Rivas and Secretary, Attorney-General's Department (Freedom of information)

[2022] AATA 2599

Rivas and Secretary, Attorney-General's Department (Freedom of information) [2022] AATA 2599 (9 May 2022)

Division:GENERAL DIVISION

File Number(s):      2020/7075

Re:Adriana Rivas

APPLICANT

AndSecretary, Attorney-General's Department

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:9 May 2022

Place:Sydney

The reviewable decision is affirmed.

..............................[sgd]..........................................

Deputy President B W Rayment OAM QC

CATCHWORDS – FREEDOM OF INFORMATION

Extradition request/s made in respect of the applicant by a foreign country – documents already in the public domain - FOI request refused under s25 of the FOI Act - documents claimed to be exempt under s33(a)(iii) – decision affirmed

LEGISLATION

Freedom of Information Act 1982

CASES

Department of Prime Minister and Cabinet and Summers (Freedom of Information) [2019] AATA 5537

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

9 May 2022

1. The applicant is a person whose extradition to Chile is pending.  She has sought, by a revised FOI request, any extradition requests made in respect of Adriana Rivas by the Republic of Chile, either directly or by its agents, prior to August 2018 (the revised request).

2. I have heard evidence both in open session and in confidential session. In a short opening hearing, the applicant sought to establish that the documents, if any, which answer the request, are already in the public domain.

3. The response of the respondent to the request was made in terms of s.25 of the Freedom of Information Act 1982 (the FOI Act). Section 25 provides as follows:

   (1)  Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document where information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be:

   (a) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or

   (b) an exempt document to the extent referred to in subsection 45A(2) or (3).

   (2)  If a request relates to a document that is, or if it existed would be, of a kind referred to in subsection (1), the agency or Minister dealing with the request may give notice in writing to the applicant that the agency or the Minister (as the case may be) neither confirms nor denies the existence, as a document of the agency or an official document of the Minister, of such a document but that, assuming the existence of such a document it would be:

   (a) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or

   (b) an exempt document to the extent referred to in subsection 45A(2) or (3).

   (3)  If a notice is given under subsection (2) of this section:

   (a) section 26 applies as if the decision to give the notice were a decision referred to in that section; and

   (b) the decision is taken, for the purposes of Part VI, to be a decision refusing to grant access to the document in accordance with the request referred to in subsection (2) of this section, for the reason that the document would, if it existed, be:

   (i) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or

   (ii) an exempt document to the extent referred to in subsection 45A(2) or (3).

4. The Department stated that the request was denied in accordance with section 25 of the Act for the reason that documents, if they exist, would be exempt by virtue of s. 33(a)(iii) of the FOI Act.

5. Section 33(a)(iii) provides as follows:

   A document is an exempt document if disclosure of the document under this Act:

   (a) would, or could reasonably be expected to, cause damage to:

   (iii) the international relations of the Commonwealth. 

6. Both parties referred to the decision of Perry J sitting as a Deputy President of this Tribunal in Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of Information) [2019] AATA 5537. Her Honour there discussed the construction of s.33, and I have treated that discussion as authoritative.

7. In the light of the evidence led before me in open and closed session, I am satisfied that the response of the respondent to the revised request was accurate and was authorised by the FOI Act.

8. I also comment that the fact that information or some of it, may be in “the public domain” is not necessarily a reason to deny exemption under s.33(a) (iii) of the Act.  Governmental confirmation of information not previously provided by it can involve a breach of obligations or expectations of confidentiality, as is explained in the open affidavit of Ms Chidgey at paragraphs [39] and [40].

9. The reviewable decision will be affirmed.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

.......................[sgd].................................................

Associate

Dated: 9 May 2022

Date(s) of hearing:	21 April & 2 May 2022
Counsel for the Applicant:	Mr F Santisi
Counsel for the Respondent:	Mr T Glover