Whish-Wilson; Australian Fisheries Management Authority and (Freedom of information)

This matter concerned freedom of information requests made by Senator Peter Whish-Wilson and the Australian Broadcasting Corporation (ABC) to the Australian Fisheries Management Authority (AFMA). The requests sought documents relating to the fishing operations of the FV Geelong Star, specifically concerning the deaths of marine mammals and the performance of an "excluder device" within its fishing net. AFMA had initially refused access to most documents, citing exemptions related to commercially sensitive information and the potential adverse effect on its operations. The review was heard by Dr James Popple, Senior Member.

The primary legal issues before the Tribunal were whether the disclosure of the requested documents could reasonably be expected to adversely affect the cooperation of fishing operators with AFMA's electronic monitoring program, and whether disclosure would have a substantial adverse effect on the proper and efficient conduct of AFMA's operations, pursuant to section 47E(d) of the *Freedom of Information Act 1982* (Cth). Additionally, the Tribunal had to consider whether it was reasonably practicable for AFMA to prepare edited copies of the documents with exempt or irrelevant matter deleted, under section 22 of the Act, and whether, on balance, disclosure would be contrary to the public interest.

The Tribunal reasoned that while AFMA's electronic monitoring program relies on operator cooperation, this reliance did not automatically render all documents exempt under section 47E(d). The Tribunal found that AFMA had overstated the extent to which disclosure would undermine operator confidence and cease cooperation, drawing a distinction between mandated compliance and voluntary cooperation. The Tribunal also considered the practicalities of preparing edited copies of the documents, ultimately determining that it was reasonably practicable to provide edited versions of some documents but not others, due to the nature and extent of the modifications required.

Ultimately, the Tribunal set aside AFMA's decisions and substituted its own. It found that it was reasonably practicable for AFMA to prepare modified copies of three of the documents under section 22 of the FOI Act and to grant access to those modified copies. However, for the remaining twenty documents, the Tribunal concluded that it was not reasonably practicable to prepare modified copies due to the extensive redactions that would be necessary.