Corby FOI decision not as exciting as media reports suggest

The two mainstream media reports of a freedom of information decision by Deputy President Hack in the Administrative Appeals Tribunal suggest a large number of previously withheld documents are to be forced out of the hands of the Australian Federal Police: Eamon Duff in The Sydney Morning Herald "Corby granted access to case files" writes the decision paves the way "for reams" of new documents to be released. Jared Owens in The Australian "Schapelle Corby wins access to police records" reports Ms Corby won access to "a slew" of new Australian Federal Police records detailing the agency's dealings with Indonesian authorities at the time of her arrest. 

Not sure if Duff and Owens spent much time reading the decision, or whether they accepted someone's wishful thinking about the outcome, and hate to disappoint Corby supporters or others interested, but it was no big deal either in quantity or (to this casual observer of things Corby) the potential significance of the released documents.

Deputy President Hack decided to grant access to two documents, nine pages of another and additional parts of two other documents previously withheld. The Deputy President notes [6] a "good many" of the relevant documents sought had been released in full by the AFP in determining the application. More documents or parts of documents had been released during pre-hearing stages in the Tribunal [8]. 

In most respects Deputy President Hack affirmed the AFP decisions to deny access. The law applicable was the pre-reform Commonwealth FOI act as it stood prior to November 2010. It's largely a safe conservative decision, much of it devoted to dealing with 19 documents that  the AFP "wrongly, and too generously" listed as relevant despite the fact they do not answer the request [23]. 

Several of the claims by the AFP were faintly ridiculous as outlined below. But for the rest the AFP not Ms Corby had the win. When the penny drops expect more of this from Corby supporters. It's no conspiracy, just FOI-land.

Drawing from the published decision, the documents to be disclosed are:

A. The subject line and two paragraphs from a message from the AFP offering to provide forensic testing assistance as part of the Indonesian National Police investigations into Corby's arrest, an offer subsequently refused by the INP and the Indonesian text of the same letter. The AFP argued that the content of these documents "reflects the nature and context of relations between Australia and Indonesia and that disclosure has the potential to damage the ongoing relationship between the two countries. In particular it is said that the documents detail the way in which the offer of assistance was communicated, the INP's response to the offer, the language in which it was communicated, the identity and role of the AFP officer who made the offer and the identity and role of the INP officer who responded to the offer of assistance [12]. Deputy President Hack concluded:

13. Ms Drennan's evidence does not satisfy me that disclosure of the entirety of documents 1, 2 and 3 would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. It must surely be notorious that police forces routinely offer and seek assistance to or from other police forces. The fact and the nature of the offer made here has been disclosed by the AFP as has the fact that the offer was declined. Mr Keelty disclosed the fact of the offer on talkback radio on 23 May 2005. I have had regard, as well, to the last sentence of paragraph 43 of Ms Drennan’s affidavit as well as the documents themselves. In these circumstances I find it impossible to conclude that there is any realistic prospect of damage to Australia's relationship with Indonesia from the disclosure of the contents of these documents...14. I do however accept that the names and ranks of the officers involved and other contact details ought be redacted but otherwise I reject the claim for exemption under s 33(1)(a) of the FOI Act.

B. A draft statement prepared in response to allegations made by Ms Corby’s defence team that the AFP was involved in a cover-up and had not cooperated with it. The final version of this statement was released to the media and comments derived from it are publicly available. The AFP argued the draft was exempt as an internal working document (s 36) containing deliberative material in relation to what may or may not have been included in the final statement. Deputy President Hack reasoned:

39. Had document 46 being concerned with the question whether a public statement ought to be made or not it may well have answered the description “for the purposes of, the deliberative processes” in s 36. Consideration of whether a statement ought to be made or not is the type of deliberative process to which the section speaks. I accept that it would inhibit the formulation of policy if draft policy positions were exposed to the public glare. But I am not satisfied that a draft press release is in the same category. Seemingly, a policy decision had been made to issue a press release; what followed was a fact-checking process, not the process of weighing up policy options or suchlike.
40. Moreover, and contrary to the view expressed by Mr Whowell, I do not regard it as being contrary to the public interest to release this document and the information that it contains. It is not suggested that it would be contrary to the public interest that any particular part of the content not be released; the objection is that the disclosure of the document would disclose the manner in which the AFP formulate and develop press statements. I find it impossible to accept that any reasonable observer would think other than that an agency would go through the process of drafting, checking and refining press releases that this document demonstrates. It could not be thought to be otherwise. Thus revealing the fact that there is such a process engaged in before a final press release is issued could not, in my view, be contrary to the public interest. I am not satisfied that the release of the document would inhibit the operations of the AFP in any way.

C.  A ministerial briefing note regarding the prosecution of Ms Corby from which a deletion had been made. "Consistently with my views on documents 1, 2 and 3 in Application 2010/2438 I am not satisfied that release of the information contained could possibly damage our relationship with Indonesia." [85].

D.  “Talking Points” prepared in advance of Mr Keelty taking part in an interview with Mr Alan Jones on his talkback radio programme. The pages were claimed exempt on the basis of s 36:

90. I am not satisfied that folios 624 - 628 are exempt by virtue of s 36(1)(a) of the FOI Act. To be so, they must not only answer the description in s 36(1)(a) of the Act, but disclosure must also be contrary to the public interest.
91. I note, at the outset, that the transcript of the interview with Mr Jones has been disclosed in full. The question then is whether the document prepared in advance of that interview to brief Mr Keelty about answers he ought, or ought not, make, answers the substantive description in s 36(1) of the Act. I do not consider that it does. It does not present policy options, it merely presents matters of fact which the interviewee might wish to raise in the course of the interview. I can readily understand why it may be necessary for a police force to have a good relationship with the media in order to elicit public assistance in the prevention or detection of criminal activity. The material presented in this document is not of that nature, rather it seems to be that the AFP was seeking to engage in public debate and to present, through the medium of talkback radio, its point of view. I am not satisfied that it would be contrary to the public interest that the document not be disclosed.