Dr Haneef strikes out on FOI access

Two freedom of information decisions, one in the Federal Court, the other by the Queensland Information Commissioner went against Dr Mohamed Haneef recently, adding to the mixed FOI record of attempts to access documents concerning his detention and cancellation of visa in 2007. The fact that he has commenced legal action for defamation against former federal immigration minister Kevin Andrews and an unlawful arrest claim against the Federal Government may give rise through discovery to other access rights.

Both decisions concern issues relating to communication of information by a foreign government ( one the UK, the other India), and disclosure expected to cause damage to international relations. While the Federal Court decision is unremarkable in terms of interpretation and application of the law, it reminds that the blanket exemption under the Commonwealth act for information communicated in confidence by a foreign government has no element that requires balancing with any other consideration.

The Queensland Information Commissioner's decision on the other hand is a remarkable outcome. The similar Right to Information Act provision there, positively, requires consideration of the public interest in disclosure. But the exemption turned out to be broad enough to block Dr Haneef from obtaining the transcript of his conversation with the Indian Consul General while in detention in 2007, a document only in the hands of the Queensland Police because the conversation was taped without the knowledge of either party. And a ruling that disclosure of the transcript to Dr Haneef, who obviously knows what he and the Consul General said to each other, could be expected to cause damage to Australia's relations with India.
Federal Court

In Secretary, Department of Prime Minister and Cabinet v Haneef [2010] FCA 928 Justice Dowsett in the Federal Court of Australia allowed the Department's appeal, finding error of law in an Administrative Appeals Tribunal decision concerning two documents.

The Tribunal had found parts of a summary, but not others, of a conversation between the Head of Mission at the Australian High Commission in India and the Joint Secretary of the Indian Ministry of External Affairs exempt under  section 33(1)(b) of the Freedom of Information  Act -  information or matter communicated “in confidence” by or on behalf of a foreign government. The Department had argued all substantive parts of the document were exempt. Justice Dowsett said the Tribunal erred in analysing the document "to determine whether the parties intended that parts of the conversation be confidential based simply upon (an) assessment of whether such parts are worthy of being so characterized."[11-13]

The Tribunal’s reasons bespeak an error of law...The question of confidence must be resolved as between the communicator and the person to whom the communication is made. It is not a question of determining whether or not individual aspects of the relevant disclosure are of a kind which a third person (in this case, the Tribunal) might wish to keep confidential. Quite apart from the wording of the provision, I doubt whether the Tribunal could know, with any degree of certainty, the views which a senior Indian civil servant or, for that matter, an Australian diplomat might have concerning such matters.... Whilst some conversations may proceed upon the basis that parts are confidential and parts are not, there is nothing in the text of this document to suggest that the conversation in question was conducted on that basis. The evidence from Ms Stokes suggests that in her opinion, as an experienced diplomat, and in the Indian context, such a conversation would have been treated by the parties as confidential. In my view that is the question addressed by s 33(1)(b)..... However I am satisfied that the Tribunal, in taking a fragmented approach to the various passages in the memorandum, has failed to appreciate the extent of the protection provided by s 33(1)(b), a protection based upon the understandings of the parties participating in the conversation, rather than the subject matter. Of course it is possible that some conversations may be clearly “unofficial" in subject matter, but this is not such a case.....The Tribunal did not reject Ms Stokes’ evidence. It rather substituted its own views for hers. It did so in the mistaken view that the protection offered by s 33(1)(b) was limited by subject matter rather than the intention of the parties as to the conversation, a matter regarding which Ms Stokes could speak, based on her experience."

(Comment: In this case there may have been legitimate understandings of confidentiality, but as noted previously the exemption as it appears in the statute book, and will remain unchanged by the amendments to take effect on 1 November, means that any information communicated to an Australian official by anyone in any foreign government including the time of day according to such paranoid secret keepers as Burma and North Korea, will under our law be exempt from disclosure where the parties agree to or imply confidentiality. Even where (although irrelevant in this case) the information at the time sought is now in the public domain here or there, and regardless of whether the foreign  government concerned still regards it as sensitive. No public interest, including justice to an individual as might arguably be relevant in the Haneef case, trumps the fact that the parties involved agreed it was information communicated in confidence. We haven't got the balance right on this one. Policy makers and parliamentarians showed no interest in this during the 2009-10 reform process)

The second matter at issue in the case involved parts of  an “Information Brief” to the Minister for Immigration and Citizenship  concerning the manner in which his department conducted security checks and processes visa applications, and included three named persons, one of whom was Dr Haneef. The Department argued it was exempt under s 33(1)(a)(i), material that would (or could be reasonably be expected to) damage the security, defence or international relations of the Commonwealth.Justice Dowsett accepted that a failure by the Tribunal to refer to the evidence of one of the Department's witnesses in support of the exemption claim meant the Tribunal did not understand the  assertion that disclosure could reasonably be expected to cause damage to the security of the Commonwealth. When a submission that was “worthy of serious consideration” and “seriously advanced” was not taken into account, the Tribunal committed an error of law [24].

Queensland Information Commissioner

In Haneef and Department of Police (210751) the issue before the Commissioner was a claim by the agency, supported by the Department of Foreign Affairs and Trade and the Indian High Commission, that a four page transcript of a conversation between the Dr Haneef and the Indian Consul General on 4 July 2007 was exempt from disclosure under the Right to Information Act. The Consul General (and Haneef) had not been aware at the time the conversation was being recorded. Queensland Police mistakenly believed the Consul General had given consent [38]. 

 S 38 of the RTI act states:

Matter affecting relations with other governments

Matter is exempt matter if its disclosure could reasonably be expected to (a) cause damage to relations between the State and another government; or (b) divulge information of a confidential nature that was communicated in confidence by or on behalf of another government; unless its disclosure would, on balance, be in the public interest.

The two parts, (a) and (b)  are separate exemptions, each subject to the public interest test.

The Commissioner found the entire transcript exempt under s 38(a), that parts consisting of the words spoken to Dr Haneef by the Consul General also were exempt under s 38(b), and in each case, that disclosure would not be in the public interest. 

(Comment: Subsection (b), "information of a confidential nature that was communicated in confidence by or on behalf of another government," unlike the Commonwealth counterpart (s 33) that requires such a communication to be to a Commonwealth agency, makes no mention that the communication must be to a Queensland or any other government agency. The Commissioner found that the words spoken by the Consul General to Dr Haneef was information of a confidential nature communicated in confidence by or on behalf of a foreign government [72-80].

I don't know if the point was raised but despite the absence of words in the legislation, it might be arued the legislative intent was to cover communication from a foreign government to an Australian or Queensland agency. It seems strange and unexpected that the provision is broad enough to cover information communicated by the Consul General to an Indian national in a conversation the parties thought was just between them, and now sought by one of the participants in that conversation. The Consul General didn't, knowingly at least, communicate confidential information in confidence to any government agency.

The Commissioner's finding on subsection (a) that disclosure of the transcript to Dr Haneef could reasonably be expected to cause damage to relations between the State of Queensland and the Indian Government also surprises, given her finding that  there was  nothing in the words in the transcript that would give rise to such a development [49], that disclosure would involve no breach of any standard or principle regarding consular rights [50-52], and that damage to relations with India may have already been caused by knowledge of the fact the conversation was recorded without the Consul General's knowledge or consent [53].  Neither Queensland nor Australian Federal Police objected to disclosure [54]. On this point the Commissioner accepted the submission by the Department of Foreign Affairs and Trade  [67-69], apparently supported by the Indian Government [86].

Finally on the public interest test relevant to both subsections, the Commisioner acknowledged that the factors in favour of disclosure and non-disclosure were finely balanced, but found [81-86] that "the national interest favours non-disclosure to avoid damage or further damage to relevant relationships and that this outweighs those public interest factors favouring disclosure."

She listed [84] public interest factors that favour disclosure as:

• the degree to which current laws and the QPS Commissioner’s procedures explicitly reflect Australia’s international obligations and provide police officers with sufficient guidance about implementation
• the degree to which law enforcement agencies balance their obligations to protect the safety of Australians and respect international obligations in the context of new terrorist laws that significantly enhance police powers and reduce public scrutiny and
• the public interest in the police conducting themselves in a way that does not jeopardise Australians’ safety overseas and Australia’s reputation.

While the questionable conduct in the Haneef matter is largely that of the Australian government agencies not the Queensland Police, although they were clearly involved (they are adamant, the Commissioner says, that they acted lawfully [85]), it's interesting that the Commissioner made no mention of the following factors listed in the Schedule to the act as relevant to disclosure:

The information is the applicant’s personal information.

Disclosure of the information could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official.

Disclosure of the information could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies.

One thing certain is we haven't heard the last of Dr Haneef and others involved in events of 2007.