AAT decision a primer on cases relevant to some exemptions.

The decision of Senior Member Friedman in Maksimovic and Commonwealth Director of Public Prosecutions[2009] AATA 700 involved a number of Freedom of Information applications and many documents. The decision upheld all the agency exemption claims for documents that had not been released. The applicant had been convicted in September 2006 and sentenced to seven years’ imprisonment for importing a prohibited substance and attempting to possess a prohibited import, following the interception of a parcel sent by post from Costa Rica. Many of the documents contained information from Costa Rican intelligence officers or generated by state police during the investigation. There is nothing new in the decision but it is a useful collection of the precedents that hold sway in the interpretation and application of some exemptions in Commonwealth Act.

Damage to international relations.
Section 33(1) A document is an exempt document if disclosure of the document under this Act:(a) would, or could reasonably be expected to, cause damage to:..(iii) the international relations of the Commonwealth;

"13.In Re Maksimovic and Attorney-General’s Department (2008) 109 ALD 417 the Tribunal decided that the names of the Costa Rican officials were exempt under this section of the FOI Act. In Commonwealth v Hittich [1994] FCA 1324; (1994) 53 FCR 152 the Full Federal Court held that there is no public interest test in section 33, and in Re Wang and the Department of Employment, Education and Training (1988) 15 ALD 497 the Tribunal noted that the strong personal interest by an applicant in obtaining access to a document is not relevant. In Re Maher and Attorney-General’s Department (1985) 7 ALD 731 the Tribunal held that a mere allegation or possibility of damage to international relations was insufficient, but that the phrase damage to international relations of the Commonwealth comprehends intangible damage such as trust and confidence, even though such damage may be difficult to assess."

Documents containing information communicated by a foreign government in confidence
Section 33(1) A document is an exempt document if disclosure of the document under this Act:...(b) 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 organisation 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.

"17. In Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445 Wilcox J held that for the exemption in s 33(1)(b) of the FOI Act to apply there is no need for the information to be confidential in character or for disclosure to amount to a breach of confidence. At 448 he stated:

I do not think there is any scope for importing into s 33(1)(b) the equitable principles relating to breach of confidence. The paragraph recognises that there is a public interest in the Australian Government being seen by foreign governments, and their agencies, as a reliable recipient of confidential information; a government that will respect the status of confidential information that is supplied to it in the normal course of business. It would be neither possible nor appropriate for the Australian government to make judgments about the motives with which the information is supplied.

18.Whether a document is communicated in confidence is a question to be decided on the balance of probabilities (Re Environment Centre NT Inc and Department of the Environment, Sport and Territories (1994) 35 ALD 765), and there can be an implied or inferred understanding that the information would be kept confidential (Re Maher)"

Documents affecting relations with States
Section 33A (1) Subject to subsection (5), a document is an exempt document if disclosure of the document under this Act: ... (b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, 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 ... (5) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

"21. To establish an exemption under s 33A(1)(b) of the FOI Act it must be shown that the information in question was communicated in confidence by a State to the Commonwealth. It is not necessary that the information in fact be confidential, or that it be communicated in circumstances giving rise to an obligation of confidence (Re Environment Centre). There needs to be evidence that there is an express or implied understanding of confidentiality between the Commonwealth and the relevant State (Re Parisi and Australian Federal Police (1987) 14 ALD 11). Section 33A(5) of the FOI Act provides that the exemption in s 33A(1)(b) of the FOI Act will not apply if disclosure would, on balance, be in the public interest. In Re Mann and Australian Taxation Office (1985) 7 ALD 698 the Tribunal held that if prima facie the exemption is established under s 33A(1)(b) of the FOI Act, then without positive evidence to establish that disclosure would, on balance, be in the public interest, the exemption will be made out."

Documents affecting enforcement of law and protection of public safety
Section 37(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: (a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance; ... (2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: ... (b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or ...

"25. To establish the exemption under s 37(1)(a) of the FOI Act it is necessary to show that disclosure would, or reasonably be expected to prejudice an investigation, which requires more than a mere risk or possibility, and includes a situation where a person would be able to ascertain the state of the investigator’s information and thereby avoid detection (News Corporation Ltd v National Companies and Securities Commission (1984) 1 AAR 511).
30. As with s 33(1)(a) of the FOI Act, the requirement in s 37(2)(b) of the FOI Act that disclosure would, or could reasonably be expected to disclose lawful methods or procedures requires more than a mere possibility (News Corporation). In Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 the Full Court of the Federal Court referred to could reasonably be expected to... and stated at 190:

In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information’’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...

In Re Anderson and Australian Federal Police (1986) 11 ALD 355 the Tribunal held that a document may disclose methods or procedures either by specifically referring to or describing them, or by providing information from the nature of which the methods or procedures employed may be capable of being inferred."

Documents concerning certain operations of agencies
Section 40 (1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
...
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency;
...
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

36. In Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443 the Tribunal held that substantial adverse effect means an effect that is real or of substance and not insubstantial or nominal. In Re Wallace and Australian Federal Police [2004] AATA 845; (2004) 83 ALD 679 the Tribunal held that the exemption applied to information provided by the Thai police to the AFP on the understanding that the information would be kept confidential, and that disclosure would have a substantial adverse effect on the AFP by interfering with the close links between the AFP and the Thai police.

37. Section 40 does not prevent the disclosure of information where the disclosure would be, on, balance, in the public interest. In Re McKinnon and Commissioner of Taxation [2001] AATA 871; (2001) 48 ATR 1114 the Tribunal noted at [84] that ...satisfaction of the grounds in s 40(1) would ordinarily be enough, by itself, to make the grant of access prima facie contrary to the public interest.
39. In respect of the public interest consideration the Tribunal takes into account the objects of the FOI Act that recognise the right to gain access to documents in the possession of government agencies; the public interest in the scrutiny of the respondents in their investigation and prosecution of criminal activity; and the public interest in enabling an individual to gain access to information relating to that person’s prosecution and conviction. On the other hand there is a public interest in preserving the respondents’ ability to carry out their functions of investigating and prosecuting criminal activity in order to protect the community from the effects of serious crime. On balance the Tribunal finds that the public interest in non-disclosure outweighs the public interest in disclosure because the protection of the community requires the respondents to be able to carry out their functions of investigating and prosecuting criminal activity, and release of the exempt material would hinder their ability to do so effectively. Therefore the Tribunal finds that the exclusion provision of s 40(2) of the FOI Act does not apply to the exempt documents."