Ocampo Alvarez and Australian Criminal Intelligence Commission (Freedom of information)
[2023] AATA 3257
•13 October 2023
Ocampo Alvarez and Australian Criminal Intelligence Commission (Freedom of information) [2023] AATA 3257 (13 October 2023)
Division:Freedom of Information Division
File Number(s): 2020/6952
Re:Juan Pablo Ocampo Alvarez
APPLICANT
AndAustralian Criminal Intelligence Commission
RESPONDENT
DECISION
Tribunal:Deputy President R I Hanger
Date:13 October 2023
Place:Brisbane
The decision under review is affirmed.
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Deputy President R I HangerCATCHWORDS
FREEDOM OF INFORMATION – request for access – whether document is irrelevant – whether document is exempt from disclosure – whether disclosure would be contrary to the public interest – whether documents disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law – unreasonable disclosure of personal information – legal professional privilege
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Crime Commission Act 2002 (Cth)
Freedom of Information Act 1982 (Cth)
CASES
Chu v Telstra Corporation Ltd [2005] FCA 1730; 147 FCR 505.
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; 201 CLR 49.
McCallin and Department of Immigration and Citizenship [2008] AATA 477.
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437.Waterford v the Commonwealth [1987] HCA 25; 163 CLR 54.
SECONDARY MATERIALS
Office of the Australian Information Commissioner, FOI Guidelines, Part 3: Processing and deciding on requests for access.
Office of the Australian Information Commissioner, FOI Guidelines, Part 5: Exemptions
Office of the Australian Information Commissioner, FOI Guidelines, Part 6: Conditional exemptions
REASONS FOR DECISION
Deputy President R I Hanger
For this application the Tribunal has been reconstituted to me pursuant to an order of the President. The parties agreed to my determining the matter on the papers, and in doing so I listened to the audio recording of the proceedings as well as reading the documents. I also convened a short hearing to clarify a few matters.
The Applicant seeks review by the Tribunal of the decision of the Australian Criminal Intelligence Commission (ACIC) dated 27 May 2021[1] to deny partially or totally access to documents requested by him under Freedom of Information Act 1982 (Cth) (FOI Act).
[1] Exhibit A: Documents lodged at the Tribunal under s 37 of the AAT Act (T Documents), T 14: Decision under review dated 27 May 2021.
The Respondent was established on 1 July 2016 following the merger of the Australian Crime Commission (ACC) and CrimTrac.
Mr Alvarez’s request related to documents in relation to “Operation Chance”, his arrest by the Australian Federal Police, his examination by the Respondent, and correspondence that related to those matters.[2]
[2] Exhibit A, T3: Request for access under FOI Act dated 16 July 2019.
The original request was as follows:[3]
[3] Exhibit A, T4: ACIC acknowledgement letter dated 30 July 2019.
All documents:
·containing my personal information;
·showing whether Operation Chance was properly determined by the former ACC board to be an ‘Investigation and/or Operation pursuant to section 5 7 C (2) & (3) of the ACC Act’
·about my arrest by the Australian Federal Police (AFP) on the 27 May 2011;
·about my examination by the former ACC on 30 May 2011, including:
othe summons to examination;
odocuments showing transfer of custody between police officers et cetera to ACC for my attendance at the examination;
oa copy of the examination transcript
oany confidentiality or non-publication directions issued in relation to the examination;
odocuments showing who was present physically or otherwise at the examination;
odocuments showing to whom and when any transcripts of my examination were later disseminated;
o‘brief of evidence’ or ‘suggested line of questioning’ for the examination;
o‘availability, offer and/or appointment’ of a solicitor and interpreter to represent/assist me during the examination;
o‘the availability, offer and/or allowance’ for me to use ‘facilities’ during the examination;
·Correspondence/documents between ACIC and other agencies about me and the matters listed above.
Throughout the Tribunal proceedings, the parties had various hearings and directions, and have negotiated in an effort to narrow the issues and documents in dispute.
The Respondent submits and I accept that the issues remaining outstanding are:
·whether the Respondent has undertaken all reasonable steps to find documents within the scope of the Applicant’s FOI Act request;
·whether the material identified as irrelevant in document 6 is irrelevant to the Applicant’s FOI Act request; and
·whether the material identified in the schedule which the Respondent claims is exempt from release under the FOI Act is exempt as the claimed.
For convenience I set out in full the schedule of the documents in issue provided by the Respondent which sets out the number, its date, the number of pages, a description of the document, the Respondent’s decision on access and the basis on which exemptions in respect of the document are claimed under the FOI Act.
Document no. Date No. of pages Description Decision on access Exemption 4 19/07/2010 1 Spreadsheet Partial release s 37(2)(b),
s 47E(d),
s 47F(1)5 07/09/2010 20 Word document Exempt s 37(2)(b),
s 47E(d),
s 47F(1)6 20/10/2010 8 ACC Board Meeting 2/2010 Resolutions Partial release N/A
Irrelevant material deleted under s 22(1)(a)(ii)
7 26/10/2010 22 Word document Exempt s 37(2)(b),
s 47E(d),
s 47F(1)8 14/11/2010 1 Spreadsheet Partial release s 37(2)(b),
s 47E(d)9 02/06/2011 2 Email sent at 13.48 Partial release s 46(b) 12 31/07/2014 1 Letter ACC to Guest lawyers responding to Documents 10 and 11 Partial release s 47E(c),
s 47E(d),
s 47F(1)13 17/11/2014 2 Email sent at 12.17 Partial release s 46(b),
s 47E(c),
s 47E(d),
s 47F(1)14 19/11/2014 4 Email sent at 14.38 Partial release s 47E(c),
s 47E(d),
s 47F(1)15 19/11/2014 5 Email sent at 13.40 Partial release s 47E(c),
s 47E(d),
s 47F(1)16 25/11/2014 6 Email sent at 23.00 Partial release s 47E(c),
s 47E(d),
s 47F(1)17 28/11/2014 5 Email sent at 14.27 (1 page) and 4 pages of attachments being correspondence and Subpoena for
production
Partial release s 47E(c),
s 47E(d),
s 47F(1)18 26/11/2014 2 Email sent at 11.09 Exempt s 42, s 46(b), s 47E(c),
s 47E(d),
s 47F(1)19 02/12/2014 6 Email sent 13.52 (2 pages) and 4 pages of attachments to email Exempt s 42, s 46(b), s 47E(c),
s 47E(d),
s 47F(1)20 undated 2 Draft (unsigned) affidavit of Carey Stent (relates to The Queen v Juan Pablo Ocampo Alvarez (QAD 409/14) Exempt s 42 21 12/12/2014 1 November/December Internal ACC litigation reports re The Queen v Juan Pablo Ocampo Alvarez (QAD 409/14) Exempt s 42 22 15/12/2014 1 Internal ACC litigation update report re The Queen v Juan Pablo Ocampo Alvarez (QAD 409/14) Exempt s 42 THE ADEQUACY OF SEARCHES
The Applicant submits that the searches made by the Respondent were inadequate and makes various allegations in relation to why other documents should exist. By way of an example, one document says, “a Spanish interpreter was arranged”. The Applicant asserts that there should be documents relating to that arrangement. The Respondent says that such documents do not exist.
Ms Mayo is the Chief Operating Officer, Chief Counsel of the Respondent. She deposed to the fact that all documents of the agency falling within the scope of the request (other than documents for which the Respondent has made exemption claims) have been provided to the Applicant.[4] She also gave oral evidence.
[4] Exhibit M: Further Affidavit of Ms Mayo dated 28 January 2022.
She deposed to the fact that an initial decision released 2 documents in full, 10 documents in part with exemptions and 7 documents fully exempted. That decision was subject to an application to the AAT and was remitted to the Respondent for reconsideration. The respondent reconsidered the matter and that resulted in greater disclosure of material in some of the documents. A further 5 documents were found that were considered to fall within the scope of the request but in a letter dated 2 August 2021,[5] the Applicant referred to documents that were not provided to him and that he says should have been provided.
[5] Exhibit F: Applicant’s letter dated 2 August 2021.
Ms Mayo deposed to the fact that each of the categories of documents referred to by the Applicant resulted in a further consideration and inquiry by the Respondent.
The Respondent replied in detail on 16 August 2021 to the 2 August 2021 letter asserting that either the documents did not exist in particular cases or were not within the scope of the request in the other cases.[6] In the case of one category of documents the Respondent advised that the request was one for information and was not a request for a document.
[6] Exhibit G: Respondent’s letter dated 16 August 2021.
Section 24A(1) of the FOI Act provides:
An agency or Minister may refuse a request for access to a document if:
(a)all reasonable steps have been taken to find the document; and
(b)the agency or Minister is satisfied that the document:
(i) is in the agencies or Minister’s possession but cannot be found; or
(ii) does not exist.
In Chu v Telstra Corporation Ltd,[7] Finn J emphasised the importance of the obligation on the Respondent to take all reasonable steps to comply with section 24A(1)(a). In relation to the obligation to take all reasonable steps, the Office of the Australian Information Commissioner has published Guidelines under section 93A of the FOI Act to provide assistance to decision-makers (FOI Guidelines). Relevantly, FOI Guidelines 3.88 and 3.89 provide:
The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.
Agencies and ministers should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment or the minister’s office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:
·the subject matter of the documents
·the current and past file management systems and the practice of destruction or removal of documents
·the record management systems in place
·the individuals within an agency or minister’s office who may be able to assist with the location of documents, and
·the age of the documents.
[7] [2005] FCA 1730; 147 FCR 505.
The material reveals that the Respondent responded to the Applicant's identification of categories of documents that the Applicant contended fell within the scope of his request.
The matters raised were considered and a response provided. Over a long period of time throughout these proceedings, the Respondent has undertaken multiple searches for documents within the scope of the request and explained to the Applicant the searches conducted. It reconsidered matters when requested to do so.
I do not propose to set out the lengthy efforts made to comply with the Applicant's request. Ms Mayo gave evidence about searches undertaken. She referred to the search terms used and the narrowing of searches to identify documents. She was cross examined before me and I saw no reason to doubt her evidence. It is clear that all reasonable steps have been taken to find documents to comply with the request, and that other than disclosed, documents do not exist. I accept the evidence of Ms Mayo that all of the documents held by the Respondent relevant to the Applicant's FOI Act request have been identified.
CONSIDERATION OF PARTICULAR DOCUMENTS
At the outset, it should be said that while the deponents in relation to the exemption claims in the documents were made available for cross-examination, the Applicant elected not to cross examine Mr Hester and Mr Simpson and did not cross examine Ms Mayo concerning the exemption claims.
Under the provisions of section 11 of the FOI Act, a person has a legally enforceable right to obtain access in accordance with the Act to a document of an agency other than an exempt document. The Act provides for various classes of documents that are exempt. Sections 47E(c), (d), and 47F contain conditional exemptions that require disclosure unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest. A nonexhaustive list of Guidelines under the Act deals with circumstances justifying or not justifying disclosure.
Document 6
Section 22(1)(a)(ii) of the FOI Act provides that if an agency decides to give access to a document that would disclose information that would reasonably be regarded as irrelevant to the request for access and it is possible to prepare an edited copy of the document modified by deletions, the agency must prepare an edited copy and provide it to the Applicant.
The Applicant submits that document 6 contains unnecessary redactions. That document is an eight-page document dated 2 October 2010. The decision on access was that it should be partially released. The document was released with redactions.
The document in question is a document that contains ACC board meeting resolutions. At a meeting, among many other things, a proposed cocaine ACC special intelligence operation was considered.
The board of the ACC at its meetings deals with a great variety of matters which have nothing to do with the Applicant. I have read the relevant minutes of the particular meeting in document 6. The parts of that document that have been redacted disclose information that is completely irrelevant to the request made by the Applicant. The provisions of section 22(1)(a)(ii) apply to it.
In arguing for the release of this document the Applicant relied on the suggestion that it was in the public interest to disclose the contents of the document and the disclosure would inform debate on a matter of public importance. An examination of the lengthy redactions in the document has nothing to do with the Applicant, and it would not be in the public interest to disclose those redacted contents.
The Respondent’s claim in relation to document 6 is upheld.
Documents 4, 5, 7, and 8
In respect of these documents the Respondent claims either that they are exempt or should be partially released.
Section 37(2)(b) of the FOI Act provides:
A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to … 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[.]
Mr Hester is the National Manager Operational Strategy of the Respondent. He has sworn an affidavit in respect of documents 4, 5, 7 and 8.[8] He deposes to the fact that the board of the Respondent authorised an operation in respect of the importation and distribution of cocaine. The operation was carried out by the Australian Federal Police and what is now known as Australian Border Force. It investigated syndicates based in Australia and Colombia.
[8] Exhibit J: Open Affidavit of Thomas Hester dated 15 October 2021.
The role of the Respondent is to reduce serious and organised crime threats and to provide national policing information systems and services. It must work with international and domestic partners to disrupt the activities of persons involved in organised crime, and to do that, it has to develop and maintain intelligence systems and services and share those services with other organisations.
Mr Hester asserts that the disclosure of certain information in these documents 4, 5, 7, and 8 would disclose the lawful methods or procedures for preventing detecting, investigating or dealing with matters arising out of breaches of the criminal law and that the disclosure of those methods or procedures would prejudice their effectiveness and that the documents are exempt documents pursuant to the provisions of section 37 (2)(b).
Mr Hester was made available at the hearing for cross examination but was not cross-examined.
Mr Hester also relies on the provisions of section 47E(d) of the FOI Act and referred as well to the FOI Guideline 6.115 to the effect that disclosure as sought by the Applicant would reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the Respondent.
I am satisfied that Documents 4, 5, 7, and 8 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 prejudice the effectiveness of those methods or procedures contrary to section 37(2)(b) of the FOI Act.
The disclosure would also have a substantial adverse effect on the proper and efficient conduct of the operations of the ACC pursuant to the provisions of section 47E(d) of the FOI Act.
In respect of documents 4, 5, and 7 the disclosure would involve unreasonable disclosure of personal information about various persons. As such it would be conditionally exempt under section 47F(1) of the FOI Act.
Having examined the documents in question and the material in Mr Hester’s affidavits I accept that evidence and determine that the exemptions claimed by the Respondent should be upheld. Disclosure would be contrary to the public interest.
Document 9
Document 9 is an email sent 2 June 2011. Most of it has been disclosed. The evidence of Ms Mayo concerning Document 9 is that there was an examination but not one that related to the Applicant. It was a contemporaneous document, and it shows that the Applicant was erroneously presented before an examiner and therefore offers a reasonable explanation as to why the Respondent holds limited documents concerning matters raised by the Applicant.
Ms Mayo deposes to the fact that an Examiner Confidentiality Direction (ECD) was made pursuant to the provisions of section 25A(9) of the Australian Crime Commission Act 2002 (Cth) which prohibited the disclosure of material and examination. That ECD was varied but to the extent of the variation remains in force.
Section 46(b) of the FOI Act provides:
A document is an exempt document if public disclosure of the document would, apart from this Act and any community of the Crown:
(b)be contrary to an order made or directions given by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath[.]
Pursuant to section 46(b) of the FOI Act, the record of the examination is an exempt document. The Respondent has disclosed all that it is entitled to disclose. Its claim for exemption in relation to the document is upheld.
Documents 12-19
Mr Simpson swore an affidavit which was unchallenged. He is the National Manager Workforce Capability and Assurance of the Respondent. He has examined documents 12, 13, 14, 15, 16, 17, 18, and 19.
These documents contain the names and contact details of current or former staff. On behalf of the Respondent, Mr Simpson claims that the disclosure of names in this context would have a substantial adverse effect on the proper and efficient conduct of the operations of the Respondent and that therefore, to that extent, the documents are conditionally exempt pursuant to the provisions of section 47E(c), 47E(d) and further that disclosure would involve the unreasonable disclosure of personal information within the meaning of s47F(1), which provides:
A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
Mr Simpson deposed to the fact that the unique role of the Respondent and the highly sensitive nature of information in its possession means that in order for it to limit risks to its current and former staff, itself, and the Australian Government, the staff contact details and identities should not be made publicly available.
He referred to the fact that the risk profile has increased recently. He said, and I accept, that in his opinion there is an increased risk of attempts to cultivate and influence staff and former staff by foreign intelligence services and serious and organised criminal elements. He said that the Respondent’s staff members have in fact received threats from individuals and have been approached and intimidated by members of serious organised crime groups.
Whether a disclosure is unreasonable involves a consideration of various issues. Section 47F(2) specifies several matters that the agency or Minister must have regard to in deciding whether disclosure would involve unreasonable disclosure of personal information and section 47F(2)(d) provides that the agency or Minister must have regard to any other matter that the agency or Minister considers relevant. Guidelines have been issued for the further elucidation of matters a decision-maker should take into account. Other matters determined to be relevant are that the person concerned would not wish to have the information disclosed without consent,[9] and whether the disclosure would cause stress on a third-party and no public purpose would be achieved.[10]
[9] Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at [51].
[10] McCallin and Department of Immigration and Citizenship [2008] AATA 477.
FOI Guideline 6.153 provides that generally it would not be unreasonable to disclose public servants’ personal information where that is included in a document because of their usual duties or responsibilities. The suggestion in FOI Guideline 6.153 is that it would not be unreasonable to disclose public servants’ personal information unless special circumstances existed. The Respondent submits that the provision in the Guideline that special circumstances need to exist fails to give appropriate weight to the other mandatory and discretionary factors relevant to a determination under section 47F(2). That submission has superficial attraction, but I do not need to determine it.
The role that the Respondent plays in disrupting serious and organised crime is enough to justify the withholding of personal details of former and current staff insofar as those names are not publicly known to be associated with the matters dealt with in the documents. I am satisfied that the disclosure has the potential to create risks to personal safety and to undermine the work of the Respondent.
I am also satisfied for the reasons outlined above that to the extent claimed by the Respondent the documents would be conditionally exempt under section 47E(d) of the FOI Act, because disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of the Respondent.
Documents 18, 19, 20, 21 and 22
Ms Mayo is the Chief Legal Officer of the Respondent.
She deposed that documents 18, 19, 20, 21 and 22 are exempt under section 42 of the FOI Act because they attract legal professional privilege. To attract such privilege the document in question must be created for the dominant purpose of the lawyer providing legal advice on, in existing, or anticipated litigation.[11] Such privilege extends to advice being given to government departments by their legal advisers.[12]
[11] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; 201 CLR 49.
[12] Waterford v the Commonwealth [1987] HCA 25; 163 CLR 54.
Document 18 contains 4 emails which were confidential communications between the Respondent’s legal advisors, acting in that capacity, and created for the dominant purpose of assisting the Respondent to respond to a court endorsed subpoena. Ms Mayo considered FOI Guideline 5.150, which provides that a claim for an exemption of a document under section 42 should not be made unless it is considered that real harm would result from releasing the document.
She asserts that the discussions between the lawyers involved relating to the purpose of the litigation and their approach to dealing with it, including whether to brief external lawyers, would cause real harm to the Respondent because it would publicly reveal the organisation’s litigation strategy and would also inhibit frank discussion of such strategies by email.
The Respondent’s claims for conditional exemption to the extent claimed in respect of these documents should be upheld.
APPLICANT’S CLOSING SUBMISSION
In his closing submission to the Tribunal, the Applicant submitted that the Tribunal should direct the Respondent to provide to the Applicant an official declaration/certificate/affidavit of the Respondent’s position in relation to the documents, stating whether the documents exist, do not exist, have never existed, are out of scope of the request or are not considered documents. Given my earlier findings, I do not propose to make such an order.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger
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Associate
Dated: 13 October 2023
Date(s) of hearing: 15 March 2022 Date final submissions received: 1 June 2022 Advocate for the Applicant: Ms D M V Posada Counsel for the Respondent: Mr M Nicolson Solicitors for the Respondent: Ms L Butler (Australian Government Solicitor)
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