LHTT and Department of Foreign Affairs and Trade (Freedom of Information)
[2022] AATA 429
•2 March 2022
LHTT and Department of Foreign Affairs and Trade (Freedom of Information) [2022] AATA 429 (2 March 2022)
AppID: LHTT and Department of Foreign Affairs and Trade
MatterType: Freedom of Information
Division:FREEDOM OF INFORMATION DIVISION
File Number(s):2018/5405
Re:LHTT
APPLICANT
AndDepartment of Foreign Affairs and Trade
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:2 March 2022
Place:Sydney
The reviewable decision is affirmed.
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Deputy President B W Rayment OAM QC
Catchwords
FREEDOM OF INFORMATION - country information assessments prepared by the Department of Foreign Affairs – access to draft version of reports – access to source and commentary documents - public interest considerations – decision affirmed
Legislation
Freedom of Information Act 1982 (Cth)
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
2 March 2022
The applicant made a request for access to documents under the Freedom of Information Act 1982 (the FOI Act) in the following terms:
1. A copy of all country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes in relation to Bangladesh (country information), including but not limited to:
a. DFAT Bangladesh Country Information Report July 2016, Department of Foreign Affairs and Trade, 05 July 2016, CIS38A80121206;
b. DFAT Country Report: Bangladesh, Department of Foreign Affairs and Trade, 20 October 2014, CIS2F827D91369.
2. A copy of all draft versions of each piece of country information.
3. A copy of all material relied upon by DFAT in preparing each piece of country information, including file notes, correspondence with any source contacted, audio video recordings, source material and any other records.
4. A copy of all correspondence between DFAT and the Department of Immigration and Border Protection regarding each piece of country information.
5. A copy of all correspondence between DFAT and the Administrative Appeals Tribunal or the Immigration Assessment Authority regarding each piece of country information.
6. The names and positions of the authors of each piece of country information.
7. The names and positions of the owner and / or person responsible for final sign off of each piece of country information.
The Applicant initially sought Information Commissioner (IC) review of the Department’s decision to impose charges for processing the request. On 5 December 2017, the parties made an agreement pursuant to s 55F of the FOI Act to waive charges for processing the request and to revise the scope of the request to:
1. A copy of all country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes in relation to Bangladesh (country information), including but not limited to:
a.DFAT Bangladesh Country Information Report July 2016, Department of Foreign Affairs and Trade, 05 July 2016, CIS38A80121206;b.DFAT Country Report: Bangladesh, Department of Foreign Affairs and Trade, 20 October 2014, CIS2F827D91369.2. A copy of all draft versions of each piece of country information.
3. A copy of all material relied upon by DFAT in preparing each piece of country information, including file notes, correspondence with any source contacted, audio video recordings, source material and any other records, excluding the items listed on the attached document marked Annexure A.
4. A copy of all correspondence between DFAT and the Department of Immigration and Border Protection regarding each piece of country information.
5. A copy of all correspondence between DFAT and the Administrative Appeals Tribunal or the Immigration Assessment Authority regarding each piece of country information.
6. The names and positions of the authors of each piece of country information.
7. The names and positions of the owner and / or person responsible for final sign off of each piece of country information.
That IC review was finalised on 11 December 2017, when the IC made a decision to accept the parties’ agreement under s 55F of the FOI Act. The review came to the Tribunal after the Information Commissioner decided not to continue to undertake a review of the respondent’s response to the applicant’s request.
Following communications between the parties I was provided with a schedule of documents or redactions which remain in dispute between the parties, which became Exhibit B in the proceedings, which were heard together with BKXP and The Department of Foreign Affairs and Trade, the reasons for which are published at the same time as these reasons. The reasons in BKXP should be read together with these reasons, as many similar issues arise. Numbers given to documents are from Exhibit B.
As in BKXP, no search issues remain for determination, and scope questions do not arise.
DFAT has a post in Dhaka, and the post, including the head of mission, played a role in the clearance of the final country report and in commenting on drafts. Some of the confidential cables from the post were in part relied upon as source material for the country report.
Document 2 is one of a number of exempt documents classified secret. It is a cable from post in Bangladesh to the respondent in Canberra. It is claimed to be unconditionally exempt under s.33(a)(iii) of the FOI Act and in part unconditionally exempt under s.33(b) of the Act. The reasons in BKXP explain how I have approached issues under s.33 of the FOI Act. S.33(a)(iii) and s.33(b) are in the following terms:
A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
(iii) the international relations of the Commonwealth; or
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization 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.
The confidential affidavit of Dr Lee satisfies me of each of those matters.
Document 2 is exempt under both those provisions. It is correctly described in Exhibit B as a cable from the post on the security situation in Bangladesh.
Document 3 is described in Exhibit B as notes of meetings with international organisations and foreign officials taken by DFAT officers during a visit to Bangladesh. Unconditional exemptions are claimed under s.33(a)(iii) and s.33(b). Conditional exemptions are claimed under sections 47E(d) and s.47F(1). Section 47E(d) provides that:
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.
Section 47F(1) provides that:
(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).
As is explained in Dr Lee’s open affidavit, risks to confidential sources by reprisals and other adverse consequences may well arise from the release of such records. That matter and related matters are dealt with at paragraphs 37-40 of his open affidavit, and also in a redacted version of his confidential statement at T1 page 111 paragraphs 19 and 20.
Section 47F(1) of the FOI Act is thus engaged.
Not only are s.47F(1) and s.47E(d) engaged, it is clear that it is not in the public interest for the documents to be released. Obviously there are some respects in which it may be in the public interest for the public to know of the remarks made privately, but it is overwhelmingly contrary to the public interest for the notes to be released (with or without express identification of the names of the sources). Mere redaction of source names would not protect the sources from the risk that their identities might be apparent from the nature of the information itself.
Moreover, it can hardly be in the public interest for a communication involving DFAT officers intended only for consumption within the Department, dealing with sensitive private discussions to be publicly released.
In any event s.33(a)(iii) of the Act is also engaged in relation to confidential source material. Including document 3. No public interest questions arise in relation to that exemption.
DRAFTS OF COUNTRY REPORTS
Exemption is claimed for all draft reports amongst other grounds under s.47Cand s.47E(d). Section 47C is in the following terms:
General rule
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
Note: An agency must publish its operational information (see section 8).
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is established within an agency;
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
My reasons for rejecting access to those documents are the same as those expressed in BKXP, both as to the engagement of the exemptions and as to the public interest finding.
The draft country reports are marked as such in the document list which is Exhibit B in the proceedings.
In a similar category are those documents commenting on draft reports, which are exempt on the same grounds and which it is also not in the public interest to disclose, as in BKXP.
Also in the same category are documents which are preparatory notes for the country reports, including documents 22 and 23. Document 22 is exempt under s.47C and s.47E(d) and, as to part of it, under s.7(2A). Preparatory notes for country reports are like draft reports, sometimes cast at a higher level of generality, sometimes detailed. Their terms are not vetted like the terms of final country reports, and it is contrary to the public interest for them to be released. Document 23 is similar to document 22, and is subject to the same exemptions. Parts of document 23 are also exempt under s.33(a)(iii).
OTHER DOCUMENTS IN EXHIBIT B
Names of personnel within document 25 are exempt under s.47F(1) of the Act, and I did not understand the applicant’s case to involve any request for the names of junior Commonwealth personnel in any event. I see no public interest in revealing their identities in this or any other document in this case, and I have adopted a similar approach in BKXP. To the extent to which exemptions are claimed for other documents in Exhibit B for the names of personnel, I make that finding generally and will not otherwise mention it for any document.
Document 26 contains some matter exempt under s.7(2A) of the Act, an unconditional exemption. It also contains some matter exempt under s.33(a)(iii), another unconditional exemption. Those findings make unnecessary discussion of conditional exemptions which also affect the document.
Documents 27 and 28 contain matter properly exempt under s.33(a)(iii) for reasons explained in confidential evidence, and which are in any event apparent on the face of the document.
Document 29 also contains matter properly exempt under s.7(2A) of the Act. It also contains deliberative matter and a request for information from post on a subject-matter which might feature in future rather than current country reports, and in that respect is, apart from any other matter, beyond the scope of the request. It, like some of the other emails, also contains chat and personal remarks, also irrelevant to the FOI request.
Document 34 is an email suggesting amendments to a draft report, which is exempt for the same reasons as affect the draft reports themselves, and I make the same public interest finding as affect the draft reports.
Document 36 is an email commenting on the contents of one of the draft country reports, exempt from release for the same reasons as the draft reports, and subject to the same public interest findings as affect the draft reports.
Document 37 comments on a draft report and suggests changes to it. It is exempt under s.47E(d) and I make the public interest finding. It also contains in part some matter which is exempt under s.33(a)(iii).
Document 38 attaches a draft report which is itself exempt and for which I have made the public interest finding. Document 38 expresses some tentative views about the draft report. It is exempt under s.47E(d) and, as with the draft reports, I make the public interest finding.
Document 41, described as meeting notes, describes information derived inter alia from confidential sources and dealing with sensitive matters within Bangladesh which is exempt under s.33(a)(iii) and/or s.33(b) of the Act. It is a communication not vetted for public release and also conditionally exempt under s.47E(d) in that it details information gathered from such sources which it is not in the public interest to disclose.
Documents 42 and 43 are not in scope of the FOI request.
Document 47 is an internal email dated 9 May 2016 relating to a draft report which is exempt on the claimed grounds, including irrelevance. As to the conditional exemptions, I make the public interest finding.
Document 50, an email dated 30 March 2016, is exempt under s.7(2A).
Documents 62, 64 and 67 are out of scope.
Documents 69 is an AAT framework document of 3 February 2016, which omits an officer’s name.
Document 71 is a DIBP framework document from which certain information has been redacted, and exemption is properly claimed for the redacted parts under s.33(a)(iii).
Documents 73 and 87 redact names of officers and some requests for information on subjects relevant to draft reports, which are exempt and which it is not in the public interest to disclose for reasons applicable to the draft reports.
Document 76 redacts names of officers and categories of in-country meetings to be source material for draft country reports. The redacted materials relate to source materials, exempt (including under s.33(a)(iii) for reasons set out in paragraphs 9-15 of these reasons.
Document 77 is not in scope.
Document 78 redacts matter which requests amendments to a draft report, exempt for the same reasons as the draft reports and I make the public interest finding.
Document 81 is a DIBP framework document from which certain information has been redacted, and for which exemption is properly claimed under s.33(a)(iii).
Document 89 redacts information proposed to be covered during the in-country visit for the purposes of the country report. That material is, like the draft reports, exempt for the same reasons as the draft reports, and I make the public interest finding.
Document 90 redacts the name of a Commonwealth officer and describes a group within the Department of Home Affairs from which she comes. The parts redacted are otherwise irrelevant.
Document 95, an email of 19 March 2016, suggests amendments to a draft report and is exempt for the same reasons as the draft reports. I make the public interest finding.
Document 97, two emails of 19 June 2014, relate to internal comments on a draft report. One is exempt for the same reasons as the draft report. I make the public interest finding. The other is irrelevant and exempt under s.22(a)(iii).
Document 99, an email dated 30 May 2014, is unconditionally exempt under s.7(2A) of the FOI Act.
Document 101 is an internal email which redacts names of Commonwealth officers and merely forwards a draft report for comment.
In the result, for reasons stated above, the reviewable decision will be affirmed.
I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 2 March 2022
Date(s) of hearing: 17,18,19 February 2020 Counsel for the Applicant: Mr B Mostafa Solicitors for the Applicant: Varess Counsel for the Respondent: Mr J Davidson Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Privilege
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Statutory Construction
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