Luchanskiy and Secretary, Department of Immigration and Border Protection (Migration)
[2016] AATA 184
•29 March 2016
Luchanskiy and Secretary, Department of Immigration and Border Protection (Migration) [2016] AATA 184 (29 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/1518
Re
Grigory Luchanskiy
APPLICANT
And
Secretary, Department of Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S E Frost
Date 29 March 2016 Place Sydney The Tribunal varies the decision under review, allowing the release in full of folio 26 of Department file 12/9037, and folios 58, 78 and 80 of Department file ADD2014/1007114. The Tribunal also allows the release in part of each of document 2 and document 7, as detailed in the reasons below.
The decision under review, as varied on 14 August 2015 under section 42D of the Administrative Appeals Tribunal Act 1975 (the Act) and altered on 4 December 2015 pursuant to section 26 of the Act, is otherwise affirmed.
..................................[sgd]......................................
Deputy President S E Frost
CATCHWORDS
Freedom of Information – exemptions claimed – intelligence agency document – summary of an intelligence agency document – information communicated in confidence – whether documents exempt
LEGISLATION
Freedom of Information Act 1982 ss 7(2A), 33(a), 33(b), 93A
CASES
Secretary, Department of Prime Minister and Cabinet v Haneef [2010] FCA 928
SECONDARY MATERIALS
Australian Information Commissioner’s Guidelines
REASONS FOR DECISION
Deputy President S E Frost
29 March 2016
PREAMBLE
On 3 February 2016, following the hearing held in this matter, the written reasons below were made available to the parties. The reasons invited the Respondent to file further evidence with regard to the exemptions claimed for documents 2 and 7. The Respondent reconsidered its decision in relation to documents 2 and 7, and decided to release the two sentences specified in the reasons below.
On 21 March 2016 the parties filed terms of agreement regarding the partial release of documents 2 and 7. The agreement also reflected the Respondent’s decision to release four other documents in full. The Tribunal’s decision gives effect to the terms as filed by the parties.
So as to retain the integrity of the initial reasons provided to the parties, no part of those reasons has been removed from the version reproduced below. However, to reflect the current position, one sentence in paragraph 21 and two sentences in paragraph 36 are now presented in “strike-through” format.
INTRODUCTION AND BACKGROUND
On 23 July 2014 the applicant applied to the Department of Immigration and Border Protection for access to documents under the Freedom of Information Act 1982 (FOI Act). The application sought access to:
All documents (including electronic communications and movement records) held by the Department of Immigration relating to me.
The Department identified almost 600 pages of material within that description. Some of that material was released to the applicant in full, some of it was released in part, and some of it was not released at all. In respect of the material released in part or not released at all, the Department claimed various exemptions under the FOI Act.
In due course, the applicant applied to the Office of the Australian Information Commissioner for review of the decision. However, that Office exercised its discretion under s 54W(b) of the FOI Act not to review the decision on the basis that it was considered desirable that the decision be considered by this Tribunal instead. And so the applicant applied to the Tribunal for review.
Subsequently it became clear that the Department had overlooked one file of material relating to the applicant. The Tribunal remitted the matter for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act) and further documents were released to the applicant, either in whole or in part.
The Tribunal now needs to decide whether the exemptions from release that the respondent continues to claim are well founded.
THE DOCUMENTS IN DISPUTE
There now remain only six documents in dispute. They are identified as documents 1, 2, 3, 7, 8 and 14. There is a further document, number 9, that is a duplicate of document 2 but which has been released to a greater extent (seven extra words) than document 2. It is not necessary to consider document 9 for the purposes of this review.
Exemption is claimed as follows, but in each case only in respect of part of the document:
·Document 1 – s 33(b)
·Document 2 – s 7(2A)
·Document 3 – s 7(2A)
·Document 7 – s 33(b)
·Document 8 – s 7(2A)
·Document 14 – s 33(b)
THE EXEMPTION CLAIMS
Section 7(2A) of the FOI Act provides that an agency is exempt from the operation of the Act in relation to the following documents:
(a)a document (referred to as an intelligence agency document) that originated with, or was received from, any of seven specified Australian security agencies; and
(b)a document that contains a summary of, or an extract or information from, an intelligence agency document, to the extent that it contains such a summary, extract or information.
Section 33(b) of the FOI Act provides that a document is an exempt document if disclosure of it under the Act:
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.
EVIDENCE IN SUPPORT OF THE EXEMPTION CLAIMS
Ashley Smith is an officer of the Department of Immigration and Border Protection. He is employed as the Assistant Manager of the Victorian FOI Section within the Access to Information Branch of the Department. He was previously an FOI officer within the National Office FOI Section and has been employed by the Commonwealth for about eight years.
Mr Smith is the officer who made the original decision about the release of documents to the applicant. He also made the variation decision in August 2015 when the matter was remitted for reconsideration under s 42D of the AAT Act.
Mr Smith made a witness statement in these proceedings and was cross-examined on that statement. The statement outlines his experience in FOI matters and his understanding of the Department’s processes and engagement with other agencies, and explains why he took the view that he did in relation to the applicant’s FOI request.
THE CLAIMS UNDER s 7(2A)
The applicant makes the point, correctly, that documents in respect of which exemption is claimed under paragraph (b) of s 7(2A), as documents containing a summary of, or an extract or information from, an intelligence agency document, are exempt only to the extent that they in fact contain such a summary, extract or information. In that respect they differ from those documents in respect of which exemption is claimed under paragraph (a) of s 7(2A), where the exemption springs from the very character of the document – as having originated with, or been received from, one of the specified intelligence agencies. In simple terms, the exemption under paragraph (b) is drawn more narrowly than that under paragraph (a).
Documents 2 and 3 are in the paragraph (b) category. In respect of Document 8, though, exemption is claimed under paragraph (a).
Document 2
This document comprises four pages, being folios 32 to 35 of a file referable to the applicant. In each of folios 32, 33 and 34 the redacted material is expressed as a summary of information provided by an external agency (confirmed by Mr Smith to be one of the agencies listed in s 7(2A)(a)) to the Department. Mr Smith’s evidence, which I accept, is that the information summarised was provided to the Department in two documents in December 2005 and January 2006. This redacted material is within paragraph (b) of s 7(2A). The exemption claim is upheld.
As far as folio 35 is concerned, the content of the first redaction, at line 7, is similar in nature to the redacted material at folios 32 to 34 and that exemption claim will also be upheld.
The content of the second redaction in folio 35 appears to be slightly different. Included in the three lines of this redaction are two sentences (the first two full sentences that are redacted) that appear to summarise information provided by the external agency to the Department. On the basis of Mr Smith’s evidence as summarised above, I find that those two sentences are covered by s 7(2A)(b).
But the redacted material that precedes the first full sentence, and also the final sentence in the redaction, do not themselves appear to be a summary of information provided by the external agency. Rather, the former appears to be material created by the author of the email, and provided as context to explain the other redacted material. The latter seems to be commentary created by the author of the email. It does not seem logical that this particular later statement would have been included in any document originating with, or received from, the agency.
Mr Smith’s evidence is that:
·the relevant folios of this document originated from documents received from a nominated agency (paragraph 8 of his statement); and
·that agency has identified and maintains copies of the originating intelligence agency documents summarised or extracted in the Department’s file.
I find on the basis of Mr Smith’s evidence that the former material (that part of the redaction that precedes the first full redacted sentence) was included in the document that was provided by the agency to the Department and, like the remainder of the redacted material, is covered by s 7(2A)(b).
I cannot make the same finding about the final sentence in the second redaction. At this stage I decline to uphold the exemption claim in respect of that sentence.
If within 21 days of the date of publication of these reasons (or such further period as the Tribunal allows) the respondent provides a copy of the intelligence agency document on which this material is claimed to be based, so as to confirm the availability of the exemption under s 7(2A)(b), the exemption will be upheld; otherwise the Tribunal will order that this final sentence in the second redaction be released to the applicant.Document 3
Based on Mr Smith’s evidence, and having regard to the content of the redacted material, I find that s 7(2A)(b) applies. The exemption claim is upheld.
Document 8
The redacted material is plainly what Mr Smith says it is (paragraph 10.4 of his statement) – the reproduction of a document from the external agency to the Department. Exemption under s 7(2A)(a) is upheld.
THE CLAIMS UNDER s 33(b)
With the possible exception of a portion of document 7 (dealt with separately below), the redacted material in documents 1, 7 and 14 answers the description ‘information or matter communicated … by or on behalf of a foreign government … or an international organization to the Government of the Commonwealth’ within s 33(b) of the FOI Act. The question is whether the material was communicated ‘in confidence’ so as to attract the exemption in that provision.
In Secretary, Department of Prime Minister and Cabinet v Haneef [2010] FCA 928, Dowsett J said:
[11] …Section 33(1)(b) [now 33(b)] protects any information or matter communicated “in confidence”. The question of confidence must be resolved as between the communicator and the person to whom the communication is made. It is not a question of determining whether or not individual aspects of the relevant disclosure are of a kind which a third person (in this case, the Tribunal) might wish to keep confidential. Quite apart from the wording of the provision, I doubt whether the Tribunal could know, with any degree of certainty, the views which a senior Indian civil servant or, for that matter, an Australian diplomat might have concerning such matters. The Tribunal has drawn inferences as to whether the parties intended that parts of the conversation be confidential based simply upon his assessment of whether such parts are worthy of being so characterized. Whilst some conversations may proceed upon the basis that parts are confidential and parts are not, there is nothing in the text of this document to suggest that the conversation in question was conducted on that basis. The evidence from Ms Stokes suggests that in her opinion, as an experienced diplomat, and in the Indian context, such a conversation would have been treated by the parties as confidential. In my view that is the question addressed by s 33(1)(b).
[12] I am anxious not to infringe upon the Tribunal’s fact-finding function. However I am satisfied that the Tribunal, in taking a fragmented approach to the various passages in the memorandum, has failed to appreciate the extent of the protection provided by s 33(1)(b), a protection based upon the understandings of the parties participating in the conversation, rather than the subject matter. Of course it is possible that some conversations may be clearly “unofficial" in subject matter, but this is not such a case.
I am also required by s 93A of the FOI Act to have regard to any guidelines issued by the Information Commissioner (IC) under that section. Relevantly, the IC’s guidelines say this (citations omitted):
[5.36] The test is whether information is communicated in confidence between the communicator and the agency to which the communication is made — it is not a matter of determining whether the information is of itself confidential in nature. Information is communicated in confidence by or on behalf of another government or authority, if it was communicated and received under an express or implied understanding that the communication would be kept confidential. Whether the information is, in fact, confidential in character and whether it was communicated in circumstances importing an obligation of confidence are relevant considerations. They may assist the decision maker to determine whether, on the balance of probabilities, information was communicated in confidence.
…
[5.38] An agreement to treat documents as confidential does not need to be formal. A general understanding that communications of a particular nature will be treated in confidence will suffice. The understanding of confidentiality may be inferred from the circumstances in which the communication occurred, including the relationship between the parties and the nature of the information communicated. To avoid doubt, s 4(10) confirms that the exemption applies to any documents communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information between the Australian Government and a foreign government (and their respective agencies) or an international organisation.
[5.39] Classification markings on a document (such as secret or confidential) are not in themselves conclusive of confidential communication. An agency still needs to produce evidence supporting the claim that information was communicated in confidence by a foreign entity. The decision maker must make an independent assessment of that claim in light of the available evidence. Similarly, even where a foreign government or agency has identified a document as secret or confidential, the decision maker is still required to make an independent assessment that the information was communicated in confidence.
Documents 1 and 14
The redacted material in document 1 comprises a description of information provided by Interpol. The redacted material in document 14 is information provided by Interpol and forwarded, without amendment, by the author of the email to the recipient of the email.
The applicant accepts that the confidential nature of a communication can be inferred from the circumstances surrounding the communication, but cautions that there must be an evidentiary basis on which the inference can be drawn.
Here the respondent relies on the following evidence of Mr Smith, taken from his witness statement:
[26] My experience handling documents or information provided by law enforcement agencies or agencies such as Interpol, has been that when these documents bear the word ‘Confidential’, this means the agency or body supplying information does so on condition that the information be kept safe and not be divulged to others.
[27] I have previously been involved in situations where Interpol has provided advice to the Department concerning particular individuals. Interpol’s typical standpoint on these types of communications is such communications are provided confidentially and should be treated as confidential communication. The NCCC[1] has advised me that this position of treating Interpol information in confidence (whether or not the document contains a security classification marking) has not changed and, to ensure a good working relationship between the Commonwealth and Interpol, this confidentiality needs to be preserved.
[1] National Character Consideration Centre
None of the redacted material makes any specific reference to being confidential. The applicant’s counsel, Mr Poynder, asked Mr Smith if he had consulted with Interpol’s Australian national central bureau in relation to these documents and Mr Smith said “Not on this occasion, no.” Mr Smith also agreed that he had not consulted with any other Interpol office overseas.
Mr Poynder asked Mr Smith if the information redacted is the type of information Mr Smith sees regularly in his role as an FOI officer. He said it was. Mr Smith also agreed that there have been occasions when he has released information to applicants even though the information had come from Interpol.
Mr Poynder submitted that the best evidentiary basis on which to draw the inference that the Interpol information was provided ‘in confidence’ would have been evidence that Mr Smith had contacted Interpol to confirm the confidential nature of the communication. But Mr Smith’s evidence is that Interpol’s ‘typical standpoint’ is that communications involving particular individuals (as these do) should be treated as confidential communications. Mr Smith is an experienced FOI officer well placed to make that statement. I do not accept Mr Poynder’s submission that Mr Smith’s written evidence was not borne out in his oral evidence. I thought his oral evidence was consistent with the content of his written statement. Taking the approach outlined by Dowsett J in Haneef at [11], and having regard to the IC’s guidelines, I accept Mr Smith’s evidence and am satisfied that the exemption under s 33(b) applies to this redacted material.
Document 7
Subject to one exception which I will deal with below, the redacted material is a summary of information provided to the Australian Embassy in Moscow by foreign governments. The information is specific to the applicant. There is no statement in the summary to indicate that the information was communicated to the Australian Embassy in confidence.
Mr Smith confirmed that he did not consult with any of the relevant foreign embassies or governments in relation to this document. Nevertheless, his statement contains the following, at paragraph 28:
I have also been involved in situations before whereby foreign governments have provided information to the Department regarding persons of interest. The Department’s standpoint on these types of communications is that such communications are received on the basis of confidence and, unless it is clearly stated or implied otherwise by the supplier, should be treated as a confidential communications (sic).
There is nothing surprising in that part of Mr Smith’s statement. Once again, I do not accept Mr Poynder’s submission that Mr Smith’s written evidence was not borne out in his oral evidence. Taking the approach outlined by Dowsett J in Haneef at [11], and having regard to the IC’s guidelines, I readily accept that material of the kind contained in the redaction will have been communicated by the foreign government to the Commonwealth in the expectation that it would not be disclosed to other parties, and particularly the applicant. Subject to the exception foreshadowed, I am comfortably satisfied that the exemption under s 33(b) is available in relation to the redacted material.
The exception is the final sentence of the redacted material. It does not immediately appear to me that disclosure of the material in that sentence would divulge any information or matter communicated in confidence to the Government of the Commonwealth, so as to engage s 33(b).
I did not raise that issue during the hearing and it is appropriate that I give the respondent the opportunity to clarify that point. For that purpose I will allow 21 days from the date of publication of these reasons (or such further period as the Tribunal allows) for the respondent to provide further information in support of its exemption claim.DECISION
The Tribunal varies the decision under review, allowing the release in full of folio 26 of Department file 12/9037, and folios 58, 78 and 80 of Department file ADD2014/1007114. The Tribunal also allows the release in part of each of document 2 and document 7, as detailed in the reasons above.
The decision under review, as varied on 14 August 2015 under section 42D of the AAT Act and altered on 4 December 2015 pursuant to section 26 of the AAT Act, is otherwise affirmed.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost ..................................[sgd]......................................
Associate
Dated 29 March 2016
Date(s) of hearing
Date final submissions received
11 December 2015
21 March 2016
Counsel for the Applicant Mr N Poynder Solicitors for the Applicant Horton Rhodes Counsel for the Respondent Mr A Berger Solicitors for the Respondent Australian Government Solicitor
0
1
0