Recent Cases: Commonwealth

ACP and Department of Home Affairs (Freedom of Information) [2022] AICmr 76 (5 December 2022)

FACTS

ACP (“applicant”) applied to the Department of Home Affairs (“Department”) for access to documents with “any information or allegation made by my ex-wife in her application for a partner visa”.  The Department identified one document within the scope of the request and refused access to it in full, relying on the personal privacy exemption in s 47F of the FOI Act.   The applicant sought internal review of the Department’s decision, in which the Department affirmed its decision and refused access to the document in full, relying on both the personal privacy and material obtained in confidence exemptions under ss 45 and 47F of the FOI Act.   The applicant then sought an IC review.

ISSUE

The Commissioner decided that although two exemptions were claimed, the issue to be determined was whether the document was exempt under s 45 of the FOI Act.

REASONING

Material obtained in confidence – s 45

During the course of the internal review, the Department contended that the information contained in the documents was communicated and received on the “basis of a mutual understanding of confidence between the third party and the Department” for the purpose of a visa application.  The Commissioner accepted this contention, confirming that there was an “explicit understanding” between the third party and the Department that the information was not only provided but received on the understanding that it was done so in confidence.

The application form specifically states that the information provided in the form is given and received on the understanding that it will be treated in confidence.  Commissioner commented that the fact that information was received by a Department in such circumstances imported an obligation of confidence upon the Department. The Commissioner considered the information sensitive.  The Commissioner briefly considered other matters, confirming that the third party had not waived confidentiality over the document, the information was not common or public knowledge.

The Commissioner considered whether spurious allegations contained within a visa application would be sufficient to establish a civil wrong had been committed so that the exemption would not apply. It was not satisfied on the evidence or submissions provided that this was appropriate.

DECISION

The Commissioner found the document to be exempt pursuant to s 45 of the FOI Act. Following this decision, the Commissioner did not otherwise consider whether the document was also exempt under s 47F of the FOI Act.

Foundation House and Department of Home Affairs (Freedom of Information) [2022] AICmr 77 (16 December 2022)

FACTS

Foundation House (“applicant”) applied to the Department of Home Affairs (“Department”) for access to the Department’s Community Protection Assessment Tool (“CPAT”).  The Department was deemed to have refused the applicant’s request under s 15AC when it did not make a decision within the designated time frame.  The applicant sought IC review of the Department’s deemed access refusal decision under s 54L. 

The Department identified one document falling within the scope of the request and refused access in full based on the prejudice to lawful methods for the protection of public safety exemption (s 37(2)(c)), the deliberative processes exemptions (s 47C) and the certain operations of agencies exemption (s 47E(d)) of the FOI Act.  Following the decision, the applicant proceeded with their IC review.  It later revised its decision giving the applicant partial access.  In its revised decision, the Department relied on s 47E(d) and removed material no longer sought by the applicant as it comprised a departmental officer’s name and contact details, which was now irrelevant to the request (s 22).

The applicant proceeded with their IC review application but did not dispute the Department’s decision on the irrelevant material. 

ISSUE

The issue to be determined was whether material in the document is conditionally exempt under s 47E(d) of the FOI Act, and if so whether giving the applicant access to the conditionally exempt material at this time would, on balance, be contrary to the public interest (s 11A(5)).

 Certain operations of agencies exemption – s 47E(d)

The document was a ‘decision support tool’ used by Departmental Officers in relation to its detention network and status resolution program.  The Commissioner agreed with the Department that the material relates to the Department’s operations in managing the integrity and security of Australia’s border.  More specifically, the Commissioner accepted that the materials at issue related to how the Department manages an Australian detention network and status resolution program.

The Commissioner noted previous decisions considering similar documents under s 47E(d).  Documents containing information about the criteria and methodology employed by the Department in assessing and placing detainees, and recording how the applicant was assessed had previously been determined as being reasonably expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the Department if disclosed.  the commissioner was satisfied that the document being considered in this decision was pertinent to security arrangements at detention centres and the safety of detainees and staff. It could reasonably be expected to have a substantial adverse effect on the property and efficient conduct of the operations of the Department by revealing covert procedures, requiring the Department to change the way it operates.

DECISION

There were four categories of information in the document and each category of information was considered by the Department in its decision and addressed in its submissions.  The Commissioner considered the evidence before making its decision.  The Categories addressed: 1) certain actions performed by SROs in conducting assessments using the CPAT; 2) criteria for ratings about a person’s risk to the community; 3) criteria for ratings about a person’s health and welfare; and 4) criteria for a person’s Status Resolution Service Level.

The Commissioner set aside the decision of the Department and substituted it with a new decision. The Commissioner found that the material claimed under category 4 was not exempt under s 47E(d) as she viewed the Department as making an assumption that persons could, if the material were disclosed, work out how to manipulate a Departmental officer’s assessment and recommendation so that they would be less intensively monitored in the detention network and status program.  The Commissioner viewed that the onus required to establish the substantial adverse effect had not been established so that the material was not conditionally exempt. The Commissioner confirmed the Department’s claim for conditional exemption under s 47E(d) on the remaining parts of the document. 

Public Interest Grounds

The Commissioner spent some time outlining the public interest factors both for and against disclosure.  She noted that the subject matter of the documents involved the deprivation of people’s liberty by the government and its agencies, and how people deprived of their liberty are treated.  The Commissioner recognised this as the most severe power that the Commonwealth State and territory governments are able to exercise over people in Australia.  She recognised the public importance of the Department’s guidelines and their availability for public scrutiny.  She also commented that she viewed the decision maker as having turned their mind to only a few of the public interest factors that favoured disclosure as set out in the FOI Guidelines, and listed others that should have been considered.

Ultimately, the Commissioner considered that the factors against disclosure weigh more heavily than those favouring disclosure at this time. She was satisfied that disclosure of the material could – while promoting the objects of the FOI Act, informing public debate on matters of public importance and advancing the fair treatment of individuals – could reasonably be expected to also prejudice security, law enforcement, public health and public safety and prejudice the Department’s ability to obtain information.  These weighed heavily against disclosure