Maksimovic and Attorney-General's Department

[2008] AATA 1089

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1089

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3251

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEJAN MAKSIMOVIC

Applicant

And ATTORNEY–GENERAL’S DEPARTMENT

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date5 December 2008

PlaceMelbourne

Decision The Tribunal varies the decision under review in that documents or parts of documents released to Mr Maksimovic by the respondent during the proceedings are not exempt under the Freedom of Information Act 1982.  In all other respects the Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

FREEDOM OF INFORMATION – documents relating to mutual assistance requests to foreign governments in criminal investigation – whether documents exempt from disclosure – irrelevant material – international relations – personal privacy

Freedom of Information Act 1982 ss 4, 22, 33(1)(a)(iii), 33(1)(b), 41(1)

Mutual Assistance in Criminal Matters Act 1987

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

Commonwealth v Hittich (1994) 53 FCR 152

Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445

Re Bui and Department of Foreign Affairs and Trade (2005) 85 ALD 793

Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257

Re Environment Centre NT Inc and Department of the Environment, Sport and Territories (1994) 35 ALD 765

Re Maher and Attorney-General’s Department (1985) 7 ALD 731

Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683

REASONS FOR DECISION

5 December 2008   G. D. Friedman, Senior Member

1.      Dejan Maksimovic was convicted of drug offences in 2006 and is serving a term of imprisonment.  As part of the criminal investigation Australian authorities sought assistance from Costa Rican authorities under the Mutual Assistance in Criminal Matters Act 1987 (the Mutual Assistance Act). Mr Maksimovic sought access under the Freedom of Information Act 1982 (the FOI Act) to all Mutual assistance requests involving the Commonwealth Director of Public Prosecutions for ‘outgoing requests’ involving Costa Rica and Serbia and Montenegro.

2. During the Tribunal’s proceedings the respondent released a number of documents or parts of documents to Mr Maksimovic and at the date of the hearing eight documents were claimed to be partially exempt (the exempt documents) on the following grounds: they were irrelevant to the FOI request (s 22 of the FOI Act); disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth (s 33(1)(a)(iii) of the FOI Act); disclosure would divulge material communicated in confidence by or on behalf of a foreign government (s 33(1)(b) of the FOI Act); and disclosure would divulge personal information about a person (s 41(1) of the FOI Act).

3.      The issue before the Tribunal is whether parts of the eight documents, to which access has been refused, should be released.

WHAT ARE THE EXEMPT DOCUMENTS?

4.      The exempt documents are:

No	Description of document and author	Date created	Description of exempt material	Section of FOI Act which exemption is claimed
1	Extract from Mutual Assistance Request to Costa Rica – Criminal Justice Division, Attorney-General’s Department	9 September 2005	Names of Costa Rican intelligence officers	s 33(1)(a)(iii) s 41(1)
2	Letter to Jessica Lucas from James Fletcher	17 May 2006	Person’s name	s 33(1)(b) s 41(1)
3	Supplementary request for assistance to Costa Rica – Joanne Blackburn	26 April 2006	Person’s name and information about that person	s 33(1)(b) s 41(1)
4	Fax cover sheet – Heather Gunn	13 October 2006	Mobile telephone number	s 41(1)
5	DFAT Cable from Mexico City	20 July 2006	Update on the processing of Mutual Assistance Request	s 22 s 33(1)(a)(iii)
6	Email from James Fletcher to Jessica Lucas	14 August 2006	Comment on processing of Mutual Assistance Request	s 22 s 33(1)(a)(iii)
7	Email to Clare Davies from Linguaset and email from Clare Davies to Linguaset	15 May and 5 May 2006	Surname of translator	s 41(1)
8	Email from Jessica Lucas to Daniel Mossop	26 April 2006	Update on the processing of the Mutual Assistance Request	s 22 s 33(1)(b)

WHICH SECTIONS OF THE FOI ACT APPLY?

5. Section 22(1) of the FOI Act provides:

22 Deletion of exempt matter or irrelevant material

(1)Where:

(a)an agency or Minister decides:

(i)not to grant a request for access to a document on the ground that it is an exempt document; or

(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b)it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i)would not be an exempt document; and

(ii)would not disclose such information; and

(c)it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

6. Section 33(1)(a)(iii) of the FOI Act provides:

33 Documents affecting national security, defence or international relations

(1)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;

7. Section 33(1)(b) of the FOI Act provides:

33 Documents affecting national security, defence or international relations

(1)A document is an exempt document if disclosure of the document under this Act:

…

(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.

8. Section 41(1) of the FOI Act provides:

41 Documents affecting personal privacy

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

SHOULD THE EXEMPT DOCUMENTS BE RELEASED?

Document 1: Extract from mutual assistance request

9. Ms A Harmer, Assistant Secretary, Mutual Assistance and Extradition Branch of the respondent, informed the Tribunal in an affidavit dated 30 October 2008 that she has had extensive experience in matters relating to Australia’s international cooperation in criminal cases, including requests by Australia for assistance under the Mutual Assistance Act. She said that she reviewed the exempt documents and has held discussions with the relevant officers. In respect of 33(1)(a)(iii) of the FOI Act she stated that disclosure of the names of the three Costa Rican intelligence officers would, or could reasonably be expected to, damage Australia’s relations with Costa Rican authorities, which may reduce the prospects of those authorities cooperating effectively with Australian authorities in the future.

10.      In Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 the Full Court of the Federal Court referred to could reasonably be expected to… in s 33(1)(a)(iii) of the FOI Act and stated at 190:

In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like…

11.      In Re Maher and Attorney-General’s Department (1985) 7 ALD 731 the Tribunal held that a mere allegation or possibility of damage to international relations was insufficient, but that the phrase damage to international relations of the Commonwealth comprehends intangible damage such as trust and confidence, even though such damage may be difficult to assess.  In Re Bui and Department of Foreign Affairs and Trade (2005) 85 ALD 793 the Tribunal held that damage to international relations refers to Australia’s ability to maintain good working relations with other overseas governments and to protect the flow of confidential information between Australia and other governments.  In Commonwealth v Hittich (1994) 53 FCR 152 the Full Federal Court held that there is no public interest test in section 33.

12. The Tribunal accepts Ms Harmer’s evidence that there are real and substantial grounds for the expectation that damage to Australia’s international relations by way of a lessening of trust or confidence would occur if the names of the officers were disclosed to Mr Maksimovic. The Tribunal concludes that disclosure would reasonably be expected to lead to damage to international relations between Australia and Costa Rica, and finds that the names of the Costa Rican intelligence officers are exempt from disclosure under s 33(1)(a)(iii) of the FOI Act.

13. In respect of s 41(1) of the FOI Act Ms Harmer stated that release of the names would also be an unreasonable disclosure of personal information about clearly identifiable individuals. She said that the information was obtained in confidence or in sensitive circumstances and is not public knowledge.

14.      The term personal information is defined in s 4 of the FOI Act as:

information or an opinion, (including information forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

15.      In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 the Federal Court held that what is unreasonable disclosure of information for purposes of s 41(1) must have public interest considerations as its core. The public interest in disclosure is the general right of the public to have access to documents held by the Commonwealth and to participate in the Government’s decision-making process. The public interest against disclosure includes the individual’s right to privacy and the right to confidentiality of information about himself or herself held by the Commonwealth. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Tribunal stated at [51]:

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.  Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

16. The Tribunal accepts Ms Harmer’s evidence that the names of the Costa Rican intelligence officers comprise information that is personal information unrelated to Mr Maksimovic, and should not be released without the consent of the officers and their government. For these reasons, and because of the nature of the information, the public interest in non-disclosure outweighs the public interest in disclosure, and disclosure of the material would be unreasonable. Therefore the Tribunal finds that the names are exempt from disclosure under s 41(1) of the FOI Act.

Document 2: Letter from Attorney-General’s Department to Australian Embassy, Mexico City

17. Mr D Herman, Federal Agent, Australian Federal Police, told the Tribunal in an affidavit dated 27 October 2008 that he has been the case officer in the investigation of Mr Maksimovic since it began. He said that the letter contains a supplementary request for mutual assistance, and includes the name of a Costa Rican national and information about that person that was provided by the Costa Rican authorities to the Australian Federal Police in confidence. In respect of s 33(1)(b) of the FOI Act Mr Herman stated that disclosure of the name would divulge information provided in confidence on or on behalf of a foreign government.

18.      In Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445 Wilcox J held that for the exemption in s 33(1)(b) of the FOI Act to apply there is no need for the information to be confidential in character or for disclosure to amount to a breach of confidence. At 448 he stated:

I do not think there is any scope for importing into s 33(1)(b) the equitable principles relating to breach of confidence. The paragraph recognises that there is a public interest in the Australian Government being seen by foreign governments, and their agencies, as a reliable recipient of confidential information; a government that will respect the status of confidential information that is supplied to it in the normal course of business. It would be neither possible nor appropriate for the Australian government to make judgments about the motives with which the information is supplied.

Whether a document is communicated in confidence is a question to be decided on the balance of probabilities (Re Environment Centre NT Inc and Department of the Environment, Sport and Territories (1994) 35 ALD 765), and there can be an implied or inferred understanding that the information would be kept confidential (Re Maher).

19. Mr Herman is an experienced officer of the Australian Federal Police and has had extensive and direct personal involvement in Mr Maksimovic’s case. The Tribunal accepts his evidence that, on the balance of probabilities, the name of the Costa Rican national was provided to the Australian Federal Police by Costa Rican authorities in confidence, and finds that the name of the Costa Rican national is exempt from disclosure under s 33(1)(b) of the FOI Act.

20. In respect of s 41(1) of the FOI Act the Tribunal accepts that the name of the Costa Rican national constitutes personal information unrelated to Mr Maksimovic, and that the information is sensitive as it forms part of an investigation by Costa Rican authorities. Disclosure of the material would be unreasonable as the public interest in non-disclosure outweighs the public interest in disclosure. Therefore the Tribunal finds that the name is exempt from disclosure under s 41(1) of the FOI Act.

Document 3: Supplementary request for assistance

21. This document contains the name of the same Costa Rican national as mentioned in Document 2, and for similar reasons the Tribunal finds that the name is exempt from disclosure under s 33(1)(b) and s 41(1) of the FOI Act. Mr Herman told the Tribunal that the document also contains details of the person’s address and occupation, together with the name of another resident of Costa Rica who is of interest to Costa Rican authorities, and that this information was also provided to the Australian Federal Police in confidence. The Tribunal accepts this evidence and finds that disclosure would divulge information communicated in confidence by a foreign government to the Commonwealth, and is exempt from disclosure under s 33(1)(b) of the FOI Act.

22. The Tribunal accepts that the material is of a personal and sensitive nature that is unrelated to Mr Maksimovic. The Tribunal concludes that the public interest in non-disclosure outweighs any public interest in disclosure arising from Mr Maksimovic’s claim that the information would help him to overturn his conviction. Therefore the Tribunal finds that the details of the Costa Rican national and the other resident of Costa Rica are exempt from disclosure under s 41(1) of the FOI Act.

Document 4: Facsimile from Attorney-General’s Department to translation agency

23. The Tribunal accepts that the mobile telephone number of the departmental officer is personal information that is unrelated to Mr Maksimovic, and that disclosure of the material would be unreasonable as the public interest in non-disclosure outweighs the public interest in disclosure. Therefore the Tribunal finds that the telephone number is exempt from disclosure under s 41(1) of the FOI Act.

Document 5: Cable from Australian Embassy, Mexico City

24. In respect of s 22 of the FOI Act, in Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683, the Tribunal stated at 691:

Returning to the expression “would reasonably be regarded'’ as it appears in s 22(1) and having regard to Cockcroft's case, it seems to me that I must consider whether disclosure of certain information might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request for access made under the Act.

Document 5 contains information that is irrelevant to the FOI request as it concerns unrelated material about distribution of the document to various agencies. The Tribunal finds that this part of the document is exempt from disclosure under s 22 of the FOI Act.

25. In respect of s 33(1)(a)(iii) of the FOI Act Ms Harmer told the Tribunal that the deleted passage provides an update on the progress made by Costa Rican authorities in processing the request for mutual assistance. She said that, based on her knowledge of such matters and her experience in dealing with officials of foreign governments in criminal investigations, disclosure would, or could reasonably be expected to, damage Australia’s relations with Costa Rican authorities, and that the damage could reduce the prospects of those authorities cooperating effectively with Australian authorities in the future. The Tribunal accepts her evidence and finds that the deleted material is exempt from disclosure under s 33(1)(a)(iii) of the FOI Act.

Document 6: Email from Attorney-General’s Department to Australian Embassy, Mexico City  

26. In respect of s 22 of the FOI Act the Tribunal takes into account that paragraph 4 of the email contains a comment that is irrelevant to the FOI request as it concerns unrelated material that could be described as social chat from the author of the email to the recipient. The Tribunal finds that this part of the document is exempt from disclosure under s 22 of the FOI Act.

27. In respect of s 33(1)(a)(iii) of the FOI Act Ms Harmer told the Tribunal that the deleted passage in paragraph 3 of the email provides comments by the author on the progress by Costa Rican authorities of the request for mutual assistance. She said that, based on her knowledge of such matters and her experience in dealing with officials of foreign governments in criminal investigations, disclosure would, or could reasonably be expected to, damage Australia’s relations with Costa Rican authorities, and that the damage could reduce the prospects of those authorities cooperating effectively with Australian authorities in the future. The Tribunal accepts her evidence and finds that the deleted material is exempt from disclosure under s 33(1)(a)(iii) of the FOI Act.

Document 7: Email correspondence between Attorney-General’s Department and translation agency

28. Following concessions made by the respondent at the hearing, the only material claimed to be exempt is the surname of the manager of the private translation agency engaged by the respondent to undertake translation of relevant documents. The Tribunal accepts that the surname of the manager is personal information that is unrelated to Mr Maksimovic, and that disclosure of the material would be unreasonable as the public interest in non-disclosure outweighs the public interest in disclosure. Therefore the Tribunal finds that the surname is exempt from disclosure under s 41(1) of the FOI Act.

Document 8: Email correspondence between Australian Embassy, Mexico City and Attorney-General’s Department

29. In its heading the document contains material that is irrelevant to the FOI request as it includes the name of a person who is involved in an investigation that is unrelated to Mr Maksimovic. The Tribunal finds that the person’s name is exempt from disclosure under s 22 of the FOI Act. The document also includes a translation of a document that, apart from the penultimate paragraph, is irrelevant to the FOI request as it concerns extradition matters unrelated to Mr Maksimovic. The Tribunal finds that this material is exempt from disclosure under s 22 of the FOI Act.

30.      In respect of the penultimate paragraph of the translated document, Ms Harmer stated that the document contains a progress report prepared by Costa Rican authorities on the request for mutual assistance.  She said that from her experience and knowledge the information was, at the time, provided in confidence by the Costa Rican authorities to Australian diplomatic representatives.

31. Ms Harmer is a senior officer of the respondent and has had significant experience in Australia’s international cooperation in criminal matters. She has had direct involvement in the request by the Australian Government to the Costa Rican Government for mutual assistance in Mr Maksimovic’s case. The Tribunal accepts her evidence that, on the balance of probabilities, the progress report contained in the deleted paragraph was provided to Australian authorities by Costa Rican authorities in confidence, and that disclosure would divulge information communicated in confidence by a foreign government to the Commonwealth and therefore is exempt from disclosure under s 33(1)(b) of the FOI Act.

DECISION

32.      The Tribunal varies the decision under review in that documents or parts of documents released to Mr Maksimovic by the respondent during the proceedings are not exempt under the Freedom of Information Act 1982.  In all other respects the Tribunal affirms the decision under review.

I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of:

G. D. Friedman, Senior Member

(sgd) Mara Putnis

Associate

Date of hearing:  2 December 2008

Date of decision:  5 December 2008

Advocate for the applicant:          Self-represented

Advocates for the respondent:     Mr M Bennett and Ms C Stewart, Attorney-General’s      Department