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Recent Cases: Commonwealth

Jonathan Kearsley and Australian Federal Police (Freedom of Information) [2022] AICmr 55 (30 June 2022)

 

Mr Kearsley (“applicant”) applied to the Australian Federal Police (“respondent”) seeking access to written correspondence between the respondent and the then Minister for Home Affairs, referencing a named third-party individual. 

 

The respondent identified one document that fell within the scope of the request and refused access on the basis of s 47(F) of the FOI Act.  The applicant sought Information Commissioner (“IC”) review of this decision pursuant to s 54L of the FOI Act.

 

During the review, the respondent undertook third party consultations with the named third party under s 27A of the FOI Act.  At no point was the third party provided with a copy of that document.  The third party had objected to disclosure of the document under s 47F of the FOI Act.  During the IC review, the third party had made submissions directly to the Commissioner requesting that the Commissioner receive submissions addressing the respondent being prohibited under the Australian Federal Police Act 1975 (“AFP Act”) to provide personal information to Ministers.

 

Throughout the IC review, the respondent maintained the document was exempt under    s 47F of the FOI Act, also claiming it was exempt in part under s 33(a)(i) and in full under  s 47E(d) of the FOI Act.

 

Reasoning

Damage to security of the Commonwealth: s 33(a)(i)

For s 33(a)(i) to apply, disclosure of the document would, or could reasonably be expected to, cause damage to the security of the Commonwealth.  Mere risk, possibility or chance of prejudice does not qualify as a ‘reasonable expectation’.  There must, based on reasonable grounds, be at least a real, significant or material possibility of prejudice to the Commonwealth. 

 

The Commissioner’s view was that she had only been provided with opinions or assertions of damage, and was not satisfied that the respondent had effectively discharged its onus to establish damage.  Therefore, the material in the document was not exempt.

 

Certain operation of agencies: s 47E(d)

For a document to be conditionally exempt under s 47E(d), it must be shown that disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. 

 

The Commissioner accepted the respondent’s contentions that disclosure would impact the “frank and candid briefing” that is fundamental to the proper and efficient conduct of the operations of the Federal Police, and that the document contained sensitive ministerial briefings. 

 

The Commissioner was not satisfied that disclosure would inevitably have a substantial and adverse effect, that disclosure would not only compromise the provision of frank and candid briefings to the Minster for Home Affairs but collectively would impact on the relationship of mutual trust and confidence with the Federal Police and Ministers.  The Commissioner’s view was that the respondent had not established either that the disclosure of the document could be reasonably expected to result in adverse effects, or, if there were any adverse effects, that they would be substantial in nature.  The Commissioner found the document was not conditionally exempt under s 47E(d). 

 

Personal privacy exemption: s 47F

The Commissioner examined the document and confirmed it contained personal information under s 47F, being the name of the third party and information concerning them.

 

The Commissioner primarily considered the third party’s private interest in their privacy.  The Commissioner balanced this with whether disclosure of the document might potentially advance the public interest in government transparency.  The disclosure by the AFP was lawful and consistent with the AFP Act.  The Commissioner held that a public purpose would be served through release of the document by increasing scrutiny, discussion, comment and review of various Government activities.  For that reason, it was decided that disclosure was in fact not unreasonable on the facts. 

 

Decision

The Commissioner found the document in question was not conditionally exempt under s 47F of the FOI Act.  While it was unnecessary to consider whether giving access to the document would be contrary to public interest, the Commissioner observed that, if it was considered, she would have decided that access would have not been contrary to public interest.

Lever and Australian Nuclear Science and Technology Organisation (Freedom of Information) [2022] AATA 2259 (12 July 2022)

 

Mr Lever (‘applicant’) commenced proceedings against his former employer, the Australian Nuclear Science and Technology Organisation (‘respondent’).  The applicant requested that the respondent release to certain documents pertaining to a claim the applicant had against Comcare. 

 

The applicant in his FOI request limited the search to files already located by another employee of the respondent.  The respondent identified 80 documents within the scope of the request, releasing 23 in full, 14 in part and deciding 43 to be fully exempt, with the documents being exempt under ss 47F and 42 (personal privacy and protection of legal professional privilege, respectively). 

 

Reasoning

The applicant sought to expand the scope of the request.  This was noted but not acted upon by the Tribunal.  The Tribunal determined that it had two matters to deal with: 

  1. Whether a comprehensive search for the items requested under the FOI request  was undertaken by the respondent in accordance with the FOI Act 
  2. Had the documents identified by the search been released to the applicant or otherwise withheld as being exempt. 

The Tribunal relied on previous decisions that set out what met the search requirement for  “all reasonable steps” to be taken and held that the respondent had met its obligations. 

 

On the second matter, the applicant requested the Tribunal to make orders to have the respondent control and hold documents in a particular way.  The Tribunal held that the applicant had misunderstood the powers of the Tribunal under the AAT Act.  The Tribunal’s power is to review decisions and make determinations relating directly to that decision, and nothing more.

 

Decision

The Tribunal affirmed the respondent’s decision.