Dr Haneef battles tough law and some weak arguments

Dr Mohamed Haneef (Associated Press)

This report in The Australian this week alerted me to an Administrative Appeals Tribunal Freedom of Information decision in October involving Dr Haneef (Australian and Indian readers know who I mean) that I missed at the time. According to The Australian, the Department has appealed to the Federal Court.

Senior Member McCabe in Haneef and Secretary Department of Prime Minister and Cabinet [2009] AATA 777 granted access to some documents and to many parts of others that the Department had claimed exempt following an application by Dr Haneef in June 2008 for documents that shed light on the circumstances surrounding decisions to detain him and cancel his visa in July 2007. The decision is of interest in two respects: the absolute nature of two of the exemptions that will remain unchanged under the FOI Reform Bill introduced into Parliament last week; and arguments put (unsuccessfully) by the Department in arguing some exemption claims.

Section 33: documents that might damage international relations or contain information provided in confidence by a foreign government.

A document concerning outcomes of a meeting of the Australian government members of the National Counter-Terrorism Committee held on 5 July 2007 contained some information provided to the Australian Federal Police by the UK Metropolitan Police Service. Senior Member McCabe noted the information was "relatively uncontroversial information" but the only relevant question was whether disclosure “would, or could reasonably be expected to, cause” damage to Australia's international relations:

49. There is nothing in document 19 that should cause the MPS any difficulty, but that is not the test. I am not entitled to assume the MPS is committed to the same standards of openness that we try to observe in this country. Indeed, I am not entitled to assume the MPS will behave reasonably or consistently or helpfully. The focus is on how that organisation is likely to respond if the disclosure occurs. All I have is the guidance of Mr Appleby, and that guidance suggests the response is likely to be damaging. I note that the MPS does not appear to have reacted unfavourably to other disclosures, but Mr Appleby explained those disclosures as being, in effect, authorised by the MPS through its liaison officers. I am troubled by the conclusion, but there it is: the exemption is made out."

It was similarly game, set and match in respect of the same information claimed exempt also on grounds that disclosure would reveal information provided in confidence from a foreign government under s 33(1)(b). Evidence it was provided in confidence is all that is required. [At 80]:

"Deputy President McPherson pointed out in Re Haneef and Australian Federal Police [2009] AATA 51 (at [40]) that the information in question does not have to be confidential in and of itself. The information might in fact be publicly available. The test, rather, is whether that information was provided in confidence. The learned Deputy President reached that view after reviewing the Full Court’s decision in Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15. I accept that view.

81.Mr Appleby said the information in document 19 was provided by the MPS. He said it did not originate from any other source. While he was not able to specifically identify who supplied the information to whom or in what circumstances, he said it was his understanding that all of the information provided was provided in confidence. I have no other evidence before me to contradict that assertion, and I accept it. In those circumstances, the exemption is made out and the redacted portion of the document should not be released."

Comment: In the case of both these exemptions, the triviality of the information or the strength of the public interest in disclosure are irrelevant considerations. In this case the United Kingdom said disclosure would cause damage to relations and that information had been given in confidence. But the same principles would apply if governments who might assert the time of day was information of this kind- North Korea, and Burma, come to mind, but there are others. More tightly drawn exemptions or a public interest test would provide more balance.

Exemption claim arguments

The Department prevailed in respect of many exemption claims, including for various cables from the Australian High Commission in New Delhi that contained assessments and comments from staff that if disclosed would damage relations. But on other points, some arguments (rejected by Senior Member McCabe) are surprising coming from the Department responsible for development of FOI policy in a government committed to changing the culture of secrecy in government.

See in particular [ 37-41] Senior McCabe's contrary view on an internal working document claim, that disclosing material in draft form might cause public servants to be less forthright in the future in giving advice or that the public would be misled or misinformed by release of a document that was not a final departmental position.

Similarly [58-60] on another document, leading to this conclusion by Senior Member McCabe:

"The limited discussion of options contained in the extract gives a clear and (I would have thought) uncontroversial picture of the bureaucracy’s thinking at a particular point in time. The nature of the information and the context in which it is provided make it clear that it is not a final view. There is little danger of it misleading anyone. Its disclosure would not deter diligent public servants from making similar comments in the future. In all the circumstances, I do not accept that release of the material would be contrary to the public interest."

[At 83] regarding disclosure of part of a document of a preliminary nature that does not pretend to represent a concluded view:

"I do not see how the disclosure would have the effect of chilling or discouraging the provision of advice. I do not accept it would be against the public interest to disclose the material."

There were other instances where the Department's claims were overruled including [125] an argument about deleting a word on grounds that disclosure would be very damaging to national security, withdrawn after Senior Member McCabe pointed out the word had been disclosed to the applicant in another document; several claims of confidentiality ,and personal information claims for names of individuals, already in the public domain.