the solution

Recent Cases: Commonwealth

ADK and the Treasurer (Freedom of Information) [2023] AICmr 35 (17 May 2023)

Facts

ADK’ (“applicant”) applied to the current Treasurer (“respondent”) for access to correspondence to and from the respondent relating to proceedings with respect to suspected contraventions of the Corporations Act 2001 by the applicant and other parties since 22/5/15 to the date of the request. 

The respondent refused access to any document within the scope of the request on the basis that no documents in the respondent’s possession were deemed to be within the scope of the request.   The applicant sought IC review. 

 

The change of government during proceedings did not affect the request, as it was aimed at the ‘current Treasurer’, not a specific individual.

 

Reasoning

The IC was satisfied that no documents within the request had been transferred by the former Treasurer to the current Treasurer. Supporting this, the Treasurer’s office found no documents within the scope of the request in the former Treasurer’s possession.  Even if there were documents in the possession of the former Treasurer, documents of the kind sought by the applicant would not ordinarily be transferred from the former Treasurer to the current Treasurer. 

 

The IC was satisfied that no relevant documents had been transferred to the National Archives of Australia (NAA).  Even if they were, the IC held that the current treasurer would not have an entitlement to access documents of the former Government which have been archived to the extent that they would be in his possession. Further, any relevant document transferred by the former Treasurer would not be deemed by s 13(2) of the FOI Act to be in the possession of the respondent. This is because s 13(2) considers agencies to be in possession of a document transferred to the NAA, rather than ministers. 

 

The IC considered that the relevant documents may be in the possession of another agency. However, any copy would be a document of an agency rather than an official document of the Minister.  This matter cannot be dealt with in this review.

 

HELD

It was held that no documents within the applicant's FOI request were in the possession of the respondent.  As the respondent doesn't have possession of any documents within the scope, any documents relevant to the IC review are no longer 'official documents of the Minister'.   This means the mandatory access rule in s 11A(3) of the FOI Act does not apply.

Robert-Smith and Inspector-General of the Australian Defence Force (Freedom of Information) [2023] AATA (9 May 2023)

Facts

Mr. Roberts-Smith VC AG ("applicant") submitted a request to the Department of Defence ("Department") for access to documents.  He was refused access to the documents by the original decision-maker under ss 37(1)(a) and 46(b) of the FOI Act.

The applicant applied for internal review of the decision refusing access, but was unsuccessful.  Subsequently, the applicant applied for review by the Information Commissioner under s 54L of the FOI Act.  During the course of the review, the Department varied it's decision to refuse access, claiming s 37(1)(b) of the FOI Act in addition to the earlier claimed exemptions.  In her decision, the Information Commissioner found that s 46(b) of the FOI Act applied.

 

The applicant applied to the Administrative Appeals Tribunal ("Tribunal") for review of the Commissioner's decision.  In the review, the Department contended that the documents were exempt on the basis of ss 37(1)(b), 46(b) in conjunction with the public interest conditional exemption at s 47F of the FOI Act, but no longer claimed the exemption under s 37(1)(a).

 

Issue

The Tribunal's primary consideration was whether the documents, comprising diary entries and calendar entries, were exempt under the claimed exemptions.

 

Section 37(1)(b) – Disclosure of a confidential source

The applicant made various contentions as to the likelihood of the documents sought being confidential sources of information, including the fact that the FOI decision referred to the documents as an admission they existed meaning confidentiality would have been lost by that admission and the fact that the Department did not make a decision neither confirming nor denying the existence of the documents.  The Tribunal disagreed, stating that the contention was not made out as a matter of logic.  Where a diary or calendar entry evidences dealings with a specific person, it did not necessarily follow that the diary or calendar entry records a dealing or interaction with that particular person.

 

The Tribunal found that whether documents contained materials from a confidential source of information depends on all the circumstances. This includes:

  • The circumstances in which the information was conveyed, including whether there was any express or implied pledge of confidentiality; and
  • The nature of the information, including whether it was information about third parties which might be relevant to the inquiry.

The Tribunal was satisfied that the documents were exempt, finding that the relevant person was a source of information (not a recipient) and was a confidential source in that the parties interacted on the basis that the person’s identity would be kept confidential.

 

Section 46(b) – disclosure would be contrary to a direction

The Department had made two separate directions under the Inspector-General of the Australian Defence Force Regulations 2016 (Cth) (“IGADF Regulations”).  One of these was made in 2017, the other in 2020.  The directions directed that “information…[REDACTED]….not be disclosed” and “that there is to be no public disclosure of, or anything which would tend to identify” any person who provided evidence in an investigation or was mentioned in any findings or recommendations.

 

Following submissions by the applicant on the scope of s 21 of the IGADF Regulations, the Tribunal noted it did not have power to determine the validity of the directions, only whether s 46(b) applied given the existence of the directions.   It observed that reg 19 of the IGADF Regulations, allowed for a direction to be made as to whether an inquiry should be held in public or private, and if in private, who can be present.

 

The Tribunal was satisfied that disclosure of the documents would contravene one, possibly both of the directions, meaning s 46(b) applied.

 

Section 47F – Unreasonable disclosure of personal information

The applicant submitted that disclosure would not prejudice any ongoing investigations by law enforcement authorities.  The Tribunal accepted this contention, that there would be no direct prejudice as a result of disclosure.

 

The Tribunal considered whether disclosure under the FOI Act would discourage individuals from assisting future inquiries, not just future inquiries by the IGADF.  The Tribunal maintained the view that the public interest is not served by permitting an individual's confidential participation in an inquiry, to be disclosed by the making of a request under the FOI Act where that participation would otherwise have been protected.

 

The Tribunal held that disclosure of the documents would at this time, be contrary to the public interest.

 

HELD

Ultimately, the Tribunal affirmed the decision under review.