Milliss and National Archives of Australia
[2001] AATA 1056
•21 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1056
ADMINISTRATIVE APPEALS TRIBUNAL )
) No NZ2001/1 and NZ2001/2
SECURITY APPEALS DIVISION )
Re Roger William MILLISS
Applicant
And NATIONAL ARCHIVES OF AUSTRALIA
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Mr M D Allen, Senior Member Mr M J Sassella, Senior Member
Date21 December 2001
PlaceSydney
Decision The Tribunal: 1. Varies the decision under review by granting access to an additional portion of folio 6 in file A6119, 2786, Roger William Milliss, volume 4, such additional portion being the words "is a list". 2. In all other respects, the decision under review is affirmed.
..............................................
R P Handley
Deputy President
CATCHWORDS
REASONS FOR DECISION
Mr R P Handley, Deputy President Mr M D Allen, Senior Member Mr M J Sassella, Senior Member
On 11 May 2001 and 2 August 2001, Roger Milliss ("the Applicant") lodged applications with the Tribunal pursuant to section 43 of the Archives Act 1983 ("the Act"), for the review of decisions made by the National Archives of Australia ("the Respondent") on 8 March 2001 and 5 July 2001 respectively, to refuse access to the whole or part of certain documents from the files of the Australian Security and Intelligence Organisation ("ASIO").
On 22 December 1999 and 21 December 2000, the Applicant wrote to the Respondent requesting access to a range of documents for the years 1969 and 1970 including documents relating to himself, his late father, his brother, and his former wife. These requests were made pursuant to section 40 of the Act. On 27 June 2000 and 4 May 2001, the Respondent notified the Applicant of the outcome of his requests.
On 27 July 2000 and 7 June 2001, the Applicant sought an internal reconsideration of a number of the exemptions claimed on the ground of security/confidentiality, pursuant to section 42 of the Act. The Respondent notified him of the outcome of these reviews on 8 March 2001 and 5 July 2001, and on 11 May 2001 and 2 August 2001, the Applicant lodged applications for a review by the Tribunal.
The hearing of these applications was conducted on 21 and 22 November 2001. The Applicant represented himself and the Respondent was represented by Mr Ben Dube from the office of the Australian Government Solicitor. The documents before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") together with the exhibits tendered by the Respondent. Oral evidence was given by the Manager of ASIO's Counter Intelligence and Security Branch.
Applicable lawThe relevant law remains unchanged from that applied in the Applicant's four previous applications to the Tribunal: Re Milliss and Australian Archives (AAT 11192, 23 August 1996); Re Milliss and Australian Archives (1998) 42 ALD 427; Re Millissand Australian Archives [1998] AATA 925; Re Milliss and Australian Archives [2000] AATA 565. Unless otherwise stated in this decision, the Tribunal adopts the meaning or interpretation ascribed to relevant provisions in those decisions.
The two exemptions upon which the Respondent seeks to rely in the current proceedings are those set out in section 33(1)(a) and (e)(ii) of the Act as follows:
33(1) For the purposes of this Act, a Commonwealth record is an exempt record if it contains information or matter of any of the following kinds:
(a)information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth;
. . . .
(e)information or matter the disclosure of which under this Act would, or could reasonably be expected to:
. . .
(ii) disclose, or enable a person to ascertain, the existence or
identity of a confidential source of information in relation to the
enforcement or administration of the law; or. . .
Issues
The issue for the Tribunal to determine is whether the documents that the Respondent claims are "exempt records" contain information of the kind described in either sub-paragraphs (a) or (e)(ii) of sub-section 33(1) of the Act.
The Respondent's statements of reasons principally claimed exemption for the relevant documents on the following grounds:
(1)In relation to ASIO confidential sources, "the material exempted identifies, or could reasonably be expected to identify, individuals or institutions who provided ASIO with "information in confidence" (NZ01/01, T19, Attachment 2); NZ01/02, T9, Attachment 2). In order to carry out its statutory responsibilities, ASIO relies extensively on confidential sources of information. Those who have provided information in confidence have indicated to ASIO that they would not be prepared to do so if their role might be revealed publicly. Thus, ASIO's capacity to carry out its responsibilities would be adversely affected, which would cause damage to the security of Australia.
(2)In relation to information–sharing relationships between ASIO and foreign security organisations, "the material exempted identifies, or could reasonably be expected to identify, agencies of foreign governments which provide ASIO or its predecessor organisations with information in confidence" (NZ01/02, T9, Attachment 2). In order to carry out its statutory responsibilities, ASIO relies extensively on information supplied in confidence by agencies of foreign governments. The agencies concerned have indicated to ASIO that they are opposed to the release of information supplied by them. To release information against the wishes of the agency who supplied it could reasonably be expected to adversely affect covert information – sharing arrangements and reduce or terminate the supply of information to ASIO from the agency concerned in the future.
Evidence
An open affidavit by the Manager, Counter Intelligence and Security Branch of ASIO, dated 8 November 2001 (R1) and a closed affidavit by the Manager of the same date (Confidential R3) were admitted in evidence. The Manager also gave oral evidence. He is a person of significant analytical and operational experience with ASIO.
10. In his open affidavit (R1), the Manager said at paragraph 5:The documents were created in 1969 and 1970. They contain information relating to the activities of Mr Roger Milliss and members of his family in the Communist Party of Australia (CPA) and in other organisations then assessed by ASIO to be infiltrated by communists such as the New Theatre League (NTL); and the business activities of Mr Bruce Milliss, particularly as they relate to the importation and sale of literature from the People's Republic of China (PRC) and the distribution of publications originating from the Communist Party of Australia, Marxist/Leninist (CPA/ML).
He said the documents contain information obtained from or by confidential sources of information – "human sources, institutional sources, domestic liaison, or foreign liaison":
8. ASIO relies heavily on confidential sources to carry out its statutory function of providing advice to Ministers and Commonwealth authorities regarding the security of Australia. In all cases, ASIO provides guarantees of confidentiality and undertakes to protect both the information and the source of the information -– and sometimes, where necessary, the fact that such a source of information exists. . .
9. In relation to documents involving confidential human sources, ASIO's usual practice in responding to requests under section 40 of the Archives Act is to exempt information which, if released, could reasonably be expected to expose the identity of a human source. In some cases, however, revealing the existence of a human source is tantamount to revealing that source's identity, when for example intelligence derived from that source is of a singular nature. In such cases, it is necessary to exempt information pointing to the existence of the source to protect that source's identity.
11. The Manager said a number of the documents in issue contain information provided to ASIO by confidential human sources, to whom assurances of confidentiality were given by ASIO. He described the process by which a persistent researcher "can build up a coherent and comprehensive picture from apparently innocuous or meaningless pieces of information" (paragraph 14). When assessing material for public release, ASIO officers "are acutely aware that the release of one piece of information can aid in building an overall picture" (paragraph 15). A person may, unknown to ASIO, already hold several clues as to the identity of a source.
12. The Manager detailed how, for the purpose of this and other AAT proceedings, ASIO had contacted former ASIO sources to ascertain their views on public disclosure of their identity as ASIO sources. Each believed their relationship with ASIO had been one of enduring confidentiality and some pointed to specific adverse effects that would flow from release of the information including endangering the person's physical safety, and putting family and business relationships at risk.
13. With regard to information obtained through domestic liaison with other agencies and Government departments, the Manager emphasised that these are valuable sources of information for ASIO, that the relevant material was provided in confidence and its release would be regarded as a breach of trust and jeopardise the relationships. Similar considerations apply in respect of institutional sources.
14. With regard to foreign liaison, the Manager stated there are documents at issue that contain information obtained from ASIO's contacts with a foreign security and intelligence agency. Such "relationships provide valuable and at times unique insights into matters of direct security relevance to Australia" (paragraph 32). The agency in question considered the release of the relevant material could prejudice security.
15. The Manager concluded that the disclosure of the documents at issue would breach assurances of confidentiality given to the sources of the information. This would diminish their co-operation and willingness to assist ASIO and jeopardise foreign and domestic liaison relationships, thereby depriving ASIO of information relevant to security and undermining its ability to provide advice to the Australian Government on security matters. This would, in turn, be likely to cause damage to the security, defence or international relations of the Commonwealth.
Submissions
Applicant
16. Mr Milliss said this was the fifth occasion on which he has sought a review of a decision of the Respondent by the Tribunal. On each occasion, his objective has been the same: to obtain access to ASIO records held about himself, his late father Bruce Milliss who died in 1970, his brother David Milliss, and his ex-wife Suze Wolf, in aid of his writing a book reflecting on the position taken by ASIO and how they viewed, portrayed and interpreted the activities and associations of him and his family members during the period up to and including the early 1970s. Mr Milliss recognised that his access to documents would be qualified by the need to protect the identity of ASIO's informants. He said he is not interested in the identity of the informants – his only interest is in the substance of the documents. However, he acknowledged that his natural reaction is, nevertheless, one of curiosity as to the identity of the informants.
17. Mr Milliss said there were 272 relevant folios in relation to his applications for material from 1969 and 1970. Of these, a total exemption has been claimed by the Respondent in respect of 38 folios and a partial exemption in respect of 23 folios. However, these 61 folios include 9 duplicate folios which appear in the documents relating to both him and his brother. Thus, a total of 52 folios are in issue, approximately 20% of the total. This is despite a "Fact Sheet" published by the Respondent which states there has been a significant liberalisation of ASIO policy on access to archival records over the last few years. Mr Milliss submitted that it is a denial of natural justice to deny him access to documents relating to him and his family. He noted the disadvantage to which he is subject in these proceedings in having access neither to the confidential documents nor the closed affidavit, and in not being present during the examination of the Manager of ASIO's Counter Intelligence and Security Branch about the reasons for ASIO's seeking to exempt the documents in issue.
18. Mr Milliss said the issue for the Tribunal is whether the whole or part of any of the folios in dispute can be released without endangering the security of Australia or revealing the identity of confidential sources. He appealed to the Tribunal to consider whether any "skerrick or iota" of the folios could be released. He acknowledged that the Manager of ASIO's Counter Intelligence and Security Branch appeared to have given careful and serious consideration to the question of whether the documents in issue should be exempted. However, Mr Milliss said he found it "incredible" that in the four previous Tribunal decisions there was such unanimity of opinion between ASIO and the Tribunal. He had only been given access to a further 54 words from three documents of 149 exemptions claimed.
19. Mr Milliss said the Communist Party of Australia ("CPA") was never a subversive organisation. It was a legitimate political party whose existence was affirmed by the 1951 Federal Referendum.
respondent
20. Mr Dube, for the Respondent, submitted that the claimed exemptions fall within both section 33(1)(a) and section 33(1)(e)(ii) of the Act. They are claimed because release of the material would enable the source of the information to be identified. He emphasised, however, that the sources are not concerned with their safety in relation to Mr Milliss or his family.
21. Mr Dube noted that there are 52 documents in issue – 61 folios less 9 duplicates. These documents "were generated by or for ASIO in the course of gathering information about the activities of the Communist Party of Australia and associated organisations (and its members) in 1969 and 1970. Some documents also relate to the business activities of the applicant's father, Mr Bruce Milliss."
22. With regard to the construction of the relevant exemptions in the Act, Mr Dube said in his Statement of Facts and Contentions:
No balancing of public interest
5. The sole issue is whether the documents in question contain information of the kind described in either s.33(1)(e)(ii) or s.33(1)(a) (or both of them). If the documents in question do contain such information, then they are exempt documents and not available for public access. The legislation does not permit the undertaking of a balancing against the public interest as to whether the documents should be released.
. . .
'Could reasonably be expected'7. Both of the provisions in question (s.33(1)(a), s.33(1)(e)(ii)) require the Tribunal to assess whether the disclosure of a record 'could reasonably be expected' to have the specified damaging effect.
8. The words 'could reasonably be expected to' do not mean on the balance of probabilities. Indeed it is undesirable to gloss the words in terms of probabilities or possibilities or the like.
9. Rather, the words 'could reasonably be expected to' take their plain meaning: they call for an expectation that is not 'irrational, absurd or ridiculous' or 'not fanciful, imaginary or contrived'. [footnotes omitted]
23. Later in his Statement of Facts and Contentions, Mr Dube addressed the applications of the two exemptions claimed. With regard to section 33(1)(e)(ii), he concluded:
29. At all material times, it has been at the core of ASIO's functions in administering to ASIO Acts to gather information relevant to 'the defence of the Commonwealth arising from actions which may be judged to be subversive of the security of Australia'. The documents in question contain information that records details of confidential sources of information used by ASIO to gather such information. Disclosure of these documents could reasonably be expected to enable a person who is equipped with the information recorded on the documents to ascertain the existence and identity of those confidential sources. [Footnote omitted]
24. With regard to section 33(1)(a), he said:
35. An act that would have the tendency to 'choke off' ASIO's confidential sources of information could particularly be expected to cause damage to the security of the Commonwealth."
. . .38. On the evidence in this case, disclosure of the documents in question would tend to 'choke off' ASIO's confidential sources of information . . .
This would thereby impair ASIO's ability to carry out its statutory functions with consequent damage to the security of the Commonwealth.
Consideration of the law and findings
25. As stated above, the issue for the Tribunal to determine is whether the 52 documents in issue are "exempt records" by reason of the exemptions permitted by section 33(1)(a) or section 33(1)(e)(ii) of the Act. There was no dispute between the parties as to the meaning or construction of those exemptions, which was discussed in the reasons for the decisions given in the four previous applications made by Mr Milliss. As noted above, unless otherwise stated, the Tribunal adopts that reasoning.
26. The documents in issue are arranged in files by person as follows:
A6119, 2598, Roger William Milliss, volume 3
71 folios were reviewed (folio nos. 107-177)
19 folios are in dispute (16 totally exempt and 3 partially exempt);A6119, 2786, Roger William Milliss, volume 4
98 folios were reviewed (folio nos. 1-98)
17 folios are in dispute (12 totally exempt and 5 partially exempt);A6119, 1720, Bruce Joseph Milliss, volume 3
62 folios were reviewed (folio nos. 128-189)
12 folios are in dispute (3 totally exempt and 9 partially exempt);A6119, 2293, Bruce Joseph Milliss, supplementary
1 folio was reviewed (folio no.11)
1 folio is in dispute (1 partially exempt);A6119, 1971, David Ernest Milliss, volume 1
35 folios were reviewed (folio nos. 55-89)
10 folios are in dispute (7 totally exempt and 3 partially exempt);A6119, 2055, Suse Maria Wolf, volume 1
5 folios were reviewed (folio nos. 140-144)
2 folios are in dispute (2 partially exempt).
The Respondent relies on the exemptions permitted by section 33(1)(a) and section 33(e)(ii) in respect of each document in issue.
27. The Tribunal recognises that ASIO's functions include the gathering of intelligence relevant to security and that being able to guarantee the confidentiality of its sources is an important factor in facilitating the provision of confidential information. The Tribunal also recognises that a persistent researcher can, over time, and with the assistance of various "clues", build up a comprehensive picture from apparently insignificant pieces of information. Thus, careful consideration needs to be given to the release of what might otherwise seem innocuous "skerricks" of information, in order to protect the sources.
28. The Tribunal examined each folio to determine whether either or both exemptions were applicable. The Tribunal determined that, with one exception, the partial or total exemption in respect of the folios in issue could be justified on the basis that the information was provided by an ASIO confidential source whose existence or identity would or could reasonably be expected to be disclosed to or ascertained by Mr Milliss. In the Tribunal's view, the disclosure of this information to Mr Milliss could also reasonably be expected to cause damage to the security of the Commonwealth.
29. The exception where the Tribunal determined that a partial exemption could not be justified is in respect of A6119, 2786, Roger William Milliss, volume 4, Folio 6.
As the Manager acknowledged when giving evidence, no prejudice would be caused by the release of the words "is a list".
30. The Tribunal noted some inconsistency in the way in which ASIO classified some of the documents. On a number of occasions, ASIO appears to have been liberal in providing access to documents, when on other occasions, in similar circumstances, a total or partial exemption was justifiably claimed. Whilst not wishing to advocate a stricter approach by ASIO, nevertheless, in the Tribunal's view, on several occasions when access was granted, ASIO would have been justified in claiming an exemption as they did in similar circumstances on other occasions.
31. The Tribunal also notes that ASIO appears to be more liberal in providing access to documents comprising a list where there is a larger number of names on the list and such a list might be available from a variety of different sources.
32. In conclusion, the Tribunal varies the decision under review by granting access to an additional portion of folio 6 in file A6119, 2786, Roger William Milliss, volume 4, such additional portion being the words "is a list". In all other respects, the decision under review is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr R P Handley, Deputy President
Mr M D Allen, Senior Member
Mr M J Sassella, Senior MemberSigned: .....................................................................................
AssociateDate/s of Hearing 21 and 22 November 2001
Date of Decision 21 December 2001
Applicant's representative N/A - Mr Milliss self represented
Respondent's representative Mr Ben Dube, Australian Government Solicitor
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