NICHOLAS BRENT and AUSTRALIAN CUSTOMS SERVICE Ms Robin Hunt, Senior Member

[2009] AATA 243

Administrative Appeals Tribunal

ORAL DECISION AND REASONS FOR DECISION [2009] AATA 243

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3961

General ADMINISTRATIVE DIVISION		)
Re		NICHOLAS BRENT

Applicant

And AUSTRALIAN CUSTOMS SERVICE

Respondent

ORAL DECISION

Tribunal Ms Robin Hunt, Senior Member

Date of Decision  6 April 2009

Date of Written Reasons     14 April 2009

Place  Sydney

Decision

The decision under review with respect to the documents remaining in issue at the commencement of the hearing is affirmed.

The decision under review having been varied on 2 April 2009, in the manner set out at paragraph 5, the overall decision of the tribunal is one in favour of the applicant.

...................[Sgd]...................

Ms Robin Hunt
  Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – application for release of documents – documents produced to tribunal – if released to applicant would (i) disclose lawful methods of procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law – (ii) prejudice the effectiveness of those methods – (iii) unreasonably disclose personal information about persons – decision under review affirmed as to those documents or parts of documents not released to applicant.

Administrative Appeals Tribunal Act 1975 s 35

Freedom of Information Act 1982 ss 3, 11, 37(1), 37(2), 40(1), 41(1), 63(1), 64(1), 64(1A)

Department of Health v Jephcott (1985) 8 FCR 85

Re Anderson and Australian Federal Police (1986) 11 ALD 355

Re Campillo and Australian Customs Service (2005) 42 AAR 111

Re Dale and Australian Federal Police (1997) 47 ALD 417

Re Dwyer and Department of Finance and Ors (1985) 8 ALD 474

Re Maksimovic and Australian Customs Service [2009] AATA 28

Re Mickelberg and Australian Federal Police (1984) 6 ALN N176

Re Sinclair and Secretary, Department of Social Security (1985) 9 ALN N127

REASONS FOR DECISION

6 April 2009 Ms Robin Hunt, Senior Member   

summary

1.      Mr Brent applied to the tribunal for review of a decision made under the Freedom of Information Act 1982 (‘the FOI Act’) not to release to him certain documents. For the review, Mr Brent attended a tribunal hearing on 6 April 2009, at which he explained that he was not interested in obtained documents as such but had requested review by the tribunal of a decision of the Australian Customs Service in order to learn why the respondent would not inform him of the reason he was searched by customs officers at Sydney airport.

background

2. On 12 May 2008, the applicant applied under the FOI Act for all documents held by customs “referring to Nicholas Ernest Brent including those that caused us to be interrogated & searched at [M]ascot airport on 25.4.08 and 8.5.08. Also any associated records connected to that action. In other words, show up what is being said about us. Because we have nothing to hide.”

3.      An officer of the respondent decided to release some documents in whole and in part.  An exemption was claimed with respect to those parts of the documents not released.  That decision was affirmed upon internal review on 8 August 2008 and it is that decision which is reviewable by this tribunal.

4.      After commencement of the review proceedings, the respondent decided to release further information and documents to the applicant.  These documents were the subject of an order of the tribunal made on 2 April 2009. The hearing on 6 April 2009 was concerned with a number of documents remaining.  The respondent sought exemption from provision of access to Mr Brent of the remaining documents voluntarily produced to the tribunal under subparagraph 35(2)(c) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).

5.      On 2 April 2009, the tribunal varied the reviewable decision with effect that:

• The following documents be released: folios 36, 37 and 148 from Customs file number 2008/009767-01; and  

• The following documents be released with deletions: folios 45, 46, 47, 50, 54, 55, 56, 57, 58, 59, 69, 70, 71, 72, 73, 74, 78, 79, 80, 81, 82, 85, 87, 88, 92, 103, 104, 148 from Customs file number 2008/009767-01.  

access to documents and confidentiality orders sought

6.      The respondent produced to the tribunal a number of documents not released to the applicant as well as two witness statements. One of the witness statements contained a confidential part which was not disclosed to Mr Brent. The respondent advised the tribunal that the witnesses were present and available for the giving of evidence and for cross-examination. However, Mr Brent indicated that he did not wish to cross-examine the witnesses and wished to leave the hearing after making an oral statement about his reasons for applying to the tribunal for review.

7. Mr Brent’s reasons for the application were, as he stated in his application, “to show up what is being said about us” and to learn why he was interrogated and searched. Mr Brent told the tribunal that he had taken action under the FOI Act as it had been suggested to him that he might obtain some information this way but he did not wish to obtain any more documents.

8.      A schedule of documents which remained in dispute was filed by the respondent. The respondent contended these documents fell within the FOI request but were not released to Mr Brent or were released with deletions.

claimed exemptions

9. Those documents voluntarily produced to the tribunal for the purpose of the proceedings, other than those disclosed to Mr Brent, were given on the basis that they remain confidential and accessible only to the tribunal in accordance with subsection 64(1A) of the FOI Act. Similarly, any confidential part of the two witness statements before the tribunal were given under subsection 64(1A).

10. Briefly, section 37 of the FOI Act provides that a document is an exempt document, that is, a document not to be released, if disclosure would or could reasonably be expected to result in disclosure of the existence of or identity of a confidential source of information or of lawful methods of investigation and the like of dealing with matters arising out of breaches or evasions of the law. As Senior Member Handley observed in the case of Re Maksimovic and Australian Customs Service [2009] AATA 28 (‘Maksimovic’), release of information, apart from personal records, is not personal to an applicant but to the world at large, (Re Dwyer and Department of Finance and Ors (1985) 8 ALD 474 at 482). The provisions of sections 3 and 11 of the FOI Act permit access to documents except those documents which are exempt. The respondent maintains that the remaining parts of the documents in issue are exempt having regard to their nature and to the provisions of subsections 37(1), 37(2) and 41(1).

Disclosure of identity or source

11.     The respondent concedes that some documents not released may reveal why Mr Brent was searched. However, the same documents may cause inadvertent disclosure of the identity of the person or source from which allegations arose that led to the search. As the respondent says, a long line of cases makes it plain that whether the allegation is true or false does not alter the position under subparagraph 37(1)(b). There is no balancing of public interest but the protection of the source still prevails even where untruthful, malicious, self-interested or demented. See Department of Health v Jephcott (1985) 8 FCR 85 at 89 and Re Sinclair and Secretary, Department of Social Security (1985) 9 ALN N127 at N130, quoting from the House of Lords in D v National Society for Prevention of Cruelty to Children [1978] AC 171 at 233 per Lord Symon of Glaisdale.

12.     In addition, the confidentiality pertains to the source rather than the information as observed by Deputy President McMahon in Re Dale and Australian Federal Police (1997) 47 ALD 417 at 420. There are many cases where the same approach has been taken. In the circumstances, I find on balance that the documents to which the respondent objects to production on this ground should not be released. I further note that Mr Brent no longer seeks these documents as such but simply wants to know of the allegation, and that as these matters are confidential his wishes cannot be satisfied pursuant to subparagraph 37(1)(b).

Disclosure of enforcement methods

13. I have also considered the exemption under subparagraph 37(2)(b) of the FOI Act. Briefly again, the exemption under this provision prevents disclosure where it would or could reasonably be expected to disclose lawful law enforcement methods or procedures and where disclosure would be reasonably likely to prejudice the effectiveness of those methods or procedures. The respondent pointed out, and one of the witness statements attested, that many of the documents sought by Mr Brent contained undisclosed partial web addresses, customs officer user IDs and alphanumeric document reference codes. The documents so described in my view might well enable a reader to learn details of confidential customs methods and procedures and, in my view, are reasonably likely to prejudice the effectiveness of those matters. The written witness statement of Matthew John O’Connor described some concerns such as hacking risks. A document may disclose methods by inference as well as by direct disclosure, as observed by Deputy President Hall in Re Anderson and Australian Federal Police (1986) 11 ALD 355. A ready inference can be made from release of the details which the respondent has highlighted in these documents. See as further examples where the tribunal has ruled against release under subparagraph 37(2)(b): Re Mickelberg and Australian Federal Police (1984) 6 ALN N176 and the recent case of Maksimovic at 34 to 37.

14. I also note that subparagraph 40(1)(d) of the FOI Act makes a document exempt for various reasons including where its release would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. This provision is support for the respondent’s concerns that the release of details of personnel and their internal contact methods might have a substantial adverse effect on operations. In the circumstances, I further find on balance that the documents to which the respondent objects to production on this ground should not be released, pursuant to subparagraph 37(2)(b) and subsection 40(1).

Personal information

15.     Subsection 41(1) exempts from disclosure documents affecting personal privacy. Customs submitted to me that several documents which Mr Brent sought are covered by this exemption. Personal details of customs personnel are revealed in some documents and personal details of members of the public, other than Mr Brent, are revealed in others. Among concerns for members of the public is the possibility that disclosure of names and contact details of private citizens might lead to unwanted approaches by other members of the public. Exemption should be granted on this ground in my view. A major concern regarding police and customs officers is that not only ordinary members of the public but also criminals might learn of their details and make threatening approaches. Exemption for documents containing names and contact details of officers was granted in Re Campillo and Australian Customs Service (2005) 42 AAR 111. Also see Maksimovic.

16. Pursuant to subsection 63(1) of the FOI Act, the tribunal is required to make such order or orders under subsection 35(2) of the AAT Act as it thinks necessary having regard to the nature of the proceedings and, in particular, to the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate. Section 64 of the FOI Act further provides for production of the document to the tribunal for inspection to determine whether the document is exempt. The provision goes on to provide that once satisfied that the document is an exempt document, the tribunal shall return the document to the person by whom it was produced without permitting any person other than a member of the tribunal as constituted for the purposes of the proceeding, or a member of the staff of the tribunal in the course of the performance of his or her duties as a member of that staff, to have access to the document or disclosing the contents of the document to any such person.

17. Having regard to subsections 37(1), 37(2), 40(1) and 41(1), I find that regard should be had to the provisions of sections 63 and 64 with respect to the confidential nature of some of the documents produced for these proceedings. Accordingly, under section 35 of the AAT Act, I consider no further documents should be released to the applicant in these proceedings.

18.      It was not necessary to order that the applicant be excluded from hearing some of the evidence and having access to further documents received in these proceedings, as he did not wish to be present and decided to leave the hearing before the taking of evidence or detailed submissions from other persons. He made it clear he did not wish to see further documents and did not wish to cross-examine witnesses who had made themselves available for this purpose. 

19.     The respondent tendered written submissions which contained a confidential submission and a written witness statement which contained what was described as a Confidential Part and referred to matters which were relevant to the respondent's claim for exemption.  I have therefore made an order as follows:

Pursuant to subparagraph 35(2)(c) of the Administrative Appeals Tribunal Act 1975 IT IS DIRECTED, that the evidence recorded in the Schedule below be prohibited from disclosure except to Members, Officers and Staff of the Administrative Appeals Tribunal, Officers and Staff of the Respondent and its Solicitors and the Staff of Auscript:

SCHEDULE

1.        The confidential part of the witness statement of Alison Margaret Wegg;

2.        The confidential submission of the respondent.

20.     The orders which the tribunal made on 2 April 2009 were made with the consent of both parties. The respondent submitted to me at the hearing on 6 April 2009 that the orders made on 2 April 2009 were made in favour of the applicant and requested that the tribunal acknowledge this result for the applicant.

21.     For reasons explained above, however, I am satisfied that the decision under review with respect to exempting disclosure of remaining documents at issue in these proceedings should be affirmed.

decision

22.     The decision under review with respect to the documents remaining in issue at the commencement of the hearing is affirmed.

The decision under review having been varied on 2 April 2009, in the manner set out at paragraph 5, the overall decision of the tribunal is one in favour of the applicant.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[Sgd]...........................
  Jennifer Wong, Associate

Date of Hearing  6 April 2009
Date of Decision  6 April 2009
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Australian Government Solicitor