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'Z' and Department of Defence [2013] AICmr 6 (31 January 2013)

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Decision and reasons for decision made by Freedom of Information Commissioner,
James Popple

Summary of case details
Applicant:

'Z'

Respondent: Department of Defence
Other party: Anonymous
Decision date: 31 January 2013
Application number: MR11/00284
Catchwords:

Freedom of information — Request for access to documents relating to an investigation under the Defence Force Discipline Act 1982 — Whether documents conditionally exempt from release — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 22, 47E(c), 47F

Contents

Summary

  1. I set aside the decision of the Department of Defence (the Department) of 8 September 2011 and substitute my decision, under ss 11A(5) and 22 of the Freedom of Information Act 1982 (the FOI Act), granting access to the document that is the subject of this IC review, modified by deletions.

Background

  1. The Australian Defence Force Investigative Service (ADFIS) is responsible for investigating complex and major criminal activity involving Australian Defence Force (ADF) members or impacting the ADF.
  2. On 11 May 2011, the applicant applied to the Department for access to 'documents held by ADFIS relating to an investigation about me'.
  3. On 26 July 2011, the Department advised the applicant that two documents had been identified as relevant to his request. These documents were released to the applicant with a number of deletions.
  4. On 9 August 2011, the applicant sought internal review of the Department's decision. In requesting internal review, the applicant also identified seven documents that he thought were missing or had not been considered in the Department's original decision.
  5. On 8 September 2011, the Department advised the applicant of its internal review decision. The internal review decision identified 24 documents within the scope of the applicant's request: 12 documents were released to the applicant in full; six documents were released with material deleted on the basis that it was exempt under both s 47E (operations of agencies) and s 47F (personal privacy); and six documents were released with material deleted on the basis that it was exempt under s 47F.
  6. On 8 September 2011, the applicant sought IC review, under s 54L of the FOI Act, of the Department's internal review decision to the extent that it refused access to one page of a two-page document. The page in dispute is page 1 of document 12, as numbered in the Department's schedule of documents:[1] an email dated 20 November 2009 and sent to an ADFIS investigator (the email).

Decision under review

  1. The decision under review is the decision of the Department on 8 September 2011 to refuse the applicant full access to the email.

The page in dispute

  1. The email was sent to ADFIS in response to an email from ADFIS. Its subject header is the name and rank of the applicant. ADFIS was investigating the applicant over a possible breach of the Defence Force Discipline Act 1982 (the DFD Act). The Department submits, and I accept, that the email was part of correspondence, between ADFIS and the author of the email (a member of the ADF), through which ADFIS was deciding whether the email's author was a potential witness.
  2. The page in dispute is the first page of the email, which is the only part of the document to which the applicant seeks access in this IC review. I have examined an unedited copy of the page in dispute. It contains information and opinion about the applicant relevant to ADFIS's investigation of the applicant.
  3. The Department decided that the email was exempt under ss 47E and 47F of the FOI Act, and provided the applicant with an edited copy.

Certain operations of agencies exemption (s 47E)

  1. Section 47E of the FOI Act relevantly provides:

    47E Public interest conditional exemptions-certain operations of agencies

    A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

    ...

    (c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency;

    ...

  2. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines explain that, for s 47E to apply:

    [a]n agency cannot merely assert that an effect would occur following disclosure. The particulars of the predicted effect and the reasons behind the identification of those particulars should be articulated during the decision making process. Those particulars should also indicate whether the effect could reasonably be expected to occur.[2]

  3. An assertion that an ADF member has breached the DFD Act is a serious allegation. When undertaking an investigation into whether such a breach has occurred, ADFIS can be expected to create documents that include information about the ADF member's conduct obtained from that person, from other ADF members and (possibly) from people outside the ADF. It is obviously beneficial for the management and assessment of ADF members that the information collected in such investigations can be collected in circumstances where confidentiality can be expected.
  4. There will not always be requirement for, or an expectation of, confidentiality. For example, in cases of alleged unlawful activity there may be an obligation to provide information without any expectation of confidentiality. But in some circumstances, people providing such information would expect that, subject to applicable natural justice principles, details of that information will not be widely disclosed. Disclosure of such information-or, more precisely, disclosure of the fact that they have provided that information-could reasonably be expected to affect the willingness of those people to provide information for future ADFIS investigations. That, in turn, would have a substantial adverse effect on the management or assessment of ADF personnel.[3]
  5. I have considered the application of s 47E to the unedited copy of the page in dispute. I think that disclosure of some of the information on that page-part of a series of communications through which ADFIS was deciding whether the email's author was a potential witness-could reasonably be expected to affect the willingness of people to provide information for future ADFIS investigations. This would have a substantial adverse effect on the ADF's capacity to manage and assess its personnel.
  6. However, this does not apply to all of the information that the Department deleted from the edited copy of the page in dispute. As explained in [32] below, some of the deleted information does not reveal the identity of the email's author. Disclosure of that information could not reasonably be expected to affect the willingness of people to provide information for future investigations.

Findings

  1. The email is conditionally exempt under s 47E and, if exempt, an edited copy of the page in dispute could be provided to the applicant under s 22.

Personal privacy exemption (s 47F)

  1. Section 47F(1) of the FOI Act provides:

    47F Public interest conditional exemptions-personal privacy

    General rule

    (1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

  2. As the Guidelines explain:

    The personal privacy exemption is designed to prevent the unreasonable invasion of third parties' privacy. The test of 'unreasonableness' implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals. The test does not however amount to the public interest test of s 11A(5), which follows later in the decision making process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again when assessing the public interest balance.[4]

  3. The page in dispute includes personal information of the author. Given my finding about the application of s 47E, there is no need for me to consider the application of s 47F to that information.
  4. The page in dispute also contains the name and rank of two other ADF members. That personal information is included in the email because the email's author named them as people who might be able to assist ADFIS with its investigation. In those circumstances, it would be unreasonable to disclose their personal information.

Findings

  1. The email is conditionally exempt under s 47F and, if exempt, an edited copy of the page in dispute could be provided to the applicant under s 22.

The public interest test (s 11A(5))

  1. I have found that the email is conditionally exempt under ss 47E and 47F of the FOI Act. Section 11A(5) provides that, if a document is conditionally exempt, it must be disclosed 'unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest'.
  2. Of the factors favouring disclosure set out in s 11B(3), one is relevant to this IC review: promoting the objects of the FOI Act. But the principle factor favouring disclosure in this IC review is the importance of transparency in investigations of possible breaches of the DFD Act by members of the ADF.
  3. Against this factor must be balanced the factors against disclosure. The FOI Act does not specify any factors against disclosure, but the Guidelines include a non-exhaustive list of such factors.[5] Of those factors listed in the Guidelines, the ones relevant to this IC review are those that I have discussed above when considering the applicability of conditional exemptions. In relation to the certain operations of agencies exemption (s 47E) these are that disclosure:
    • could reasonably be expected to prejudice an agency's ability to obtain similar information in the future and
    • could reasonably be expected to prejudice the management function of an agency.

    In relation to the personal privacy exemption (s 47F) these are that disclosure:

    • could reasonably be expected to prejudice the protection of an individual's right to privacy.
  4. In balancing the factors for and against disclosure, I give the greatest weight in this IC review to the factors against disclosure. Disclosure of the identity of the email's author would cause a significant harm if it affected ADFIS's capacity to undertake investigations (s 47E). And disclosure of the identity of the two other ADF members would not be in the public interest: they have been named in the email merely as people that ADFIS might consider contacting.
  5. I note that the applicant asserted, in his IC review application, that 'whilst significant deletions were made [from the email], information identifying the email's author was released'. He quoted a sentence from the edited copy that he received, which alludes to the nature of the professional relationship between the applicant and the email's author. In another sentence in the edited copy, the email's author refers to a time when he was the applicant's supervisor. So, it is highly likely that this information (or other information already released to the applicant by the Department) has revealed the email's author's identity to the applicant. Nonetheless, it is possible that the identity of the email's author is not known to the applicant; it should not be disclosed through this FOI process.
  6. The Department consulted the email's author, under s 27A (Consultation—documents affecting personal privacy) before making its initial decision in response to the applicant's request. As this IC review decision does not disclose any of his personal information, I am not required to consult the email's author (an affected third party) before making my decision.

Findings

  1. Giving the applicant access to the page in dispute (which I have found to be conditionally exempt under ss 47E and 47F) would, on balance, be contrary to the public interest for the purposes of s 11A(5). The email is exempt. However, an edited copy of the page in dispute could be provided to the applicant under s 22.

Editing the page in dispute

  1. Section 22 of the FOI Act requires an agency to give an applicant access to an edited copy of an exempt document, with the exempt matter deleted, if reasonably practicable.
  2. The Department provided the applicant with an edited copy of the email. The page in dispute (the first page of the email) was edited by the redaction of eight contiguous blocks of text, some spanning several lines. Some of the information redacted should be disclosed to the applicant. Numbering these redactions from the top of the page, the page in dispute should be edited as follows:
    • Redaction 1 is the 'from' and 'sent' fields of the email. The 'from' field should remain redacted (ss 47E), so as not to disclose the name of the email's author. The 'sent' field should not be redacted: it indicates the date and time that the email was sent. (The date of the email is already disclosed in the schedule of documents prepared by the Department.)
    • Redactions 2, 3, 5, 6 and 7 are expressions (some quite colourful) of the email's author's opinion of the applicant. They do not reveal the identity of the email's author. They should not be redacted.
    • Redaction 4 is the name and rank of two other ADF members. This information should remain redacted (s 47F).
    • Redaction 8 is a signature block: the name, rank, job title, location, telephone numbers and email address of the email's author. It should remain redacted (ss 47E).

Decision

  1. Under s 55K of the FOI Act, I set aside the Department's decision of 8 September 2011 and decide, in substitution for that decision, that a copy of the first page of the document that is the subject of this IC review should be provided to the applicant, edited under s 22 as detailed in [32] above.

James Popple
Freedom of Information Commissioner

31 January 2013

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $816, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700. 


[1] In his submissions in this IC review, the applicant referred to the document in dispute as an email dated 30 November 2009 (this is document 13 in the Department's schedule of documents). However, the edited copy of the document in dispute attached to his application is dated 20 November 2009 and is document 12 in the Department's schedule of documents. The applicant's confusion is understandable: the date of the email was (inexplicably) redacted from the edited copy of document 12 that was provided to him: see [32] below.

[2] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [6.94].

[3] See also Carver and Fair Work Ombudsman [2011] AICmr 5, [22] where I applied this approach in relation to investigations of breaches of the APS Code of Conduct.

[4] Guidelines, [6.126], footnote omitted.

[5] Guidelines, [6.29].