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Wednesday, February 18, 2009

FOI issues continue to surface in Haneef controversy.

Missed this decision last month by the Commonwealth Administrative Appeals Tribunal in another Haneef Freedom of Information appeal- this time against a decision by the Australian Federal Police to refuse access to some documents concerning the investigation that led to his detention and cancellation of his visa in 2007. Haneef won on a few points that the Tribunal has now referred back to the AFP for reconsideration, but in large measure the Police exemption claims- 11 of the 18 exemption provisions in the Act were invoked-were upheld.(See this post on the decision last July in a case involving Immigration)

Those interested in the fine detail of the Haneef fiasco will find the Tribunal decision and what it reveals about the information received from UK authorities, and the AFP itself, of interest.

There is nothing new in the decision regarding interpretation and application of the Act, but a couple of comments.

There were many documents relevant to the FOI application and, it turned out, some problems in the AFP in managing the complexity involved. Deputy President McPherson admitted [18-21] to being puzzled by aspects of the proceedings which revealed that some information that the Police claimed exempt had already been released to the applicant.

While AFP exemption claims were largely upheld, its decision-making reeked of excessive caution. Just one of a number of examples was a claim for legal privilege, rejected by Deputy President McPherson as not meeting the criteria in the first place, for information passed to an inspector of the Queensland Police by the Director of Public Prosecutions concerning "a state of affairs which has already taken place and that is now in the public domain"[70-72].

The case also serves as a reminder of the breadth of some of the exemptions in the Commonwealth Act.For example Section 33(1)(b) exempts a document where disclosure "would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.”

Deputy President McPherson observed:
  1. .... it is not a requirement of s 33(1)(b) that the information itself be confidential but only that it be communicated in confidence. The second comment, which is related to the first, is that, as the Full Court said when speaking of s 33(1)(b) in Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15 [at 25]:
“If the disclosure of a document would divulge any information or matter communicated in confidence by a foreign government to the government of the Commonwealth, that is sufficient to attract [s 33(1)(b)]. The fact that the information or matter may no longer be confidential is not to the point. The only question is whether the disclosure of the document would divulge information or matter that has been communicated in confidence.”
Deputy President McPherson said he was bound by the Full Court interpretation, so there was no point in Haneef's counsel arguing about the nature of the information.

There is justification for continuing confidentiality for information passed to us by foreign governments that remains sensitive and a lot will, but to pay no regard to whether the information deserved or needs to retain a confidential character, or to any other factors that might justify disclosure, seems far too generous.Some governments I can think of regard the time of day as confidential. And surely it should be a relevant factor if the information is now in the public domain in the country it came from, or if a compelling public interest would be served by disclosure in this country to the FOI applicant?

Another issue for policy and legislative attention.

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