QVFT and Secretary, Department of Immigration and Citizenship
[2011] AATA 763
•28 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 763
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6211
GENERAL ADMINISTRATIVE DIVISION ) 2008/3575 Re QVFT Applicant
And
Secretary, Department of Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member A K Britton Date 28 October 2011
Place Sydney
Decision The Tribunal decides:
1. The decision made under s 24(1) of the Freedom of Information Act 1982 (Cth) in relation to application 2007/6211, is remitted to the Secretary, under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for reconsideration after the steps set out in s 24(6) of the Freedom of Information Act1982 (Cth) have been undertaken.
2. The decision not to grant access to document 2 of Schedule 1 is set aside and in substitution of that decision the applicant is granted access to that document.
3. The decision made under s 22 to delete “exempt matter” from document 69 of Schedule 2 and document 122 of Schedule C, on the grounds that without those deletions each document would be exempt under s 42(1) of the Act, is set aside. In substitution of that decision the applicant is granted access to document 69 of Schedule 2 and document 122 of Schedule C without those deletions.
4. The decision not to grant access to documents 19, 74 and 108 of Schedule 2 is set aside and remitted to the Secretary under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for reconsideration in accordance with these Reasons.
5. The balance of the decisions under review made in respect of applications 2007/6211 and 2008/3575 is affirmed in accordance with the Schedules to these Reasons. The decision not to provide the applicant with Microsoft® Word format documents provided in response to his request under the Freedom of Information Act1982 (Cth) is affirmed.
6. Document 6 of Schedule 2 contains information about the business affairs of persons. The Secretary is requested to invite those persons under s 27(1)(c) of the Freedom of Information Act 1982 (Cth) to make submissions to the Tribunal about whether document 6 of Schedule 2 is an exempt document under s 43 of the Freedom of Information Act1982 (Cth).
......................[sgd]........................
Senior Member A K Britton
CATCHWORDS
FREEDOM OF INFORMATION – refusal of request – substantial and unreasonable diversion of resources – internal working documents exemption – confidential source exemption – investigating evasion of law exemption – personal information exemption – waiver of legal professional privilege exemption – business affairs exemption – operations of agency exemption – irrelevant material – form of access as distinct from format of access
LEGISLATION
Freedom of Information Act 1982 (Cth) – ss 4, 16, 20(1), 20(2), 20(3), 22, 24, 24(6), 27(1), 27A, 36, 37(1)(b), 37(2)(b), 40(1)(d), 41(1), 42, 43, 56(1), 56(5), 61
Administrative Appeals Tribunal Act 1975 (Cth) – ss 35, 42D
Migration Act 1958 (Cth)
Australian Security Intelligence Organisation Act 1979 (Cth) – s 4
Commonwealth of Australia Constitution Act – ss 3, 61
Public Service Act 1999 (Cth)
Ombudsman Act 1976 (Cth) – s 5
Migration Regulations 1994 (Cth) - Sch 4 (PIC 4002)
OTHER INSTRUMENTS
Revised Professional Conduct and Practice Rules 1995 (NSW) – r 2
CASE LAW
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 534; [2004] FCAFC 248
Re Waterford and Department of Treasury (No.2) (1984) 5 ALD 588
Re Terrill and The Department of Transport and Regional Services [2003] AATA 52
Re Gilligan and Australian Securities and Investments Commission [2011] AATA 104
Re Howard and The Treasurer of the Commonwealth of Australia (1985) 7 ALD 626
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45
Re Lianos and Secretary, Department of Social Security (1985) 7 ALD 475
Re Haneef and Australian Federal Police (2009) 49 AAR 395
Department of Health v Jephcott (1985) 8 FCR 85
Re Slater and Cox (Director-General, Australian Archives) (1988) 15 ALD 20
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429; [1991] FCA 152
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257; [1984] AATA 437
AWB Ltd v Cole and Another (No 5) (2006) 155 FCR 30; [2006] FCA 1234
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Baker v Campbell (1983) 153 CLR 52
Tillmans Butcheries Pty Ltd v Australasian Meat Employees Union (1978) 27 ALR 367; [1978] FCA 45
REASONS FOR DECISION
28 October 2011 Senior Member A K Britton
1. The applicant in these proceedings is a citizen of India. His claim for refugee status was refused. In 2008 he was deported from Australia after spending a number of years in immigration detention.
2. These reasons concern two requests made by the applicant under the Freedom of Information Act 1982 (Cth) (the Act) to the Department of Immigration and Citizenship (DIAC). In broad terms, the documents requested relate to proceedings before the Refugee Review Tribunal concerning the applicant (matter no 2007/6211) and various dealings between the applicant and the Commonwealth Ombudsman and DIAC (matter no 2008/3575).
3. In answer to these requests, the respondent in these proceedings, the Secretary of DIAC (the Secretary), has granted the applicant access to over a thousand documents. The Secretary refused to grant access to other documents on the ground that they were “exempt”, or to further process the request would substantially and unreasonably divert the resources of DIAC. The documents to which the Secretary now refuses access, are listed in the Schedules to these Reasons.
4. My task is to determine whether the decision made by the Secretary in relation to the applicant’s requests was the correct and preferable decision. The Secretary bears the burden of proving that the decisions made in relation to the requested documents were justified: s 61 of the Act.
5. At the applicant’s request, orders were made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Tribunal Act) prohibiting the publication of his name. In these Reasons, he will be referred to by the pseudonym “QVFT”.
BACKGROUND TO APPLICATION 2008/3575 (CTH OMBUDSMAN)
6. In June 2008, the applicant made a request to the Commonwealth Ombudsman under the Act for access to documents. On 4 July 2008, part of that request was transferred to DIAC pursuant to s 16 of the Act.
7. As the Secretary failed to make a decision within the time frame prescribed by the Act, a decision to refuse access to the requested documents was deemed to have been made: s 56(1) of the Act.
8. On 4 August 2008, the applicant lodged an application for review with the Administrative Appeals Tribunal (AAT) of the deemed refusal. Subsequently, the Secretary decided to grant the applicant access in whole or part to further documents.
BACKGROUND TO APPLICATION 2007/6211 (REFUGEE REVIEW TRIBUNAL)
9. In October 2007, the applicant made a request for documents under the Act to the Refugee Review Tribunal. The Tribunal transferred part of that request to DIAC (the first request). Two weeks later, the applicant made a further request to DIAC for documents (the second request).
10. In respect of both requests, a decision refusing access was deemed to have been made as a decision was not made within the time frame prescribed by the Act. The two requests were subsequently treated as a single request because the delegate dealing with them concluded that in substance, the requests related to the same documents.
11. In December 2007, the applicant filed an application for review of each deemed refusal with the AAT. After that application was filed, the Secretary went on to make five further decisions in relation to the applicant’s request, on: 21 January 2008, 18 and 27 November 2008, 18 May 2010 and 19 May 2011. All decisions except that made on 18 May 2010 granted the applicant access to additional documents in whole or part.
DECISION MADE UNDER s 24 OF THE ACT: APPLICATION 2007/6211
12. On 18 May 2010, the Secretary decided to refuse to deal further with the applicant’s request on the ground that to do so would substantially and unreasonably divert the resources of the Department from its other operations: s 24 of the Act.
13. Section 24 of the Act provides:
24 Requests may be refused in certain cases
(1) The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request:
(a) in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations ...
14. The applicant contends that the Secretary cannot refuse to grant access under s 24 because he did not issue a notice under s 24(6) of the Act. Section 24(6) provides:
(6) An agency or Minister must not refuse to grant access to a document:
(a) on the ground that the request for the document does not comply with paragraph 15(2)(b); or
(b) under subsection (1);
unless the agency or Minister has:
(c) given the applicant a written notice:
(i) stating an intention to refuse access; and
(ii) identifying an officer of the agency or a member of staff of the Minister with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and
(d) given the applicant a reasonable opportunity so to consult; and
(e) as far as is reasonably practicable, provided the applicant with any information that would assist the making of the request in such a form.
15. The Secretary concedes that a s 24(6) notice was not issued, but contends that the Tribunal may proceed to review the decision to refuse to grant access to documents under s 24 citing in support Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 534. In Zubair the original decision-maker, failed to comply with a procedural requirement imposed by the Migration Act 1958 (Cth). The Full Court of the Federal Court held that on review the Migration Review Tribunal had power to review the offending decision notwithstanding that it was legally ineffective.
16. I accept the Secretary’s contention that the Tribunal has power to review the decision to refuse documents notwithstanding the failure to issue a s 24(6) notice. However while that procedural defect does not deprive the Tribunal of power, it does prevent the Tribunal affirming the decision to refuse to release documents under s 24(6). The language of the provision is clear: “an agency or Minister must not refuse to grant access under s 24(1) unless the agency or the Minister has given the applicant a written notice” that complies with the requirements of s 24(6)(c) [emphasis added]. That prohibition contained in s 24(6) applies equally to the AAT when acting as substitute decision-maker.
17. The history of this application reveals that officers of DIAC have gone to some considerable lengths to assist the applicant to narrow the scope of his request, thereby removing s 24 as a ground of a refusal. Nonetheless, s 24 is in mandatory terms and requires the issuing of a valid notice. Practical compliance does not obviate the requirement for a notice to be issued.
18. I have decided, to remit for reconsideration, under s 42D of the Tribunal Act, the Secretary's decision not to grant access to documents under s 24(1) after the steps prescribed by s 24(6) of the Act have been undertaken.
SCOPE OF REVIEW
19. After the applicant lodged applications for review with the AAT, the Secretary made a number of decisions in respect of both applications. I have decided to treat those decisions as the subject of this review (s 56(5) of the Act).
SHOULD THE CLAIMED EXEMPTIONS BE GRANTED?
In respect of both applications, the Secretary claims exemptions under s 36 (internal working documents), s 41(1) (personal information) and s 42 (legal professional privilege). In addition, in respect of application 2008/3575, the Secretary also claims an exemption under s 40(1)(d) (operation of agencies) and, in respect of application 2007/6211, s 37(1)(b) (confidential source), s 37(2)(b) (law enforcement) and s 43 (business or professional affairs).
(1A) Section 36 “Internal working documents” exemption: Application 2007/6211
20. The Secretary claims an exemption under s 36 of the Act in relation to document 2 of Schedule 1 described as a “Draft Detention Review Manager Review Form”.
21. The draft report will be exempt under s 36(1) if its disclosure:
(a) would disclose matter in the nature of … opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the “deliberative processes” …
of DIAC, and
(b) would be contrary to the public interest.
…
22. The disputed report is a status report about the applicant’s ongoing detention prepared by an officer of DIAC. It contains some “purely factual material” but also the opinion of its author about various matters concerning the applicant’s ongoing detention.
23. In my opinion, disclosure of the draft report would reveal advice given in the context of the “thinking process” of DIAC — “the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action”: Re Waterford and Department of Treasury (No.2) (1984) 5 ALD 588 at 607. The advice plainly relates to the carrying out of DIAC’s functions in respect of the management of detainees. Paragraph (a) of s 36(1) of the Act is therefore satisfied.
Contrary to the public interest?
24. The real issue raised is whether the disclosure of the draft report would be “contrary to the public interest”.
25. The Secretary concedes that while there is a public interest in citizens having access to documents that shed light on DIAC’s operations, the interest is outweighed, in this case, by the need to ensure that DIAC is able to effectively conduct its functions, engage in and importantly record, without inhibition, open and frank discussion within the Department. In support, the Secretary cites the following passage from Re Terrill and The Department of Transport and Regional Services [2003] AATA 52 (Terrill), in which the Tribunal said at [39] that the question of whether disclosure would be contrary to the public interest must be answered by:
[R]eference to the contents of the document, and by considering the balance between the public interest in preserving the ability of public servants to communicate sensitive material to their Ministers or colleagues and to record that material and the public interest in the disclosure of the document. The degree of sensitivity of the material in the document and the anticipated problems which may result from disclosure should be considered and balanced in order to determine whether disclosure would be in or contrary to the public interest.
26. The applicant, on the other hand contends that release would encourage, rather than discourage, open and frank discussion among Departmental officers.
27. Furthermore, he points out that the Secretary has not adduced any evidence to support the contention that disclosure of the disputed report would have a negative effect on open and frank discussion within DIAC. He contends that the following passage from Re Gilligan and Australian Securities and Investments Commission [2011] AATA 104 at [53] —“[I]n particular, evidence is required that disclosure would have a dampening effect” — supports his argument that the Secretary cannot merely assert that damage would result but must adduce some evidence to support that contention.
28. The question of whether release of this document would be contrary to the public interest requires the weighing up of what are, at times, competing principles. Davies J in Re Howard and The Treasurer of the Commonwealth of Australia (1985) 7 ALD 626 at 634 said this about the s 36 exemption:
... First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions...Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon...And third, it protects the integrity of the decision-making process itself by confirming that “officials should be judged by what they decide, not for matters they considered before making up their minds.
29. The final form of the report has been released to the applicant. The draft report is now over four years old and a final decision has been made about the subject of the report, namely the applicant’s ongoing detention. There is no material difference between the draft and final versions of the report. Each contain the opinion to the effect that various specified “detention processes” have been addressed.
30. I do not accept the Secretary’s contention that disclosure in this case could reasonably be expected to inhibit “frankness and candour in future pre-decisional communications”. This is not a case where the advice contained in the draft report differed in any material way to that contained in the final form of the report. There is nothing to indicate that (within DIAC at least) the advice given was considered to be controversial or the subject of internal debate. If the Secretary is contending that the release of a report of this type will inhibit frankness and candour within the public service by nature of it being an internal working document, I cannot agree. As Hayne J observed in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 (McKinnon) at [64]:
The bare fact that the disputed documents are internal working documents of a kind described in s 36(1)(a) of the Act will not demonstrate that there are reasonable grounds for the claim that their production will be contrary to the public interest. The Act assumes that such documents may be, but are not necessarily, of a kind whose production would be contrary to the public interest.
31. Nor do I consider the disputed report being in draft form to be determinative. It is but one of a number of factors to take into account. Re Lianos and Secretary, Department of Social Security (1985) 7 ALD 475 at 499, on which the Secretary relies, cannot be elevated to authority for the proposition that it will automatically be contrary to the public interest to disclose draft documents that forms part of an agency’s “thinking process”.
32. I am not persuaded that it would be contrary to the public interest to release the draft report. Therefore the Secretary’s decision is set aside and in substitution of that decision access is granted to document 2 of Schedule 1.
(1B) Section 36 “Internal working documents” exemption: Application 3537/2008
33. The Secretary claims an exemption under s 36 of the Act in relation to documents 2, 5, 8 and 9 of Schedule C. All relate to a review into the management of, and visa options available to, 72 long-term detainees. A taskforce consisting of officers of the Commonwealth Ombudsman and DIAC conducted the review. The disputed documents include the minutes of a paper prepared for the purpose of briefing the Ombudsman and related correspondence.
34. In my opinion, disclosure of each disputed document would reveal opinions and recommendations that have taken place in the context of the “thinking process” of the Department and therefore s 36(1)(a) of the Act is satisfied.
35. As in relation to application 2007/6211, the real question raised is whether disclosure of any of the disputed documents would be contrary to the public interest. As Gleeson CJ and Kirby J stated in McKinnon at [5], that decision “… inevitably … will involve a judgment as to where the public interest lies”. Their Honours went on to say:
Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b)).
36. There is significant public interest and debate about DIAC’s management of long-term detainees. Sections of the Australian community are concerned that some detainees may not be treated in a manner consistent with Australia’s international obligations. Others within the community believe that the treatment afforded to detainees is overly generous. It is a matter of common knowledge that there is significant information within the public arena about the subject matter of the review undertaken by the taskforce. Disclosure in these circumstances might reasonably be expected to fill in some of the gaps and promote more informed discussion.
37. In deciding whether disclosure would be in the public interest, I have borne in mind, as the applicant points out, that the Secretary has not adduced any evidence to support his contention that release of the disputed documents would stifle candour within DIAC and between DIAC and the Ombudsman. It is not possible to predict with any certainty how officers of either agency would react if the disputed documents were released — it goes without saying that the reaction would not necessarily be uniform. Nor can it be objectively measured. Its assessment must involve a degree of speculation.
38. I think it reasonable to assume however that, given the sensitive nature of the issues under discussion and the oversight role played by the Ombudsman, disclosure of internal working documents of this type might dampen the recording of future candid exchanges within and between both organisations. This would plainly be contrary to the public interest. In contrast to the draft report discussed above, the disputed documents contain a range of options that were canvassed, not all of which were adopted. While there are powerful factors that favour disclosure, in this case they are outweighed by the real and material risk that candour at the deliberative stage of decision-making might be dampened. For that reason I have decided that disclosure would be contrary to the public interest.
39. For completeness, I note that there is nothing in the documents to suggest that the options canvassed by the task force were unlawful, or the deliberations were conducted in an improper manner. Had that been the case, I may have reached a different decision.
40. I am satisfied that the claim for exemption under s 36(1) in respect of each disputed document is justified. I am also satisfied that the deletions made under s 22 of the Act only included “irrelevant matter”.
(2) Section 37(1)(b) exemption: “confidential source” Application 2007/6211
41. The Secretary claims an exemption under s 37(1)(b) in respect of documents 113 and 115 (in full) and documents 111, 112, 114 and 116 (in part). All form part of Schedule 2.
42. The disputed documents relate to an allegation that, among other things, the applicant took money from detainees at Villawood Immigration Detention Centre purportedly to assist them with immigration and court applications. Included in these documents are reports and briefing notes about the investigation into those allegations. Some contain the names of the individual(s) who made the allegations.
43. Section 37(1)(b) provides that a document is an exempt document if its disclosure under the Act would, or could reasonably be expected to:
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law
44. Documents are confidential for the purpose of this provision if they contain a confidential source of information relating to the administration or enforcement of the law. A source will be confidential if the information was provided under an express or implied pledge of confidentiality: Department of Health v Jephcott (1985) 8 FCR 85 at [89]. If, so, the question to be determined is whether the release of the information would disclose the identity of the confidential source or could be reasonably be expected to do so.
45.
Documents 111, 112 and 115
46. Each contains the names of persons who made allegations about the applicant. Document 112 is a letter addressed to the General Manager of Villawood Detention Centre and contains allegations about the applicant (and others). In closing, the authors ask that the "matter be handled carefully". Document 111 is a letter addressed to the Minister for Immigration and also contains allegations about the applicant. While it does not expressly request confidentiality, taken as a whole it is apparent that the information was provided under an implied pledge of confidentially. Document 115 is a list of names of persons who made allegations against the applicant. This information was more probably than not provided on a confidential basis. This can be implied from the surrounding circumstances which suggest that the petitioners feared possible retribution if the information was not received in confidence. Whether their apparent fears were objectively justified is immaterial to the question whether the information was provided confidentially. If redacted, there would be no information to provide to the applicant.
Documents 113 and 114
47. These documents are in the form of a minute and note prepared by officers of DIAC in relation to the above complaints. While neither document contains the name of any complainant, each identifies the class of persons to whom the complainants belong. They also summarise the nature of the allegations as well as the name of another person against whom the petitioners had complained. Finally, the documents record details of the progress of the investigations into the complaints.
Findings and conclusions
48. Section 37(1)(b) sets a low threshold. A document is exempt if it would disclose, or enable the existence or identity of a confidential source of information in relation to the enforcement or administration of the law, to be ascertained. To be exempt, it is sufficient that the document merely reveals the existence of a confidential source of information relating to law enforcement or administration.
49. The applicant claims that he already knows the identity of these confidential sources. That may or may not be true, but it is no answer to the questions raised here. It is in the public interest for confidences relating to crimes or serious misconduct to be protected. The Secretary has a duty to protect its confidants in such situations. Witnesses or confidential informants may suffer direct or indirect retribution if exposed and sources of confidential information are likely to be prejudiced and to dry up rapidly if confidences are not maintained.
50. The promise of confidentiality to informants is not to be nullified by the fact that a person under investigation manages to obtain information about those persons from other sources or to deduce from fragments of information and observations of circumstances that investigators have been provided with confidential information by a person or a number of persons or a class of persons. At the very least, it is in the public interest that the suspicions or deductions of those under investigation not be confirmed from the confidential records of government agencies.
51. Agencies generally cannot be fully aware of the extent of the information available to persons under investigation. Disclosure of confidential information by an agency may be linked to information already available to that person or persons and so, by inference or deduction on the part of the person under investigation, lead unwittingly to the disclosure of confidential sources or information. This is known as the “mosaic or jigsaw” effect: see Re Slater and Cox (Director-General, Australian Archives) (1988) 15 ALD 20 at 27.
52. Nor does it matter whether the reference to a confidential source relates to named persons or a class or category of persons. The deductive process or “mosaic effect” can be advanced by disclosure of either, depending on the circumstances.
Summary
53. As each document satisfies the three elements of s 37(1)(b), I affirm the decision to grant access to documents 111 and 112 in redacted form and to refuse to grant access to document 115.
(3) SECTION 37(2)(b) “investigating evasion of the law” exemption: Application 2007/6211
54. The Secretary claims an exemption under s 37(2)(b) in respect of documents 13 and 15 of Schedule 2. The Secretary granted the applicant access to each document after deleting from each a single identical phrase, which for convenience I will refer as the “ASIO phrase”.
55. Section 37(2)(b) provides:
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
...
(b) 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;
56. The ASIO phrase relates to Public Interest Criteria "PIC 4002”. Set out in Schedule 4 to the Migration Regulations 1994 (Cth), PIC 4002 provides that one of the public interest criteria to be taken into account in the assessment of visa applicants is whether the applicant has been assessed by the Australian Security Intelligence Organisation to be a risk to security, within the meaning of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act). Section 4 of the ASIO Act defines "security" to include the protection of the Commonwealth and its people from espionage, sabotage or politically motivated violence.
57. A DIAC officer testified in these proceedings that the disputed phrase related to a method of assessment used by ASIO to determine whether a visa applicant posed a risk to national security. She outlined how disclosure of that information could prejudice that assessment. Given the confidential nature of that evidence, orders were made under s 35 of the Tribunal Act prohibiting the disclosure of that evidence.
58. The applicant contends that as the ASIO phrase has already been disclosed to the Secretary’s solicitor, who he asserts is free to disclose that information to any future client, that information is effectively in the public domain and therefore the s 37(2)(b) exemption is unavailable. I do not agree. The solicitor is under a fiduciary duty to her client, the Secretary, not to disclose information confidential to the Secretary acquired during the currency of her retainer, except in limited circumstances, which do not extend to those raised in this case (see for example rule 2 of the Revised Professional Conduct and Practice Rules 1995 (NSW)).
59. Having considered the confidential evidence, I am satisfied that documents 13 and 15 of Schedule 2 are exempt documents under s 37(2)(b) of the Act. My reasons for this are limited in order to avoid inadvertent disclosure of exempt matter. Suffice to say, I am satisfied that the outlined procedure is lawful and disclosure of the ASIO phrase is likely to prejudice the effectiveness of that procedure.
60. Therefore I must affirm the decision to release documents 13 and 15 of Schedule 2 after deleting from each under s 22, the “ASIO phrase”.
(4A) Section 41(1) “personal information” exemption: Application 2007/6211
61. The Secretary claims an exemption under s 41(1) over a large number of documents listed in Schedules 1 and 2. All but nine — documents 80, 82, 84, 87, 89 and 91 of Schedule 1 and documents 14, 89 and 115 of Schedule 2 — have been released after deletions have been made under s 22 of the Act.
62. Section 41(1) provides that a document is exempt if its disclosure under the Act would involve the unreasonable disclosure of personal information about any person (including a deceased person). In respect of each disputed document it is necessary to decide whether (i) it contains information or an opinion about any person; (ii) that person’s identity is apparent, or can reasonably be ascertained, from that information or opinion; and, (iii) the disclosure of that information would be unreasonable. Before any document containing personal information can be released, the consultative process prescribed by s 27A of the Act must be undertaken.
Do the documents contain personal information?
63. The material identified by the Secretary as “personal information” in the main, consists of the names, and/or personal details of detainees such as their passport numbers, visa status, place of residence and/or detention history.
64. The applicant contends that to constitute “personal information” the information must be of a “private” as opposed to “public” nature. He contends that in some cases, the disputed information is not “personal information” because it is either common knowledge or known to persons other than the subject person. By way of example, he points to documents that relate to incidents involving, or complaints made by, detainees (for example documents 4 and 40 of Schedule 1). In addition, he contends that he already knows in respect of some documents the identity of the subject person because he was also involved in the incident or complaint.
65. Whether the disputed information is widely known is irrelevant to the question of whether it constitutes “personal information”. “Personal information” is broadly defined and means “information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”: s 4 of the Act.
66. As the definition makes plain, there is no requirement that “personal information” be “private” to the subject person. Whether a document contains personal information requires an objective assessment to be undertaken of whether it contains information or an opinion about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. If the answer to that question is yes it will be necessary to ask whether its disclosure would involve the unreasonable disclosure of that information or opinion. Only at this point, does the extent to which that personal information is known, become relevant.
67. The disputed documents fall within three main categories:
·Category 1: Reports, correspondence and the like containing the name and/or personal details of detainees such as passport numbers, visa status, permanent home address (for example documents 17 and 25 of Schedule 1)
·Category 2: Reports and associated documents relating to incidents involving, and complaints made by, detainees. In most cases the personal information consists of the name of detainees (for example documents 4, 6, 9, 14, 17, 23 of Schedule 1)
·Category 3: Data base records held by the Department and other agencies. In the main these contain the name of detainees and lists of persons with the same and or similar names and/or personal identifying characteristics (for example documents 80-84, 87-91 of Schedule 2)
·Category 4: Extracts from the Villawood Detention Centre visitor book setting out the name and addresses of persons who visited the applicant (for example document 32, 34, 68 of Schedule 1).
68. Having examined each disputed document, I am satisfied that each contains “personal information” — that is information or opinions recorded in material form about an individual whose identity is apparent from the document.
Would disclosure be unreasonable?
69. As the applicant correctly points out, s 41(1) does not operate to exempt all documents containing “personal information”, only those where disclosure would involve the “unreasonable disclosure” of that information.
70. The applicant contends that the mere fact that the person whose personal information is contained in the disputed document may, as the Secretary contends, have no “known connection” with him or might not wish their personal information disclosed to him, does not automatically render release of the document “unreasonable disclosure”. He contends that in most cases the “personal information” was created in a public setting and therefore its disclosure could not be said to be unreasonable.
71. The authorities make clear that all relevant factors must be taken into account in determining whether disclosure would be unreasonable. These include the nature of the information, any public interest in disclosure and the extent to which it is known — to persons other than the person to whom it relates — and, any possible harm or prejudice that might result from disclosure.
72. Whether disclosure will be unreasonable has, at its core, “public interest considerations”: Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 437-439, per Lockhart J. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the then President of the AAT, O’Connor J, said at [51]:
[I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is "unreasonable" requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.
73. The “Category 1” documents contain information such as passport numbers and visa statuses. The “Category 3” documents are of a similar nature. It would be reasonable to assume that that information was provided either expressly or impliedly on a confidential basis. Information such as a passport number is a personal identifier that, as a matter of common knowledge, could be used to perpetrate identity fraud. This is not to suggest that the applicant intends to use the information for that purpose, but release to him is in effect release to the public. In my opinion, the disclosure of information of this type would constitute an unwarranted intrusion into the privacy of the subject individuals.
74. As I understand it, the applicant’s main interest lies with the Category 2 documents. In broad terms they contain information about incidents and complaints involving detainees much of which is adverse to the subject persons. Document 21 of Schedule 1, for example, is a report recording that some detainees in the course of an incident “threatened retribution” and “used aggressive language”. Document 23 of Schedule 1 is a further example and describes a number of detainees as “uncooperative”.
75. The partial release of the disputed documents is in the public interest as it discloses information about the management of detainees. I am somewhat at a loss to see how the public interest would be advanced by also releasing personal information contained in those documents about the subject persons. Any public interest that might arise, in my opinion, is outweighed by the privacy interests of the subject individuals.
76. “Category 4” documents contain the names and addresses of persons who have visited the applicant and others in detention. Given the privacy interests of the subject individuals, I have formed the view that the disclosure of this information would be unreasonable.
(4B) Section 41(1) “personal information” exemption: Application 3537/2008
77. The Secretary claims an exemption under s 41(1) of the Act in relation to most of the documents set out in Schedule C. In all cases, the documents were released after the deletion of either the name of individual detainees or information that would allow the detainee to be identified. I am satisfied that the information deleted from each document, in respect of which this exemption is claimed, constitutes personal information about a person or persons whose identity is apparent, or can reasonably be ascertained, from that information.
78. The applicant provided to the Tribunal a letter from the person whose personal information is contained in document 122. She wrote that she has no objection to this information being released to the applicant. She subsequently notified the Tribunal and the parties that she has changed her mind. While not determinative, this is a powerful factor tending against release.
79. I have decided, after inspecting each disputed document, including document 122, that their release would involve the unreasonable disclosure of personal information.
Summary
80. In respect of both applications, I have decided to affirm the decisions made by the Secretary in relation to the documents for which an exemption is claimed under s 41(1) of the Act.
(5A) Section 42(1) “legal professional privilege” exemption: Application 2007/6211
81. The Secretary claims an exemption under s 42(1) of the Act in respect of documents 52 of Schedule 1, and documents 2, 67 and 69 of Schedule 2. Section 42 exempts a document “if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”. The Secretary granted access to document 69 of Schedule 2 after the deletion of “exempt matter” under s 22 of the Act.
82. As a first step, it is necessary to decide in respect of each disputed document whether the Secretary has discharged the onus of establishing that it was brought into existence for the dominant purpose of giving or obtaining legal advice: AWB Ltd v Cole (No 5) and Another (2006) 155 FCR 30 at 44, per Young J.
83. Document 52 of Schedule 1 and document 2 of Schedule 2 are letters containing legal opinions provided to DIAC by external lawyers about pending litigation. Document 67 is also a letter containing a legal opinion provided in response to a request from DIAC about the operation of a Departmental protocol. In each case, DIAC is the client of the external lawyer who provided the opinion. Legal professional privilege attaches to each of the three documents because they were brought into existence for the dominant purpose of giving legal advice.
Has privilege been waived?
84. Legal professional privilege can be waived if a client discloses the content of advice given by a lawyer. The question arises here whether DIAC, by disclosing to the Commonwealth Ombudsman the advice given to it by its lawyers, has waived privilege in respect of document 69. Document 69 is a letter prepared by an officer of DIAC in answer to a request for information made by the Ombudsman following a complaint made by a detainee. The material deleted under s 22 of the Act is a summary of “legal advice” received by DIAC relating to the operation of a provision of the Migration Act and the protocol, the subject of the legal advice set out in document 67. No issue of waiver arises in respect of Document 52 of Schedule 1 and document 2 of Schedule 2.
85. The applicant contends that by releasing a summary of the advice to the Ombudsman, DIAC impliedly waived the privilege that would otherwise attach to that advice and cites in support the following extract from the judgement of the High Court in Mann v Carnell (1999) 201 CLR 1 at 13 per Gleeson CJ, Gaudron, Gummow and Callinan JJ:
What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality; not some overriding principle of fairness operating at large.
86. The Secretary argues that “the provision of the legal advice by the Department to the Commonwealth Ombudsman was an act intended to provide the Ombudsman with well-reasoned responses to its investigation so as to satisfy the Ombudsman of the propriety of the Commonwealth’s conduct. It was not intended to constitute a waiver of the legal professional privilege that attaches to the legal advice.” He also argues that “the Department’s actions in reassuring the Commonwealth Ombudsman of the basis for its actions is not inconsistent with the desire to maintain confidentiality over that legal advice.”
87. In my view, the applicant is correct in asserting that the Department waived privilege when it disclosed its legal advice to the Commonwealth Ombudsman.
88. The fundamental purpose of the doctrine of legal professional privilege was described by Deane J in Baker v Campbell (1983) 153 CLR 52 at 115-116:
Once one recognizes that the principle underlying legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications and that the privilege is not confined to such communications as are made in the course of or in anticipation of litigation but extends generally to confidential communications of a professional nature between a person and his lawyer made for the purpose of obtaining or giving legal advice, common sense points to a conclusion that the principle should not be seen as restricted to compulsory disclosure in the course of such proceedings. [emphasis added]
89. Having sought and obtained advice, however, if a person then chooses to disclose that advice to another person or party outside the confidential relationship, the privilege has been waived. A person may not specifically intend to waive privilege, but the objective effect of that person’s conduct may be to do so because of the inconsistency between the conduct and the maintenance of confidentiality in relation the legal advice. An unintended or inadvertent disclosure, such as an accidental inclusion of a document in a subpoena bundle, may not constitute waiver. On the other hand, if a person intentionally reveals advice because he or she does not advert to the consequence that privilege would thereby be waived, the objective fact is that he or she has acted in a manner inconsistent with the maintenance of confidentiality.
90. The Secretary argues that the Commonwealth Ombudsman and DIAC are not different parties but are part of one “Commonwealth”. No legal support is provided for this surprising argument. Basic principles of constitutional law suggest that it is incorrect. The “Commonwealth of Australia” is the federation of the six states: see Commonwealth of Australia Constitution Act (the Constitution), s 3. The executive power of the Commonwealth is exercised pursuant to s 61 of the Constitution. The Parliament has enacted the Public Service Act 1999 (Cth) and other legislation pursuant to which departments of state and Commonwealth statutory authorities have been created for various purposes. The Commonwealth Ombudsman is a statutory authority whose function is to investigate administrative actions of Commonwealth departments and “prescribed authorities” in respect of which complaints have been made to him or her, or on his or her own motion: Ombudsman Act 1976 (Cth), s 5.
91. The Ombudsman was never in a confidential relationship with DIAC. He was an independent scrutineer of DIAC’s conduct. The purposes for which the Secretary’s legal advice was disclosed to the Ombudsman were both to justify its actions and to lend weight to those justifications. Because those were its purposes, its conduct was inconsistent with the maintenance of the confidentiality of the advice. DIAC deliberately published the advice to the Ombudsman, a third party, for its own purposes, thereby waiving privilege.
92. I am not persuaded that document 69 is an exempt document under s 41 of the Act.
(5B) Section 42(1) “legal professional privilege” exemption: Application 2008/3575
93. The Secretary claims that document 122 of Schedule C, a letter from DIAC to the Commonwealth Ombudsman dated 11 October 2007 is exempt under s 41 of the Act. Document 122 has been released to the applicant after deleting under s 22 of the Act two paragraphs containing a summary of legal advice received by the Department.
94. For the reasons given in relation to document 69, I conclude that the Secretary has waived privilege in respect of document 122.
Section 42(1) “legal professional privilege” exemption: Summary
95. I have decided to set aside the decision to delete under s 22 of the Act those parts of document 69 of Schedule 2 (application 2007/ 6211) and document 122 of Schedule C (application 2008/3575), which the Secretary contends constitute “exempt matter” by the operation of s 42(1) of the Act. In substitution I have decided to release each document without deleting those parts that the Secretary contends constitutes “exempt matter” by virtue of s 42(1) of the Act. (Note each document also contains personal information, which has been deleted and that decision has been affirmed).
(6) Section 43(1) “business affairs” exemption: Application 6211/2007
96. The Secretary claims an exemption under s 43(1)(c)(i) over an email to DIAC from one of its external lawyers (Document 6 of Schedule 2). The Secretary has deleted from the document under s 22 the charge-out rate of the lawyer and her supervising partner.
97. Section 43(1) provides that a document is an exempt document if its disclosure under the Act would disclose:
…
(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, being information:
(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
…
98. The deleted material clearly relates to the professional and business affairs of the lawyers and their firm. Therefore the sole issue is the effect of disclosure. The Secretary contends that the fee arrangement between DIAC and its lawyers is commercially valuable information, and asserts that information is not publicly available and would be of use to the firm’s competitors. The Secretary also contends that in a commercial setting, any loss of commercial or competitive advantage, by virtue of making public various fee arrangements, would be likely to have an unreasonably adverse effect on the business or professional affairs of DIAC’s external lawyers.
99. The disputed document contains infomtaion about the basis of legal fees payable by DIAC in respect of a one-off matter. That information is now over ten years old. My preliminary view is, given the age and limited scope of that information, disclosure would not or could not reasonably be expected to unreasonably affect either the lawyers or their firm in respect of their business or professional affairs.
100. Section 27(1) of the Act provides that a decision-maker shall not give access to a document that contains information concerning a person or organisation’s business affairs unless the decision-maker has taken reasonably practicable steps to obtain the views of the person or organisation concerned as to whether or not the document is an exempt document and had regard to any submission made. In this case, it is reasonably practical to consult with the lawyers and their firm.
101. I have decided not to make a final decision and instead request the Secretary to invite the lawyers and the firm to comment on whether document 6 of Schedule 2 is exempt as claimed under s 43(1)(c)(i) of the Act.
(7) Section 40(1)(d) “operations of agencies” exemption: Application 2008/3575
102. The Secretary claims an exemption under s 40(1)(d) in relation to documents 7, 9, 11, 23, 25, 26, 31 and 32 of Attachment C. The disputed documents consist of email exchanges between officers of DIAC and the Commonwealth Ombudsman. All documents have been released to the applicant in part. The deleted material consists of the email addresses and other contact details of officers of the Commonwealth Ombudsman.
103. Section 40(1)(d) of the Act states:
Documents concerning certain operations of agencies
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
…
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest."
Substantial adverse effect on the proper and efficient conduct of the operations of DIAC?
104. In support of the Secretary’s assertion that the documents listed above should be partially exempt under s 40(1)(d), the Secretary tendered a letter dated 14 July 2008 which set out the policy and practice of the office of the Commonwealth Ombudsman (the Office) in relation to the release of staff contact details. The document explained that, given the volume of complaints received, the Ombudsman considers that if members of the public had unimpeded access to staff contact details the management and prioritisation of complaints difficult would be made difficult and the Office’s complaint-handling function would be hampered. For that reason, the Office filters contact with members of the public by providing the contact details of the relevant officer’s team rather than their individual contact details.
105. In deciding whether disclosure would, or could reasonably be expected to have a “substantial adverse effect” on the operations of the office of the Ombudsman, I must be satisfied that the impact would be “real or of substance as distinct from ephemeral or nominal” Tillmans Butcheries Pty Ltd v Australasian Meat Employees Union (1978) 27 ALR 367 at 382 per Deane J.
106. Like many complaint-handling bodies, the Commonwealth Ombudsman has finite resources to deal with a burgeoning number of complaints. I accept that if unfiltered contact with individual officers was permitted it could reasonably be expected to have a substantial adverse effect on the proper and efficient operations of the Office. Any public interest in the disclosure of staff contact details, in my opinion, is far outweighed by the public interest that the Office be able to expeditiously address complaints.
107. For the reasons above I affirm the decision made in relation to documents 7, 9, 11, 23, 25, 26, 31 and 32 of Attachment C.
(8) IRRELEVANT MATERIAL: APPLICATION 2007/6211
108. The Secretary relies on s 22 of the Act to refuse to grant acess to a number of documents in part or whole on the ground that they contain information irrelevant to the applicant’s request. Section 22(1) empowers the decision-maker to provide access to a copy of a document with such deletions so that it would not disclose information that would reasonably be regarded as irrelevant to the request.
109. An “exemption” is claimed in respect of documents 19, 74, 81 and 108 of Schedule 2 under s 22 in their entirety. Section 22 enables an agency to delete irrelevant material from documents that fall within the scope of a request made by a person under the Act. It sets out a procedure to be followed where the decision-maker concludes that it is possible to make a copy of a document “with such deletions [so] that the copy … would not disclose … information that would reasonably be regarded as irrelevant to that request”. If a whole document is irrelevant to the scope of the application, s 22 in my opinion has no application. I note that a different conclusion was reached on the application of s 22 to a “whole document” by the Tribunal differently constituted in Re Haneef and Australian Federal Police (2009) 49 AAR 395 (at [30]).
110. While the Act does not require the Secretary to release to the applicant documents that fall outside the scope of his request, having reviewed each of the documents where an exemption has been claimed for the whole document I am not persuaded that 19, 74, and 108 of Schedule 2 plainly fall outside the applicant’s request. It seems that the Secretary may have mistakenly characterised each as irrelevant. For example the description given by the Secretary to document 108 as “not being about the applicant” is plainly incorrect.
111. I have decided that the appropriate course is to remit to the Secretary the decision made in respect of 19, 74, and 108 of Schedule 2 for re-consideration. I agree that document 81 of Schedule 2 is irrelevant to the applicant’s request and affirm the decision not to grant access on the ground that it falls outside the scope of his request.
112. The Secretary has released to the applicant documents 47 and 51 of Schedule 1 and document 85 of Schedule 2, after deleting from each material he considers to be irrelevant to the applicant’s request.
113. The applicant contends that the assessment of whether the deleted information is irrelevant involves a value judgement, which only he, not the decision-maker, can determine.
114. Section 22(1)(a)(i) provides that the question of whether information might reasonably be regarded as “irrelevant to [the applicant’s] request” is to be decided by the decision-maker. That decision must be made having regard to the objects of the Act to create a general right of access to information in documentary form. The determination of whether material is irrelevant to a request requires a careful assessment of the request and the subject document. In some cases, there will be a fine line between information that is relevant and irrelevant to an applicant’s request. Given the objects of the Act, the decision-maker ought, in such cases, err in favour of disclosure. This however is not one of those cases. I am satisfied in relation to each document where deletions have been made under s 22(1)(a)(ii) that the information would reasonably be regarded as irrelevant to the applicant’s request.
115. The decision to delete information under s 22(1)(a)(ii) in relation to documents 47 and 51 of Schedule 1 and document 85 of Schedule 2 is affirmed. The decision made in respect of documents 19, 74 and 108 of Schedule 2 is set aside and remitted to the Secretary for re-consideration.
FORM OF ACCESS TO DOCUMENTS
116. The final issue to be determined is the applicant’s request that all documents be provided to him in Microsoft® Word format. In closing submissions, the applicant limited this request to those typed documents and legible handwritten documents. The Secretary contends that this request is unreasonable and points out that the applicant has been provided all documents in hard copy and PDF format.
117. Section 20(1) of the Act provides that access to a document may be given in a number of forms including the provision of a copy of the document to the applicant. Section 20(2) gives an applicant the right to request access in a particular form. This sub-section relates back to s 20(1), which specifies four methods by which access may be given: by affording the person a reasonable opportunity to inspect the document; by providing a copy of the original; in the case of audio records, by providing a transcript; or in the case of video and audio files, arranging for the person to hear or view them: s 20(1)(a)-(d)
118. The applicant asserts that he is entitled to copies of all documents in Microsoft® Word format by virtue of s 20(2), which provides that “Subject to subsection (3) … where the applicant has requested access in a particular form, access shall be given in that form”.
119. In my view, if a copy of a document is requested without further specificity, it is sufficient for an agency to provide a copy of that document in whatever format is most convenient and efficient for the agency handling the request. The operative word in the sub-section is “form” not “format”. “Form” in this context refers back to the forms specified in s 20(1)(a) – (d), not to different “formats” of electronically produced and stored documents such as Microsoft® Word and PDF formats.
120. Agencies ought not be obliged to satisfy exotic requests relating to specific formats (such as the various editions of Microsoft® Word or other word-processing programs, let alone other methods of copying documents). If the applicant’s argument is correct, a person requesting information under the Act could request it in any format at his or her whim and the agency, unless it could argue cogently that this would unreasonably interfere with its operations, would be obliged to, for example, provide the copy in handwriting in purple ink on pink paper — an obviously absurd proposition.
121. If no form of access is specified by the person seeking information, an agency will comply with s 20(1) by providing a copy of the original document.
122. The documents so far provided to the applicant have been provided in hard copy and electronic PDF format. The Secretary argues that the request is unreasonable and ought not be entertained because the search for approximately a thousand documents, and their conversion into Microsoft® Word format would be an unreasonable interference with the work of DIAC. The Secretary also emphasises that when the applicant made his original request, no form of access was specified before he was provided with the copies that have since been given him.
123. The applicant is correct in arguing that s 20(3)(b) does not apply in this case. There is no threat to the integrity of DIAC’s records in his request for copies to be provided in Microsoft® Word format. He does not have access to the originals nor to the electronic data securely stored in DIAC’s own databases.
124. Nevertheless, much of the information sought has already been provided to the applicant as requested and, in my view, the Secretary has fulfilled his obligations in that respect. It would constitute an unreasonable diversion of resources from the operations of DIAC to undertake the extensive further work the applicant wishes done for him. For that reason I affirm the decision not to accede to the request to provide copies of all documents in Microsoft® Word form.
SCHEDULE 1: RELEASED 21 January 2008 and 18 November 2008
Doc No Folio Nos Description Secretary’s Decision AAT Decision FILE: CLF2007/73587
2 3-4 Draft Detention Review Manager Review Form Exempt in full under s 36(1) Set aside and grant access in full 4 17 Internal emails Exempt in part under s 41(1) Affirm 6 19-20 Internal emails Exempt in part under s 41(1) Affirm 7 21-55 Various Exempt in part under s 41(1) Affirm FILE: CLF2007/11896(elec)
9 5 Internal emails Exempt in part under s 41(1) Affirm 14 17 Internal email Exempt in part under s 41(1) Affirm 15 18-34 Various Exempt in part under s 41(1) Affirm FILE: CLF2006/4589
17 70-71 Letter Exempt in part under s 41(1) Affirm 19 79 Internal email with attachments Exempt in part under s 41(1) Affirm 21 85-86 Incident reports Exempt in part under s 41(1) Affirm 23 146 Internal email with attachments Exempt in part under s 41(1) Affirm 25 158-161 Internal emails Exempt in part under s 41(1) Affirm FILE: CLF2005/29454
32 86-90 Various Exempt in part under s 41(1) Affirm 34 99 Internal email Exempt in part under s 41(1) Affirm 36 101 Internal email Exempt in part under s 41(1) Affirm 38 119-120 Incident Report Exempt in part under s 41(1) Affirm 40 145 Emails Exempt in part under s 41(1) Affirm 47 194 Internal email Exempt in part under ss 41(1) and 22(1)(a)(ii) Affirm FILE: CCF2001/1627
51 28 Exempt in part under ss 21(1)(a)(ii) & 41(1) & 43(1) Affirm 52 29-30 Exempt in full under s 42(1) Affirm DATABASE: ICSE
68 55-56 Database records Exempt in part under s 41(1) Affirm 70 92 Database records Exempt in part under s 41(1) Affirm 72 105-106 Database records Exempt in part under s 41(1) Affirm 73 107-109 Database records Exempt in part under s 41(1) Affirm 74 110-111 Database records Exempt in part under s 41(1) Affirm 76 114-117 Database records Exempt in part under s 41(1) Affirm 78 119-121 Database records Exempt in part under s 41(1) Affirm 80 158-175 Database records Exempt in full under s 41(1) Affirm 81 176-177 Database records Exempt in part under s 41(1) Affirm 82 178-179 Database records Exempt in full under s 41(1) Affirm 83 180-181 Database records Exempt in part under s 41(1) Affirm 84 182-185 Database records Exempt in full under s 41(1) Affirm 85 186-187 Database records Exempt in part under s 41(1) Affirm 87 210-217 Database records Exempt in full under s 41(1) Affirm 88 218-219 Database records Exempt in part under s 41(1) Affirm 89 220-221 Database records Exempt in full under s 41(1) Affirm 90 222-223 Database records Exempt in part under s 41(1) Affirm 91 224-231 Database records Exempt in full under s 41(1) Affirm SCHEDULE 2: RELEASED 27 November 2008
Doc No Folio Nos Description Secretary’s Decision AAT Decision 2 74-79 Correspondence between BDW and DIAC Exempt in full under s 42(1) Affirm 6 10 Correspondence Exempt in part under ss 41(1) & 43(1) & 22(1)(a)(ii) Remit 7 11-12 Correspondence Exempt in full under s 42(1) Affirm 9 50-51 Correspondence Exempt in full under s 42(1) Affirm 13 74-92 Exempt in part under ss 40(1)(d), 41(1) & 37(2)(b) Affirm 14 93 Email related to other client Exempt in full under s 41(1) Affirm 15 94-109 Exempt in part under ss 40(1)(d) & 41(1) & 37(2)(b) Affirm 17 131 Exempt in part under s 41(1) Affirm 19 136-158 Emails
Report to the Ombudsman
Case Management Detail Report for the ApplicantExempt in full under s 22(1) Remit 22 19-22 Officer Report Form – Incident Report: Hazel Sherrit Exempt in part under s 41(1) Affirm 24 27 Officer Report Form Exempt in part under s 41(1) Affirm 26 29-32 Officer Report Form Exempt in part under s 41(1) Affirm 28 34 Officer Report Form Exempt in part under s 41(1) Affirm 30 42 Exempt in part under s 41(1) Affirm 32 47 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 34 51-55 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 35 56-57 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 37 61-62 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 39 65 Intelligence Report Exempt in part under s 41(1) Affirm 41 86-87 Incident Report Exempt in part under s 41(1) Affirm 43 120-121 Incident Report Exempt in part under s 41(1) Affirm 45 131-134 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 47 139-146 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 49 154 Incident Report Exempt in part under s 41(1) Affirm 51 159 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 53 163-169 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 55 173-174 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 57 177 Intelligence Report Exempt in part under s 41(1) Affirm 59 186 Officer Report Form: Incident Report Exempt in part under s 41(1) Affirm 61 193 Emails Exempt in part under s 41(1) Affirm 65 5 Inquiry to GSL Villawood IDF (Request for Information) Exempt in part under s 41(1) Affirm 67 39-41 Correspondence from Clayton Utz to DIAC Exempt in full under s 42(1) Affirm 69 47-48 Correspondence Exempt in part under ss 41(1) & 42(1) Set aside decision made under s 42(1). Affirm decision made under s 41(1) 74 72-99 Various information relating to Applicant’s complaint to the Ombudsman re removal of computer including correspondence & Federal Court Application Exempt in full under s 22(1) Remit 77 10-17 Emails Exempt in part under s 41(1) Affirm 79 19 DIAC Exempt in part under s 41(1) Affirm 81 23-25 DIAC internal emails Exempt in full under s 22(1) Affirm 83 41 Email re voluntary starvation update Exempt in part under s 41(1) Affirm 85 63-64 Emails Exempt in part under ss 22(1) & 41(1) Remit 87 66 DIAC internal email Exempt in part under s 41(1) Affirm 89 69-70 Correspondence Exempt in full under s 41(1) Affirm 91 78-79 Incident report Exempt in part under s 41(1) Affirm 93 85 Internal Review Exempt in part under s 41(1) Affirm 95 93 Correspondence Exempt in part under s 41(1) Affirm 97 117-118 Incident Report Exempt in part under s 41(1) Affirm 99 124 Internal Review Exempt in part under s 41(1) Affirm 101 132 Correspondence Exempt in part under s 41(1) Affirm 103 177-178 Incident report Exempt in part under s 41(1) Affirm 105 184 Internal Review Exempt in part under s 41(1) Affirm 107 192 Correspondence Exempt in part under s 41(1) Affirm 108 193-230 Correspondence re complaints made by applicant and other matters Exempt in full under s 22(1) Remit 111 7-8 Correspondence Exempt in part under ss 37(1)(b) & 41(1) Affirm 112 9-10 Correspondence Exempt in part under ss 22(1) & 37(1)(b) & 41(1) Affirm 113 11 Minute Exempt in part under ss 37(1)(b) & 41(1) Affirm 114 12 File Notes Exempt in part under ss 37(1)(b) & 41(1) Affirm 115 13 Notes Exempt in full under ss 37(1)(b) and 41(1) Affirm 116 14-29 Investigation Report Exempt in part under ss 37(1)(b) and 41(1) Affirm SCHEDULE C
Doc No Folio Nos Description Secretary’s Decision AAT Decision A/2008-111859
2 1-3 DIAC documents prepared for meeting with Ombudsman on 25 March 2008 Exempt in part under ss 36(1) &41(1) Affirm 3 4-7 Spread sheet ‘Deliberations’ Exempt in part under s 41(1) Affirm 4 8-9 Spread sheet ‘Probable Outcomes’ Exempt in part under s 41(1) Affirm 5 14 Briefing for the Ombudsman on outcomes of the task force Exempt in part under s 36(1) Affirm 7 21-22 Email from DIAC to Ombudsman Exempt in part under ss 40(1)(d) & 41(1) Affirm 8 24 Briefing for the Ombudsman on outcomes of the task force Exempt in part under s 36(1) Affirm 9 31-35 DIAC email to Ombudsman with attachments Exempt in part under ss 36(1) & 40(1)(d) & 41(1) Affirm 10 66-67 DIAC email to Ombudsman Exempt in part under s 41(1) Affirm 11 68 DIAC email to Ombudsman Exempt in part under ss 40(1)(d) & 41(1) Affirm 12 71-77 DIAC spread sheets Exempt in part under s 41(1) Affirm 13 78-80 Minister’s Review of Long-Term Detention Case Load Exempt in part under s 41(1) Affirm 14 81-83 Minister’s Review of Long-Term Detention Case Load Exempt in part under s 41(1) Affirm 15 106-109 DIAC email to Ombudsman Exempt in part under s 41(1) Affirm 16 110-114 Minister’s Review of Long-Term Detainees: Current Status of Caseload – as at 4 June 2008 Exempt in part under s 41(1) Affirm 17 115-118 Minister’s Decisions – Long Term Detainees Review as at 5 June 2008 Exempt in part under s 41(1) Affirm 2007-10702130/01/2007
23 44-45 DIAC email to Ombudsman Exempt in part under ss 40(1)(d) & 41(1) Affirm 25 76-77 DIAC email to Ombudsman Exempt in part under s 40(1)(d) Affirm 26 78-82 DIAC email to Ombudsman Exempt in part under s 40(1)(d) Affirm 31 140-145 DIAC email to Ombudsman with attachments including IHMS – Report for Commonwealth Ombudsman; Report to Ombudsman Exempt in part under ss 40(1)(d) & 41(1) Affirm 32 159-162 DIAC email to Ombudsman Exempt in part under s 40(1)(d) Affirm 207-107021-FP1
33 4-6 DIAC email to Ombudsman Exempt in part under s 40(1)(d) Affirm 34 16-18 DIAC email to Ombudsman Exempt in part under s 40(1)(d) Affirm Later Releases
121 9-22 DIAC email to Ombudsman with Attachments Exempt in part under s 40(1)(d) Affirm 122 23-30 DIAC letter to Ombudsman Exempt in part under ss 42(1) and 41(1) Set aside decision made under s 42(1) I certify that the 122 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: ..............................[sgd]...................................
Associate to Senior Member A K BrittonDate/s of Hearing: 23 and 24 May, 15 July and 5 October 2011
Date of Decision: 28 October 2011
Applicant self-represented
Solicitor for the Respondent: Ms A Linacre, Clayton Utz
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