VKJY and Secretary, Department of Home Affairs (Freedom of information)
[2022] AATA 4306
•14 December 2022
VKJY and Secretary, Department of Home Affairs (Freedom of information) [2022] AATA 4306 (14 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/0436
Re:VKJY
APPLICANT
AndSecretary, Department of Home Affairs
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member; Mr S Evans, Member
Date:6 December 2022
Date of Decision: 14 December 2022
Place:Sydney
The Tribunal remits the matter back to the Respondent, with the following directions:
(a)The portion of the email dated 23 December 2020 between Josh Contin and Onpro Litigation and Josh Power which commences with “Dear Onpro Litigation Colleagues” and concludes at “CLD2020/32547083 – Applicant’s Immicard” is not covered by the legal professional privilege exemption of the Act and should be released to the Applicant;
(b)The entire email dated 4 January 2021 between Carly Selby-James and Josh Contin is not covered by the legal professional privilege exemption of the Act and should be released to the Applicant;
(c)Those documents where the Respondent has claimed exemption under section 47E(c) of the Act are found not to be conditionally exempt and should be released accordingly in an unredacted form (save for any personal mobile phone numbers); and
(d)Further searches should be conducted in accordance with the criteria as set out in the Applicant’s request for access to country information, as defined in the Notice to Produce dated 6 October 2022.
...............................[Sgd].......................................
Chris Puplick AM, Senior MemberCatchwords
FREEDOM OF INFORMATION — Office of Australian Information Commissioner declined to undertake further review under 54W of the Freedom of Information Act 1982 (Cth) —Freedom of information decision under review by the Tribunal — Whether respondent has taken all steps to find documents within the scope of the applicant’s freedom of information request — Whether conditional exemptions in 47E and 11B of the Freedom of Information Act 1982 (Cth) properly applied — Whether 42 of the Freedom of Information Act 1982 (Cth) properly applied — Scope of request interpreted unduly narrowly by respondent — Conditional exemptions improperly applied — documents only partially covered by legal professional privilege — Decision under review remitted to respondent with directions.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth)Cases
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
MC and Department of Defence (Freedom of Information) [2017] AICmr 74
Re Novak and Australian Federal Police [2010] AATA 219
ZT and Department of Home Affairs [2022] AICmr 4
Secondary Materials
Freedom of Information Guidelines – Guidelines Issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth), Combined February 2022
DFAT Thematic Reports on Political and Security Developments in Afghanistan (August 2021 to January 2022)
REASONS FOR DECISION
14 December 2022
I tHE APPLICATION
On 2 January 2022, VKJY (the Applicant) applied to this Tribunal for a review of a decision by the Secretary of the (then) Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs[1] (the Respondent) claiming that the decision was an inadequate response to an application which he had made under the Freedom of Information Act 1982 (Cth) (the Act) on 15 February 2021.[2]
[1] Now the Department of Home Affairs.
[2] Tribunal documents at 10
The original application sought access (Freedom of Information (“FOI”) request) to the following documents:
1. all material in any form, postdating my 18 February 2019 request under the Freedom of Information Act 1982 (Cth) (FA 19/02/01415) (FOI request), relating to:
a. my Safe Haven Enterprise (Class XE, Subclass 790) visa application (BCC2016/705520);
b. my 9 February 2021 Bridging E (Class WE, Subclass 050) visa application;
c. my 3 April 2019 Bridging E (class WE, Subclass 050) visa application (CLF2018/356956);
d. my 18 August 2016 Bridging E (Class WE, Subclass 050 visa application (CLF2018/356956)
e. my Bridging E (Class WE, Subclass 050) visa application that was granted on 14 August 2015; and
f. my Bridging E (Class WE, Subclass 050) visa application that was granted on 16 May 2013 (CLF2013/63430).
2. A list of all country information added to Immigration's country information database relating to and / or about Afghanistan since the referral of the decision to refuse to grant me a protection visa to the Immigration Assessment Authority (IAA) on 17 October 2017 and 8 January 2021 (being the date of the most recent IAA decision relating to me).
3. A list of all country information added to Immigration's country information database relating to and / about Afghanistan since 8 January 2021.
4. Copies of the country information appearing on the lists above which are not publicly available.
5. All material in any form evidencing the exercise of power by the Secretary under s473CB of the Migration Act 1958 (Cth) or any delegate of the Secretary for the purposes of that provision, on or after 21 January 2019 (being the date that the Federal Circuit Court of Australia first ordered the IAA to re-determine its review of the decision to refuse to grant me a protection visa).[3]
[3] T-documents at 10-11
II Departmental response
On 15 March 2021 a delegate of the Respondent made a decision in which they identified four documents as being relevant to the application in hand.
Three of those documents were released in full to the Applicant:
(e)Departmental Electronic File: BCC202128834 consisting of documents contained in the Tribunal documents (T-documents) at 28-104;
(f)Departmental Electronic File: CLF2018356956posr8022019 consisting of documents which appear in the T-documents at 105-296, and
(g)Departmental Electronic File: CLF201363430 consisting of documents which appear in the T-documents at 391-438.[4]
[4] T-documents at 25
In relation to the fourth identified document (the identified document), this was released in part:[5]
(h)Departmental Electronic File: BCC2016705520 post 18022019, with the decision structured as follows:
[5] T-documents at 25.
Pages Decision Full Exemption claimed FOI Act section 1 – 54 Release in full 55 – 66 Legal professional privilege 42 (1) 67 Release in full 68 - 86 Legal professional privilege 42 (1) 87 – 89 Release in full 90 – 91 Third party names and file information not relevant 47F (1) 92 – 94 Release in full III Appeal to the Office of the Australian Information Commissioner
On 24 March 2021 the Applicant applied to the Office of the Australian Information Commissioner (the Commissioner) for a review of the original decision. In that application, the Applicant claimed that the Delegate:
(a)had failed to release the Country Information sought at items 2-4 of the Applicant’s FOI request as outlined in paragraph [2]
(b)had failed to release all documents falling within the scope of the request which post-dated 18 February 2019;
(c)had failed to release all documents responding to item 5 of the Applicant’s FOI request as outlined at paragraph [2]
(d)should not have redacted the names and contact details of staff and contractors of the Australian Government as irrelevant to the scope of the FOI Request;
(e)should not have assessed folios 55 – 66 and 68 – 86 of Document 3 as being exempt in-full from disclosure pursuant to subsection 42(1) of the FOI Act;
(f)should not have assessed folios 90 – 91 of Document 3 as being exempt under section 47F of the FOI Act.[6]
[6] T-documents at 794-797
The Commissioner decided that rather than make a determination in the matter, she would exercise her discretion under subsection 54W(b) of the Act and refer the application directly to this Tribunal.[7]
[7] T-documents at 10
IV matters before the tribunal
On 2 January 2022 the Applicant completed a formal request to the Tribunal for a review of the original decision and that matter was heard on 6 December 2022.
There are in essence, two matters before the Tribunal:
1.in respect of the redacted parts of the identified document, are the Respondent’s claims for full exemption of folios under sections 42(1) and 47E(c) of the Act, justified and
2.in relation to items [2] to [5] of the original request, has the Respondent released all relevant documents as requested?
In relation to the first matter, the Respondent originally sought to base their decision to redact certain material on the basis that it was “irrelevant” to the application under section 22 of the Act,[8] but in later submissions resiles from that position and now seeks exemption on the basis that disclosure would have an adverse impact on the operations of the agency under subsection 47E(c), and due to public interest factors under section 11B.[9] It maintains its position on legal professional privilege over other items.
[8] Decision Record of Access Decision – FOI request: T-documents at 20:.
[9] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at [46]-[49].
It is the Respondent’s position on the second matter that after comprehensive searching of the relevant departmental files and databases that it has:
(a)identified certain documents raised by the Applicant as having already been released pursuant to original FOI Request;
(b)identified one document which had not already been released. The Respondent confirms that it is in the process of engaging with the Applicant as to the administrative release of that document;[10] and
(c)otherwise identified no other documents responding to the Applicant’s FOI Request which had not already been released.
[10] The Tribunal understand that this material has now been provided to the Applicant.
The Applicant rejects the Respondent’s assertion and makes a further claim that the Respondent has unduly “narrowed” the construction of the relevant parts of the Applicant’s request[11] and that as a result it has not conducted a full and comprehensive search of its records as required by subsection 24A(1)(a) of the Act. In this respect the Applicant seeks an immediate remedy by way of an order made under section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) requiring the Respondent to provide it with further information.[12]
[11] Applicant’s Statement of Facts, Issues and Contentions (ASFIC) at [14](a).
[12] ASFIC, at [22]
Although the documents in question relate to the Applicant’s concerns about decisions made elsewhere regarding his visa status, it is important to note that subsection 11(1) of the Act makes it clear that “every person has a legally enforceable right to obtain access” to documents in accordance with the provisions of the Act. This right extends to non-citizens who are resident in Australia, and the right of access is in no way qualified or affected by “any reasons the person gives for seeking access.”[13]
[13] Subsection 11(2)(b) of the Act
v sECTION 42(1) LEGAL PROFESSIONAL PRIVILEGE
In the hearing, the Respondent takes the position that in dealing with any immigration applications such as that submitted by the Applicant, once the Respondent has sought advice from Counsel any documents which might flow from the start of that process no matter how tenuous or tangential to any issues of substance are, covered by the legal professional privilege exemptions of the Act. They may remain so, even after the matter has been finalised.
According to the Respondent, the way in which this is achieved is by including in the “subject” box of the email the words “Please note Counsel Advice [SEC=OFFICIAL; Sensitive, ACCESS = Legal=Privilege]”. This is a formulaic approach designed by mere assertion to cloak all correspondence in the mantle of privilege and thereby claim a section 42(1) exemption, regardless of the actual content or status of the document in question. This is an incorrect approach in asserting legal professional privilege. It no more achieves this than would stamping every document “secret” thereby automatically render it so. It is the Humpty Dumpty principle of asserting that “[w]hen I use a word, it means just what I chose it to mean – neither more nor less”.[14]
[14] Lewis Carroll, Alice Through the Looking Glass (Penguin edition, 1965) at 269.
Guidelines are to be established to assist agencies in deciding FOI matters to inform the appropriate approach towards legal professional privilege. The Act relevantly provides:
93A Guidelines
(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.
Note: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions:
(a) paragraph 9A(b) (information publication scheme);
(b) subsection 11B(5) (public interest factors);
(c) subsection 15(5A) (decisions on requests).
(3) Guidelines are not legislative instrument
The Act sets out a set of objectives reflecting the public policy determined by the Parliament in the following terms:
3 Objects—general
(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.
3A Objects—information or documents otherwise accessible
Scope
(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.
Publication and access powers not limited
(2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:
(a) in the case of the power to publish the information or document—despite any restriction on the publication of the information or document under this Act; and
(b) in the case of the power to give access to the information or document—whether or not access to the information or document has been requested under section 15.
The Act then brings together the various provisions referred to above and directs how agencies should go about performing their functions with the following provisions:
9A Functions and powers under this Part
In performing a function, or exercising a power, under this Part, an agency must have regard to:
(a) the objects of this Act (including all the matters set out in sections 3 and 3A); and(b) guidelines issued by the Information Commissioner for the purposes of this paragraph under section 93A.
Finally, in determining the correct approach to establishing legal professional privilege, the general principles above are in turn informed by section 42 of the Act, which provides:
42 Documents subject to legal professional privilege
(1) A document is an exempt 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.
(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
Pursuant to section 9A(b) of the Act, the Commissioner has issued the FOI Guidelines (Guidelines) outlining the approach which should be taken by agencies in making claims of legal professional privilege. These include (with footnotes and citations omitted):
Documents subject to legal professional privilege (s 42)
5.126 Section 42(1) 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 (LPP).
5.127 The FOI Act does not define LPP for the purposes of the exemption. To determine the application of this exemption, the decision maker needs to turn to common law concepts of LPP. The statutory test of client legal privilege under the Evidence Act 1995 is not applicable and should not be taken into account. It is important that each aspect of the privilege, as discussed below, be addressed in the decision maker’s statement of reasons.
Whether a document attracts legal professional privilege
5.128 LPP applies to some but not all communications between legal advisers and clients. The underlying policy basis for LPP is to promote the full and frank disclosure between a lawyer and client to the benefit of the effective administration of justice. It is the purpose of the communication that is determinative The information in a document is relevant and may assist in determining the purpose of the communication, but the information in itself is not determinative.
5.129 At common law, determining whether a communication is privileged requires a consideration of:
-whether there is a legal adviser-client relationship
-whether the communication was for the purpose of giving or receiving legal advice, or use in connection with actual or anticipated litigation
-whether the advice given is independent
-whether the advice given is confidential.
…
The scope of a claim of legal professional privilege over a document
5.141 In light of recent AAT authority, the Information Commissioner recommends that agencies and ministers consider whether or not the entire contents of a document meets the dominant purpose test, and where not, and reasonably practicable to do so consider giving the applicant access to non-substantive material that is not of itself privileged while remaining mindful of the consequence of unintended waiver of privilege (see below at [5.144] – [5.149]. In considering whether it is reasonably practicable to prepare an edited copy of a privileged document under s 22 of the FOI Act so the edited document would not disclose exempt material, the decision maker should consider whether editing would leave only a skeleton of the former document that would convey little content or substance. In which case, the purpose of the FOI Act may not be served by disclosing an edited copy and the document should be exempted in full (see Part 3).
…
The ‘real harm’ test
5.150 Agencies are advised not to claim exemption for a document under s 42 unless it is considered that ‘real harm’ would result from releasing the document. A ‘real harm’ criterion is not an element of the common law doctrine of LPP, but has been acknowledged within government as a relevant discretionary test to apply in FOI administration. The phrase ‘real harm’ distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency.
5.151 An agency’s decision on the ‘real harm’ criterion is not an issue that can be addressed in an IC review for the reason that the Information Commissioner cannot decide that access is to be given to a document, so far as it contains exempt matter.
The T-documents at pages 351-362 and 364-382 are the same as the folios redacted by the Respondent. By order of the Tribunal the Respondent also provided a full set of the unredacted materials.
The affidavit of Mr Ben Sangster (Principal Legal Officer, Fast Track Litigation section, Department of Home Affairs) (Mr Sangster) sets out the Respondent’s claims for legal professional privilege in respect of each of the documents. Mr Sangster also gave evidence to the Tribunal in support of his affidavit.
In the affidavit Mr Sangster sets out the claim in relation to each of the pages at 351-362 by reference to specific matters. He then characterises the material at pages 364-382 as being either “further evidence” of similar matters or else another matter covered by the exemption.[15]
[15] Mr Sangster’s Affidavit dated 29 July 2022 at [7]-[9]
The Applicant points out that at least three of the documents claimed to be exempt have already been published. These are listed in Mr Sangster’s affidavit as
(i) emails from 30 November between the Assistant Director in the Humanitarian Program Operations Branch of the Department and an officer within the Protection Caseload Resolution Section of the Department regarding the status of an issue;
(j) an email from 10 December 2020 from an officer in the Humanitarian
Program Operations Branch of the Department seeking an update;(k) an email from 11 December 2022 from an officer within the Protection Caseload Resolution Section in relation to an issue raised by the Assistant Director to be discussed with Counsel.[16]
[16] Mr Sangster’s Affidavit dated 29 July 2022 at [8]
In the hearing, the Applicant drew attention to pages 347-348 of the T-documents and asserts that they are materially the same documents. However, examination by the Tribunal of both the redacted and unredacted documents shows that while this might be the case in relation to some aspects of the documents, they are not identical.
For example, while the email dated 9 December 2020 makes reference to the email of 30 November 2020 (i.e. item (i) above), it cannot be said to accurately expose the full nature of the advice contained in that original communication.
Similarly, the Applicant’s reference to an email “which is an 8 December 2020 email, which appears to disclose the contents of the 10 and 11 December emails”[17] may, perhaps, anticipate such contents but can hardly disclose it.
[17] ASFIC at [80](b).
What the Applicant is seeking to do in these submissions is to advance the case that the Respondent has, in effect, waived the claim of privilege pursuant to section 42(2)of the Act. But this is not a proposition sustainable on the evidence before the Tribunal.
Nevertheless, the Tribunal has reviewed the unredacted material and concluded that there are certain documents, or parts of documents where the claim of legal professional privilege is not properly made.
A number of those documents are in the form of simple emails between departmental officials seeking an update of information, acknowledging receipt of updates, advising that Counsel might not be available on certain dates, or passing on Christmas/New Year felicitations. There is no purpose in requiring release of these documents as they “would convey little content or substance” as forewarned in the Commissioner’s Guidelines at paragraph 5.141.
However, there is an email dated 23 December 2020 which is separated into two parts. The first part advised that the “following additional documents” have been identified in file searches, and lists five such documents with file numbers attached to each. The second part details the development of the Respondent’s case before the Courts at of that date. This document is easily severable, and the Tribunal believes that the first part of the document should be provided to the Applicant while keeping the second part wholly exempt.
There is also an email dated 4 January 2021 which confirms that the Respondent have no concerns about the use of the additional material referenced in the 23 December 2020 email and has concluded that “there is no need to search for or provide” any certain updated information to a decision maker.
This seems to the Tribunal to be simply a statement of fact as to what material was provided to a decision maker in the course of ordinary proceedings and there is no reason that the Applicant should not be made aware of such a decision. The contents of this email should therefore be provided accordingly.
The Tribunal is satisfied that all the other material should be accepted as being covered by the legal professional privilege exemption, either because it is clearly correspondence deriving from or related to advice from Counsel (and therefore attracting “real harm” coverage) or is of an entirely trivial and insubstantial nature.
VI Section 47E(c) exemption
The Applicant challenges the Respondent’s redaction of the names and contact details (particularly email addresses) on the basis that it “should not have redacted the names and contact details of staff and contractors of the Australian Government as irrelevant to the scope of the FOI Request”[18]
[18] RSFIC at [6](d)
As noted above, this material was originally exempted on 15 March 2021 on the grounds of relevance under section 22 of the Act. But the Respondent now asks the Tribunal to uphold the exemption on a different ground[19], namely that set out in subsection 47E(c):
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
[19] RSFIC at [47](a).
If such a ground is established, then section 11B(1) of the Act requires the Tribunal to determine whether “on balance” denial of access would “be contrary to the public interest”.
There are contrary views relevant to this point expressed in a number of Commissioner’s and judicial decisions.
In MC the Acting Commissioner held that release of mobile phone numbers could lead to potential harassment of staff members out of hours and the receipt of unwelcome or threatening calls. This in turn would result in an adverse effect on the management function of the Department. [20] It is not clear as to whether details of officers’ names was before the Commissioner, but in any event, there is nothing in the decision in MC to indicate that the Commissioner specifically granted an exemption covering the names of the relevant officers.
[20] MC and Department of Defence (Freedom of Information) [2017] AICmr 74 at [18].
By contrast, in ZT a different decision was reached, albeit with reference to “contact details” rather than specifically to mobile phone numbers.[21] It is appropriate to set out in full the Acting Commissioner’s reasoning in that case:[22]
[21] ZT and Department of Home Affairs [2022] AICmr 4 at [44]-[58].
[22] Footnotes and citations omitted.
(s 47E(c))
44 The Department contended that if the names and direct contact details of public servants were not irrelevant to the applicant’s request, they are alternatively exempt under s 47E(c).
45 As discussed in the FOI Guidelines and in IC review cases,the main requirement of this public interest conditional exemption is that disclosure of a document would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or an agency.
46 The FOI Guidelines explain:
For this exemption to apply, the document must relate to either:
the management of personnel – including the broader human resources policies and activities, recruitment, promotion, compensation, discipline, harassment and occupational health and safety
the assessment of personnel – including the broader performance management policies and activities concerning competency, in-house training requirements, appraisals and underperformance, counselling, feedback, assessment for bonus or eligibility for progression.
47 The FOI Guidelines explain the term ‘substantial adverse effect’:
... broadly means ‘an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person’. The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’.
48 The FOI Guidelines further explain:
For the grounds in ss 47E(a)-(d) to apply, the predicted effect needs to be reasonably expected to occur...There must be more than merely an assumption or allegation that damage may occur if the document were to be released.
...
An agency cannot merely assert that an effect would occur following disclosure. The particulars of the predicted effect should be identified during the decision making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied upon, the relevant particulars and reasons should form part of the decision maker’s statement of reasons, if they can be included without disclosing exempt material ...
49 In relation to the substantial adverse effect that could occur following disclosure of names and direct contact details, the Department said in its submissions:
Staff names and direct contact details are not published outside the Department in order to protect staff against the risk of inappropriate unsolicited approaches, personal attack and harassment. Given the sensitive nature of the work conducted by many departmental officers, the widespread dissemination of their name and contact details may result in unsolicited approaches and personal attacks.
The Department has a primary duty of care to ensure, so far as is reasonably practical, the health and safety of its officers under the Work Health and Safety Act 2011 (WHS Act). The Department must ensure, as far as is reasonably practicable, that the health and safety of other persons is also not put at risk from work carried out as part of the conduct of the Department.
The Department submits that the disclosure of the names of officers and their direct contact details contained within the documents could impact on the ability of the Department to comply with its health and safety obligations under the WHS Act. This would, or could reasonably be expected to, have a substantial adverse effect on the management of personnel by the Department.
50 In their submissions, the applicant said:
-with regards to the newly raised claim that the names and contact details of Immigration staff are exempt pursuant to s 47(c), we note:
-no evidence has been put forward that the release of such information can be “reasonably expected to” impact on Immigration’s “ability to comply with its health and safety obligations under the WHS Act” (see [6.101] and [6.103] of the FOI Guidelines);
-no evidence has been put forward that the predicted impact would have a “substantial adverse effect” on the management of Immigration’s personnel (see [6.113] of the FOI Guidelines);
51 I acknowledge the Department’s obligations under the Work Health and Safety Act 2011, including the requirement for the Department to take reasonable steps to eliminate or minimise the risk to staff of harassment or threats from the public.
52 I have had regard to the Department’s submissions, which are framed in general terms that do not explain how the predicted adverse effect could reasonably be expected to occur in this case. In particular, the Department has not explained how disclosure of the officer’s names and direct contact details to the applicant would expose its staff to inappropriate unsolicited approaches, personal attacks and harassment. I note that the Department has not identified any issues of particular concern in relation to the applicant’s behaviour or contact with departmental staff.
53 To refuse access to a document under s 47E(c) of the FOI Act on this basis, the inappropriate unsolicited approaches, personal attacks and harassment the Department described must be reasonably expected to occur as a result of the disclosure of the documents in the particular circumstances of the case. Additionally, as the FOI Guidelines explain, an agency cannot rely on a class claim contention when withholding access to a document under a conditional exemption.
54 In previous IC review decisions where s 47E(c) has been accepted as applying to the names of public servants, there have been particular circumstances in each case that have met the elements of the exemption. For instance, in ‘NN’ and Department of Human Services (Freedom of information) (‘NN’), Australian Information Commissioner Pilgrim accepted that the disclosure of an assessor’s family name could reasonably be expected to have a substantial adverse effect on the management of personnel where the Department provided particulars of its concerns about the applicant’s past conduct. Commissioner Pilgrim was satisfied, based on the Department’s submissions about the applicant’s past conduct, that disclosure of the assessor’s family name could reasonably be expected to enable the applicant to locate the assessor which would, or could reasonably be expected to, create a harassment risk for the assessor.
55 The facts in this IC review can be distinguished from those in ‘NN’. There is no information currently before me to indicate that the applicant has a history of a kind which would raise concerns for the work, health and safety of departmental staff. I am also not satisfied that the Department has established that the applicant is likely to widely disseminate the public servants’ information.
56 Based on the information before me, I am not satisfied that the Department has established that the disclosure of the names or contact information of Departmental officers would have the predicted substantial adverse effect on the management of the Department’s personnel.
57 The names and contact information of public servants are not conditionally exempt under s 47E(c) of the FOI Act.
58 As I have found that the material is not conditionally exempt under s 47E(c), it is unnecessary for me to consider whether giving access to conditionally exempt documents would be contrary to the public interest for the purposes of s 11A(5).
The Respondent submitted, in effect, that ZT had been incorrectly decided, but the Tribunal is not aware that any appeal against it has been lodged in the Courts. To that extent, although the Tribunal is not itself bound by Commissioner’s decisions, it has had no substantive grounds presented to it which would cause it to take a different approach. It was also conceded by the Respondent that the Applicant was in fact aware of the names and/or details of many departmental officers concerned as a result of receiving other correspondence from them. In addition, it was also conceded that none of the officers so known had to the knowledge of the Respondent been subject to any adverse consequences as a result of the Applicant being in possession of their details.
The Tribunal accepts the validity of the general concern expressed by the Respondent that allowing access to such information is not in the public interest, as if applicants in general were to have such information, this could encourage such persons to make direct contact with case officers or others involved in the assessment of their matters and adversely affect the business of the department.
However, what is before this Tribunal is the application on behalf of the Applicant, and the Tribunal must make its decision on the basis of the particular and individual circumstances of the present case.
Based upon the Commissioner’s decision in ZT, the concessions made by the Respondent in relation to the Applicant’s existing state of knowledge, and the lack of any evidence of adverse consequences for staff members involved, the Tribunal finds that the documents in question are not conditionally exempt documents under subsection 47E(c) of the Act.
VII Country Information data
In considering the Applicant’s submissions relating to Country Information Data, it is necessary to first understand the context of this application and why such information was sought in the first place. By way of background, the Applicant applied for Safe Haven Enterprise visa (class XE subclass 790) in 2013 having arrived as an unauthorised maritime arrival. In 2017 a delegate of the Minister refused to grant the visa and this matter was then appealed to the Immigration Assessment Authority (IAA) for review. The IAA affirmed the refusal decision in 2018 but subsequently in 2019, an order was made by the (then) Federal Circuit Court of Australia quashing the IAA’s decision. [23]
[23] T-documents at 298
The matter was subject to a further assessment by the IAA later in 2019 when it again affirmed the original decision to refuse the vis application.[24] The Applicant appealed this decision to the Federal Circuit and Family Court of Australia (FCFC). Before the matter was heard, the High Court handed down judgement in the case of CNY17[25] .The Applicant amended its pleadings in the FCFC on the basis of CNY17, and as a result on 18 November 2020 the matter was settled by consent in the Applicant’s favour.[26] This resulted in the matter being remitted to the Minister for reconsideration.[27]
[24] T-documents at 297
[25] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
[26] ASFIC at [18](i)(ii)
[27] Exhibit FV1 of Affidavit of Farid Varess dated 30 August 2022 at 22-23
A key issue at stake in these proceedings relates to identifying what information was before the relevant decision-makers at the time of their decisions were made.
Apart from considering the nature of the original application for access to documents, it is also necessary to note that on 6 October 2020, the Applicant issued the Minister and the Immigration Assessment Authority with a formal Notice to Produce certain documents. These were specified as follows:
1.All country information dated on or after 19 October 2017 that came into possession or control of the Secretary (as that term is used in s 473CB of the Migration Act 1958 (Cth)) on or prior to 21 January 2019 regarding any of the following:
a.the overall security situation in Afghanistan;
b.the security situation in Jaghori in Afghanistan;
c.risks associated with travelling by road in Afghanistan; and/or
d.risks faced by Hazaras or Shia Muslims in Afghanistan generally or in Jaghori in Afghanistan.[28]
[28] Exhibit FV1 of Affidavit of Farid Varess dated 30 August 2022 at 2-4
During the process of assessing the Applicant’s original claim for a Protection Visa, the IAA had before it certain information supplied by the Department (as required by section 473CB of the Migration Act 1958 (Cth) (Migration Act)), such material being referred to generally as “country information”. The IAA must consider all such material under Migration Act section 473DB, and after it has concluded its deliberations it must return all such material to the Department, together with any other relevant material in its possession under subsection 473EA(4).
Upon remittal, the IAA ultimately made another decision to refuse the grant of a protection visa. In response the Applicant made a request that the IAA obtain from the Department certain further updated “country information”. The IAA decision records:[29]
36. I also note the applicant’s 2020 submission states:
“The [applicant] requests that you ask the Secretary to send anything relevant, including country information, where there is insufficient country information to make a favourable finding, held by the Department of Home Affairs since the date of the last referral. In this regard, the [applicant] understands that at least 467 new pieces of country information (COI) between 19 October 2018 and 21 January 2019 are held by the Secretary.”
37. I have considered the applicant's request that the IAA obtain further COI from the Secretary. I have also weighed whether I should interview the applicant or otherwise exercise the discretion to obtain further information from the applicant or seek his comment. I am satisfied the applicant is aware of the range of issues arising in this review, including concerns with his evidence and the credibility and plausibility of his claims, and I am satisfied he has had a fair opportunity to address those issues. I have weighed the applicant’s submissions and supporting information, and have invited further information and comment from him regarding these issues and the supporting country information. I consider the information before the IAA is extensive and authoritative. In all the circumstances, I am not satisfied it is necessary to interview the applicant, obtain new information from him or the Secretary, or otherwise seek his further comment, whether via interview or in writing.
[29] T-documents at 319-320.
A degree of confusion arises in the use of the term “country information”. The Department of Foreign Affairs and Trade (DFAT) publishes a series of Country Information Reports on various countries, and these are publicly available on its website. The current DFAT Country Information Report – Afghanistan is dated 14 January 2022.
When the Applicant refers to “country information” in this case, it is using the term more widely to mean all information about Afghanistan which is held by the Respondent and not in the public domain. Such information arises by way of reports on specific topics or issues (such as the treatment of Afghan Hazaras, or the issue of Tazkiras) which are prepared by the Country of Origin Information Service within the Department of Home Affairs. Such reports may not be in the public domain but are available, and heavily relied upon by decision-makers. In addition, information received from overseas posts and other government agencies may also be held by the Respondent.
Yet further confusion arises because the Applicant’s request is for “a list of all country information” and the Respondent replies that while documents may exist, no “list” of them exists, nor is the Respondent obliged to create such a “list”. In its RSFIC it asserts:
28. Critically, the Applicant does not request access to documents which are not publicly available and which constitute country information – instead the Applicant requests copies of documents which are included on lists which are presumed to exist.
29. Ben Nam has deposed at [6]-[7] that, upon making enquires with respect to the two lists the Applicant seeks, no documents responsive to the FOI Request as made were identified. In short, the Department does not hold any document comprising a list of all such country information added to the Department’s database:
(a) between 17 October 2017 and 8 January 2021; or
(b) after 8 January 2021.
30. In this regard, the Respondent notes that the FOI Act requires Commonwealth agencies to release “documents of an agency” where those documents are not otherwise exempt from release. As the definition of “document of an agency” makes clear, agencies are only required to release documents which are in the possession of the agency. Because the lists called for by the Applicant do not exist, there is no “document of an agency” which is responsive to the FOI Request. Relevantly, the FOI Act does not oblige a Commonwealth Agency to create a document which does not exist.
In the affidavit of Mr Ben Nam (Mr Nam)[30] he attests that:
Country Information
6. On 6 June 2022 and 28 July 2022, I wrote to the Country of Origin Information Services Section within the Department and queried whether they held any document comprising:
(a) A list of all country information added to CISNET pertaining to Afghanistan between 17 October 2017 and 8 January 2021;
(b) A list of all country information added to CISNET pertaining to Afghanistan since 8 January 2021.
7. On 7 June 2022 and 28 July 2022, the Country of Origin Information Services Section advised me that such lists do not exist.
8. The Country of Origin Information Services Section maintains the Department’s Country of Information database (CISNET).[31]
[30] Acting Senior Legal Officer, Character, Citizenship and Removals Litigation Section, Department of Home Affairs.
[31] Affidavit of Ben Nam, dated 28 July 2022 at [6]-[8]
In response to this the Applicant refers to section 17 of the Act which provides that access to information/documents may be given via computer-generated documentation.
As if this were not sufficient, the Applicant has sought information about material “added” to the database between particular dates and the Respondent advises that their particular database does not allow the identification of when an item was added to it. The Applicant then refers in oral submissions to the date of “publication” of information which imports yet another degree of confusion of which quite sufficient amounts already exist.
In any event, the Department interrogated its data base and found that by use of the identifying word “Afghanistan” some 53,955 results were identified and that in the period 19 October 2018 to 21 January 2019 some 467 such results were identified.[32]
[32] Affidavit Ms Sharon Burnett contained Exhibit FV1 of the Affidavit of Farid Varess dated 30 August 2022 at 18-19.
During the course of cross-examination by the Applicant’s representative, it appeared from Mr Nam’s evidence that:
(a)The original search of the databases had, most probably, taken place without the use of the specific terms or limited references contained in the Applicant’s Notice to Produce of 6 October 2020;
(b)several emails in the possession of the Applicant could not be located within the Respondent’s database, although at least one of these may simply have been a computer-generated automatic response; and
(c)some 5 additional items (referred to as file LAT009) had been identified after further searches were undertaken and that the respondent had commenced active searches for more details in relation to 2 of them and that it was possible that such searches “might bear fruit”.
The Tribunal itself questioned Mr Nam in relation to the sections of his affidavit cited above. In response he indicated that
(a)He had reasonable grounds to believe that there would have been documents which fitted the description of items (a) and (b) of paragraph 6 in his affidavit;
(b)these items might have amounted to some thousands of records and that he did not dispute Ms Burnett’s conclusion that there would be in the order of 467 such items covered by reference to item (b);
(c)he was aware of the details of the Notice to Produce, but had not reinterrogated the database using the more restricted terminology advanced in that Notice; and
(d)in any event the sheer volume of material involved would most probably have given rise to a refusal of access under the provisions of sections 24 and 24AA of the Act on the basis that it is an unreasonable diversion of the agency’s resources from its other functions.
It may well be that Mr Nam is correct and that because the database is unable to establish prima facie the date on which an item was “added” to it, it would require officials to examine manually each of the “thousands” of documents returned in a search to identify the date of their incorporation in the database. That may well have given rise to a “practical refusal” option on the part of the Respondent, in which case a process of consultation with the Applicant would have been engendered undersection 24AA(2)(b)(ii)of the Act to bring the response to the request back into a reasonably manageable form.
On the other hand, had the filters suggested in the Notice to Produce been enlivened by the Respondent, then this narrowing of the request might have taken place already.
Discussion
It is clear that the many strands of this application have resulted in the parties ending up at crossed-purposes. There are varying interpretations about what is being requested with an undue focus on the Applicant’s infelicitous use of the term “a list”, as distinct from, for example “copies of all documents”. There are also the problems arising from use of the term “added” when the database apparently cannot identify the dates information is entered into the system.
There have been assumptions made about the extent of the documentation, which might exist, and which may or may not be correct and may or may not have led to certain access decisions being made and led to the array of disclosed information to be incomplete. It also does not appear that effect was given to searches based on the more limited categories of information sought via the Notice to Produce.
It is clear from any reading of the Objects provision of the Act and the clear authority in decisions such as Novak that “Each request must be considered in the context in which it is made, with an eye to the policy of openness which underlies the Act.”[33]
[33] Re Novak and Australian Federal Police [2010] AATA 219 at [22].
The Tribunal is not satisfied that the Respondent has taken all reasonable steps to find the relevant documents as required by section 24A of the Act. In particular it has not sought to respond in an adequate fashion to the Notice to Produce of 6 October 2020.
In the Tribunal’s view it is appropriate for the matter to be remitted to the Respondent in accordance with section 33(2A)(a) of the AAT Act, with a direction that a search of its records shall be conducted in accordance with the four criteria outlined in the Notice to Produce of 6 October 2020.
VIII Decision
The Tribunal remits the matter back to the Respondent, with the following directions:
(a)The portion of the email dated 23 December 2020 between Josh Contin and Onpro Litigation and Josh Power which commences with “Dear Onpro Litigation Colleagues” and concludes at “CLD2020/32547083 – Applicant’s Immicard” is not covered by the legal professional privilege exemption of the Act and should be released to the Applicant;
(b)the entire email dated 4 January 2021 between Carly Selby-James and Josh Contin is not covered by the legal professional privilege exemption of the Act and should be released to the Applicant;
(c)those documents where the Respondent has claimed exemption under section 47E(c) of the Act are found not to be conditionally exempt and should be released accordingly in an unredacted form (save for any personal mobile phone numbers); and
(d)further searches should be conducted in accordance with the criteria as set out in the Applicant’s request for access to country information, as defined in the Notice to Produce dated 6 October 2022.
I certify that the preceding 67 (sixty - seven) paragraphs are a true copy of the reasons for the decision herein of
.............................[Sgd]...........................................
Associate
Dated: 14 December 2022
Date of hearing: 6 December 2022 Solicitors for the Applicant: Mr. F Varess, Varess Solicitors for the Respondent: Mr. I Duldig, Clayton Utz
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