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Recent Cases: Commonwealth

'AEW' and Department of Home Affairs (Freedom of Information) [2023] AICmr 91 (11 October 2023)

AEW ("applicant") applied to the Department of Home Affairs ("Department") for access to certain information relating to standard business sponsorship applications and nomination applications.

 

After the decision became deemed, the Department purported to make a decision to release one document with redactions under s 22, on the basis that the redacted information would reasonably be regarded as irrelevant to the request.  The Department then refused the remainder of the request under s 24A, on the basis that no additional documents could be found within the scope of the request.

 

The Department also considered if s 17 of the FOI Act applied, requiring it to produce a document containing information sought by the applicant by use of a computer or other ordinary equipment.  If subsequently determined that s 17 did not apply, as producing a written document containing the information in a discrete form would substantially and unreasonably divert the resources of the Department.

 

Issue

The issue for determination is whether the document is to be provided under s 17(1) of the FOI Act.

 

Reasoning

Typically, the FOI Act does not require an agency to create a new document in response to a request, the exception being s 17(1).  This section obliges an agency to produce a written document if it can be produced by using a ‘computer or other equipment that is ordinarily available’ to the agency for retrieving and collating stored information, except when producing the document would substantially and unreasonably divert the resources of an agency from its other operations. 

 

It was not disputed between the parties that the requested information was not available in discrete form in written documents, limiting the issue to whether the Department could produce a written document containing the information in discrete form by the use of a computer or other equipment to the Department. 

 

The primary reason the Department gave for being unable to produce such a document was it not having available the equipment required. It does not have an existing reporting product already developed and maintained by the Department and the data is not held in the departmental data holdings that it uses for reporting purposes.  In order to produce the requested information, it would need to write new code and manually verify the data which would be an extraordinary step. 

 

The Commissioner accepted that the required tasks extended beyond a simple or routine database query task, and that the Department could not produce the document with the equipment ordinarily available to them.

 

Decision

The Acting FOI Commissioner affirmed the deemed decision of the Department.

 

Ocampo Alvarez and Australian Criminal Intelligence Commission (Freedom of Information( [2023] AATA 3257 (13 October 2023)

Mr. Ocampo Alvarez ("applicant") applied to the Australian Criminal Intelligence Commission ("Commission") for access to documents relating to his arrest by the Australian Federal Police, his examination by the Commission and correspondence relating to those matters.

 

While the Commission made a decision relating to the request, the applicant was not satisfied with the outcome.  Subsequently, the applicant then sought review by the Administrative Appeals Tribunal ("Tribunal") to deny partially or totally access to documents requested by him under the FOI Act.

 

Issue

The outstanding issues were as follows:

  • Whether the Commission had undertaken all reasonable steps to find documents within the scope of the applicant's FOI request;
  • Whether the material identified as irrelevant in document 6 was irrelevant to the applicant's request; and
  • whether the material claimed to be exempt from release by the Commission was exempt.

Reasoning

Whether reasonable steps taken to locate documents - s 24A

The applicant submitted that the searches carried out by the Commission were inadequate.  During the course of the proceeding, the Commission undertook multiple searches, explained those searches conducted and reconsidered matters when requested to do so.  It gave evidence that all documents held by the Commission and relevant to the request had been identified. 

 

Having considered the multiple searches undertaken by the Commission, and the explanations provided to the applicant of those searches, the Tribunal was satisfied that the Commission took all reasonable steps to search for documents falling within the scope of the request.

 

Documents may be edited to delete irrelevant material – s 22(1)(a)(ii)

The applicant submitted that the nature of the edits made to the documents were unnecessary and that it was in the public interest to disclose the whole contents of the relevant materials. The Tribunal’s decision was that the redacted parts of the document were irrelevant to the request made by the applicant and therefore, were appropriately edited for the purposes of s 22.

 

Documents affecting enforcement of law and protection of public safety – s 37(2)(b)

The Commission submitted that its role is to reduce serious and organised crime threats, work with international and domestic partners, to disrupt the activities of persons involving in organising crime.  Further, it submitted that disclosing information in the documents would reveal the lawful methods or procedures used for preventing, detecting, investigating or dealing with matters arising out of breaches of the criminal law and so prejudice their effectiveness.

 

The Tribunal’s decision affirmed that disclosure would reveal methods for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law, the disclosure of which would prejudice the effectiveness of those methods or procedure. The Tribunal also held that disclosure would also have a substantial adverse effect on the proper and efficient conduct of the operations of the Commission pursuant to the certain operations of agencies exemption under s 47E(d) of the FOI Act.

 

Documents disclosure of which would be contempt of Parliament or contempt of Court – s 46(b)

The Commission submitted the document in dispute was a contemporaneous one that showed the applicant was erroneously presented before an examiner and thus, offers a reasonable explanation as to why the Commission holds limited documents concerning matters raised by the applicant.

 

The Commission went on to rely on the Examiner Confidentiality Direction made pursuant to the provisions of section 25A(9) of the Australian Crime Commission Act 2002 (Cth).  This direction prohibited the disclosure of material and examination, and while the direction was varied, to the extent of the variation it remains in force over the document.

 

Taking these factors into account, the Tribunal held that the record of the examination was an exempt document for s 46(b) of the FOI Act.

 

Personal privacy – s 47F(1)

The Tribunal considered the reasons for and against disclosure of the personal information in the documents. Specifically, the names and contact details of current or former staff.   It was accepted that the relevant information was highly sensitive in nature, there was an increased risk of foreign intelligence services and organised criminal elements attempting to influence current and former Commission staff members.  Evidence was given that Commission staff members had been approached and threatened by serious organised crime groups. 

 

Despite the FOI Guidelines suggestion that it would not be unreasonable to disclose public servants’ personal information unless special circumstances existed, the Tribunal was satisfied that, given the Commission’s role in disrupting serious and organised crime, it was justified in withholding the personal information of former and current staff insofar as it was not publicly known to be associated with the matters dealt with in the documents.  The disclosure of the sought documents had the potential to create risks to personal safety and undermine the work of the Commission. Therefore, the relevant information was exempt in accordance with s 47F. 

 

Decision

The Deputy President affirmed the decision under review.