Maurizi and Department of Foreign Affairs and Trade (Freedom of information)

[2022] AATA 2598

Maurizi and Department of Foreign Affairs and Trade (Freedom of information) [2022] AATA 2598 (15 August 2022)

Division:FREEDOM OF INFORMATION DIVISION

File Number(s):      2021/5474

Re:Stefania Maurizi

APPLICANT

Department of Foreign Affairs and TradeAnd  

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:15 August 2022

Place:Sydney

The decision under review is affirmed.

..................................[SGD]......................................

Deputy President B W Rayment OAM QC

CATCHWORDS

FREEDOM OF INFORMATION – whether access to certain documents pursuant to the Freedom of Information Act 1982 (Cth) may be granted, either wholly or in part – whether documents are exempt or conditionally exempt – reviewable decision affirmed.

LEGISLATION

Freedom of Information Act 1982 (Cth)

CASES

Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of information) [2019] AATA 5537

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

15 August 2022

1. The applicant is an investigative journalist who has worked on the Julian Assange case since 2010 and who has made freedom of information requests in other countries, including the United Kingdom and the United States.

2. Ms Maurizi made a freedom of information request of the respondent in the following terms: 

   1. the full correspondence between the Australian Department of Foreign Affairs and the UK Foreign Office on Mr Julian Assange from the 1st of January 2016 to the 18th of January 2018

   2. the full correspondence (if any) between the Australian Department of Foreign Affairs and the US State Department on Mr Julian Assange from the 1st of January 2016 to the 18th of January 2018

3. The respondent rejected the request in part, asserting that redacted parts of the documents identified were exempt under s.33(a)(iii) and/or s.33(b) of the Freedom of Information Act 1982 (Cth) (the Act) and alternatively under s.47E(d) or s.47F(1) of that Act. The respondent affirmed that decision on internal review. The applicant sought review of the decisions from the Australian Information Commissioner, who affirmed the internal review decision under s.55K of the Act.

4. Section 33 states unconditional exemptions and sections 47E and 47F state conditional exemptions, as to which public interest questions arise.

5. In the result, it is not necessary for the Tribunal to consider conditional exemptions, because the Tribunal considers that all of the redactions claimed qualify for exemptions under s.33(a)(iii) and/or s.33(b) of the Act.

6. Section 33 of the Act provides as follows

   33 Documents affecting national security, defence or international relations

   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:

   (i) the security of the Commonwealth;

   (ii) the defence of the Commonwealth; or

   (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.

7. The applicant then sought review of the Australian Information Commissioner’s decision in the Tribunal.

8. The respondent was represented by Mr Swan of counsel and the applicant was represented by Mr Barns SC. The respondent called Ms Logan who is and has been for some time First Assistant Secretary in the Consular and Crisis Management Division of the Department of Foreign Affairs and Trade. From 2018 to 2019 she was Ambassador to Greece and non-resident Ambassador to Bulgaria and Romania and has had other overseas positions.

9. She is and has been for 26 years a senior career officer within the Department. She has had a number of roles within the Department including Chief of Protocol and for two years from 2005-2007 she served as Adviser to the Minister for Foreign Affairs and facilitated engagements and communications between the Minister and relevant counterparts from other nations.

10. Ms Logan’s extensive experience in both diplomacy and in managing communications between Australia and other countries, including the two five eyes countries involved in the FOI requests made by Ms Maurizi, the United Kingdom and the United States, makes her well qualified to express the views which she has expressed about the damage which would or could reasonably be expected to be caused to the international relations of the Commonwealth if various documents included in those access to which was sought by the applicant, and whether some of those documents were communicated in confidence to the department. 

11. I proceed in this matter on the basis of the propositions of law enunciated by Perry J sitting as a Deputy President of this Tribunal in Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of information) [2019] AATA 5537 at [33]-[35] and at [40]-[47] in relation to s.33(a)(iii).

12. As her Honour pointed out at [35] the relevant time to consider the exemption under s.33(a)(iii) is the present time, whereas under s.33(b) it is the time at which the information or matter was communicated to Australia.

13. Ms Logan’s evidence on the documents in question was as to the damage to Australia’s international relations that would or could reasonably be expected to be caused by the release of those documents which are relevant, and as to whether the documents attracting s.33(b) were communicated by the United Kingdom and/or the United States in confidence.

14. As to s.33(b) Ms Logan said at [20] and [21] of her affidavit:

    It is a longstanding convention that all diplomatic communications are conducted with an expectation of confidentiality and discretion. This convention is founded on the general and consistent practices surrounding the exchange of diplomatic communications between states, including Australia and the UK and US governments. Disclosing diplomatic communications and the confidential information would harm the relationship between the states concerned. This would be true regardless of the sensitivity of the information transmitted or the time that had elapsed since the communications occurred. Whether or not it is sensitive or communications took place some time ago, disclosure to a third party would reduce the willingness of foreign governments to engage with Australian representatives as they would be concerned diplomatic communications (or the information within) exchanged within the relationship could not be protected. The result would be a reduction (complete or partial) in the amount of information the Australian Government would receive. Disclosure could also lead to foreign governments being less willing to cooperation with Australia (in bilateral or multilateral engagements) due to a lack of trust regarding Australia’s ability to maintain the confidentiality of conversations in these fora.

    As trusted partners, the US and UK also observe the longstanding convention and share information in trust with Australia. As stated below at [24], the volume and sensitivity of information shared between the US, UK and Australia is greater than other governments. This results in each of the three having very high expectations that the others will adhere to the convention governing the sharing of diplomatic communication and manage information shared in confidence correctly. The result being the US and UK have a greater expectation Australia will adhere to this convention when dealing with them.

15. Also at [33] Ms Logan said:

    I have examined the emails marked for exemption under s 33(b) of the FOI Act at folios 1, 3-4, 5, 6, 8, 9, 10, 11-12, 14, 15, 17, 18, 20-22 of the documents in issue. From my assessment, and informed from my experience and knowledge, I am of the view that release of the information would divulge information communicated in confidence by or on behalf of a foreign government to the Commonwealth.

16. As to s.33(a)(iii) Ms Logan said at [24]-[28] of her affidavit:

    Australia has a long standing and close relationship with the US and the UK. There is significant engagement between Australia and both states bilaterally and multilaterally in the context of trade, security and investment. The result is the volume and sensitivity of the information shared between Australia and the US and UK is greater than with other partner governments.

    Conventions relating to the confidentiality of diplomatic communication and information are observed in all diplomatic interactions between the three states.

    While such a relationship is significant, comprehensive and robust, it does not follow it cannot be damaged, including by the disclosure of confidential communication and information. The US, UK and Australia each trust that their shared communications and the information within will be kept confidential in accordance with the conventions applying to diplomatic communications. Disclosure of confidential material to other parties would result in a loss of trust between Australia, the US and the UK. At present, Australia is viewed by the US and the UK as a consistently dependable partner in relation to managing diplomatic communications confidentially, and as a result, is given increased access to information. This puts Australian in a position to influence the US and UK on issues critical to our national interests. Due to the scope and depth of Australia’s bilateral relationships with the US and UK, any degree of diminished trust in Australia by these countries would substantially damage our national interest.

    Damage to Australia’s networks would also impact its ability to provide consular services to Australians overseas. Provision of these services are reliant on trust within DFAT’s overseas networks and relationships. A loss of confidence by these overseas partners that Australia would maintain the confidentiality of diplomatic communications would result in other countries’ unwillingness to share any information with Australia. This would negatively impact Australia’s ability to seek information or undertake action within its consular duties and impact on our ability to assist Australian citizens in that country. In the event of a crisis, it may also mean that Australia is not privy to information that is shared with other foreign governments.

    …

    I have examined the emails marked for exemption under s 33(a)(iii) of the FOI Act at folios 1-23 of the documents in issue. From my assessment, and informed by my experience and knowledge, I am of the view that release of the substantive communications within would or could reasonably be expected to cause damage to the Commonwealth’s international relations.

17. I examined in unredacted form each of the relevant documents and am satisfied, with the assistance of Ms Logan in a closed session that all such documents are within the exemptions provided in s.33(a)(iii) and/or s.33(b). that being so, it is not necessary for me to consider any public interest question since the documents are unconditionally exempt.

18. The reviewable decision, being the decision of the Australian Information Commissioner, will therefore be affirmed based upon the provisions of s.33(a)(iii) and/or s.33(b) of the Act.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

..............................[SGD]..........................................

Associate

Dated: 15 August 2022

Date(s) of hearing:	10 June 2022
Counsel for the Applicant:	Mr G Barns SC
Solicitor for the Applicant:	Mr P Bolam, Broadley Rees Hogan
Counsel for the Respondent:	Mr N Swan
Solicitor for the Respondent:	Ms M Gangemi, AGS