Patrick and Secretary, Department of Defence (Freedom of information)

Patrick and Secretary, Department of Defence (Freedom of information) [2024] AATA 1029 (10 May 2024)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2023/6779
Re:Rex Patrick
APPLICANT

AndSecretary, Department of Defence
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:10 May 2024
Place:Melbourne

The decision under review is affirmed
..........................[sgd]..............................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decision to refuse access to any letters to Australian Defence Force personnel rescinding awards – conditional exemptions under sections 47E and 47F of the Freedom of Information Act 1982 – whether disclosure of documents would have a substantial adverse effect on management of personnel and operations of the Department of Defence – whether disclosure of documents would have a substantial adverse effect on the proper and efficient conduct of operations of the Department of Defence – whether disclosure would involve unreasonable disclosure of personal information – whether disclosure is in or contrary to the public interest – whether parts of the letters could be redacted – decision affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Privacy Act 1988 (Cth)
Cases
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
Secondary Materials
Office of the Australian Information Commissioner, Freedom of Information Guidelines – Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth) (November 2023)
REASONS FOR DECISION
Deputy President Britten-Jones
10 May 2024

This is an application for review of a decision to refuse the applicant access to certain documents under the Freedom of Information Act 1982 (Cth) (FOI Act).
Background to the application
Rear Admiral Brett Stephen Wolski provided an affidavit sworn 21 December 2023 and gave oral evidence to the Tribunal. Much of his evidence was not controversial and provides background to the application as follows.
Since 2001, personnel from the Australian Defence Force (ADF) operated as part of Australian Special Forces Operations in Afghanistan. In a period leading up to about 2016, rumours and allegations circulated relating to possible breaches of the Law of Armed Conflict by members of a Special Operations Task Group (SOTG) in Afghanistan from 2005 to 2016. In response, the Chief of Army referred concerns of this conduct to the Inspector-General of the Australian Defence Force (IGADF) who appointed Major General the Honourable Paul Brereton AM RFD as an Assistant IGADF to inquire into these matters. The inquiry (known as the Brereton review) lasted about four years and in 2020 the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report (the Afghanistan Inquiry Report) was finalised and provided to the Chief of Defence Force.
The Afghanistan Inquiry Report made recommendations relating to honours and awards which included to:
Review awards to command positions at troop, squadron and task group level during SOTG Rotations.
The Department of Defence set up a task force known as the Afghanistan Inquiry Response Task Force to which Rear Admiral Wolski was appointed as Head in February 2021.
The Department of Defence accepted the findings made in the Afghanistan Inquiry Report and adopted a strategy to respond to it which included a process to address all recommendations. Rear Admiral Wolski said in his affidavit:
69. As part of this process, the CDF considered the command accountability of current and former serving ADF members who held command positions during the periods in which the IGADF found credible information of multiple incidents of alleged unlawful conduct as identified in the Afghanistan Inquiry. This applied to a small group only. All were given the opportunity to provide information during the process.
On 1 March 2023, the applicant requested access to documents under the FOI Act including “any letters to individual service personnel (since the Brereton review was completed) that related to rescinding medals/awards/citations.” In response to this request, the respondent identified letters (the Letters) that were sent by the Chief of Defence Force to a small number of persons. The applicant has advised that he only seeks access to any letters sent to ADF personnel (since the Afghanistan Inquiry Report was completed) that related to rescinding medals/awards/citations. Further, he does not seek any information that would identify the recipients of the Letters. After an initial refusal decision by the Department of Defence on 28 April 2023, the applicant sought an internal review which resulted in a deemed refusal under s 54D of the FOI Act. On 13 September 2023, a delegate of the Information Commissioner decided not to undertake a review. The applicant has applied to the Tribunal to set aside the decision refusing access to the Letters.
Rear Admiral Wolski further deposed that:
74. …The only information that Defence has provided regarding the Letters is that they were sent to a small number of persons who held command appointments during particular periods of operational service in Afghanistan.
Information from the process conducted by the Department of Defence was provided to the Minister for Defence for his consideration. This concluded the involvement of the Department of Defence in the process. If the Minister for Defence decides that an honour or award should be cancelled, he will make a recommendation to the Governor-General for his determination. The Deputy Prime Minister, in his capacity as Minister for Defence, is now considering the matter.[1]
[1] Rear Admiral Wolski affidavit at [71].
The Department of Defence has refused to reveal the number of letters sent. The Department claims the Letters are exempt from disclosure under ss 47E(c), 47E(d) and 47F of the FOI Act.
On 5 December 2023, the Department of Defence wrote to recipients of the Letters notifying them of the Tribunal proceedings. The individuals who responded specifically stated that they were of the understanding that the Letters were confidential and would not be released to the public.[2]
[2] Rear Admiral Wolski affidavit at [91] to [92].
Statutory framework
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General: [3]
… The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[3] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the FOI Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
To promote the objects in s 3(1)(b), s 11(1) provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5)
If a document is exempt, the agency is not required to provide the document.
Section 11A(5) provides the following:
The Agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to public interest.
Section 11B(3) outlines the public interest factors in favour of granting access to the document including whether the grant would:
(a)promote the objects of the Act (including all the matters set out in ss 3 and 3A);
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.
Under s 11B(4), a decision-maker must not take the following factors into account when determining whether the release of a document would be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.
Evidence
Rear Admiral Wolski gave evidence of a general nature with respect to command structures and accountability in the Australian Defence Force. He said that the system of command lies at the heart of service in the ADF. Command is the legal authority, responsibility and accountability which a commander lawfully exercises over subordinates, and which comes with particular rank or appointment. With the legal authority to direct the action of subordinates, commanders are, consequently, also responsible and accountable for what happens under their command.
The Rear Admiral referred to the recommendation to review the distinguished service awards and the process that followed in implementing that recommendation. He said that the Department of Defence’s pursuit of the recommended command accountability review demonstrated an insistence on accountability and a sense of responsibility to all its members, the Australian public, and the Afghan people. In relation to the confidentiality of the command accountability process, he said that strict confidence is applied for a number of reasons and that the recipients of the Letters understood and had an expectation that the process would be undertaken confidentially.
The Rear Admiral also expressed his concern about the psychological harm that could be caused if the Letters were made public, “particularly where the matter is not yet resolved.”
The Rear Admiral gave oral evidence at the hearing and was cross examined. As the Head of the Afghanistan Inquiry Response Task Force and a Rear Admiral with significant experience, he was well qualified to give evidence about the likely effect of the release of the Letters. He was an impressive witness whose evidence I accept.
The applicant provided a witness statement to which he attached material relevant to the proceedings, including evidence of information in the public domain.
Submissions of the Applicant
The applicant is not seeking the names of the recipients of the Letters, nor any information in the Letters that would identify them. In so far as the Letters contain such information, the applicant is content for them to be provided to him in a redacted form.
The applicant contends that there is very little secrecy surrounding the reason for and background of the Letters in the context of the Afghanistan Inquiry Report and that therefore the broad contents of the Letters are known. Further, the Ministerial Briefs attached to the applicant’s witness statement provide a broad and publicly known description of the command accountability process, including the Letters. It follows in the submission of the applicant, that the release to him of information in the Letters would not have any adverse effect on management of personnel or conduct of the Department of Defence. In that regard, the applicant notes the relatively high bar provided for in ss 47E(c) and (d), which requires there to be a “substantial adverse effect” arising from the disclosure of the Letters or parts of them.
The applicant contends that given the high level of interest in the matter considered in the Afghanistan Inquiry Report, the public interest favours disclosure of the Letters.
Are the Letters conditionally exempt under s 47E(c) or (d)?
There is a significant overlap of evidence relevant to the consideration of the two subsections (c) and (d) of s 47E. Under ss 47E(c) and (d), I must determine whether disclosure of the Letters would, or could, reasonably be expected to have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or an agency or have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Section 47E provides relevantly:
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency:
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
The Freedom of Information Guidelines (the Guidelines) provide guidance on the interpretation of the words ‘would’ and ‘could’ in s 47E at paragraph 5.17:
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
The Guidelines further advise on the meaning of ‘substantial adverse effect’ at paragraph 5.20:
The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person’ [see Re Thies and Department of Aviation [1986] AATA 141 [24]). The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’ [Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367 383].
The phrase ‘could reasonably be expected’ requires more than a mere assumption or allegation that damage may occur. The Guidelines provide at paragraph 6.103:
The particulars of the predicted effect should be identified during the decision making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied upon, the relevant particulars and reasons should form part of the decision maker’s statement of reasons, if they can be included without disclosing exempt material.
Are the Letters in the public domain?
The applicant contends that there is a significant amount of information about the Letters in the public domain. In particular, it is known that the Letters were sent after recommendations made in the Afghanistan Inquiry Report to review distinguished service awards because of findings that there was ‘credible information’ that breaches of the Law of Armed Conflict had occurred involving ADF members. Further, it is widely known that the Letters were sent to ADF personnel who held command positions in Afghanistan between 2005 and 2016.[4] In these circumstances of the already disclosed information, the applicant contends that the impact of releasing the Letters would not have a substantial adverse effect as required by ss 47E(c) and (d) of the FOI Act because the information in the Letters is known to the public.
[4] Rear Admiral Wolski affidavit at [81].
The Rear Admiral explained in his affidavit[5] that decision-making regarding personnel is undertaken in accordance with the Privacy Act 1988 (Cth) and that the Department of Defence is accordingly bound by strict privacy law obligations with respect to personal information held about its people. He deposed to the regime of confidentiality applied to the command accountability process and the Letters themselves:
74. The content, names and details of those subject to the CDF’s consideration is closely held, known only to a group of less than 10 people within Defence. The only information that Defence has provided regarding the Letters is that they were sent to a small number of persons who held command appointments during particular periods of operational service in Afghanistan. Other than that, despite repeated requests and demands, Defence has refused to reveal the number of Letters sent and has not talked publicly about the specifics of the individuals or the content of the Letters. Defence has been extremely careful to ensure no information is made publicly available during this process which might identify any individual or affect the ongoing decision-making process.
75. There has been significant interest from media, social media, veterans, and veteran groups regarding this process.
[5] Rear Admiral Wolski affidavit at [77].
Under cross examination, the Rear Admiral conceded that there was information in the public about this command accountability process, including that the Letters had been sent as part of an administrative action process following the Afghanistan Inquiry Report. He said that a broad description of the process was known to the public but the details were not, namely the contents of the Letters and the identity of the recipients. An article from the online publication, Defence Connect, was put to the Rear Admiral. The article referred to seven officers who had received correspondence from the Chief of Defence Force and purports to quote from that correspondence. Despite the contents of this article, the Rear Admiral maintained his evidence that he was not aware that any recipient of the Letters had made public the information contained in the Letters.
In his affidavit,[6] the Rear Admiral said that Defence had written to the recipients of the Letters notifying them of the Tribunal proceedings and that those who responded had specifically stated that they were of the understanding that the Letters were confidential and would not be released to the public. Further, they raised fears about the resulting “public trial” which they felt would result given the high interest and commentary in relation to the issue. They felt that it would be unfairly prejudicial for this information to be released in circumstances where a decision may be made that no further action is to be undertaken. These responses, which were received from about one third of those who were notified of the Tribunal proceedings, were tendered as a confidential exhibit. I have had access to those responses, and I can confirm the accuracy of the Rear Admiral’s evidence about them.
[6] Rear Admiral Wolski affidavit at [91] to [94].

I accept the evidence from Rear Admiral Wolski that the contents of the Letters and the names of the recipients are not in the public domain. It is apparent from the recipients of the Letters referred to above, that they consider that the Letters remain confidential and have not been disclosed to the public. It follows that I reject the applicant’s contention that the release of the Letters would not have the requisite effect because they are in the public domain.
Substantial adverse effect?
Rear Admiral Wolski deposed in great detail in his affidavit about the unique nature of service in the ADF and the system of command structures and accountability that lies at the heart of that service. With respect to the command accountability processes in the ADF, the Rear Admiral referred to the importance of privacy and confidentiality to that process:
40. There is, therefore, a unique requirement for Defence to be able to undertake command accountability processes to ensure our people meet the trust given to them by the Australian people. To achieve this, it is important that the integrity of the accountability processes is maintained. This includes ensuring Defence’s processes are adhered to, including maintenance of privacy and confidentiality, and a need to know, and any undertakings given around the privacy of individuals is respected. While in these instances there were no explicit promises of confidentiality, this was implicit both in the way handling of the Letters was limited to very few people in Defence and consistent with the way Defence normally engages with individuals on such potentially adverse matters. Confidentiality during the course of an appropriate accountability process fosters fulsome participation, which allows appropriate decision-making. This is the case both in individual instances, but even more so at a systemic level. Should the privacy of our individuals not be protected during the course of an investigation into an accountability issue, based on my experience of normal human behaviour, some people may be less willing to engage as fully with personnel management systems, including the military discipline system, administrative decision making, and command decisions. This approach could result in poor decisions for individuals, and poor accountability outcomes for the organisation as a whole through preventing the effective and swift resolution of these processes.
The Letters in question were generated as part of the command accountability process referred to above. Strict confidence has been applied to that process, including with respect to the Letters because of the nature of the personal information involved and the need to maintain confidence in the Department of Defence’s management of personnel issues.[7] The recipients of the Letters understood and had an expectation that the process would be undertaken confidentially. The Rear Admiral concluded with respect to the reasons why confidentiality of the process is so important:
55. The confidential process also acknowledged the individual privacy and dignity of the people involved. This part of the process was an internal mechanism related to a professional assessment of the conduct and management of our people. As such, it was important that the process was fair, involving the opportunity for the relevant people to provide comment without the concern that their personal information would be made public. The release of such information would undermine both individual confidence in this specific process, as well as organisational confidence that Defence could be trusted with personal information during personnel management processes which often involve people at a very vulnerable time. It would, for example, impede people’s perception that they could honestly and fulsomely comment during workforce management action, which is fundamental to Defence’s ability to manage actual or perceived misbehaviour by members.
[7] Affidavit of Rear Admiral Wolski at [52].
The Rear Admiral deposed further to the harm to management of ADF personnel if the Letters were released:
78. … The protection of personal information has created trust between Defence and its employees. Should this trust in the organisation be undermined, Defence personnel would be unlikely to voluntarily participate in and provide support to such action. If members thought that Defence was unable to maintain confidentiality in such circumstances this would have a detrimental impact on investigations, enquiries and fact-finding actions.
79. Defence’s ability to undertake appropriate decision-making, including in an efficient and effective manner, would be negatively impeded if individuals are reluctant to participate or provide open and force responses if there was a risk their information will be made publicly available. …
80. … Irrespective of the content of the Letters, they were provided to recipients on the basis that the content would be kept confidential. Failure to maintain that reasonably held expectation of confidentiality could adversely impact Defence’s ability to manage its personnel including current and future members and employees.
I accept the concern expressed by the Rear Admiral that the release of the Letters would undermine the command accountability process for the recipients of the Letters, but also for ADF personnel management processes more generally. If the integrity of, and confidentiality in these processes is not maintained, then people will be unlikely to voluntarily participate and to express their opinions with candour. The trust that exists between the ADF personnel and their employer would be eroded. It is particularly important to maintain confidentiality whilst the process is ongoing and before any final decision is made for the reasons expressed by some of the recipients of the Letters, namely fears about the resulting ’public trial’ and the unfair prejudice of a release of information when a decision may later be made to take no action. These concerns expressed by the recipients of the Letters confirm the very significant detrimental impact on personnel management if the Letters were released.
I have considered the applicant’s contention that the Letters should be released with redactions of the names of the recipients and any information identifying them. Rear Admiral Wolski maintains his concern of resulting harm even if the Letters were released with redactions. I accept his evidence that the potential recipients come from a small, defined group over a defined period of time, and that the disclosure of the Letters would be subject to close scrutiny and speculation and could contribute to the accurate identification of the recipients of the Letters.[8] Further, I consider that the release of the Letters even in a redacted form would result in a breach of the confidentiality expected by those participating in the command accountability process. This breach would erode the trust that exists between ADF personnel and the Department of Defence resulting in a substantial adverse effect.
[8] Affidavit of Rear Admiral Wolski at [86].
I conclude that the effect which would reasonably be expected if the Letters were disclosed would be both substantial and adverse. It follows that the Letters are conditionally exempt under s 47E(c) of the FOI Act.
The findings that underpin my conclusion with respect to s 47E(c) are also applicable to support a finding that the release of the Letters would have a substantial adverse effect on the proper and efficient conduct of the operations of the Department of Defence. A substantial adverse effect on the command accountability process, as I have found above, would satisfy the requirement in s 47E(d). Rear Admiral Wolski deposes to the adverse impact of disclosure of the Letters on the Department of Defence’s ability to utilise the command system which is integral to operations:
99. The ability to manage issues efficiently and appropriately in Defence, including in an operational context, is critical to ensure the ongoing cohesion and effectiveness of the organisation as a whole. Anything that erodes the command and accountability structure could have significant impacts both within Australia and on deployments. Teamwork, discipline, unity and trust are paramount in a hierarchal military context. Any decrease in morale or trust could impact performance, cooperation, effective execution of tasks, including the following orders in an operational environment.
I conclude that the Letters are conditionally exempt under s 47E(d).
Are the Letters conditionally exempt under s 47F?
Section 47F provides that a document is conditionally exempt if its disclosure would involve the unreasonable disclosure of personal information about any person. For the purposes of the FOI Act, ‘personal information’ has the same meaning as given in the Privacy Act 1988 (Cth). The Privacy Act defines personal information as meaning information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether or not the information is true or recorded in a material form.
Subsection 47F(2) provides that regard must be had to the following matters in determining whether the disclosure of a document would involve an ’unreasonable’ disclosure of personal information:
(a)the extent to which the information is well known;
(b)     whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c)     the availability of the information from publicly accessible sources; and
(d)     any other relevant matters.
The Guidelines at 6.138 say that the personal privacy exemption is designed to prevent the unreasonable invasion of third parties’ privacy. The Guidelines at 6.142 say that the key factors for determining whether disclosure is unreasonable include:
(a)the author of the document is identifiable;
(b)     the documents contain third party personal information;
(c)     release of the documents would cause stress on the third party; and
(d)     no public purpose would be achieved through release.
The information in the Letters is personal because it is information about an identified individual. Even if the name was redacted, it would be information about an individual who is reasonably identifiable for the reasons set out above by Rear Admiral Wolski at paragraph 86 of his affidavit.
In my view, this is a very clear case where disclosure of the documents in question, even in a redacted form, would be an unreasonable invasion of privacy. The identity and number of the individuals who received the Letters is not known. The clear evidence is that the public does not know, and in my view should not know, which ADF personnel are the subject of consideration by the Chief of Defence in the context of the findings and recommendations made in the Afghanistan Inquiry Report. It would be most unreasonable to disclose information linking an individual to allegations of breaches of the Law of Armed Conflict before the investigative process was completed, and before any decision was made arising from a confidential review of awards given to ADF personnel. As Rear Admiral Wolski stated, the resulting stress would not only impact the recipients of the Letters but their families too:
87. Disclosure would not only affect the recipients of the Letters, but also their families. The prospect of facing public scrutiny and internal Defence judgement before a final decision is made would induce considerable stress and anxiety amongst those individuals and their families. These individuals may be unfairly labelled, regardless of the circumstances surrounding the process. Such speculation, whether accurate or not, will significantly impact their mental and emotional well-being. It could also impact on their sense of belonging within the ADF community and their trust in the fairness of Defence’s processes. Further, disclosure could result in unwarranted harassment, intrusion into their personal lives, social isolation and create implications for their military or civilian life longer term.
Further, there is no public purpose in releasing information of a sensitive and confidential nature arising from an incomplete process. To put it bluntly, the release of the Letters would do more harm than good.
I conclude that the Letters are conditionally exempt under s 47F of the FOI Act.
Public Interest
In the circumstances of my findings that the Letters are conditionally exempt, the applicant will still be entitled to access those documents, unless providing access to the applicant would, on the balance, be contrary to the public interest.
Section 93A requires the Tribunal to have regard to the Guidelines issued by the Information Commissioner.
Paragraph 6.19 of the Guidelines provides examples of factors under s11B(3) that would favour disclosure including if disclosure would:
·Promote the objects of the FOI Act such as:
oinform the community of the Government’s operations;
oreveal the reason for a Government decision and any background or contextual information that informed the decision; and/or
oenhance the scrutiny of Government decision-making;
·Inform debate on a matter of public importance, including to:
oallow or assist inquiry into possible deficiencies in the conduct of an agency or official; and/or
oreveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.
There is some public interest in disclosing the Letters because it would increase transparency and public participation in government processes; increase scrutiny, discussion, comment, and review of government activities; and inform debate on a matter of public importance. The respondent accepts that the matter for debate relates to serious allegations of wrongdoing as detailed in the Afghanistan Inquiry Report. However, the factors in the Guidelines relating to revealing the reason for a Government decision or enhancing the scrutiny of Government decision-making are not so relevant in this case because a decision has not yet been made.
Paragraph 6.22 of the Guidelines provides examples of factors against disclosure that are applicable in this case:
·whether disclosure could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future;
·whether disclosure could reasonably be expected to prejudice the management function of an agency.
There would be harm to the public interest because of the likely adverse impact on the ongoing command accountability process, as well as the loss of trust and respect from ADF personnel arising from the disclosure of sensitive information provided on a confidential basis. There is a very real public interest in protecting the privacy of the individuals involved in the process, particularly because the consequences of disclosure (as deposed to by Rear Admiral Wolski at paragraph 87 of his affidavit) are so serious and because the process is ongoing.
It is relevant to the weighing up exercise that some general information about the conduct of ADF personnel in Afghanistan is already publicly available, and that the additional information that would be made public if the Letters were disclosed relates to the incomplete process of determining whether awards given to ADF personnel should be rescinded. That process is confidential. Real harm to individuals and to the integrity of the process would arise if the Letters were disclosed. To the extent that disclosure facilitates some measure of public accountability of the individuals concerned, that is at the expense of the proper conduct of the formal accountability process that is ongoing. I consider that the harm from disclosure significantly outweighs the limited factors which favour disclosure.
In terms of weighing up the factors for and against granting access to the Letters, I give greater weight to the need for confidentiality over these documents, so as to maintain the effectiveness and integrity of current and future command accountability processes by the Department of Defence. On balance, I find that the disclosure of the Letters (even in a redacted form) would be contrary to the public interest. The Letters are exempt from disclosure.
Tribunal decision
The decision of the Tribunal is to affirm the reviewable decision.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

..............................[sgd]..........................................
Associate
Dated: 10 May 2024

Date(s) of hearing: 21-22 February 2024

Applicant: Self-represented

Counsel for the Respondent: Trent Glover

Advocate for the Respondent: Elena Arduca

Solicitors for the Respondent: Australian Government Solicitor

[2024] AATA 1029

10 May 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Privilege

Date(s) of hearing:	21-22 February 2024
Applicant:	Self-represented
Counsel for the Respondent:	Trent Glover
Advocate for the Respondent:	Elena Arduca
Solicitors for the Respondent:	Australian Government Solicitor