Maksimovic and Australian Federal Police
[2008] AATA 537
•27 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 537
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4991
GENERAL ADMINISTRATIVE DIVISION ) Re DEJAN MAKSIMOVIC Applicant
And
AUSTRALIAN FEDERAL POLICE
Respondent
DECISION
Tribunal Regina Perton Date27 June 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. ...................[Sgd]......................
Regina Perton
Member
FREEDOM OF INFORMATION - documents relating to law enforcement involving the applicant ‑ whether documents exempt from disclosure - irrelevant material - methods or procedures of enforcement - conduct of an agency - personal privacy
Freedom of Information Act 1982 ss 4, 22, 37(2)(b), 40(1)(d), 41(1)
Ascic v Australian Federal Police (1986) 11 ALN N184
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Clark and Australian Federal Police (2005) 41 AAR 14
Re Corkin and Department of Immigration & Ethnic Affairs [1984] AATA 448
Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683Re Scholes and Australian Federal Police (1996) 44 ALD 299
Re Thies and Department of Aviation (1986) 9 ALD 454
REASONS FOR DECISION
27 June 2008 Regina Perton 1. Dejan Maksimovic was convicted of drug offences in 2006 and sentenced to a term of imprisonment. He sought access under the Freedom of Information Act 1982 (the FOI Act) to the diary notes and other documents of officers of the respondent involved in his case.
2. The respondent released a number of documents to Mr Maksimovic and at the date of the hearing 10 documents, or parts of the documents, were claimed to be exempt (the exempt documents) on the following grounds: they were irrelevant material (s 22 of the FOI Act); their provision would result in disclosure of methods or procedures of enforcement of law and protection of public safety (s 37(2)(b) of the FOI Act); their provision would have an adverse affect on the conduct of an agency (s 40(1)(d) of the Act); and their provision would violate personal privacy (s 41(1) of the FOI Act).
3. The issue before the Tribunal is whether the documents, or parts of the documents, to which access has been refused should be released.
What was sought in the FOI request and what are the exempt documents?
4. On 21 May 2007 Mr Maksimovic applied to the respondent for access to the following information under the FOI Act:
Complete uncensored Australian Federal Police officers diary notes or entries for the period 1 March 2005 to 5 March 2005 for any officer involved directly or indirectly in the case of The Queen v Dejan Maksimovic. In particular, diary of David Paul Herman who was the informant and Nicholas Andrew Read.
5. On 5 July 2007 Mr Maksimovic applied for access to:
Complete uncensored Australian Federal Police officers diary notes, any reports and statements compiled by federal Agents Peter CONSTANTINOU and Maldwyn PARSON in relation to a search warrant which was executed on 3 March 2005 at the address of; [an address in Brighton, Victoria].
6. The documents cited as exempt documents are:
Doc No
FOI No
Date
Author
Description
Redaction/ Exclusion
Exemption claimed and Reason/s for exemption
1
1-2
03/02/05 to 08/03/05
Federal Agent Parsons
Diary Notes
FOI-1, diary entries from 03/02/05 to 29/02/05
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request.
s.41(1) - unreasonable disclosure of personal information (details of unrelated personal affairs).
FOI-1, diary entries on 01/03/05
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (unrelated investigations).
FOI-2, diary entry on 5/03/05 (partial)
s.41(1) - unreasonable disclosure of personal information (personal phone number)
FOI-2, diary entries from 06/03/05 to 08/03/05
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (irrelevant to search of …[Brighton address] and outside dates requested).
2
3-7
01/03/05 to 06/03/05
Federal Agent Ord-Hume
Diary Notes
FOI-4, diary entries from 25/02/05 to 28/02/05
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (outside dates requested and unrelated investigations).
s.41(1) - Deletions are made on the grounds that disclosure would involve the unreasonable provision of personal details of people other than the Applicant (unrelated personal affairs).
FOI-4, diary entry for 01/03/05
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (unrelated investigations).
FOI-4, diary entry for 02/03/05
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (unrelated investigations).
FOI-4, diary entry for 02/03/05, 1030 to 1101
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (unrelated investigations).
FOI-5, FOI-6, FOI-7, diary entries from 1400, 03/03/05 to 1740, 04/03/05
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (unrelated investigations).
FOI-7, diary entry for 06/03/05
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (employee work arrangements).
s.41(1) - Deletions are made on the grounds that disclosure would involve the unreasonable provision of personal details of people other than the Applicant (unrelated personal affairs).
3
8-11
07/03/05
Federal Agent Parsons
Statement
FOI-11, Signatures
s.41(1) - Disclosure would involve the unreasonable provision of personal details of people other than the FOI applicant.
4
12-17
14/04/05
Peter Constantinou
Cover Sheet (FOI-12); Statement (FOI-13-17)
Statement exempt
s.22(1)(a)(ii) - Exempted document would disclose information that would reasonably be regarded as irrelevant to the request (not relevant to request and outside date range requested).
5
18
03/03/05
Peter Constantinou
Forensic Notes
FOI-18, redactions 1 and 2
Consent to disclosure
FOI-18, redaction 3 (Notes from 2.40pm)
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (not relevant or within scope of requests).
6
19
17/03/05
Peter Constantinou
PROMIS Case Note Entry
FOI-19 redaction
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (not relevant to request and outside date range of request).
7
20-23
17/03/05
Peter Constantinou
"Correspondence Details" and attached photographs
FOI-22 redaction
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (not relevant to request and outside date range of request).
8
24-25
23/03/05
Federal Agent Herman
Forensic Services Case Register
FOI-24 redactions
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (not relevant to request and outside date range of request).
9
26 -28
23/03/05
Peter Constantinou
Interim Report
FOI-26, redaction 1 (phrase from first paragraph)
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (not relevant to request and outside date range of request).
FOI-26, redaction 2 (second and third paragraph)
s.37(2)(b) - Sections of the exempted material disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures (computer investigation methods).
s.40(1)(d) - Sections of the exempted material would disclose information that would have a substantial adverse effect on the proper and efficient conduct of the operations of the AFP and would be contrary to the public interest (prejudicing computer investigation methods).
FOI-27
s.41(1) - Disclosure would involve the unreasonable provision of personal details of a person other than the FOI applicant.
s.22(1)(a)(ii) - Exempted material would disclose information that would reasonably be regarded as irrelevant to the request (outside date range of request).
10
29-30
16/03/05
Federal Agent Herman
1 x Report on CD regarding …[Brighton address] computer
2 x DVDs containing archive files of….. [Brighton address] computer hard drive contents.
Excluded
s.41(1) - Disclosure would involve the unreasonable provision of personal details of a person other than the FOI applicant.
s.22(1)(b) - It is not possible for the Respondent to make a copy of the Disks with deletions that would remove exempt documents.
s.22(1)(c) - it is not reasonably practicable for the Respondent to delete exempt documents from the Disks.
Which sections of the FOI Act apply?
7. Section 22(1) of the FOI Act provides that:
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.
8. Kylie Rendina, a Team Leader for the respondent, informed the Tribunal in an affidavit dated 5 March 2008, that she has reviewed the respondent‘s records regarding Mr Maksimovic and has held discussions with the relevant officers. Ms Rendina stated that documents 1, 2, 4, 5, 6, 7, 8, 9 and 10 contain information in diary notes and other documents that refers to matters such as the officers’ leave arrangements which are unrelated to Mr Maksimovic, or refer to dates outside the dates specified in Mr Maksimovic’s request and are not relevant to the FOI request (s 22(1)(a)(ii) of the FOI Act). She stated that document 10 consists of a compact disc (CD) and two digital video discs(DVDs) of material copied from the hard drive of a computer removed from the Brighton address. Ms Rendina stated that because of the voluminous contents of the CD and DVDs (over 6 gigabytes of data), which includes material unrelated to Mr Maksimovic or his FOI request, it is not possible for the respondent to make a copy of the discs with deletions that would remove exempt documents (s 22(1)(b) of the FOI Act) and it is not reasonably practicable for the respondent to delete exempt documents from the discs (s 22(1)(c) of the FOI Act).
9. Section 37(2)(b) of the FOI Act provides:
37 Documents affecting enforcement of law and protection of public safety
(2)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures;
10. Ms Rendina stated that this exemption applies to part of document 9. She said that the exempt material is an interim report which contains details of data removed from computers at addresses visited by the respondent; and release of the material would, or could reasonably be expected to, disclose methods used by officers of the respondent in investigating possible breaches of the law and undermine the respondent’s ability to investigate potential criminal activity.
11. Section 40(1)(d) and s 40(2) of the FOI Act provide:
40 Documents concerning certain operations of agencies
(1)Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
…
(2)This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
12. Ms Rendina stated that this exemption applies to part of document 9. She said that, as with the exemption claimed under s 37(2)(b) of the Act, the exempt material is an interim report which contains details of data removed from computers at addresses visited by the respondent and release of the material would, or could reasonably be expected to, have a substantial effect on the respondent’s proper and efficient conduct of operations by disclosing its investigation of the computer data. In respect of the public interest test in s 40(2) of the FOI Act, Ms Rendina stated that disclosure of an interim report of this nature would be contrary to the public interest because it would prejudice methods of investigating data held on computers and impede future investigations.
13. 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).
14. Ms Rendina stated that release of material in documents or parts of documents 1, 2, 3, 9 and 10 would be an unreasonable disclosure of personal information about clearly identifiable individuals and includes personal telephone numbers and matters unrelated to the FOI request. She stated that the information was obtained in confidence or in sensitive circumstances and is not public knowledge.
Should the exempt documents be released?
Document 1: Diary notes of Federal Agent Parson
15. This document contains handwritten notes by the officer between 3 February 2005 and 8 March 2005. 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 held that:
In determining whether information could reasonably be regarded as irrelevant to a request, it is necessary to consider whether disclosure might reasonably, as opposed to irrationally or absurdly, be looked upon as irrelevant to the request for access.
16. The Tribunal accepts the evidence from Ms Rendina that extracts from the diary entries from 3 February 2005 to 29 February 2005 contain information that is irrelevant to the FOI request as it concerns unrelated personal matters and furthermore is outside the dates of material requested by Mr Maksimovic. Diary entries on 1 March 2005 contain information that is irrelevant to the FOI request as it concerns unrelated investigations. Diary entries from 6 March 2005 to 8 March 2005 contain information that is irrelevant to the FOI request as it concerns unrelated operational matters and is also outside the dates requested by Mr Maksimovic. The Tribunal finds that parts of document 1 are exempt from disclosure under s 22 of the FOI Act.
17. In respect of s 41(1) of the FOI Act, the term personal information is defined in s 4 as follows:
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.
18. 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 para 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.
19. The Tribunal accepts the evidence from Ms Rendina that extracts from the diary entries from 3 February 2005 to 29 February 2005 and 5 March 2005 contain information that is personal information unrelated to Mr Maksimovic and that the public interest in non-disclosure outweighs the public interest in disclosure. For these reasons disclosure of the material would be unreasonable, and the Tribunal finds that parts of document 1 are exempt from disclosure under s 41(1) of the FOI Act.
Document 2: Diary notes of Federal Agent Ord-Hume
20. This document contains handwritten notes by the officer between 25 February 2005 and 6 March 2005. The Tribunal accepts the evidence from Ms Rendina that extracts from the diary entries from 25 February 2005 to 28 February 2005, 1 March 2005 to 4 March 2005 and 6 March 2005 contain information that is irrelevant to the FOI request as it concerns unrelated investigations. The entries from 25 February to 28 February 2005 and 6 March 2005 are also outside the parameters of the dates in the request. The Tribunal finds that parts of document 2 are exempt from disclosure under s 22 of the FOI Act.
21. The Tribunal accepts the evidence from Ms Rendina that extracts from the diary entries also contain information that is personal information unrelated to Mr Maksimovic and that the public interest in non-disclosure outweighs the public interest in disclosure. For these reasons disclosure of the material would be unreasonable, and the Tribunal finds that parts of document 2 are exempt from disclosure under s 41(1) of the FOI Act.
Document 3: Statement by Federal Agent Parson
22. This document contains the signature of Federal Agent Parsons. In Re Corkin and Department of Immigration & Ethnic Affairs [1984] AATA 448 the Tribunal held that the exemption in s 41(1) of the FOI Act also applies to signatures. The Tribunal finds that the signature is personal information unrelated to Mr Maksimovic and that the public interest in non-disclosure outweighs the public interest in disclosure. For these reasons disclosure of the signature would be unreasonable and the Tribunal finds that parts of document 3 are exempt from disclosure under s 41(1) of the FOI Act.
Document 4: Statement by Peter Constantinou
23. This document contains information that is irrelevant to the FOI request as it concerns unrelated investigations on dates outside the dates specified in the FOI request. The Tribunal finds that document 4 is exempt from disclosure under s 22 of the FOI Act.
Document 5: Forensic notes by Peter Constantinou
24. This document contains information (notes made from 14.40 to 14.55 hours) that is irrelevant to the FOI request as it concerns unrelated investigations on dates outside the dates specified in the FOI request. The Tribunal finds that part of document 5 is exempt from disclosure under s 22 of the FOI Act.
Document 6: Case note entry by Peter Constantinou
25. This document contains information (notes made by the author) that is irrelevant to the FOI request as it concerns unrelated investigations on dates outside the dates specified in the FOI request. The Tribunal finds that part of document 6 is exempt from disclosure under s 22 of the FOI Act.
Document 7: Correspondence details and photographs by Peter Constantinou
26. This document contains information photographs that are irrelevant to the FOI request as they concerns unrelated investigations on dates outside the dates specified in the FOI request. The Tribunal finds that part of document 7 is exempt from disclosure under s 22 of the FOI Act.
Document 8: Forensic services case register by Peter Constantinou
27. This document contains information (a list of items) that is irrelevant to the FOI request as it concerns unrelated investigations on dates outside the dates specified in the FOI request. The Tribunal finds that part of document 8 is exempt from disclosure under s 22 of the FOI Act.
Document 9: Interim report by Peter Constantinou
28. This document contains information (a description of an item in an investigation and a photograph) that is irrelevant to the FOI request as it concerns unrelated investigations on dates outside the dates specified in the FOI request. The Tribunal finds that part of document 9 is exempt from disclosure under s 22 of the FOI Act.
29. The document also contains information prepared as an interim report. In respect of s 37(2)(b) of the FOI Act, in Re Clark and Australian Federal Police (2005) 41 AAR 14 the Tribunal held that the phrase methods or procedures encompasses quite routine enquiries to a range of more clandestine or covert operations; and it is enough to specifically refer to those procedures or to describe or provide information about them such that they may be capable of being inferred. In relation to prejudice to such methods or procedures, in Re Scholes andAustralian Federal Police (1996) 44 ALD 299 the Tribunal held at 331:
If the methods are methods which every reader of detective stories and every watcher of “Blue heelers”, “Janus”, The Bill” and other Police shows on TV knows all about, then the identification of the methods will disclose nothing and, further, will have no effect on the effectiveness of those methods or procedures.
30. The Tribunal accepts the evidence from Ms Rendina that the exempt material contains details of data removed from computers at addresses visited by the respondent; and release of the material would, or could reasonably be expected to, disclose methods used by officers of the respondent in investigating possible breaches of the law, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures. The Tribunal finds that part of document 9 is exempt from disclosure under s 37(2)(b) of the FOI Act.
31. In respect of s 40(1)(d) of the FOI Act, in Re Thies and Department of Aviation (1986) 9 ALD 454 at 463 the Tribunal held that a substantial adverse effect in s 40(1)(d):
…connotes an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person.
32. In Ascic v Australian Federal Police (1986) 11 ALN N184 Muirhead J stated that substantial adverse effect includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. The Tribunal accepts the evidence from Ms Rendina that disclosure of the data removed from computers at addresses visited by the respondent would, or could reasonably be expected to, have a substantial effect on the respondent’s proper and efficient conduct of operations by disclosing its methods of investigation of computer data.
33. In respect of the public interest test in s 40(2) of the FOI Act, the Tribunal accepts the evidence from Ms Rendina that disclosure of an interim report of this nature would be contrary to the public interest because disclosure would prejudice methods of investigating data held on computers and there is no public interest in disclosing the subject matter to which the material relates. The Tribunal finds that part of document 9 is exempt from disclosure under s 40(1)(d) of the FOI Act.
34. The Tribunal accepts the evidence from Ms Rendina that extracts from the report contain information that is personal information unrelated to Mr Maksimovic and that the public interest in non-disclosure outweighs the public interest in disclosure. For these reasons disclosure of the material would be unreasonable. The Tribunal finds that parts of document 9 are exempt from disclosure under s 41(1) of the FOI Act.
Document 10: the CD and DVDs compiled by Federal Agent Herman
35. The Tribunal accepts the evidence from Ms Rendina that, because of the voluminous contents of the data contained on the CD and two DVDs, it is not possible for the respondent to make a copy of the discs with deletions that would remove exempt documents and it is not reasonably practicable for the respondent to delete exempt documents from the discs.The Tribunal finds that document 10 is exempt from disclosure under s 22 of the FOI Act.
36. The Tribunal also accepts the evidence from Ms Rendina that the CD and DVDs contain information that is personal information unrelated to Mr Maksimovic and that the public interest in non-disclosure outweighs the public interest in disclosure. For these reasons disclosure of the material would be unreasonable, and the Tribunal finds that document 10 is exempt from disclosure under s 41(1) of the FOI Act.
Further comments
37. Both parties indicated that Mr Maksimovic has lodged several additional FOI requests that are broader than those dealt with in this matter. The Tribunal was only able to deal with those that had been internally reviewed by the respondent and hence the subject of the present application for review.
DECISION
38. The Tribunal affirms the decision under review.
I certify that the thirty-eight [38] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd)………………
Sanjiv Shah
Dates of hearing: 7 March 2008, 1 May 2008
Date of decision: 27 June 2008Advocate for applicant: Self-represented
Counsel for respondent: Mr M Felman
Solicitor for respondent: Clayton Utz
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