Theophanous and Australian Criminal Intelligence Commission (Freedom of information)
[2017] AATA 1146
•26 July 2017
Theophanous and Australian Criminal Intelligence Commission (Freedom of information) [2017] AATA 1146 (26 July 2017)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2015/1878
Re:Andrew Theophanous
APPLICANT
Australian Criminal Intelligence CommissionAnd
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment
Date:26 July 2017
Place:Sydney
The Tribunal decides that, pursuant to s 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the matters agreed by the parties to be dealt with on the papers are inappropriate for a decision on the papers and ought to be dealt with on the hearing of this matter.
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Deputy President B. W. Rayment
CATCHWORDS
FREEDOM OF INFORMATION – preliminary question of relevance – list of documents in respect of which there is a dispute about relevance - whether respondent has taken all reasonable steps to find documents within the scope of the applicant’s freedom of information request – insufficient evidence before the Tribunal – matter inappropriate to be dealt with on the papers and instead to be dealt with on the hearing of the substantive matter
REASONS FOR DECISION
Deputy President B W Rayment
26 July 2017
In this matter the parties attended a directions hearing by telephone on 20 March 2017 before Deputy President Constance. The Tribunal then noted that it was agreed between the parties that preliminary questions of relevance arising in relation to a list of documents should be dealt with on the papers. I have commenced to embark upon that consideration by considering written submissions made by the parties.
The respondent has filed submissions which suggest that the issue of search, that is whether the respondent has taken all reasonable steps to find documents within the scope of the applicant’s freedom of information request dated 29 October 2011 (the FOI request) have been taken, is also within the task to be undertaken on the papers. It is not clear whether the applicant agrees to that issue being determined on the papers. The applicant has made submissions on the exemptions claimed, which are not within what the respondent submits are issues relevant at the present time.
The applicant has referred, in his submissions, to the background to the FOI request including criminal proceedings taken against him and subsequent proceedings before her Honour Judge Morrish of the Victorian County Court granting a permanent stay of a retrial, which is described by the applicant as the main charge against him, in the course of which her Honour was apparently critical of the failure of the National Crime Authority to disclose documents for the purposes of the earlier trial. It is not clear whether any of the documents now in issue fall into the category considered by her Honour.
I embarked on a comparison between the written FOI request and the first document on the agreed list of documents in respect of which there is a dispute about relevance filed with the Tribunal on 31 March 2017 (list of disputed documents). The category in the FOI request to which the first document in the list of disputed documents may go is category 4, as set out in the Respondent’s submissions dated 9 May 2017. For the purpose of category 4, one would need to know what the “Admissions document” is, and to have some evidence indicating why the pages in contest do not fall into category 4, a matter on which the respondent bears an onus under s 61 of the Freedom of Information Act 1982 (Cth). I do not have such evidence before me. I suspect that the same or a similar problem may be presented in relation to the other documents the relevance of which is in dispute. In the case of document 1 on the list of disputed documents, if the document mentions the name of a person, without further evidence one does not know whether notes concerning that person make the document fall within category 4.
Moreover it seems to me that the criminal charges, the judgment of Judge Morrish, the proceedings on the first trial and the appeal, and perhaps the applicant’s Petition of Mercy may be relevant context to be taken into account when considering the FOI request and its scope. I do not have those things before me.
Despite the agreement of the parties for the determination of relevance issues on the papers it seems to me to be inappropriate to embark on consideration of relevance issues or search issues otherwise than at a hearing of the review of the decisions made by the respondent in response to the applicant’s FOI request.
The Tribunal decides that, pursuant to s 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the matters agreed by the parties to be dealt with on the papers are inappropriate for a decision on the papers and ought to be dealt with on the hearing of this matter. This matter will be the subject of further directions before the Tribunal on a date to be arranged with the parties, with a view of setting it down for hearing when the evidence is complete.
I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B. W. Rayment
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Associate
Dated: 26 July 2017
Date of hearing on the papers: 24 July 2017
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