[52] The AFP made this point in relation to the application of the public interest test, but I think it applies also to the application of s 47F.
[53] See, for example, Jones and Australian Federal Police [2016] AATA 329 at [21], where I explained that the disclosure of information, obtained in circumstances where there was an expectation of confidentiality, 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 the purposes of s 47E of the FOI Act. However, in that case, the disclosure would have had such an effect (see at [22]).
[54] See FOI Act, ss 3 and 3A. See also [56] below.
This is not to say that it will never be an unreasonable disclosure of personal information to disclose the names of people interviewed as part of a criminal investigation, or to disclose the names of people who have provided their personal information in other circumstances where they have an expectation that that information will be treated confidentially. Such disclosures would likely be unreasonable for the purposes of s 47F. But in this review, the context provided by the redacted copy of the AFP’s report (which has already been disclosed) means that disclosure of the names of the interviewed staff would not be unreasonable.
In summary, even though there is no significant public interest in the disclosure of the names of the affected staff, and even though those staff would have had an expectation of confidentiality when they were interviewed, they would suffer little or no detriment if their names were to be disclosed. Disclosing their names would not involve the unreasonable disclosure of their personal information. It follows that page 5 is not conditionally exempt under s 47F.
Would access to page 5 be contrary to the public interest (s 11A(5))?
As the Information Commissioner pointed out in the IC review decision ‘BA’ and Merit Protection Commissioner:
… the public interest test supports the notion that a presumption in favour of disclosure permeates the FOI Act following the 2010 amendments. As s 11A(5) provides, a conditionally exempt document must be released unless it would be contrary to the public interest to do so at that time.[55]
The FOI Guidelines explain that “[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”.[56]
[55] [2014] AICmr 9 at [70] per Commissioner McMillan, citing the FOI Guidelines at [6.12].
[56] FOI Guidelines at [6.12].
Because of my view that page 5 is not conditionally exempt under s 47F, I do not need to consider whether access to page 5 would be contrary to the public interest. However, if I had to consider the public interest in this review, I would find that access was not contrary to the public interest, and for similar reasons to those that I have set out above in relation to the reasonableness of the disclosure of personal information.[57]
[57] There can be an overlap between factors relevant to the reasonableness of the disclosure of personal information and factors relevant to the public interest: see FOI Guidelines at [6.127], quoted at [52] above.
I do not think that it is a significant public interest. I think that there is a significant public interest in the disclosure of information about the conduct of the AFP’s investigation of the leak of the ONA report. But, as I have explained above,[58] that public interest has been substantially satisfied by the release of the redacted AFP report.
[58] See [52] above.
Exempt matter and these reasons for decision
Section 63(2) of the FOI Act provides:
(2)Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975:
(a) the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred to in paragraph (1)(a); and
(b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in paragraph (1)(a).
Section 63(1)(a) relevantly refers to “exempt matter contained in a document to which the proceedings relate”.
On 16 May 2016, I provided the AFP’s solicitors with a draft copy of these reasons for decision. I offered to conduct a private hearing at which the AFP could make submissions or provide evidence limited to the question whether my draft reasons disclosed exempt matter. On 18 May, the AFP advised that it did not contend that my draft reasons disclosed exempt matter. The AFP made some observations about my draft reasons, but did not submit that I should necessarily amend them. I made a minor amendment on the basis of one of those observations.
Operation of this decision
On 1 April 2016, the AFP wrote to request that, if I decide to grant access to any of the material for which it claims exemption, I specify in my decision that the decision is not to come into operation for 28 days, pursuant to s 43(5B) of the AAT Act. The AFP said that a delay in the operation of my decision would give the AFP an opportunity to consider whether to appeal to the Federal Court under s 44 of the AAT Act. On 8 April, Dr Leigh wrote to argue that the review process should not be delayed in this way. On the same day, the AFP wrote reiterating its request and arguing that a delay would facilitate the effective operation of s 67 of the FOI Act, which is about the “[a]utomatic stay of certain decisions on appeal”.
I have decided that Dr Leigh should have access to the names of the interviewed staff, so s 67(2) of the FOI Act will operate to stay my decision if the AFP institutes an appeal, but only from the time when that appeal is instituted. If I do not specify that my decision is to come into operation at a later date, the AFP will be required to give Dr Leigh immediate access to the names. That would make any appeal to the Federal Court futile. I think that it is just such a situation in which the discretion in s 43(5B) should be exercised.
Because of s 44(2A) of the AAT Act, the AFP has 28 days from when it is given these reasons in which to institute an appeal. I should specify that my decision is not to come into operation for 28 days, even though this will delay Dr Leigh’s access.
Conclusion
Disclosing the names of the interviewed staff on page 5 would not involve an unreasonable disclosure of personal information for the purposes of s 47F of the FOI Act. Dr Leigh should be given access to a copy of page 5. That copy should be modified, under s 22 of the FOI Act, by the deletion of exempt and irrelevant material.[59] But it should include the names of the interviewed staff. This decision should not come into operation for 28 days.
[59] The names of individuals who were not interviewed staff, to which Dr Leigh does not seek access, are outside the scope of his revised request and, therefore, irrelevant material.
I certify that the preceding sixty-four (64) 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 30 March 2016 Date final submissions received 8 April 2016 Applicant In person Counsel for the Respondent Mr Justin Hyland Solicitors for the Respondent Australian Government Solicitor
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