Scholes and Australian Federal Police (Freedom of information)

Scholes and Australian Federal Police (Freedom of information) [2024] ARTA 92 (11 December 2024)
Applicant:Alistair Scholes
Respondent: Australian Federal Police
Tribunal Number: 2024/1171

Tribunal:Deputy President Britten-Jones
Place:Melbourne
Date:11 December 2024

Decision:The Tribunal sets aside the decision under review and in substitution decides that the applicant be given access to the AFP Update except for the personal information related to DSS officials and phone numbers and passport details of the other persons named in the document.

..............[SGD]..........................................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decision to refuse access to documents related to – claim that documents are exempt under s 47F of the Freedom of Information Act 1982 – whether disclosure would involve unreasonable disclosure of personal information – whether reasonable steps have been taken to find documents – decision set aside
Legislation
Freedom of Information Act 1982 (Cth)
Cases
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
Secondary Materials
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (November 2023 and May 2024)
Statement of Reasons

The applicant sought access to documents under the Freedom of Information Act 1982 (Cth) (the FOI Act) relating to the kidnapping of himself and his fiancée in Nigeria in 2017 and subsequent events involving the Department of Foreign Affairs and Trade (DFAT) and the Australian Federal Police (the respondent or the AFP).
The request identified telephone calls to and from the applicant and meetings on dates in early December 2017. The applicant sought access to audio recordings or notes made of these communications and any related reports.
The respondent has identified one document in response to the request which has been provided in part to the applicant. It is a four-page document entitled ‘Scholes Case AFP Update’ and is dated 11 December 2017. I will refer to it as the AFP Update, and I note that it is a document prepared by DFAT and provided to the AFP. The redactions to the document are claimed under s 47F(1). The applicant questions the reasonableness of the searches carried out by the respondent for documents that come within the request made by him.
The respondent provided an affidavit from Mr Jesse Vince who is a detective sergeant at the AFP. Mr Vince gave oral evidence at the hearing. After Mr Vince had given his evidence which concluded the respondent’s case, counsel for the respondent requested an adjournment for 7 days to release further information in the AFP Update to the applicant. He suggested that the hearing be adjourned so as to allow the reviewable decision to be altered under s 31(2) of the Administrative Review Tribunal Act 2024 (Cth). That provision requires both parties and the Tribunal to consent to the proposed alteration. The applicant indicated that he would consent to an alteration of the decision which released further information to him. I queried the utility of an alteration to the decision which did not completely finalise the issues between the parties. I also indicated that it was not a complicated case and that I would be able to give a decision the following day if the hearing concluded on the first hearing day.
After some discussion and the obtaining of further instructions, counsel for the respondent advised that the respondent no longer objected to the applicant having access to the majority of the redactions that were the subject of s 47F claims. The applicant expressed a preference for the Tribunal to not adjourn the hearing and to proceed to make a decision which the Tribunal confirmed could be provided very shortly. I rejected the application for an adjournment and agreed with the applicant that the hearing should continue and that a decision be made noting the extensive concessions now made by the respondent. Thereafter, the applicant gave evidence and then the parties made short closing addresses.
STATUTORY FRAMEWORK
Freedom of Information Act 1982
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General:[1]
…The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[1] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the FOI Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
To promote the objects in s 3(1)(b), s 11(1) provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the FOI Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
If a document is exempt, the agency is not required to provide the document.
When exercising powers and functions under the FOI Act, the Tribunal must have regard to the Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (the FOI Guidelines).
THE CLAIM FOR EXEMPTION UNDER SECTION 47F – PERSONAL PRIVACY
Relevant principles
Section 47F relates to documents which disclose personal privacy of individuals and provides:
General rule
(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 FOI Guidelines at 6.133 say that the personal privacy exemption is designed to prevent the unreasonable invasion of third parties’ privacy. The Guidelines at 6.137 say that the key factors for determining whether disclosure is unreasonable include:
(a) the author of the document is identifiable
(b) the documents contain third party personal information
(c) release of the documents would cause stress on the third party
(d) no public purpose would be achieved through release.
Other matters that have been considered relevant at 6.138 include:
·the nature, age and current relevance of the information
·any detriment that disclosure may cause to the person to whom the information relates
·any opposition to disclosure expressed or likely to be held by that person
·the circumstances of an agency’s collection and use of the information
·the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act
·any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information, and
·whether disclosure of the information might advance the public interest in government transparency and integrity.
The public interest
If the documents are conditionally exempt, s 11A(5) provides that access must be given to them unless access at that time would, on balance, be contrary to the public interest.
Section 11B(3) provides:
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.
The s 47F claim relates to the redactions in the AFP Update, the disclosure of which would, on the respondent’s case, involve the unreasonable disclosure of personal information. The onus in this case, where the applicant has applied for review, is upon the respondent to establish that the decisions refusing access are justified, or that the Tribunal should give a decision adverse to the applicant.[2] In making my decision, I must have regard to the matters set out in the subparagraphs to s 47F(2) including as to whether the redacted information is well known or available from publicly accessible sources.
[2] Section 61 of the FOI Act
Mr Vince explained that three of the redactions in the AFP Update contained the names and personal information of security officials from the Department of State Services (DSS) in Nigeria. The applicant said that he was aware of those names, but he did not press for their disclosure to him. The other redactions were of names and personal information of persons related to or associated with the applicant’s fiancée. Mr Vince said that the disclosure of these names would raise personal safety issues for them and that redaction of the names would prevent the risk of harm to those persons. Under cross examination, the applicant questioned Mr Vince about why the respondent had not consulted[3] with the fiancée and her relatives about whether they objected to the disclosure of their personal information. Mr Vince said that there was no consultation and that he was not familiar with that process. It appears odd to me that the respondent would purportedly act in the best interests of these third parties without even consulting with them about their interests and finding out if they were concerned about disclosure of their names. Whilst these third parties did not give evidence, the applicant said that if his fiancée had been asked, she would not have objected to the release of her name.
[3] Section 27A of the FOI Act provides for consultation with persons whose personal information may be released.
The facts relating to the 2017 kidnapping were the subject of a Federal Court claim brought by the applicant against the Commonwealth of Australia for the tort of false imprisonment. The claim was dismissed by Kerr J and was reported in Scholes v Commonwealth of Australia [2021] FCA 1593 which is a publicly available decision. The hearing took place in open court on 5 to 8 October 2021. The reasons of Kerr J cover the events of and related to the kidnapping. The names of the persons involved are set out in the reasons. Most of the names redacted in the AFP Update are disclosed in Kerr J’s reasons. It is likely that the details of the court case were reported on by the media at the time of the trial and later when the decision was delivered. It follows that not only is the information available from a public source,[4] but it is likely to be well known[5] as a result of the publicity associated with the kidnapping and the trial. Further, the persons to whom the information relates are known to have been associated with the kidnapping because of that publicity and the trial.[6] It is not surprising in these circumstances that the applicant’s fiancée would not have objected to the disclosure of her name if she had been asked.
[4] See s 47F(2)(c).
[5] See s 47F(2)(a).
[6] See s 47F(2)(b).
The personal information that is publicly available because of the trial and the publication of the Federal Court decision does not extend to the names of the DSS officials and the phone number and passport details of those persons named in the Federal Court reasons, namely the fiancée and her relatives. The applicant does not request disclosure of the phone numbers, passport numbers, addresses and like details of the fiancée and those associated with her.
I note that the respondent no longer pursues the s 47F claims relating to the names of the fiancée and those persons associated with her except for the middle name of the fiancée and the middle and last name of the daughter called Princess. I reject this very limited s 47F claim which remains because the disclosure of this remaining personal information would not be unreasonable in circumstances where the first and last name of the fiancée are disclosed and the first name of the daughter is disclosed. Both the fiancée and the daughter are identified by name in the Federal Court reasons and therefore this further disclosure would not cause any additional detriment.
With respect to the names of DSS officials, I accept the respondent’s contention that their disclosure would be contrary to an expectation of confidentiality held by the Nigerian officials and that it could impact cooperation between the Australian government and the DSS or the Nigerian government in the future. I note, in any event, that the applicant indicated at the hearing that he did not pursue access to these names. The names and personal information of the DSS officials, which is the subject of three separate redactions in the AFP Update, are conditionally exempt under s 47F and disclosure of that information would be contrary to the public interest. Those three redactions should remain.
Subject to the qualification related to the names and personal information of DSS officials and the phone numbers etc of the fiancée and those associated with her, the redactions made by the respondent are not conditionally exempt under s 47F(1). The applicant should be given access to the AFP Update with redactions limited to that qualification. This will have the result that the names of the fiancée and those associated with her will not be redacted.
Reasonableness of searches
The respondent provided an affidavit from Mr Jesse Vince who is a detective sergeant for the respondent with 15 years’ experience including with respect to offshore kidnapping cases. He deposed:
[5] … At the time of Mr Scholes reported kidnap, I was an investigator working in the Offshore Criminal Operations involving Australians (OCOA) team. My primary role was to investigate reports of Australians kidnapped overseas. It was during this period that Mr Scholes was reportedly kidnapped that I was one of the lead investigators. I have a high level of understanding about Mr Scholes’ case and I am aware of the circumstances of the kidnapping and subsequent release, as was reported to me, and learnt, during the investigation. As a lead investigator, I am familiar with all documents and document management relating to this investigation.
Mr Vince had full access to the documents held by the respondent relevant to the applicant. He was familiar with those documents and able to undertake specific searches for the documents requested by the applicant. He described the four repositories of relevant documents and the searches that he undertook on the respondent’s systems. He found the one document that has been partially released to the applicant. He did not locate any other documents within the classes requested of DFAT’s notes and DFAT’s telephone recordings. Mr Vince concludes in his affidavit that no DFAT notes or DFAT telephone recording exist within the meaning of s 24A(1)(b)(ii) of the FOI Act.
Mr Vince gave oral evidence to the Tribunal and was cross examined by the applicant. He confirmed how he had conducted searches at the AFP for the documents requested by the applicant. He referred to letters from DFAT to the applicant advising that searches had been carried out by DFAT and that no documents relevant to the applicant’s requests had been located at DFAT.
I accept the evidence given by Mr Vince in relation to the searches and I conclude that all reasonable steps have been taken to identify documents relevant to the requests made.
DECISION
The decision of the Tribunal is to set aside the decision under review and to substitute a decision that the applicant be given access to the AFP Update except for the personal information related to DSS officials and phone numbers, passport details and similar information of the other persons named in the document.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

..................[sgd]......................................................
Associate
Dated: 11 December 2024

Date(s) of hearing: 10 December 2024

Applicant’s Representative: Self-represented

Solicitors for the Respondent: Holding Redlich

[2024] ARTA 92

11 December 2024

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Freedom of Information

Judicial Review

Reasonable Steps

Personal Information

Date(s) of hearing:	10 December 2024
Applicant’s Representative:	Self-represented
Solicitors for the Respondent:	Holding Redlich