Whish-Wilson; Australian Fisheries Management Authority and (Freedom of information) - [2017] AATA 1098

Whish-Wilson; Australian Fisheries Management Authority and (Freedom of information) [2017] AATA 1098 (10 July 2017)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2016/3038
Australian Fisheries Management Authority
APPLICANT

AndPeter Whish-Wilson
RESPONDENT

Appeal from: [2016] AICmr 29
File Number:2016/3766
Australian Fisheries Management Authority
APPLICANT

Australian Broadcasting CorporationAnd
RESPONDENT

Maritiem BVAnd
OTHER PARTY

Appeal from: [2016] AICmr 43
File Number:2017/2150
Australian Fisheries Management Authority
APPLICANT

Seafish Australia Pty LtdAnd
RESPONDENT

Peter Whish-WilsonAnd
OTHER PARTY

Appeal from: [2016] AICmr 30

DECISION
Tribunal:Dr James Popple, Senior Member
Date:10 July 2017
Place:Canberra

1.In applications 2016/3038 and 2017/2150, the Acting Information Commissioner’s decisions of 27 May 2016 are set aside and, in substitution, the following decision is made in each matter:
The documents in issue are exempt under ss 47E, 11A(5) and 31B of the Freedom of Information Act 1982 (the FOI Act). It is not reasonably practicable for the Australian Fisheries Management Authority (AFMA) to prepare edited copies of those documents under s 22 of the FOI Act.

2.In application 2016/3766, the Acting Information Commissioner’s decision of 29 June 2016 is set aside and, in substitution, the following decision is made:
The documents in issue are exempt under ss 47E, 11A(5) and 31B of the FOI Act. AFMA should give the Australian Broadcasting Corporation access to edited copies of documents 1, 16 and 17, modified (under s 22 of the FOI Act) by the deletion of exempt and irrelevant matter. It is not reasonably practicable for AFMA to prepare edited copies of the other documents.

........................................................................
James Popple, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION — Access to documents — requests for access to documents relating to fishing operations regulated by agency — documents contain commercially sensitive information — whether disclosure could reasonably be expected to adversely affect fishing operators’ cooperation with agency’s monitoring program — whether disclosure of documents could reasonably be expected to have substantial adverse effect on the proper and efficient conduct of agency’s operations — whether access would, on balance, be contrary to the public interest — whether reasonably practicable for agency to prepare copies of documents modified by the deletion of exempt and irrelevant matter, having regard to the nature and extent of the modification — decisions under review set aside and substituted.
LEGISLATION
Freedom of Information Act 1982, ss 3(2)(b), 4(1), 11A(5), 11B(3), 15, 22, 27, 31B, 47E(d), 47F, 47G, 54L, 54M, 54W(b), 55G, 57A(1)(a), 61(1)(a), 93A

CASES
Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 25
Australian Broadcasting Corporation and Australian Fisheries Management Authority [2016] AICmr 43
Australian Fisheries Management Authority and Whish-Wilson [2017] AATA 375
Dreyfus and Secretary, Attorney General’s Department [2015] AATA 962
Duncan and Secretary, Department of Human Services (2016) 151 ALD 577
Francis and Department of Defence (2012) 59 AAR 35
Jones and Australian Federal Police (2016) 153 ALD 535
Parnell and Attorney General’s Department [2014] AICmr 71
Prinn and Department of Defence (2016) 152 ALD 162
Rovere and Secretary, Department of Education and Training [2015] AATA 462
Seafish Tasmania Pty Ltd and Australian Fisheries Management Authority [2016] AICmr 30
Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945
Smith and Australian Federal Police [2016] AATA 531
Whish-Wilson and Australian Fisheries Management Authority [2016] AICmr 29

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 (December 2016)

REASONS FOR DECISION
Dr James Popple, Senior Member
10 July 2017
Summary

The Australian Fisheries Management Authority (AFMA) received two separate requests for documents, under s 15 of the Freedom of Information Act 1982 (the FOI Act), relating to AFMA’s monitoring of the activities of a particular fishing vessel. AFMA refused access to some of the documents sought, on the basis that they were exempt. On review, the Information Commissioner decided that AFMA should disclose those documents, some of them modified by the deletion of exempt and irrelevant matter.
The disclosure of the documents in issue could reasonably be expected to adversely affect the level of cooperation, by fishing vessel operators, with AFMA’s electronic monitoring program. That would have a substantial adverse effect on the proper and efficient conduct of AFMA’s operations. The documents are conditionally exempt under s 47E(d) of the FOI Act. And access to those documents at this time would, on balance, be contrary to the public interest. Accordingly, the documents are exempt.
It is reasonably practicable for AFMA to prepare modified copies of three of the documents, under s 22 of the FOI Act, and to give access to those modified copies. It is not reasonably practicable for AFMA to prepare modified copies of the remaining 20 documents, having regard to the nature and extent of the modification that would be required.
Background
These reviews concern applications under the FOI Act for documents relating to the fishing operations of the FV Geelong Star in the Small Pelagic Fishery in 2015. AFMA regulates fishing in the Small Pelagic and other fisheries. The Geelong Star is operated by Seafish Tasmania Pty Ltd (Seafish). During the relevant period, it used a fishing net manufactured by Maritiem BV (Maritiem). That net incorporates an “excluder device”, which is intended to allow large animals to escape the net while leaving target fish trapped in the net. Even so, some dolphins and seals were caught, and died, in the Geelong Star’s net.
On 18 May 2015, a journalist with the Australian Broadcasting Corporation (the ABC) applied to AFMA under s 15 of the FOI Act for access to specified documents. Following discussions between the ABC and AFMA, the ABC reduced the scope of its request to:
Any underwater camera vision and photographs from the Geelong Star from April 2015 to present [22 June 2015] showing the eight dolphins and four seal deaths.
Any documents, emails, reports, briefs and meeting minutes analysing and discussing the collection and review of underwater vision from the Geelong Star …
Any documents, emails, reports, briefs and meeting minutes in relation to flaws and/or possible flaws in the performance of the excluder device on the Geelong Star …
I will call this the ABC’s FOI request.
On 29 May 2015, Senator Peter Whish-Wilson applied to AFMA under s 15 of the FOI Act for access to the following:
… all accounts of the deaths of marine mammals, including observer reports, location data, video, and photographs, provided to or prepared by [AFMA] related to the fishing operations of the FV Geelong Star in the Small Pelagic Fishery during the year 2015.
I will call this Senator Whish-Wilson’s FOI request.
When an FOI request is made for access to a document containing business information (that is, information about the business, commercial or financial affairs of an organisation),[1] the FOI Act requires the relevant agency to consult with the organisation if it appears that the organisation might reasonably wish to make an exemption contention (s 27(1)(b)).
[1] FOI Act, ss 27(1)(a) and 27(2)(b).
On 3 July 2015, AFMA wrote to Seafish (the operator of the Geelong Star) and invited it to make submissions in support of an exemption contention in relation to the two FOI requests. Seafish did so on 20 July. Further consultation between AFMA and Seafish occurred on 29 July.
In August 2015, AFMA introduced an electronic monitoring program (e-monitoring) in several fisheries, including the Small Pelagic. Under that program, AFMA “requires fishing concession holders to install, use and maintain prescribed e-monitoring equipment when operating a vessel in the fishery, and provide video footage and data to AFMA”. AFMA says that e-monitoring provides more accurate catch data than other monitoring methods, and provides “more reliable assessments of interactions with threatened, endangered and protected species of marine life”. I discuss e-monitoring in more detail below.[2]
[2] See [49]–[56] below.
On 4 August 2015, AFMA wrote to Seafish and Maritiem, and invited each of them to make submissions in support of an exemption contention in relation to the ABC’s FOI request.
In these reasons, I will adopt the shorthand of referring to a document that is wholly comprised of exempt matter[3] as wholly exempt; and to a document that contains, but is not wholly comprised of, exempt matter as partly exempt. Strictly speaking, under s 31B of the FOI Act, the whole document is exempt if one of the exemptions in Division 2 of Part IV applies; or if one of the conditional exemptions in Division 3 of Part IV applies and access to the document would, on balance, be contrary to the public interest.[4] However, s 22 provides for an FOI applicant to be given access to an edited copy of a partly exempt document, modified by the deletion of the exempt matter.
[3] Section 4(1) of the FOI Act provides that “exempt matter means matter the inclusion of which in a document causes the document to be an exempt document”.
[4] See also the definitions of “conditionally exempt” and “exempt document” in s 4(1).
On 10 August 2015, AFMA made a decision on Senator Whish-Wilson’s FOI request. It identified 42 documents as falling within the scope of the request. It decided that ten of those documents were wholly exempt, and 28 were partly exempt. It decided that the documents were exempt under s 47 (trade secrets, etc.), s 47F (personal privacy) and s 47G (business information) of the FOI Act. I will call this AFMA’s first decision.
On 12 August 2015, Seafish advised AFMA that Seafish relied on its previous submissions in support of an exemption contention in relation to the ABC’s FOI request. On 14 August, Maritiem made submissions in support of an exemption contention. It said that disclosure of one of the requested documents would reveal Maritiem’s intellectual property (presumably, the design of the excluder device) and that this was business information for the purposes of s 47G.
On 15 September 2015, AFMA made a decision on the ABC’s FOI request. It identified 35 documents as falling within the scope of the request. It decided that 11 of those documents were wholly exempt, and 21 were partly exempt. It decided that the documents were exempt under s 47 (trade secrets, etc.), s 47F (personal privacy) and s 47G (business information) of the FOI Act.
On 21 September 2015, the ABC applied for internal review of AFMA’s 15 September 2015 decision. On 22 October 2015, AFMA affirmed its decision. I will call this internal review decision AFMA’s second decision.
On 2 October 2015, Senator Whish-Wilson applied to the Information Commissioner under s 54L of the FOI Act for IC review of AFMA’s first decision. An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under Part VII of the FOI Act.[5] Senator Whish-Wilson sought access to the ten documents that AFMA had decided were wholly exempt (four documents comprising 115 photographs, and six documents comprising 55 minutes of video footage), except for the eight photographs that AFMA had decided were exempt under s 47F because they contain personal information. The Acting Information Commissioner (the Commissioner) conducted an IC review of AFMA’s first decision.
[5] FOI Act, s 54G.
On 23 November 2015, the ABC applied to the Information Commissioner under s 54L of the FOI Act for IC review of AFMA’s second decision. The ABC sought access to the 32 documents that AFMA decided were wholly or partly exempt (five documents comprising photographs, six documents comprising video footage, 17 e-mails, three reports and a file note). The ABC also asked the Commissioner to decide, under s 54W(b) of the FOI Act, that the administration of the FOI Act made it desirable that AFMA’s second decision be considered by the Tribunal. The Commissioner declined to make such a decision and, instead, conducted an IC review of AFMA’s second decision.
On 18 January 2016, the ABC advised that it no longer sought access to the material that AFMA had decided was exempt under s 47F because it contains personal information.[6]
[6] Third IC decision [2016] AICmr 43 at [12].
On 5 February 2016, AFMA made what it said was a revised decision on Senator Whish-Wilson’s FOI request, under s 55G of the FOI Act. AFMA decided to give the Senator access to the ten documents that he still sought, with the photographs redacted so that no individual could be identified, and with the video footage pixelated or redacted so as not to disclose the design or configuration of the net, or the design of the “seal excluder device”, used on the Geelong Star. I will call this AFMA’s revised decision. In accordance with s 55G(2)(b), the Commissioner then dealt with the Senator’s application for IC review of AFMA’s first decision as if it were an application for IC review of AFMA’s revised decision.[7]
[7] However, s 55G(2)(b) did not apply: see Australian Fisheries Management Authority and Whish-Wilson [2017] AATA 375 at [36]–[44] and [46]–[47].
On 7 March 2016, Seafish applied to the Information Commissioner under s 54M of the FOI Act for IC review of AFMA’s revised decision. Seafish submitted that the ten documents were exempt under s 37 (enforcement of law), s 47 (trade secrets, etc.), s 47E (certain operations of agencies) and s 47G (business information) of the FOI Act. In response to Seafish’s application, the Commissioner conducted a separate IC review of AFMA’s revised decision, in relation to the same documents as those in issue in Senator Whish-Wilson’s application for IC review.
On 11 April 2016, AFMA had what the Commissioner later referred to as “an apparent change of mind” about Senator Whish-Wilson’s FOI request.[8] AFMA submitted to the Commissioner that he “should uphold exemption claims in full over all the photographs and over all the video footage, other than the video footage Seafish has indicated it is content can be released”. This change of mind would appear to be due to AFMA’s staff having encountered technical difficulties pixelating the video footage so that it would not be possible to “unmask” the redacted material. AFMA said that the Commissioner should decide that the ten documents that the Senator still sought were exempt for the reasons that it had given for its first decision: s 47 (trade secrets, etc.), s 47F (personal privacy) and s 47G (business information). In addition, AFMA said that the Commissioner should decide that those documents were exempt because of s 47E (certain operations of agencies). AFMA also raised with the Commissioner the question whether it was possible for AFMA to prepare, under s 22 of the FOI Act, an edited copy of the video footage with exempt matter deleted.[9]
[8] First IC decision [2016] AICmr 29 at [12].
[9] First IC decision [2016] AICmr 29 at [12].
On 12 May 2016, Senator Whish-Wilson revised the scope of his FOI request to exclude images of people’s faces and images of the seal excluder device. This meant that he was no longer seeking the material to which AFMA said s 47 (trade secrets, etc.) or s 47F (personal privacy) applied.[10] Accordingly, in reviewing AFMA’s revised decision, the Commissioner considered only the exemptions in s 47E (certain operations of agencies) and s 47G (business information), and the application of s 22 (access to edited copies with exempt or irrelevant matter deleted).[11]
[10] First IC decision [2016] AICmr 29 at [11]. The Senator would appear to have already reduced the scope of his FOI request in relation to people’s faces when he made his IC review application on 2 October 2015: see [16] above. Nothing turns on this: he reduced the scope of his request on or before 12 May 2016.
[11] First IC decision [2016] AICmr 29 at [11]–[12]; second IC decision [2016] AICmr 30 at [10]. The Commissioner does not appear to have considered Seafish’s argument that documents were exempt under s 37 (enforcement of law): see [20] above. It may be that Seafish did not press that argument. In any event, it was not open to Seafish to contend that documents were exempt under s 37, for the same reason that Seafish could not make that contention about s 47E: see [25] below, and second IC decision [2016] AICmr 30 at [32].
On 27 May 2016, the Commissioner made a decision on each of the two IC reviews of AFMA’s revised decision. He published separate reasons for each IC review decision: Whish-Wilson and Australian Fisheries Management Authority[12] (the first IC decision) and Seafish Tasmania Pty Ltd and Australian Fisheries Management Authority[13] (the second IC decision).
[12] First IC decision [2016] AICmr 29.
[13] Second IC decision [2016] AICmr 30.
In his reasons for the first IC decision, the Commissioner explained why he was not satisfied that disclosure of the documents in issue would substantially and adversely affect the operations of AFMA for the purposes of s 47E(d);[14] and why he was satisfied that it would be reasonably practicable for AFMA to prepare edited copies of the video footage for the purposes of s 22.[15]
[14] First IC decision [2016] AICmr 29 at [16]–[26].
[15] First IC decision [2016] AICmr 29 at [27]–[35].
In his reasons for the second IC decision, the Commissioner explained why he was not satisfied that disclosure of the documents in issue would unreasonably affect Seafish in respect of its lawful business affairs (s 47G);[16] and why it was not open to Seafish to contend that the documents in issue were exempt under s 47E.[17]
[16] Second IC decision [2016] AICmr 30 at [12]–[23].
[17] Second IC decision [2016] AICmr 30 at [32].
In each of the first and second IC decisions, the Commissioner purported to affirm AFMA’s revised decision. As I explained in Australian Fisheries Management Authority and Whish-Wilson, the IC reviewable decision was AFMA’s first decision, not its revised decision.[18] So, the effect of the first and second IC decisions was to set aside AFMA’s first decision and make a decision (to the same effect as AFMA’s revised decision) in substitution.[19]
[18] [2017] AATA 375 at [45]–[48]. This is because AFMA’s revised decision was not a “revised decision” for the purposes of s 55G of the FOI Act: see [2017] AATA 375 at [36]–[44].
[19] See [2017] AATA 375 at [59].
On 3 June 2016, the ABC confirmed that it sought access only to documents relating to the performance of the seal excluder device; photographic image and video footage records of marine mammals that were caught and had died; and documents relating to the effectiveness of AFMA’s e-monitoring program.[20] This meant that 25 documents remained in issue in the IC review of AFMA’s second decision, 11 of which were substantially the same as documents that the Commissioner had considered in the first and second IC decisions.[21]
[20] See also [18] above.
[21] Third IC decision [2016] AICmr 43 at [13]–[16].
On 10 June 2016, AFMA applied to the Tribunal, under s 57A(1)(a) of the FOI Act, for review of the first IC decision.
On 24 June 2016, Seafish applied to the Tribunal for review of the second IC decision.
On 29 June 2016, the Commissioner made a decision on the IC review of AFMA’s second decision: Australian Broadcasting Corporation and Australian Fisheries Management Authority[22] (the third IC decision).
[22] Third IC decision [2016] AICmr 43.

In his reasons for the third IC decision, the Commissioner explained why he was of the view that s 47(1) (trade secrets, etc.) applied to nine of the documents in issue;[23] that, for the same reasons he gave in the second IC decision, s 47G (business information) did not apply to photographs amongst the documents in issue;[24] and that the remaining documents that AFMA had decided were exempt under s 47G were either outside the scope of the request, or contained “material that [he had] considered and decided under s 47(1)”.[25]
[23] Third IC decision [2016] AICmr 43 at [21]–[41].
[24] Third IC decision [2016] AICmr 43 at [44]–[51].
[25] Third IC decision [2016] AICmr 43 at [52]–[54].
In the third IC decision, the Commissioner set aside AFMA’s second decision, and substituted his decision that the ABC be given copies of various documents, some of them modified (under s 22) by the deletion of material that was irrelevant to the ABC’s FOI request, or would identify individuals. The Commissioner decided that, of the 25 documents in issue, 16 were partly exempt[26] and two were outside the revised scope of the ABC’s FOI request.[27]
[26] Third IC decision [2016] AICmr 43 at [1]–[2] (documents 1, 10, 16, 25, 30, 32 and 33 as numbered in AFMA’s schedule of documents) and [38]–[39] (documents 6, 8, 19, 22, 26–29 and 34).
[27] Third IC decision [2016] AICmr 43 at [54], but excluding the documents listed in note 26 above (documents 20 and 21).
On 19 July 2016, AFMA applied to the Tribunal, under s 57A(1)(a) of the FOI Act, for review of the third IC decision.
On 19 December 2016, Seafish withdrew its application for review of the second IC decision under s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).[28]
[28] Application 2016/3320.
On 24 January 2017, Senator Whish-Wilson filed a document, setting out questions that had been agreed between him and AFMA. Essentially, the questions raised an interlocutory issue: whether the Tribunal has jurisdiction to review the first IC decision.
On 24 March 2017, I made an interlocutory decision: Australian Fisheries Management Authority and Whish-Wilson. Relevantly, I decided that:
·the Tribunal has jurisdiction to review the first IC decision;
·it is open to the Tribunal to decide that the documents in issue are exempt under s 47E of the FOI Act (certain operations of agencies); and
·the Tribunal does have the power to give access to fewer documents than AFMA did in its revised decision.[29]
[29] [2017] AATA 375 at [49]–[57]. I also decided that the effect of the first and second IC decisions was to set aside AFMA’s first decision and make a decision (to the same effect as AFMA’s revised decision) in substitution: see [26] above.
On 8 May 2017, AFMA applied to the Tribunal, under s 57A(1)(a) of the FOI Act, for review of the second IC decision.[30]
[30] Seafish had withdrawn its application for review of the second IC decision on 19 December 2016 (see [34] above). On 12 April 2017, AFMA had applied for an extension of time within which to make an application for review of the second IC decision. On 8 May, I extended that time until 8 May (under s 29(7) of the AAT Act), and stayed the operation and implementation of the second IC decision until this decision comes into operation (under s 41(2) of the AAT Act).
Decisions under review
The decisions under review are:
·in application 2016/3038, the first IC decision: the Commissioner’s decision on 27 May 2016 to (effectively)[31] set aside AFMA’s first decision of 10 August 2015 and make a decision in substitution (to the same effect as AFMA’s revised decision of 5 February 2016) giving Senator Whish-Wilson access to documents, with photographs redacted and video footage pixelated or redacted (Whish-Wilson and Australian Fisheries Management Authority);[32]
·in application 2017/2150, the second IC decision: the Commissioner’s decision on 27 May 2016 also (effectively) setting aside AFMA’s first decision of 10 August 2015 and making a decision in substitution to the same effect as AFMA’s revised decision of 5 February 2016 (Seafish Tasmania Pty Ltd and Australian Fisheries Management Authority);[33] and
·in application 2016/3766, the third IC decision: the Commissioner’s decision on 29 June 2016 setting aside AFMA’s second decision of 22 October 2015 and substituting his decision giving the ABC copies of various documents, some of them modified under s 22 (Australian Broadcasting Corporation and Australian Fisheries Management Authority).[34]
[31] See [26] above.
[32]    First IC decision [2016] AICmr 29.
[33]    Second IC decision [2016] AICmr 30.
[34]    Third IC decision [2016] AICmr 43.
Documents in issue in these reviews
At the hearing, AFMA advised that it no longer objects to the release of some of the photographs contained in various documents. So, all ten documents in issue in the IC review of AFMA’s revised decision (on which the first and second IC decisions were made) are in issue in applications 2016/3038 and 2017/2150 in this Tribunal,[35] though AFMA no longer objects to the release of 93 of the photographs contained in three of those documents.[36]
[35] Documents 5, 8, 9, 16, 20, 26, 27, 33, 34 and 42 as numbered in AFMA’s schedule of documents in its first decision, as adopted in the first and second IC decisions. These are documents D1–D10 as numbered in AFMA’s schedule of documents in issue in these reviews.
[36] Documents 16, 33 and 42.
Before the hearing, the ABC advised that it no longer seeks access to documents containing information relating to fishing but largely unrelated to marine mammal deaths. The ABC also confirmed that it does not seek access to personal information.[37] So, 13 of the 25 documents in issue in the IC review of AFMA’s second decision (on which the third IC decision was made) are in issue in application 2016/3766 in this Tribunal,[38] though AFMA no longer objects to the release of 17 of the photographs contained in three of those 13 documents.[39]
[37] See [18] above.
[38] Documents 1, 3, 4, 7, 10, 16, 17, 18, 24, 25, 30–32 as numbered in AFMA’s schedule of documents in its second decision, as adopted in the third IC decision. These are documents D11–D13, D15, D17–D20, D25, D26 and D31–D33 as numbered in AFMA’s schedule of documents in issue in these reviews.
[39] Documents 10, 30 and 32.
In summary, 23 documents are in issue in this Tribunal:
·ten documents containing underwater video footage (recorded between 10 and 30 April 2015);[40]
·two documents containing operational video footage (recorded on 1 May 2015);[41]
·eight documents containing photographs taken by AFMA officers (between 22 April and 2 May 2015);[42] and
·three e-mails (dated 9, 28 and 29 April 2015).[43]
I will call these the documents.
[40]    Documents D1–D3, D5, D6, D12, D13, D15, D20 and D25 as numbered in AFMA’s schedule of documents in issue in these reviews. Document D25 includes video footage taken on deck.
[41]    Documents D9 and D32.
[42]    Documents D4, D7, D8, D10, D17, D26, D31 and D33.
[43]    Documents D11, D18 and D19. D11 is an e-mail (9 April) with an attached report (8 April).
There is a great deal of overlap[44] between the video footage contained in those of the documents that relate to the first and second IC decisions and the video footage contained in those that relate to the third IC decision: 11 of the 29 distinct videos in the documents are included in documents in both of those two sets.[45] And four of the 23 distinct photographs are included in documents in both sets.[46]
[44] See also third IC decision [2016] AICmr 43 at [16].
[45] All 11 videos contained in D1–D3, D5, D6 and D9 are also contained in D12, D13, D15, D20, D25 and D32, respectively.
[46] All four photos contained in D26, D31 and D33 are also contained in D7, D8 and D10, respectively.
Issues
AFMA says that all of the documents are wholly exempt under s 47E(d) of the FOI Act (certain operations of agencies). AFMA also says that two of the documents are partly exempt under s 47F (personal privacy) because individuals can be identified in some of the photographs they contain;[47] and that two of the e-mails are also partly exempt under s 47F.[48] As noted above,[49] neither Senator Whish-Wilson nor the ABC seeks access to personal information contained in the documents. So, to the extent that those four documents contain personal information (which may make them conditionally exempt under s 47F) access could be granted to copies of those documents, edited by the removal of that personal information under s 22, because that information is irrelevant matter. AFMA also says that, if access is granted to copies of the three e-mails, those copies should be edited by the removal of other irrelevant matter under s 22 of the FOI Act. But, AFMA says that it would not be reasonably practicable for AFMA to prepare copies of the video footage modified, under s 22, by the deletion of exempt and irrelevant matter.
[47] Four photographs in each of documents D7 and D10.
[48] Documents D18 and D19.
[49] See [16] and [22] (about Senator Whish-Wilson), and [18] and [40] (about the ABC).
Of the parties to these three reviews, only AFMA made submissions or was represented at the hearing.[50] As noted above,[51] before AFMA made its second decision, Maritiem contended that that disclosure of one of the documents that the ABC had requested would disclose Maritiem’s business information for the purposes of s 47G. It is not clear, but it is likely that that document is one of the documents still in issue.[52] Maritiem is a party to application 2016/3766 in this Tribunal, but chose not to participate at any stage of that review. And AFMA does not, now, say that any of the documents are exempt under s 47G. Nonetheless, it is open to me to consider whether any of the documents are exempt under s 47G.[53]
[50] Senator Whish-Wilson made submissions about the interlocutory issue, and was represented at the interlocutory hearing (see [35]–[36] above). The Senator, the ABC, Maritiem and Seafish made no submissions on the issues in these reviews, and were not represented at the hearing.
[51] See [13] above.
[52] I think it likely that Maritiem was referring to what was document 16 (as numbered in AFMA’s schedule of documents in its second decision), which is document D18 (as numbered in AFMA’s schedule of documents in issue in these reviews).
[53] The Tribunal has the same functions and powers that AFMA had when it made its decisions: see Australian Fisheries Management Authority and Whish-Wilson [2017] AATA 375 at [53]–[55].
So, the issues in these reviews are:
·Are some or all of the documents exempt because of s 47E, s 47F or s 47G of the FOI Act? That depends on
owhether the documents are conditionally exempt under s 47E(d) (that is, whether their disclosure could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of AFMA’s operations); or
owhether the documents are conditionally exempt under s 47F (that is, whether their disclosure would involve the unreasonable disclosure of personal information about any person); or
owhether the documents are conditionally exempt under s 47G (that is, whether their disclosure would involve the disclosure of an organisation’s business information, and could reasonably be expected to unreasonably affect that organisation in respect of its lawful business, commercial or financial affairs); and
oif they are conditionally exempt, whether access to those documents would, on balance, be contrary to the public interest (s 11A(5)).
·Should access be granted to edited copies of some of the documents, modified by the deletion of irrelevant matter (s 22)?
·If any of the documents containing video footage are exempt, would it be reasonably practicable for AFMA to prepare copies of that video footage modified, under s 22, by the deletion of exempt and irrelevant matter?
Because of s 61(1)(a) of the FOI Act, AFMA has the onus of establishing that the reviewable decisions were not justified, or that I should give decisions adverse to Senator Whish-Wilson and/or the ABC.
E-monitoring and the documents
Dr James Findlay is the Chief Executive Officer of AFMA. Dr Findlay provided an affidavit, and gave evidence at the hearing. During his evidence, some of the video footage and photographs contained within the documents were shown, and Dr Findlay explained (and answered questions about) that footage and those photographs. I accept Dr Findlay’s evidence.
I have examined those of the documents that are in written form. I have also examined the photographs and most of the video footage contained within the documents. I make the findings set out in [49]–[57] below, on the balance of probabilities. These findings are based on Dr Findlay’s evidence, and on the content of the documents.
AFMA’s key responsibilities are to regulate and monitor the practices of fishing operators (operators) and to collect data on fish and marine stocks. In order to protect and promote healthy fisheries, AFMA collects data about: the location of fishing activities; the volume of catch of target species; the precise form of fishing operations (that is, the fishing gear used, and how it is used); and the extent of by-catch. By-catch are the species (“non-target species”) trapped in nets when fishing for a different “target” species.
Before it introduced its e-monitoring program in August 2015,[54] AFMA had two main methods of monitoring these matters: log-books and other self-reporting by operators; and AFMA staff observers on fishing vessels. Each of these methods has limitations.
[54] See [9] above.
E-monitoring has been implemented as a condition on certain operators’ licences. This involves the installation of cameras and sensors on fishing vessels, to monitor their practices while they are operating within Commonwealth fisheries. The cameras record hi-definition video, though no audio. There are generally two to six cameras on each vessel. The cameras are generally fixed: some on the deck of the vessel; some might be in the hold; some might be on the outside of the vessel.
Operators have raised concerns with AFMA about e-monitoring, including that:
·it breaches the personal privacy of crew members and other individuals who work on the vessels, but also eat and sleep on those vessels;
·it captures details of how operators undertake their fishing activities which, they assert, is commercially sensitive information; and
·there is uncertainty about how the data obtained might be used in the future.
To assuage these concerns, AFMA has assured operators that data collected through e-monitoring will not be disclosed except where authorised or required by law. AFMA has also assured operators that data with commercial value will be protected to the greatest extent possible, and only disclosed where necessary under law.
E-monitoring has increased the quality of the data available to AFMA. Positive impacts of e-monitoring include:
·in one fishery, a decrease of more than 50% in the number of mako sharks (a protected species) being retained; and an increase of more than 250% in the number of mako sharks being returned to the water alive;
·a 600% increase in the reporting of rare interactions with cetaceans (whales and dolphins) in that fishery; and
·the identification of a risk to an endangered animal that had not been disclosed through previously used monitoring methods.
The cost, to AFMA, of e-monitoring is about a quarter of the cost of the previously used monitoring methods.
Although e-monitoring is mandated by licence conditions, and by regulation, AFMA still relies on operator cooperation for the e-monitoring program to succeed. Specifically, AFMA relies on operators to provide the video footage in a timely manner; to maintain the e-monitoring equipment; and not to obstruct the view of the cameras.
E-monitoring has been implemented as a condition on the licence of the operators of the Geelong Star. The video footage and photographs contained in the documents predate the formal introduction of the e-monitoring program. However, they were collected during a period when AFMA was trialling the electronic monitoring of operators. Some of the video footage was recorded underwater.
The video footage and photographs contained in the documents show:
·catch and by-catch being caught in a fishing net deployed by the Geelong Star;
·the operation of the net’s excluder device;
·some of the catch and by-catch on the deck of the Geelong Star; and
·people on the deck of the Geelong Star.
The documents that are in written form are:
·three e-mails, from AFMA officers, containing information about the configuration or operation of the Geelong Star’s net and/or the excluder device.
Are the documents conditionally exempt under the certain operations of agencies exemption (s 47E)?
Section 47E of the FOI Act relevantly provides:
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:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
AFMA says that all of the documents are conditionally exempt under s 47E(d), because their disclosure could lead to a substantial adverse effect on the proper and efficient conduct of AFMA’s e-monitoring program.
Specifically, AFMA says that the e-monitoring program relies upon the cooperation of operators; that disclosure of the documents would disclose commercially sensitive information; and that that disclosure would “so undermine the market’s faith in the regulator that it would cease cooperation” with the program.
The first limb of this argument is that the cooperation of operators is essential to the effectiveness of the e-monitoring program. In support of this, AFMA says:
·the fisheries monitored by AFMA cover an enormous area;
·there are a substantial number of operators operating across the various fisheries; and
·the e-monitoring program requires each operator and vessel to operate and maintain particular equipment to certain standards.
Because of this last point, AFMA says that “e-monitoring is effectively a form of self-regulation”. I think that this is an overstatement. However, I have already found that the e-monitoring program relies on operator cooperation: operators have to provide the video footage in a timely manner; maintain the e-monitoring equipment; and not obstruct the view of the cameras.[55]
[55] See [55] above.
In Jones and Australian Federal Police,[56] I considered the application of s 47E(d) to documents relating to the professional standards framework of the Australian Federal Police (the AFP). In that case, there was an obligation (in certain circumstances) on AFP appointees to report misconduct. Nonetheless, the AFP said, the framework relied on reporting—including self-reporting—in circumstances where there might be some doubt about whether the conduct in question was misconduct.[57]
[56] (2016) 153 ALD 535.
[57] Jones and Australian Federal Police (2016) 153 ALD 535 at 540 [18].
AFMA makes a similar argument. E-monitoring is mandated by licence conditions, and by regulation. But, AFMA says, compulsion is not sufficient for the program to operate effectively. The program also relies on operators cooperating in circumstances where there might be some doubt about whether their conduct is compliant. In his evidence, Dr Findlay gave examples of conduct that an operator could engage in which could frustrate the collection of e-monitoring data but which would be compliant with the operator’s obligations—or, at least, would not be demonstrably non-compliant. (For obvious reasons, I will not detail that conduct here.) And, AFMA says, given the large area of the fisheries, and the large number of operators in those fisheries, it would not be practical for AFMA to monitor compliance—to monitor the e-monitoring.

As I did in Jones and AFP, I accept that the e-monitoring program (like the AFP’s professional standards framework) relies on more than compulsion to be effective. It relies also on the cooperation of operators.
The second limb of AFMA’s argument about s 47E(d) is that disclosure of the documents would disclose commercially sensitive information. I agree. Dr Findlay says, and I accept, that the design of the excluder device used on the Geelong Star is commercially sensitive. This was also asserted by Maritiem (the manufacturer of the net) before AFMA made its second decision.[58] In addition, Dr Findlay says, and I accept, that there are other aspects of the Geelong Star’s fishing operations that amount to commercially sensitive business information: this includes how its net is configured, and even how equipment is used on the deck of the vessel. Much of the video footage and photographs contained in the documents reveals this business information: that is, information about the business, commercial or financial affairs of Seafish and Maritiem. (It is a little surprising that AFMA does not now say that any of the documents are also conditionally exempt under s 47G, which is about business information.)
[58] See [13] above.
The third limb of AFMA’s argument is that disclosure of the documents would cause operators to cease cooperating with the e-monitoring program. That, AFMA says, would have a substantial adverse effect on the proper and efficient conduct of AFMA’s operations, which means that s 47E(d) applies.
In his affidavit, Dr Findlay says:
I have significant concerns about release of the e-monitoring video footage and photographs taken in the course of AFMA’s monitoring programs. My concerns are that:
·It will increase non-compliance in fisheries where e-monitoring is currently operating and decrease the trust and cooperation of operators.
·It will increase industry opposition to e-monitoring while AFMA is seeking to expand the program.
·It will put AFMA staff at heightened risk of physical violence from animal rights or other such protest groups.
·International competitors will take advantages of video from AFMA-managed vessels to erode Australia’s competitive advantages in fisheries.
I do not need to decide whether disclosure would have the substantial adverse effect that Dr Findlay predicts, because I think that disclosure could reasonably be expected to have that effect, which satisfies s 47E. I have come to that view having regard to my findings (based on Dr Findlay’s evidence) that operators were concerned about the introduction of e-monitoring, and that those concerns were assuaged when AFMA assured operators that any business information collected would be protected to the greatest extent possible.[59] I also accept Dr Findlay’s affidavit evidence that:
Unfortunately, there remains a great deal of opposition to e-monitoring from within the fishing industry. I believe if further footage were to be released then there would be increased opposition in the industry which would result in:
·lower levels of cooperation from operators leading to attempts to avoid the accurate operation of the system;
·lower levels of data accuracy;
·increased cost and difficulty in the expansion of e-monitoring.
In coming to this view, I have not had regard to the last two of the four concerns that Dr Findlay expressed: that the safety of AFMA staff will be at risk; and that Australia’s international competitiveness will be affected.
[59] See [52] above.
Disclosure of the business information contained in the documents could reasonably be expected to adversely affect the level of operators’ cooperation with the e-monitoring program. That would have a substantial adverse effect on the proper and efficient conduct of AFMA’s operations. It follows that the documents are conditionally exempt under s 47E(d) of the FOI Act.
The documents are conditionally exempt, notwithstanding that they contain business information obtained before the e-monitoring program was formally introduced: the dates of the documents range from 9 April to 2 May 2015;[60] the program was introduced in August 2015.[61] Importantly, the business information was obtained in the same way, and on the same basis, as such information is obtained under the e-monitoring program.[62]
[60] See [41] above.
[61] See [9] above.
[62] See [56] above.
Would access to the documents be contrary to the public interest (s 11A(5))?
The Australian Information Commissioner has issued guidelines (the FOI Guidelines) under s 93A(1) of the FOI Act. Section 93A(2) provides that “regard must be had” to the FOI Guidelines for the purposes of performing a function, or exercising a power, under the FOI Act. The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary.[63]
[63] See Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962 at [33] per Bennett J; Francis and Department of Defence (2012) 59 AAR 35 at 39–40 [18] per Jarvis DP; Rovere and Secretary, Department of Education and Training [2015] AATA 462 at [12]. But see also Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945 at [23]–[27] and Prinn and Department of Defence (2016) 152 ALD 162 at 175–178 [46]–[57] in which Forgie DP takes a different view. Respectfully, I disagree with her view, for the reasons I gave in Smith and Australian Federal Police [2016] AATA 531 at [25] note 15.
Section 11A(5) of the FOI Act provides that, if a document is conditionally exempt, it must be disclosed “unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest”.
The FOI Guidelines also note that there may be some overlap between the factors relevant to the application of ss 47G and 11A(5): “[i]t is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again in assessing the public interest balance”.[64]
[64] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (December 2016) at [6.187].
Factors favouring access
Section 11B(3) of the FOI Act provides:
11B Public interest exemptions—factors
…
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.
As noted above,[65] there are four parties to these three reviews but only AFMA made submissions or was represented at the hearing. However, Senator Whish-Wilson and the ABC each, separately, identified factors favouring access when they made their applications for IC review. These were:
·the operation of the Geelong Star, and the deaths of marine mammals, are matters of considerable public importance; and
·the documents depict the activities of a business which makes its profit by harvesting publically owned resources.
Because the Commissioner did not think that any of the documents were conditionally exempt, he did not apply s 11A(5) in any of the three IC decisions. Nonetheless, in the second IC decision he did say that, had he decided that the documents in issue in that review were conditionally exempt under s 47G, he would have been of the view that access to those documents would not have been contrary to the public interest for the purposes of s 11A(5). In coming to that view, he said, he would have given weight to the following two factors favouring access:
·disclosure would promote the objects of the FOI Act; and
·disclosure would inform debate on a matter of public importance.
He noted that he would have given the second factor “substantial weight”.[66]
[65] See [44] above.
[66] Second IC decision [2016] AICmr 30 at [24]–[28]. The Commissioner identified only one factor against access: disclosure could harm the interests of Seafish’s employees and shareholders (at [25]). Presumably that was because he was considering only s 47G; AFMA did not rely on s 47E in the second IC decision (see at [32]).
I agree that disclosure of the documents would promote the objects of the FOI Act (s 11B(3)(a)), specifically the promotion of “Australia’s representative democracy by contributing towards … increasing scrutiny, discussion, comment and review of the Government’s activities”:[67] that is, aspects of AFMA’s regulation of fishing operations in the Small Pelagic Fishery.
[67] Section 3(2)(b).
I also agree that the operation of the Geelong Star, and the deaths of marine mammals (by-catch) in its net, are matters of considerable public importance. One of the reasons that this is of such importance is that the Geelong Star was harvesting a publically owned resource: that is, fish in the Small Pelagic Fishery.
The FOI Guidelines include a non-exhaustive list of further factors favouring access. Only two of these are relevant to these reviews:
·disclosure would promote effective oversight of public expenditure; and
·disclosure would contribute to the protection of the environment.[68]
This last factor applies to the extent that disclosure might result in improvements to excluder devices or otherwise reduce the level of by-catch. (There is no evidence before me that disclosure would have that result, though it is clearly possible.) I do not think that there are any other factors favouring access in these reviews.
[68] FOI Guidelines at [6.19], paragraphs (c) and (j).
Factors against access
The FOI Act does not specify any factors against giving access to documents. The FOI Guidelines include a non-exhaustive list of such factors. Four of these are relevant to these reviews:
·disclosure could reasonably be expected to impede the flow of information to a regulatory agency;
·disclosure could reasonably be expected to prejudice an agency’s ability to obtain confidential information;
·disclosure could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future; and
·disclosure could reasonably be expected to impede the protection of the environment.[69]
This last factor applies to the extent that disclosure might reduce the capacity of the e-monitoring program to achieve its stated aim of providing accurate catch data and a reliable assessment of operators’ interactions with threatened, endangered and protected species of marine life.[70]
[69] FOI Guidelines at [6.22], paragraphs (g), (h), (i) and (f).
[70] See [9] above.
AFMA says that the following factors are also factors against giving access to the documents:
·As noted above,[71] disclosure of the business information contained in the documents could reasonably be expected to adversely affect the level of operators’ cooperation with the e-monitoring program. That would reduce the efficacy of AFMA’s operations, leading to poorer outcomes for non-target species.
·The operators’ expected adverse reaction to disclosure would require AFMA to divert resources from its other operations to employ additional observers and other auditors to fortify its compliance operations. This would reduce the efficacy of AFMA’s regulatory operations.
·Disclosure will increase the risk of threats to the safety of AFMA staff.
I agree that the first two of these are factors against giving access to the documents, noting that each is a specific example of factors identified in the FOI Guidelines, quoted above.[72] Because of the conclusion that I come to below,[73] I do not need to consider the third factor (about staff safety).[74] However, I note that AFMA raised this factor during the IC reviews, and that both Senator Whish-Wilson and the ABC disputed the related assertion by AFMA that the safety of the owners and employees of Seafish might be “compromised by persons or groups opposed to the lawful business operations of the Geelong Star”.
[71] See [68] above.
[72] See [78] above.
[73] Access to the documents at this time would, on balance, be contrary to the public interest: see [83] below.
[74] I also did not have regard to it when considering the application of s 47E: see [67] above.
Balancing the factors favouring and against access
As the FOI Guidelines point out, “[t]he pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure”.[75]
[75] FOI Guidelines at [6.8]. The objects of the FOI Act are set out in ss 3 and 3A.
There is a public interest in the disclosure of the documents in these reviews. Disclosure would inform debate on a matter of public importance: namely, the operation of the Geelong Star, and the deaths of marine mammals. That disclosure would promote the objects of the FOI Act by increasing scrutiny, discussion, comment and review of the Government’s activities: specifically, AFMA’s regulation of fishing operations in the Small Pelagic Fishery. And that disclosure would contribute to the protection of the environment, if it were to result in improvements to excluder devices or otherwise result in a reduction in the level of by-catch.
But disclosure would also have a substantial adverse impact on AFMA’s operations. It is reasonable to expect that disclosure would adversely affect the level of operators’ cooperation with the e-monitoring program. That would reduce the efficacy of the program. Rather than expanding the program, AFMA would be forced to revert to other methods of monitoring operators’ activities—methods that are more expensive and less effective than e-monitoring. Without e-monitoring, AFMA would be less able to collect accurate catch data, and information about operators’ interactions with by-catch. Disclosure would, as AFMA says, “result in a decrease in the efficacy of [AFMA’s] regulatory activity to the detriment of the sea-life in the fisheries regulated by AFMA”. For these reasons, disclosure could reasonably be expected to impede the protection of the environment.
In balancing these factors—for and against access—I give the greatest weight in these reviews to the factors against access. I find that access to the documents at this time would, on balance, be contrary to the public interest. The documents are exempt (s 31B).
In reaching this conclusion, I note that the public interest in scrutiny of AFMA’s activities has already been largely met by AFMA’s release of information, including redacted copies of the documents. The debate on the operation of the Geelong Star and the deaths of marine mammals would not be greatly informed by the disclosure of the exempt matter contained in the documents. This is because the fact and extent of the Geelong Star’s by-catch (including photographs of dead marine mammals), during the period covered by the documents, has already been made public. That would not, in itself, be a reason not to disclose the documents. But, in circumstances where disclosure would likely have negative consequences (including negative environmental consequences) it is an important consideration.
Access to edited copies with exempt or irrelevant matter deleted (s 22)
Section 22 of the FOI Act requires an agency to give an applicant access to an edited copy of an exempt document, with exempt or irrelevant matter deleted, if it is reasonably practicable to do so. AFMA can easily prepare edited copies, under s 22, of those of the documents that are in written form. However, AFMA says that it is not practicable to do so in relation to the video footage contained in the documents. In his affidavit, Dr Findlay says:
Because of the nature of fishing gear entanglements with protected species, it is generally not possible to show the video of such interaction without also showing at least some details of the fishing operations and/or the features of persons working on the vessel and involved in the removal of the animals from the fishing gear.
He also says:
I believe that attempts have been made to redact the footage within AFMA and there was not the requisite expertise available due to the small size of the agency.
It may be that AFMA does not have the resources to redact the video footage in the documents. In any event, it would not be reasonably practicable for AFMA to redact that video footage (or the photographs) having regard to the form of the resulting edited documents. As the FOI Guidelines explain, in applying s 22:
… an agency or minister should take a common sense approach in considering whether the number of deletions would be so many that the remaining document would be of little or no value to the applicant. Similarly, the purpose of providing access to government information under the FOI Act may not be served if extensive editing is required that leaves only a skeleton of the former document that conveys little of its content or substance.[76]
[76] FOI Guidelines at [3.88], citing Parnell and Attorney-General’s Department [2014] AICmr 71.
Most of the video footage in the documents was recorded underwater; some was recorded on the deck of the Geelong Star. In some of the underwater footage, all that can be seen are target species of fish. That footage is irrelevant to the FOI requests. The remainder of the underwater footage shows target species and by-catch (marine mammals) interacting with the net and the excluder device. The video footage recorded on deck shows people, target species, by-catch, the net and other equipment. Some of that footage is exempt matter. The same is true of the photographs.
Creating edited copies of the video footage and the photographs, for the purposes of s 22, would involve redacting images of the net, the excluder device and other equipment, and (at least) the faces of people on deck. Redaction would involve pixelating or “blacking out” parts of those images. Frequently, the resulting images would show a marine mammal surrounded by pixelation, or looking like (as counsel for AFMA described it) “a seal in space”. Even if such modification could be achieved within AFMA’s resources, it would not be “reasonably practicable … having regard to … the nature and extent of the modification” (s 22(1)(c)). The editing required would leave only a skeleton of the former documents, conveying little of their content or substance.[77]
[77] See Parnell and Attorney-General’s Department [2014] AICmr 71 at [77] per Commissioner McMillan.
AFMA can prepare copies of the documents that are in written form (the three e-mails), modified by the deletion of exempt and irrelevant matter.[78] However, it is not reasonably practicable for AFMA to prepare modified copies of the remaining 20 documents (the video footage and photographs) under s 22.
[78] Those three documents fall within the scope of the ABC’s FOI request, but not Senator Whish-Wilson’s FOI request. They are documents 1, 16 and 17 as numbered in AFMA’s schedule of documents in its second decision, as adopted in the third IC decision. They are documents D11, D18 and D19 as numbered in AFMA’s schedule of documents in issue in these reviews.
Other issues
Because of my conclusions about the application of ss 47E, 11A(5) and 22 of the FOI Act, I do not need to consider the other issues that arise in these reviews.
However, as noted above,[79] much of the video footage and photographs contained in the documents reveals information about the business, commercial or financial affairs of Seafish and Maritiem. It is likely that the documents containing that footage, and those photographs, are conditionally exempt under s 47G (as well as under s 47E), because disclosure of that business information could reasonably be expected to unreasonably affect Seafish and Maritiem in respect of their lawful business, commercial or financial affairs.
[79] See [64] above.
Conclusion

The documents are conditionally exempt under s 47E of the FOI Act. Access to the documents at this time would, on balance, be contrary to the public interest. Accordingly, the documents are exempt. It is reasonably practicable for AFMA to prepare modified copies of only the three documents that are in written form. The decisions under review should be set aside, and substituted by decisions allowing access to those three documents, but not to the other documents.

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

........................................................................
Associate
Dated: 10 July 2017

Date of hearing: 15 May 2017

Counsel for the Applicant: Ms Elizabeth Bennett

Solicitors for the Applicant: Australian Government Solicitor

Date of hearing:	15 May 2017
Counsel for the Applicant:	Ms Elizabeth Bennett
Solicitors for the Applicant:	Australian Government Solicitor