Michaels and National Crime Authority - [2001] AATA 705

DECISION AND REASONS FOR DECISION [2001] AATA 705

ADMINISTRATIVE APPEALS TRIBUNAL)

N° V00/1251

GENERAL ADMINISTRATIVE DIVISION)
EDGAR MICHAELS

Applicant

NATIONAL CRIME AUTHORITY

Respondent

DECISION

Tribunal:       Deputy President G.L. McDonald
Date:             3 August 2001
Place:            Melbourne

Decision:The decision of the Tribunal is as follows:
Document 1 — information relating to the payments made to Mr Ray Winslett in his personal capacity are not exempt documents under the Freedom of Information Act 1982 (Cth) ("the FOI Act") and shall be released to the applicant. Otherwise the decision in relation to document 1 is affirmed.
Documents 2, 3, 4 and 11 — the decision under review is affirmed.
Document 5 — the decision under review is set aside and a decision that the document is not exempt under the provisions of the FOI Act is substituted.
Document 6 — the decision under review is affirmed.
Document 7 — the decision under review is affirmed.
Document 8 — the decision under review is affirmed.
Document 9 — the decision under review is set aside and a decision that the documents sought are not exempt under the provisions of the FOI Act is substituted.
Document 10 — For the same reasons as given in relation to document 6, the decision under review is affirmed.
(sgd) Graham McDonald
Deputy President
FREEDOM OF INFORMATION — access — documents relating to National Crime Authority investigation of the applicant — multiple exemptions claimed — exemption in respect of disclosure of lawful investigation method — exemption in respect of disclosure of a confidential source of information — unreasonable disclosure of personal information — disclosure of professional/business/commercial/financial affairs would or could reasonably have an unreasonably adverse affect
Freedom of Information Act 1982 (Cth) ss.11, 37(1)(b), (2)(b), 41(1), 43(1)(c)(i), 61, 64

Crimes Act 1914 (Cth)

REASONS FOR DECISION

3 August 2001 Deputy President G.L. McDonald

The applicant is seeking review under the provisions of the Freedom of Information Act 1982 (Cth) ("the FOI Act") of decisions of the respondent to deny him, either in whole or in part, access to documents as follows:
Document 1 — Records of any or all payments to the informant, Mr. Allan. Dillon; Mr. Ray Winslett, and Mr. Allen Johnston, or any record of another form of arrangement with them for the assistance in creating the crime in operation Opaline.
Document 2 — Records or copies signed by the Commonwealth Attorney-General the Honorable Daryl Williams for exception for prosecution in the participation in operation Opaline by Mr. Allan Dillon, Mr. Ray Winslett and Mr. Allen Johnston.
Document 3 — Records of the Mutual Assistance Request to the high Authority of Chile by Federal Police Liaison officers, Mr. Alan Hicks and John Beveridge, station in Argentina, Buenos Aires, South Amercia.
Document 4 — Photocopies of alleged warrant issued by a judge or Magistrer in Santiago de Chile in relation to operation Opaline as stated in trial.
Document 5 — Record photocopy of the International transaction payment order of 375,000 US dollars sent and address to Mr. Oscar Miranda Alvarez.
Document 6 — Record of any other sum of money transfer to Mr. Oscar Miranda Lavarez and Antonio Cubillos through American Express or any other form of transaction to overseas etc.
Document 7 — Entire disclosure of policies running sheets in operation opaline.
Document 8 — Disclosure of the delete date and second row name of unknown person in the controlled operation certificate in operation opaline.
Document 9 — Disclosure and copies of receipts from all record cost on money invested in Mr Michael Leonard Reardon during operation opaline cost such as:
Airline ticket, expenditure money, hotel accommodation, telephone cost and cost given to Mrs Reardon for living expenses, groceries, electricity bill and phone bill been paid by the N.C.A, during the time the N.CA sent Mr. Reardon to Chile.
Document 10 — Disclosure of all payments given to Oscar Miranda Lavarez, Mr. Antonio Cubillos and Mr. Rodrigo Ibimarriaga and any other person that assisted to create this crime.
Document 11 — Copies of the Application under the International Mutual Assistance request to the Bolivian government.
The applicant is serving a sentence of 20 years imprisonment, imposed by the District Court of New South Wales, after trial and conviction for an offence of conspiring to import a commercial quantity of a prohibitive drug (50 kilos of cocaine). The documents he seeks all arose during the National Crime Authority ("NCA") investigation into the offence for which he has been convicted. During the course of the hearing before the Tribunal, the applicant, on several occasions, asserted his reasons for seeking access to the documents. Section 11 of the FOI Act grants a legally enforceable right to obtain access in accordance with the provisions of the FOI Act to documents and, under subsection (2), a person's right of access is not affected by any reason the person gives for seeking access. The decision is to be reviewed on the basis that the respondent bears the onus of establishing that a decision to refuse access is justified (section 61(1) of the FOI Act).
Mr Purchas, the senior NCA officer in New South Wales, swore an affidavit and gave oral evidence to the Tribunal in support of the exemptions claimed. The Tribunal also had before it, pursuant to the provisions of section 64 of the FOI Act, unabridged copies of the documents the applicant was seeking. The hearing was conducted in Melbourne with the applicant participating in the proceedings by video from Sydney. An interpreter was made available for the applicant but his services were not utilised, the applicant having sufficient understanding to directly participate in the proceedings.
It is convenient to deal with the 11 documents (or sets of documents) in the earlier identified groups.
Document 1
The documents under this heading deal with entries in what is described as "sub-advance cash book" and "expenses reimbursement vouchers". At the hearing it was agreed on behalf of the respondent that entries relating to Mr Winslett (whether he is described by name or in his capacity as a registered informer ("NSWCC463")) where such payments were made for his benefit could be released. To that extent, the decision under review is varied.
With respect to the two other parties mentioned (Messrs Dillon and Johnston), the respondent neither admitted nor denied the existence of any "form of arrangements" with either or both of them. The respondent submitted that, pursuant to the section 37(2)(b) of the FOI Act, the disclosure of whether or not there was an arrangement would be to disclose a lawful method or procedure used in the 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. In his oral evidence, Mr Purchas also claimed that, if, which was not admitted, there was an arrangement between the NCA and either Mr Dillon or Mr Johnston, then the release of any documents which may pertain to them may prejudice the conduct of other ongoing investigations in which they may be involved or disclose or enable a person to ascertain the existence or identity of a confidential source of information (section 37(1)(b) of the FOI Act). Additionally, in light of evidence given by Mr Purchas at the hearing as to the physical danger which arose from disclosure of such information concerning Mr Winslett, there appeared also a reasonable expectation that the physical safety of both parties could be placed in jeopardy if the information was released.
Given the context in which the NCA investigation of the conspiracy was carried out, that is, involving the use of informers, the Tribunal is satisfied that the disclosure of the information could reasonably be expected to have the results claimed by Mr Purchas. Accordingly, other than with respect to Mr Winslett, whose connection with the investigation is already in the public arena, the Tribunal affirms the decision under review.
The respondent also claimed that disclosure of the information would involve the unreasonable disclosure of personal information about the named parties (i.e. if their names appeared in the documents). Given the decision already reached by the Tribunal, it is not necessary to consider this exemption.
Documents 2, 3, 4 and 11
In all cases Mr Purchas maintained that no records existed with the NCA as to the documents identified by the applicant. There is no evidence to suggest otherwise. Accordingly, the Tribunal affirms the decision under review with respect to documents 2, 3, 4 and 11.
Document 5
An entry in the contents of the running sheet (being document 7) has been released to the applicant confirming, on 30 July 1997, "an application for international payment order to Mr Oscar Miranda for $375,000 USD". Exemption is claimed under provisions of section 37(2)(b) of the FOI Act, that is, that the disclosure of the actual document could reasonably be expected to disclose a lawful method or procedure for preventing, detecting, investigating or dealing with a matter arising out of a breach or evasion of the law, or prejudice the effectiveness of those methods or procedures. The Tribunal is satisfied that, by the release of the information contained in document 7, the "method" or "procedure" has already been revealed to the applicant. Given that that has been revealed to the applicant, it is difficult to see how disclosure of the actual document would, or could reasonably be expected to have any of the effects set out in subsection (2)(b). Accordingly, the Tribunal is not satisfied that the claimed exemption has been made out and documents should be released to the applicant.
Document 6
There are five documents constituted in this category, all of which are copies of moneygrams, the contents of which have been released to the applicant except in the case of the first, fourth and fifth of the documents where the sender, being an NCA officer, has given his/her home address and in documents 2 to 5 (inclusive) where the credit card number of the purchaser, also being an NCA officer, is recorded. At the hearing the applicant did not have any apparent objection that the release of the home addresses of the NCA officers should be protected pursuant to the provisions of section 41(1) of the FOI Act. The applicant sought confirmation that the only other information withheld from him in documents 2 to 5 was the credit card number. The Tribunal inspected the unedited documents at the hearing and gave him that assurance. It is perhaps unclear as to whether the credit card is that of the NCA officer in his/her personal capacity or a credit card issued by the NCA for the use of the officer on NCA business. If it is the former, the Tribunal is satisfied that the release of the credit card number would amount to unreasonable disclosure of personal information about the person and accordingly, is exempt under the provisions of section 41(1) of the FOI Act. If it is the latter, then the Tribunal is satisfied its disclosure is exempt under the provisions of section 43(1)(c)(i) of the FOI Act. The decision under review is accordingly affirmed.
Document 7
Document 7 is the NCA "running sheet". Mr Purchas's evidence was that the running sheet was in fact a computerised record of NCA officers' day-to-day chronological entries concerning the investigation. Each entry is recorded by reference to the date and the officers' names, and records the activity involved. A column, on the right hand side of the page, is provided to note what further action may be required/requested. The document consists of 128 pages. Large portions of the descriptive activity, carried out of by the officers in conducting the operation, have been released to the applicant. References to named people, often containing details of their address, telephone number, etc, have been obliterated and exemptions claimed under provisions of section 41(1) of the FOI Act for those entries. In his oral evidence to the Tribunal, Mr Purchas said that those entries may relate to "innocent" contacts made by those whose activities were being investigated, but are recorded for checking and follow-up purposes. In the Tribunal's view the release of that information would amount to unreasonable disclosure of personal information about the named people and, accordingly, the exemption should be upheld.
Other parts of the document not released to the applicant contain contacts made by the NCA with other authorities and bodies for purposes of conducting the investigation. The Tribunal has read those entries, and is satisfied that their disclosure could be reasonably expected to disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches of the law and, accordingly, exemption has been made out under the provisions of section 37(2)(b) of the FOI Act.
In the case of the document all of the information contained in the right hand column, dealing with further follow-up action that is required or requested, could reasonably be expected to disclose the lawful methods and procedures engaged in by the NCA in the course of investigating evasions of the law and, consequently, the Tribunal is satisfied that exemption is made out under the provisions of section 37(2)(b) of the FOI Act.
The Tribunal has read the entirety of the document, and is satisfied that the exemptions claimed should be affirmed.
Document 8
Document 8 is a "Certificate Authorising a Controlled Operation" and it is issued under the provision of the Crimes Act 1914 (Cth). The whole of the document has been released to the applicant except for the name and date of birth of the second person said to be the target of the certificate. The Tribunal is satisfied that the publication of the name and date of birth of that person would involve unreasonable disclosure of the personal information of that person and, accordingly, that part of the document is exempt under the provisions of section 41(1) of the FOI Act.
Document 9
An issue arises with respect to this document, or series of documents, which relate to expenses, as to whether or not the release would amount to "unreasonable disclosure of personal information about another person" under the provisions of section 41(1) of the FOI Act bearing in mind that the expenditure made is public expenditure. It is somewhat difficult to categorise the payment of public moneys to a person as "personal information" about that person. The situation may be different where the payment is by a person for a purchase or in other circumstances. In the circumstances, however, where public money has been expended as part of a completed NCA operation, the Tribunal is unable to conclude that the information is "personal". The Tribunal has to consider whether section 43(1)(c) of the FOI Act may have some applicability but is unable to see how the information if released could reasonably have the adverse affect for which exemption is available in that section. Accordingly, the documents comprised in document 9 should be released.
Document 10
The documents in this group are identical to the documents identified in document 6.   Otherwise, with the exemptions already mentioned with respect to document 6, the documents have been released.   For the same reasons as given in relation to document 6, the partial exemptions claimed should be affirmed.
I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of
(sgd) Catherine Thomas
          Clerk
Date of Hearing:  6 June 2001
Date of Decision:  3 August 2001
Solicitor for the Applicant:           NIL — IN PERSON
Solicitor for the Respondent:       Mr S. McBurney, solicitor with National Crime Authority