Roberts-Smith and Inspector-General of the Australian Defence Force (Freedom of information)
[2023] AATA 1095
•9 May 2023
Roberts-Smith and Inspector-General of the Australian Defence Force (Freedom of information) [2023] AATA 1095 (9 May 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2022/6920
Re:Roberts-Smith VC MG
APPLICANT
Inspector-General of the Australian Defence ForceAnd
RESPONDENT
DECISION
Tribunal:Justice T Thawley, Deputy President
Date:9 May 2023
Place:Sydney
The Tribunal affirms the decision under review.
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Justice T Thawley, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request for access to documents – whether documents exempt because disclosure would disclose the existence or identity of confidential sources (FOI Act s 37(1)(b)) – whether disclosure would be contrary to an order made or direction given (FOI Act s 46(b)) – whether disclosure would involve unreasonable disclosure of personal information (FOI Act s 47F) – whether disclosure is in the public interest – decision under review affirmed
LEGISLATION
Defence Act 1903 (Cth) ss 124(1)(h), sub-ss 110C(1)(a), (e) and (f)
Freedom of Information Act 1982 (Cth) ss 3, 11, 11A, 25, 37(1)(a), 37(1)(b), 46(b), 47F, 54L, 93A
Inspector-General of the Australian Defence Force Regulation 2016 (Cth) ss 19, 21, 23, 24
Privacy Act 1988 (Cth) s 6
CASES
‘ABY’ and Department of Defence [2022] AlCmr61
Department of Community Services v Jephcott [1987] FCA 281; 15 FCR 122
Department of Health v Jephcott [1985] FCA 536; 8 FCR 85
Re Cunningham and Secretary, Department of Social Security (1985) 3 AAR 289
Re John Chandra and Department of Immigration and Ethnic Affairs [1984] AATA 437; 6 ALN N257
Re McEniery and Medical Board of Queensland [1994] QlCmr2; 1 QAR 349
Re Roberts-Smith and Inspector General Australian Defence Force [2023] AATA 335
SECONDARY MATERIALS
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth) (version 1.5, June 2019)
REASONS FOR DECISION
Justice Thawley, Deputy President
9 May 2023
INTRODUCTION
The Inspector-General of the Australian Defence Force (IGADF) commenced an inquiry into whether there was any substance to persistent rumours of criminal or unlawful conduct by, or concerning, the Australian Defence Force Special Operations Task Group in Afghanistan (the Afghanistan Inquiry). The Afghanistan Inquiry was conducted by Major General the Honourable Paul Brereton AM RFD, a judge of the New South Wales Court of Appeal, who was appointed by the IGADF as his delegate to the statutory position of Assistant IGADF.
Mr Roberts-Smith VC MG is a former soldier who was deployed to Afghanistan.
On 20 October 2017, Mr Roberts-Smith submitted a written request to the Department of Defence for access to certain documents. The request included a request for:
(e) Diary entries for the following individuals evidencing dealings between the Department of Defence and Chris Masters in relation to the Book [defined as “a proposed book authored by Chris Masters about Australia’s involvement in the war in Afghanistan”]:
…
(v)Inspector General Australian Defence Force, Mr James Gaynor CSC (or his delegate).
The only remaining documents at issue are three diary entries and one calendar entry, access to which was refused by the original decision-maker in the Office of the IGADF on the basis of s 37(1)(a) (disclosure would prejudice conduct of an investigation) and s 46(b) (disclosure would be contrary to order or direction of a person having power to take evidence on oath) of the Freedom of Information Act 1982 (Cth) (FOI Act).
Mr Roberts-Smith applied for internal review of the decision refusing access to these documents, but was unsuccessful.
Mr Roberts-Smith then applied under s 54L of the FOI Act for review by the Information Commissioner.
In that review, the Department of Defence continued to contend that the diary entries and the calendar entry were exempt in full on the bases of ss 37(1)(a) and s 46(b) and also contended that they were exempt under s 37(1)(b) (disclosure of confidential source of information).
On 23 August 2022, the Commissioner found that s 46(b) applied: ‘ABY’ and Department of Defence [2022] AlCmr 61.
On 26 August 2022, Mr Roberts-Smith applied to the Administrative Appeals Tribunal for review of the Information Commissioner’s decision to the extent it upheld the decision of the respondent that the diary entries and the calendar entry were exempt from production under the FOI Act. This is the application the subject of these reasons for decision.
Both parties filed Statements of Facts, Issues and Contentions (SFIC), which included submissions. The IGADF relied upon two affidavits of Commodore Fiona Sneath, the Deputy IGADF, sworn on 3 February 2023. One of those affidavits is confidential and has not been seen by Mr Roberts-Smith or his representatives. Mr Roberts-Smith relied on an affidavit of his solicitor, Monica Allen, sworn on 3 March 2023. In addition to this material and the T-documents, I have examined the diary entries and the calendar entry claimed to be exempt.
The IGADF contends that the diary entries and the calendar entry are exempt on the basis of ss 37(1)(b) and 46(b) and conditionally exempt under s 47F. The IGADF no longer contends that the documents are exempt under s 37(1)(a), presumably because the Afghanistan Inquiry has ended.
THE LEGISLATIVE SCHEME
Section 3 of the FOI Act sets out the objects of the FOI Act:
(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.
Section 11(1) of the FOI Act gives every person a legally enforceable right to obtain access to a document of an agency unless the document is “exempt”. It provides:
(1)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 for access to a document and pays the required charge, the agency must provide access to the document “subject to this section”. Sections 11A(4) and 11A(5) qualify the duty of an agency to provide access in two relevant respects:
(4)The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
(5)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 the public interest.
An exempt document is one that is exempt for the purposes of Division 2 of Part IV of the FOI Act and encompasses documents subject to claims governed by ss 37(1)(b) and 46(b).
If a document is exempt, a person does not have a legally enforceable right to access to the document and access is not required to be given: s 11A(1) and (4).
Section 47F is in Division 3 of Part IV which is entitled “Public Interest Conditional Exemptions”. Section 47F provides a conditional exemption if disclosure of a document would involve the unreasonable disclosure of personal information.
If a document is determined to be conditionally exempt, access must be provided unless granting access “would, on balance, be contrary to the public interest”: s 11A(5).
ISSUES
In summary, the issues are whether the diary entries and the calendar entry are:
(a)exempt under s 37(1)(b) because disclosure would, or could reasonably be expected to, 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;
(b)exempt under s 46(b) because disclosure of the documents would be contrary to an order made or direction given by the Assistant IGADF;
(c)conditionally exempt under s 47F(1) because disclosure would involve the unreasonable disclosure of personal information about any person and, if so, whether disclosure would, on balance, be contrary to the public interest.
CONSIDERATION
Section 37(1)(b) – disclosure of a confidential source
Section 37(1)(b) of the FOI Act provides:
(1) A document is an exempt document if its disclosure under this 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[.]
Section 93A requires the Tribunal to have regard to any guidelines issued by the Information Commissioner. The guidelines include:
5.92The exemption [under s 37(1)b)] applies where:
• the information in question may enable the agency responsible for enforcing or administering a law to enforce or administer it properly
• the person who supplies that information wishes his or her identity to be known only to those who need to know it for the purpose of enforcing or administering the law
• the information was supplied on the understanding, express or implied, that the source’s identity would remain confidential.
Mr Roberts-Smith contends that, if the person the subject of the calendar entry or diary notes was a confidential source of information at the time he or she met with the Assistant IGADF, then that confidentiality has been lost “by reason of the specificity of the … FOI Request and the admission provided by the Department of Defence and the IGADF that diary entries responsive to the FOI request exist”: SFIC [28].
The contention is not made out as a matter of logic. If a diary or calendar entry evidences dealings with a specific person, it does not necessarily follow that the diary or calendar entry records a dealing or interaction with that person.
Further, the confirmation of the existence of a diary or calendar entry which “evidences dealings between the Department of Defence and Chris Masters” does not constitute an admission that the entry records a meeting with Chris Masters, albeit the entry would be consistent with such a conclusion. There is no admission of the kind contended by Mr Roberts-Smith.
Mr Roberts-Smith contended that the IGADF could have relied upon s 25 of the FOI Act and neither confirmed nor denied the existence of the documents, referring to Re Cunningham and Secretary, Department of Social Security (1985) 3 AAR 289 at 293 and Department of Community Services v Jephcott [1987] FCA 281; 15 FCR 122 at 126. Section 25(1) provides:
25 Information as to existence of certain documents
(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).
In effect, s 25(1) provides that an agency is not required to give information about the existence of a document if the giving of that information would reveal information which would be exempt if it had been included in a document of the agency. Here, the giving of information about the existence of the diary entries and the calendar entry did not necessarily reveal the identity of a confidential source, being information which would have been exempt if included in a document.
In any event, s 37(1)(b) does not cease to exempt a document where the terms of a request and response give rise to an available inference about the identity of a confidential source. Section 37(1)(b) is not expressly qualified in that way and an implied qualification of that nature would defeat the purpose of s 37(1)(b) assessed in the context of the FOI Act as a whole.
Section 37(1)(b) requires determination of whether: (a) there is a source of information; (b) the source is confidential; and (c) disclosure of the document would reveal the identity of the confidential source.
Section 37(1)(b) does not require that information given by a confidential source of information is itself confidential, although the nature of the information given as confidential would be relevant to a determination of whether the person is a confidential source.
Mr Roberts-Smith made submissions about matters which the IGADF’s confidential evidence should address in relation to s 37(1)(b), particularly in his SFIC at [25]. These were, in summary:
(a)whether the unidentified person attended the meetings voluntarily or under compulsion;
(b)the purpose of the meeting, specifically whether the person was providing or being supplied with information;
(c)whether there was an express or implied promise to keep the person’s identity confidential;
(d)the person’s attitude to his or her identity being disclosed; and
(e)the dominant purpose of the meetings, in particular whether it was to provide the person with information which then entered into the public domain.
I have taken each of those submissions into account in assessing the confidential material which has been put forward and in assessing the application of s 37(1)(b) having regard to all of the available material.
Whether a person is a confidential source of information depends on all of the circumstances. A number of matters are of obvious relevance in the present factual context: (a) the circumstances in which information was conveyed, including whether there was any express or implied pledge of confidentiality; and (b) the nature of the information conveyed, including whether it was information about third parties which might be relevant to the inquiry. See also: Re McEniery and Medical Board of Queensland [1994] QlCmr2; 1 QAR 349 at [50]; Department of Health v Jephcott [1985] FCA 536; 8 FCR 85 at 88-89.
Having examined the material referred to earlier, I am comfortably satisfied that s 37(1)(b) applies and that the diary entries and calendar entry are exempt documents. I am satisfied that the relevant person was a source of information (rather than a recipient of information as contended by Mr Roberts-Smith) and that the person was a confidential source of information in that the parties interacted on the basis that the person’s identity would be kept confidential.
Section 46(b) – disclosure would be contrary to a direction
Section 46(b) of the FOI Act provides:
A document is an exempt document if public disclosure of the document would, apart from this Act and any immunity of the Crown:
…
(b)be contrary to an order made or direction given by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath; …
Section 124(1)(h) of the Defence Act 1903 (Cth) (Defence Act) confers a power to make regulations prescribing the procedures, powers and reporting obligations of the IGADF in respect of the performance of the IGADF’s functions. Those functions include the inquiry functions conferred on the IGADF by sub-ss 110C(1)(a), (e) and (f) of the Defence Act.
The Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (IGADF Regulation) was made under s 124(1)(h) of the Defence Act. Section 23(3) of the IGADF Regulation confers on the IGADF a power to compel a person to give information, produce documents and appear before the IGADF, an inquiry officer or an Assistant IGADF to answer questions. Where a person is compulsorily examined under s 23(3)(c), the IGADF has power to require answers to be verified by, or given on, oath or affirmation: s 23(5). The IGADF, or an Assistant IGADF authorised under s 24 to exercise the powers under s 23, is a person “having power to take evidence on oath”.
It was not in dispute that the Assistant IGADF appointed to conduct the Afghanistan Inquiry was, therefore, a person or body of the kind referred to in s 46(b) of the FOI Act.
On 27 October 2017, the Assistant IGADF made a Direction under s 21 of the IGADF Regulation (2017 Direction). Parts of the 2017 Direction are the subject of a confidentiality order made on 6 March 2023 – see: ReRoberts-Smith and Inspector General Australian Defence Force [2023] AATA 335.
Mr Roberts-Smith has been provided with access to a redacted version of the 2017 Direction. The redacted version is as follows:
I direct that the information … [REDACTION]… not be disclosed.
On 29 October 2020, the Assistant IGADF made a Direction under s 21 of the IGADF Regulation (2020 Direction) in the following terms:
I direct that there is to be no public disclosure of, or anything which would tend to identify:
a.any person who has given evidence or information to the inquiry who is referred to in Parts 2 or 3 of Reference C;
b.any person mentioned in any finding or recommendation contained in the Report.
The respondent contends that disclosure of the documents would be contrary to both the 2017 Direction and the 2020 Direction.
Section 21 of the IGADF Regulation provides:
21 Directions regarding disclosure of evidence
(1) If the Inspector-General ADF is satisfied that it is necessary to do so in the interests of the defence of the Commonwealth, or of fairness to a person who the Inspector-General ADF considers may be affected by an inquiry, the Inspector-General ADF may give a direction restricting the disclosure of the following:
(a) information contained in oral evidence given during the inquiry, whether in public or in private;
(b) all or part of any document received during the course of the inquiry;
(c) information contained in a report about the inquiry that is given to a person under section 27.
(2) The Inspector-General ADF may, in writing, authorise an inquiry officer, or an Assistant IGADF, to give a direction under subsection (1) in relation to an inquiry that the inquiry officer has been appointed to conduct, or that the Assistant IGADF has been directed to conduct.
(3) A person commits an offence if the person contravenes a direction given under subsection (1).
Penalty: 10 penalty units.
Part of Mr Roberts-Smith’s submissions were framed as a challenge to the validity of the 2017 and 2020 Directions, which were said to be beyond the power conferred by s 21 of the IGADF Regulation and not validly issued. In summary, his submission was:
(a)Section 21 seeks to restrict the disclosure of oral evidence given, and documents received, during an inquiry or information contained in a report about the inquiry. It does not expressly permit the IGADF to restrict the disclosure of the identity of persons with whom the IGADF has met.
(b)The identity of a person with whom the Assistant IGADF met is not “information contained in oral evidence” that may be lawfully protected from disclosure by the issuing of a direction under s 21.
(c)To the extent that the 27 October 2017 and the 29 October 2020 directions purported to restrict disclosure of the names of persons who gave evidence to the inquiry, they were beyond power and not validly issued.
As Mr Roberts-Smith ultimately accepted, the Tribunal does not have power to determine the validity of the 2017 and 2020 Directions. The real issue for the Tribunal is whether s 46(b) applies given the existence of those Directions.
As to Mr Roberts-Smith’s submissions about the scope of s 21 of the IGADF Regulation, I make two observations. First, s 19 permits the IGADF to direct that all or part of an inquiry be held in public or private and, if in private, who can be present. Section 23(3) furnishes power to the IGADF to require a person to give information or appear to answer questions. The IGADF may require answers to be given on oath or affirmation and, in either case, orally or in writing: s 23(5). However, nothing in s 23 requires answers to be given only under compulsion, nor only under oath or affirmation. Section 21, including its reference to “oral evidence given”, must be construed in this context. It is not a reference only to such evidence when given under compulsion or after having taken an oath or affirmation.
Secondly, the word “information” appears in both paragraphs (a) and (c) of s 21(1) and is likely to mean the same thing in both paragraphs. Section 21(1)(c) according to its ordinary meaning authorises a direction restricting disclosure of the identity of a person named in a relevant report, being one effect of the 2020 Direction. The name or identity of a person contained in a report is “information contained in a report”. The word “information” in s 21(1)(a) should be construed in the same way, namely as including the identity of the person giving evidence. It should not be presumed that s 21 was intended to empower the IGADF to restrict disclosure of a person’s identity in a report, but not in connection with the giving of the evidence or steps preparatory to the giving evidence on which the report was based. This would defeat the evident purpose of the power.
I am satisfied that disclosure of the diary entries would contravene both the 2017 and 2020 Directions and that disclosure of the calendar entry would contravene the 2017 Direction. It is not necessary to determine whether disclosure of the calendar entry would also contravene the 2020 Direction. I would have required further evidence on this topic if it had been necessary to decide this question. Given that I have concluded that the calendar entry is exempt on other bases, and also conditionally exempt (see below), I considered this course to be undesirable. A full discussion of the reasons for and against the application of s 46(b) is not practical in circumstances where considerations of confidentiality prevent disclosure of: (a) the whole of the 2017 Direction; and (b) parts of the reasoning which I would give in relation to the operation of both the 2017 and 2020 Directions absent considerations of confidentiality.
Section 47F – unreasonable disclosure of personal information
Section 47F of the FOI Act includes:
(1)A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(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;
(d) any other matters that the agency or Minister considers relevant.
…
The term “personal information” in s 47F of the FOI Act has the same meaning as the term has in the Privacy Act 1988 (Cth). In that Act the term is defined in s 6:
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
As acknowledged by Mr Roberts-Smith in his SFIC at [48], the connection of a person’s identity with the imparting of confidential information can be information which, if contained in a document of an agency, would render the document exempt under s 47F – see: McEniery at 356. I am satisfied that disclosure of the diary entries and the calendar entry would involve the disclosure of personal information about a person or persons.
Whether a disclosure is unreasonable depends on all of the circumstances, including: the nature of the information that would be disclosed; the circumstances in which the information was obtained; whether the person concerned has consented to the information being disclosed or, if the person has not been consulted, whether the person is likely to wish to have the information disclosed without consent; whether the information has any continuing relevance – see, for example: Re John Chandra and Department of Immigration and Ethnic Affairs [1984] AATA 437; 6 ALN N257 at [51].
I have considered each of the matters in (a) to (c) of s 47F(2) and, as required by s 47F(2)(d), other matters I considered to be relevant, including the material contained in the confidential affidavit of Commodore Fiona Sneath. Having considered those matters, I conclude that the disclosure of the diary entries and the calendar entry would involve the “unreasonable” disclosure of personal information.
I am also satisfied that such disclosure “would, on balance, be contrary to the public interest”, within the meaning of s 11A(5), having regard to:
(a)the nature of the information that would be disclosed;
(b)the circumstances in which the information was obtained;
(c)the conclusion I have reached in relation to all of the personal information concerned that there is either a refusal of consent or no person would wish to have the information disclosed without the person’s consent;
(d)the material in the confidential affidavit addressing matters relevant to s 47F; and
(e)the countervailing submissions advanced by Mr Roberts-Smith.
Mr Roberts-Smith submitted that the disclosure of the information would not cause prejudice to the ongoing investigation of him by law enforcement authorities. I accept that it would not cause any direct prejudice to those investigations.
The more important consideration is that, if the information were to be disclosed under the FOI Act, that fact is likely to discourage people assisting future inquiries, not just future inquiries by the IGADF. The public interest is not served by permitting a person’s confidential participation in an inquiry of the kind underlying this dispute, or of similar or analogous kinds, to be disclosed by the making of a request under the FOI Act where the fact of that participation would otherwise have been protected.
I am satisfied that the disclosure of the diary entries and calendar entry would involve the unreasonable disclosure of personal information about a person which would, on balance, be contrary to the public interest. It follows that the diary entries and calendar entry are conditionally exempt documents under section 47F of the FOI Act.
DECISION
For these reasons, the Tribunal affirms the decision under review to refuse the applicant access to the diary entries and the calendar entry. The Tribunal concludes that the diary entries and the calendar entry are exempt documents under ss 37(1)(b) and 46(b) of the FOI Act. The Tribunal further finds that the diary entries and the calendar entry are conditionally exempt documents pursuant to s 47F of the FOI Act.
1. I certify that the preceding 57 paragraphs are a true copy of the reasons for the decision herein of Justice T Thawley, Deputy President
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Associate
Dated: 9 May 2023
Date of hearing: 24 April 2023 Counsel for the Applicant: Mr A Moses SC & Mr P Sharp Solicitors for the Applicant: Mark O'Brien Legal Counsel for the Respondent: Ms C Ernst Solicitors for the Respondent: Australian Government Solicitor
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