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Tuesday, March 29, 2011

Secrecy still trumps, mostly, for E Timor Sitreps 35 years on

The subbie who wrote the headline"Secrets of E Timor invasion to be revealed" to the report of an Administrative Appeals Tribunal decision in today's Sydney Morning Herald was way ahead of the game.  President Downes in Clinton Fernandes and National Archives of Australia [2011] AATA 202 found 250 lines spread across 42  documents, all 35 years old, were not exempt as claimed under s 33 of the Archives Act. However as the Herald report revealed, even the applicant is yet to see those parts of the documents now to be released, so whether they amount to much despite the attempt to keep them secret remains to be seen. As President Downes [18] said: 
The passages which can be released are substantially passages which contain material which is not inherently confidential, where disclosure will not incidentally disclose anything that is.
Radio Australia carried the only other report today under the more accurate "New intelligence files may shed light on Balibo killings". Maybe, maybe not. According to RA
The Defence Department says 95 per cent of its claim was upheld and that it won't be appealing the decision.
The decision 
 The Respondent had claimed the documents in dispute were exempt from open access under s 33 of the Archives Act, as it stood prior to 1 November 2010:
(1) For the purposes of this Act, a Commonwealth record is an exempt record if it contains information or matter of any of the following kinds:
(a) information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth;
(b) 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, being information or matter the disclosure of which under this Act would constitute a breach of that confidence;

Parts of three documents were found to be exempt  under s 33(1)(b) because disclosure would “reveal highly sensitive communications from the US Government which were then, and remain now, confidential”. In respect of only one of the three was evidence provided that the US Government persisted in that claim [19]- a relevant factor in any case concerning the law after 1 November 2010, but not in this case. 

Most of the content of 42 other documents were found to be exempt under s 33(1)(a) primarily on the evidence of Ian McKenzie, the Director of the Defence Signals Directorate in a closed hearing to which only the witness giving evidence and counsel for the Archives were admitted.Detailed reasoning was not given in President Downes decision because of the nature of the information involved. It seems to have been based on a finding of damage to security although he makes no clear delineation of the three grounds available in S 33(1)(a)-damage to security, defence or international relations. 

President Downes took Mr McKenzie at his word: that this is "material of the most sensitive kind which would still impact on national security, or material given in confidence by a foreign government...." The rest of us will have to do the same. Just how long this reasoning holds- 40, 50 or 100 years- will be in the hands of future determined researchers, or perhaps law makers who see value in adding a public interest test regarding open access to information in the ancient history category.

  1. The thrust of the applicant’s case was that the events of the second half of 1975 in East Timor had already received so much publicity and analysis that there could be very little remaining which attracted confidentiality for reasons of national security. The most significant of these was the publishing of the 2007 New South Wales Coroner’s Report into the death of Brian Raymond Peters who was one of a number of journalists who were killed in East Timor in October 1975. The coroner’s report covers one hundred and thirty-two pages. I have read it in full. It covers the events which took place in East Timor, and particularly the deaths of the journalists, in the greatest detail. It contains material relating to the documents which are before me. Generally, however, it does not quote the documents, although it refers to witnesses’ recollections of what was in some of the documents.
  2. I have had these considerations at the forefront of my mind in determining what matter in the documents is exempt. Giving full weight, however, to the fact that nearly everything is now known about East Timor in 1975 I have still been satisfied by the confidential evidence before me that the material I do not propose to release is exempt material.
  3. Naturally, I have also taken into account that the events covered by the documents took place 35 years ago. I have taken into account that the policy of the Act is that, prima facie, material thirty years old, however confidential it may have been at the time it was prepared, can be taken to have lost that confidentiality. Only material of the most sensitive kind which would still impact on national security, or material given in confidence by a foreign government, should be exempt.
  4. Notwithstanding the force of these considerations, which has led me to determine that significant parts of the 42 documents are not exempt, I am nevertheless satisfied that the remaining passages for which exemption is claimed, are exempt.
  5. The applicant put a case before me which anticipated that a major part of the reasoning behind the claimed exemptions related to what it might disclose relating to encryption methods and the deciphering of encripted documents. This was no doubt prompted by the material in Mr McKenzie’s open affidavit relating to intelligence sources and capabilities. It was said that the means of deciphering encryptions made with the technology of the 1970’s were now well known. Be that as it may, I am satisfied that the claim for exemption is still made out in principle. To give further reasons would risk disclosure of matter I consider to be exempt.

1 comment:

  1. Enjoyed reading your comments on this case - especially your point that President Downes made no clear delineation of the three grounds under S33(1)(a) - leaving us all to speculate. And trust?

    Yes, clearly it will take (much) more work from determined researchers to challenge the reasoning you rightly question. But maybe there aren't very many of them in this area: worth noting that the material Clinton Fernandes sought (from Series A13685; "Joint Intelligence Organisation Reports on Portuguese Timor and Indonesian Timor") is the *only* JIO/DIO record series listed on the National Archives public. database.

    Clinton Fernandes has done well to bring this material into the light in the first place.