Walker and Australian Federal Police and Anor [2010] AATA 965 (1 December 2010)

Last Updated: 9 February 2011

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL ) No 2008/4338

) 2008/4499

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KELL WALKER

Applicant

And

AUSTRALIAN FEDERAL POLICE

Respondent

And

AUSTRALIAN CUSTOMS SERVICE

Respondent

CORRIGENDUM

Tribunal

Senior Member Bernard J McCabe

Date 7 February 2011

Place Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision as follows:

1. Delete the reference to document 244 referred to under the sub-heading ‘Section 22’ in the Decision and replace with document 243.
   
2. Delete the reference to document 244 in paragraph 222 of the Reasons for Decision and replace with document 243.
   

..............................................

Senior Member

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL ) No 2008/4338

) 2008/4499

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KELL WALKER

Applicant

And

AUSTRALIAN FEDERAL POLICE

Respondent

And

AUSTRALIAN CUSTOMS SERVICE

Respondent

CORRIGENDUM

Tribunal

Senior Member Bernard J McCabe

Date 3 February 2010

Place Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision as follows:

1. Amend the decision so that the following document numbers are included in the list of documents where the decision to exempt has been affirmed pursuant to
   s 33 (1)(b): Documents 41, 123, 194, 287, 288.
   
2. Amend the decision so that the following document numbers are included in the list of documents where the decision to delete material in the documents has been affirmed pursuant to s 22: Documents 220, 225.
   
3. The text of the Reasons for Decision should be amended so that the following text is inserted following paragraph 223 and preceding the heading ‘Conclusion’:
   

OTHER CLAIMS

224. There were several other claims for exemption that have not been addressed in the reasons above. The first of these is in relation to document 41. The AFP says the whole of the document is exempt pursuant to s 33(1)(b). I am satisfied the exemption is available. The evidence was obviously provided to the AFP by an agency of a foreign government. The contents of the document suggest the information was provided on a confidential basis. In any event, as I explain elsewhere in my reasons, I accept the evidence of AFP witnesses to the effect that information of this nature was provided in confidence by the foreign government in question. I am satisfied the document is exempt in its entirety under s 33(1)(b). I would reach the same conclusion for the same reasons in relation to document 123.
225. Document 288 may be publicly available elsewhere, but it was apparently provided to the AFP in confidence by a foreign agency. As I observed at [152] of my reasons in Walker and Australian Federal Police and Anor:

I note Mr Taggart’s evidence that all of the information provided by the overseas agencies in question here was provided in confidence pursuant to established arrangements and on the understanding that the confidence would be respected.

I have no reason to take a different view of document 288. I am satisfied it is also exempt pursuant to s 33(1)(b).

226. I turn next to document 194. I have already dealt with a number of other claims for exemption that were made in relation to document 194, but I did not address the claim under s 33(1)(b). The document recounts information that was provided by a foreign agency. I have already accepted the evidence of the AFP witnesses to the effect that information provided by this agency (amongst others) was provided in confidence. I accept the document is exempt under s 33(1)(b) and should not be released. I am of the same view in relation to the claim under s 33(1)(b) in respect of document 287. The first paragraph of the document refers to information that was received from a foreign agency. The balance of the document makes a request in response to that information. I am satisfied that release of the document would disclose matters that were communicated in confidence by a foreign agency. The decision to exempt the document under s 33(1)(b) is affirmed.
227. That leaves the AFP’s claim that portions of documents 220 and 225 are irrelevant. Both of these documents are routine reports from an overseas AFP post on its activities during the reporting period. I have perused the material in both documents that was deleted pursuant to s 22. I am satisfied the material in each document is irrelevant to the terms of the applicant’s request. It does not appear to have anything to do with this case. In those circumstances, I would affirm the decisions to delete the material from documents 220 and 225 pursuant to s 22.

..............................................

Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 965

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4338

2008/4499

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KELL WALKER

Applicant

And

AUSTRALIAN FEDERAL POLICE

Respondent

And

AUSTRALIAN CUSTOMS SERVICE

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe

Date 1 December 2010

Place Brisbane

Decision

The Tribunal affirms, varies, sets aside and remits as follows: A. Customs Documents Document 1 The decision is affirmed in part, varied, set aside in part and remitted for reconsideration as follows: The first, second and third redacted entries on p 3 are exempt under s 41(1) The remaining entries on p 3 are exempt under s 41(1) with one exception: the sixth name and telephone number in the last redacted portion of text on p 3 The redacted passages on p 4 are exempt under s 41(1) The names on p 5 are exempt under s 41(1) The large passage on p 5 is not exempt under s 37(2)(b) however the Tribunal remits the matter so that Customs might reconsider whether an alternative exemption under s 37(1) ought to be claimed In respect of the redacted portion of text on p 6 the exemptions under s 40(1)(d) are affirmed The other redacted entries on p 6 are exempt under s 37(2)(b) The redacted entries on p 7 are exempt under s 37(2)(b) In respect of the redacted entries on pp 6-7 the exemptions under s 41 are affirmed Document 2 The decision is affirmed in part and varied as follows: The eighth, ninth, tenth, thirteenth and fourteenth paragraphs are exempt under s 33A(1)(b) but not exempt under either s 37(1)(b) or s 41(1) Other redacted extracts on pp 4-5 are exempt under s 37(2)(b) and s 41(1) Document 3 The decision is affirmed: The redacted entries in this document are exempt under s 37(2)(b) Document 4 The decision to release in part document 4 is affirmed in part and set aside in part as follows: The decision in relation to the second paragraph on p 2 is set aside and substituted for a decision that the information should be released. The fourth, fifth and sixth paragraphs on p 2 are exempt under s 41(1) The ninth paragraph on p 2 is exempt under s 37(2)(b) The that material said to be exempt under s 41(1) on pp 3-4 and the first and second paragraphs on p 5 Is exempt The material said to be exempt under s 33A(1)(b) on p 3 is exempt The material said to be exempt under s 33A(1)(a) in paragraph 4 on p 3 is exempt The sixth paragraph of p 5 is exempt under s 37(2)(b) Document 5 Document 5 has been released in full Document 6 The decision is affirmed: The redacted material is exempt under s 41(1) Document 7 The decision is affirmed: The redacted material is exempt under s 41(1) Document 8 Document 8 has been released in full Document 9 The decision is affirmed: The redacted material is exempt under s 33(1)(a) Document 10 The decision is affirmed: The redacted material is exempt under s 33(1)(b) Document 11 The decision is affirmed: The material is irrelevant within the meaning of s 22(1)(a)(ii) Document 12 The decision is affirmed: The material is irrelevant within the meaning of s 22(1)(a)(ii) Document 13 The decision is affirmed in part, set aside in part and remitted for reconsideration as follows: The decision to exempt the first redacted entry on p 1 is set aside and remitted to Customs to reconsider whether an alternative exemption under ss 37(1)(a) or 37(2)(b) can be claimed The redacted material on pp 2-3 is exempt under s 33(1)(b) The whole of pp 2-3 is not irrelevant within the meaning of s 22(1)(a)(ii) Document 14 The decision is affirmed in part, varied, set aside in part and remitted for reconsideration as follows: The decision to exempt the first two redacted extracts on p 1 pursuant to s 33(1)(b) is set aside and substituted for a decision that the material is not exempt under s 33(1)(b) The redacted material in paragraphs 5-9 on p9, the second paragraph on p 10 and the fourth dot point on p 10 is exempt under s 41(1) The decision to exempt the remaining redacted extracts under s 33(1)(b) is set aside although the Tribunal remits those portions of the document to Customs to consider whether any other exemptions are appropriately invoked under either ss 37 and 40 The redacted material in the second paragraph on p 2 and the first two paragraphs on p 3 is not exempt pursuant to s 37(2)(b) The material following the second dot point at the foot of the third page of the combined document (p 2 of the report) under s 37(1)(a) is exempt The redacted material in the first two sentences on p 5 are exempt pursuant to s 43(1)(c)(ii) The redacted material in the sixth paragraph on p 5 is exempt under s 41(1) The remaining redacted material on pp 6-7 is exempt under s 41(1) The redacted material on p 8 is exempt under s 41(1) The redacted material in paragraphs 3-4 on p 9 is exempt under s 41(1) The redacted material on p 6 is not exempt under s 37(2)(b) The redacted material in the first sentence in the second paragraph on p 8 is not exempt under either ss 37(1)(a) or 37(2)(b) The redacted material in the second line of the fifth paragraph on p 8 is exempt under s 43(1)(c)(i) The decision to exempt the redacted material in the first dot point on p 10 is set aside and remitted for reconsideration on the basis that an exemption under s 33A may be available The redacted material in the second dot point on p 10 is exempt under s 37(2)(b) Document 15 The decision is affirmed: The whole document is irrelevant for the purposes of s 22(1)(a)(ii) Document 16 The decision is affirmed: The whole document is irrelevant for the purposes of s 22(1)(a)(ii) Document 17 The decision is affirmed in part and set aside in part as follows: The redacted material in lines 1-2 and 5-6 on p1 (the first email) is exempt under s 22(1)(a)(ii) The redacted material in lines 3-4 on p 1 is not irrelevant for the purposes of under s 22(1)(a)(ii) The decision to exempt the first 12 words of line 4 on p 1 under s 33(1)(b) is set aside The redacted material in the first two lines (following the sixth word in line 1and the third to twelfth paragraphs) on p 1 (the second email) are exempt under either s 22(1)(a)(ii) or s 33(1)(b) The redacted material in the second paragraph of the second email is exempt under s 37(1)(a) Document 18 The decision is affirmed: The document is irrelevant for the purposes of s 22(1)(a)(ii) Document 19 The decision is affirmed: The one line in the third paragraph on p 1 is exempt under s 37(1)(a) Document 20 The decision is affirmed: The document is irrelevant within the meaning of s 22(1)(a)(ii) Document 21 The decision is affirmed: The document is irrelevant within the meaning of s 22(1)(a)(ii) Document 22 The decision is affirmed in part, varied, set aside in part and remitted for reconsideration as follows: The large portions of redacted material on p 1 are irrelevant within the meaning of s 22(1)(a)(ii) The decision to exempt the subject header on p 1 under s 33(1)(b) is set aside and remitted for reconsideration to determine whether another exemption is available The balance of the text redacted pursuant to s 33(1)(b) on p 1 are not exempt with one exception: paragraph 15 is exempt under s 33(1)(b) Paragraphs 4-6, 8-9, 12 and 15-16 on p 1 are not exempt under s 37(2)(b) Paragraphs 7 and 14 on p 1 are exempt under s 37(2)(b) Document 23 The decision is affirmed: The document is irrelevant within the meaning of s 22(1)(a)(ii) Document 24 The decision is affirmed: The document is irrelevant within the meaning of s 22(1)(a)(ii) The two paragraphs of the second email are also exempt under s 33(1)(b) Document 25 The decision is affirmed: The redacted material on line 1-4 and line 6 to the end of the page is irrelevant within the meaning of s 22(1)(a)(ii) The redacted material on line 5 is exempt under s 37(1)(a) Document 26 The decision is affirmed The document is exempt under s 33(1)(b) Document 27 The decision is affirmed: The document is exempt under s 33(1)(b) Document 28 The decision is varied and set aside in part as follows: The redacted material in the various emails is irrelevant within the meaning of s 22(1)(a)(ii) with one exception: the heading to the fourth email is not irrelevant within the meaning of s 22(1)(a)(ii) The subject headers which are said to be exempt under s 33(1)(b) are not exempt under that sub-section The third paragraph in the first email is not exempt under s 33(1)(b) The second paragraph in the first email is not exempt under s 33(1)(b) and s41(1). The decision is set aside and remitted to Customs to consider whether any other exemption is available Document 29 The decision is varied as follows: The entire document is irrelevant within the meaning of s 22(1)(a)(ii) with one exception: the headings to each of the three emails are not irrelevant within the meaning of s 33(1)(b) Document 30 The decision is varied as follows: The entire document is irrelevant within the meaning of s 22(1)(a)(ii) apart from the headings to the two emails which are relevant. The headings are not exempt under s 33(1)(b) Document 31 The decision is affirmed: The redacted material in the entire first page is irrelevant within the meaning of s 22(1)(a)(ii) The redacted material in the first and second paragraph of p 2 is exempt under s 33(1)(b) Document 32 The decision is affirmed: The document is exempt under s 33(1)(b) Document 33 The decision is varied and set aside in part as follows: The redacted material in the various emails is irrelevant within the meaning of s 22(1)(a)(ii) with one exception: the heading to the fourth email is not irrelevant within the meaning of s 22(1)(a)(ii) The subject headers are not exempt under s 33(1)(b) The third paragraph in the first email is not exempt under s 33(1)(b) The second paragraph in the first email is not exempt under s 33(1)(b) and s41(1). The decision is set aside and remitted to Customs to consider whether any other exemption is available Document 34 The decision is affirmed in part and set aside and remitted for reconsideration as follows: The document is irrelevant within the meaning of s 22(1)(a)(ii) with one exception: the material in the second paragraph of p 2 is irrelevant within the meaning of s 22(1)(a)(ii) The redacted material in the second paragraph of p 2 is not exempt under s 41(1) however the decision is remitted to Customs for reconsideration to determine if an alternative ground of exemption is available Document 35 The decision is affirmed in part, varied, set aside in part and remitted as follows: The redacted material in the sixth paragraph on p 2 – the first 9 words on the second line, the seventh paragraph on p 2, the ninth paragraph on p 8, the first, second, fourth, sixth, seventh, eighth and ninth paragraphs on p 9 and the fourth and seventh paragraphs on p 11 are exempt under s 33(1)(b) The second paragraph (second and third lines) on p 1 are not exempt under ss 37(1)(a) and 41(1) The second paragraph on p 2 is not exempt under ss 37(1)(a) and 41(1) The two photographs on p 1 are exempt under s 41(1) The redacted material on the first four lines of the final paragraph on p 4 is exempt under s 43(1)(c)(ii) The redacted material on p 5 is exempt under s 41(1) The redacted material from paragraph 4 to the end of the page on p 5 is not exempt under s 37(2)(b) The redacted material in paragraphs 1-5 on p 6 is not exempt under s 37(2)(b) The redacted material in pp 6-9 is exempt under s 41(1) The redacted material in the third paragraph on p 7 is exempt under ss 37(1)(a) and 37(2)(b) The redacted material in the second line of the sixth paragraph on p 7 is exempt under s 43(1)(c)(i) The redacted material in the first dot point on p 11 under ss 37(1)(a) and 37(2)(b) is not exempt. The decision is set aside and remitted to Customs for reconsideration on the basis that an exemption under s 33A may be available The redacted material in the second dot point on p 11 is exempt under s 37(2)(b) Document 36 The decision is affirmed: The first page of the document is irrelevant within the meaning of s 22(1)(a)(ii) The first and second paragraphs on the second page of the document are exempt under s 33(1)(b) Document 37 The decision is affirmed: The first page of the document is irrelevant within the meaning of s 22(1)(a)(ii) Document 38 The decision is varied as follows: Only the second sentence of the second paragraph is exempt under s 33(1)(b) Document 39 The decision is varied as follows: Only the second sentence of the second paragraph is exempt under s 33(1)(b) Document 40 The decision is affirmed: The document is exempt under s 33(1)(b) Document 41 The decision is affirmed in part and set aside in part as follows: Only the redacted material in the second sentence of the first paragraph on p 2 is exempt under s 33(1)(b). The other redacted material is not exempt. Document 42 The decision is affirmed: The document is exempt under s 33(1)(b) Document 43 The decision is affirmed: The redacted material is irrelevant within the meaning of s 22(1)(a)(ii) Document 44 The decision is affirmed: The document is irrelevant within the meaning of s 22(1)(a)(ii) Document 45 The decision is affirmed: The redacted material is irrelevant within the meaning of s 22(1)(a)(ii) Document 46 The decision is affirmed: The redacted material is irrelevant within the meaning of s 22(1)(a)(ii) Document 47 The decision is affirmed: The document is exempt under s 33(1)(b) Document 48 The decision is affirmed: The document is exempt under s 33(1)(b) Document 49 The decision is affirmed: The document is exempt under s 33(1)(b) Document 50 The decision is affirmed: The document is exempt under s 33(1)(b) Document 51 The decision is affirmed: The redacted material is exempt under s 33(1)(a) Document 52 The decision is affirmed: The document is exempt under s 33(1)(b) Document 53 The decision to exempt in full is varied as follows: The document is irrelevant within the meaning of s 22(1)(a)(ii☺ apart from the second and third paragraphs of the second email. Those redacted extracts are exempt under s 33(1)(b) Document 54 The decision is varied as follows: The document is exempt under s 33(1)(b) but the material is not irrelevant within the meaning of s 22(1)(a)(ii) Document 55 Document 55 has been released in full Document 56 The decision is varied as follows: The line that refers to the subject matter of document 55 is not exempt under s 33(1)(b) but is exempt under s 33(1)(a)(iii) Document 57 The decision is affirmed: The first paragraph of the first and second emails and the body of the third email are irrelevant within the meaning of s 22(1)(a)(ii) Document 58 Document 58 has been released in full Document 59 The decision is affirmed: The first three pages of the document are exempt under s 33(1)(b) Document 60 The decision is affirmed: The document is exempt under s 33(1)(b) Document 61 The decision is affirmed in part and varied as follows: The two entries in the document are exempt under s 37(2)(b) The last entry is not exempt under s 41(1) The last entry is not exempt under s 37(1)(b) The last entry is exempt under s 33A(1)(b) Document 62 The decision is affirmed: The several redacted entries in the document are exempt under s 41(1) The various redacted entries in the document are exempt under s 37(2)(b) Document 63 The decision is affirmed: The various redacted entries in the document are exempt under s 37(2)(b) Document 64 The decision is affirmed: The various redacted entries in the document are exempt under ss 37(2)(b) and 41(1) Document 65 The decision is affirmed: The text under the heading “persons associated” is exempt under s 41(1) Document 66 The decision is affirmed in part and varied as follows: The redacted entries are exempt under s 45(1) The document is irrelevant within the meaning of s 22(1)(a)(ii) with two exceptions: the text accompanying numbered entry “2 Title” on the first page of the document and the first box under the heading “19 Value added text” – ie the text on the second line of the box after the first compound word up to (but not including) the entry in parenthesis at the end of the third line – is not irrelevant within the meaning of s 22(1)(a)(ii) Document 67 Document 67 has been released in full Document 68 The decision is affirmed: The third email on the first page of the document is exempt under s37(1)(a) The redacted material in the third paragraph of the third email is exempt under s 41(1) The redacted material in paragraphs 3-5 on the second page of the document are exempt under s 37(1)(a) The redacted material on the top of the third page is exempt under s 37(1)(a) The redacted material in the four paragraphs of the third email on p 3 are irrelevant within the meaning of s 22(1)(a)(ii) Document 69 Document 69 has been released in full Document 70 The decision is affirmed: The document is irrelevant within the meaning of s 22(1)(a)(ii) Document 71 The decision is affirmed: The document is irrelevant within the meaning of s 22(1)(a)(ii) Document 72 The decision is affirmed: The document irrelevant within the meaning of s 22(1)(a)(ii) B. AFP Documents Section 37(1)(a) The decision to exempt material redacted from the following documents under s 37(1)(a) is affirmed: Documents 1, 2, 7, 14, 16, 17,19, 28, 32, 36, 38, 47, 49, 50, 54, 59, 66, 71, 74, 77, 78, 85, 90, 91, 92, 94, 95, 98, 100, 101, 102, 103, 104, 105, 107, 108, 109, 110, 111, 112, 119, 120, 122, 125, 131, 132, 133, 135, 136, 137, 138, 140, 142, 144, 146, 147, 148, 149, 150, 151, 152, 161, 162, 163, 164, 167, 168, 169, 170, 171, 172, 173, 174, 175, 177, 178, 184, 185, 194, 196, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 216, 217, 218, 219, 221, 223, 225, 226, 239, 248, 249 and 290 The decision to exempt material in document 97 under s 37(1)(a) is varied as follows: the redacted material on lines 1, 2, 4, 5, 9 and 12 on p 1 of the document is not exempt under s 37(1)(a). The remaining entries in that document are exempt under s 37(1)(a). Section 33(1)(b) The decision to exempt material redacted from the following documents under s 33(1)(b) is affirmed: Documents 1, 4, 6, 11, 12, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 42, 43, 44, 45, 46, 47, 48, 49, 50, 54, 55, 56, 58, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 71, 73, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 87, 90, 91, 92, 94, 95, 96, 97, 100, 101, 104, 105, 106, 107, 109, 110, 111, 112, 113, 114, 115, 116, 119, 120, 122, 126, 127, 129, 130, 135, 137, 138, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 153, 154, 155, 156, 157, 158, 160, 161, 163, 164, 167, 169, 170, 171, 172, 173, 175, 176, 177, 178, 180, 181, 183, 184, 185, 186, 187, 188, 189, 191, 192, 193, 195, 196, 198, 200, 207, 216, 217, 218, 219, 221, 223, 224, 225, 226, 228, 229, 230, 231, 232, 234, 235, 236, 239, 241, 242, 243, 245, 247, 248, 249, 250, 252, 255, 257, 260, 265, 267, 268, 269, 275, 276, 280, 281, 282, 284, 286, 289, 290, 291, 293, 294, 295, 296, 297, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 312, 313, 314, 315, 316, 317, 318, 320, 322, 323, 324, 327, 328, 332, 333, 334, 335, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354 and 355 The decision to exempt material from the following documents under s 33(1)(b) is set aside: documents 88, 99, 272, 273, 274 and 277. The Tribunal decides in substitution that the redacted material is not exempt. Document 102 The decision to exempt material from Document 102 is affirmed in part and set aside in part as follows: The text accompanying the dot points on p 1 is not exempt under s 33(1)(b) The remaining redacted material is exempt under s 33(1)(b) Document 121 The decision to exempt material from Document 121 is affirmed in part and set aside in part as follows: The whole document apart from the two words following the heading “Reason for travel” in the middle of the document is not exempt under s 33(1)(b) The remaining redacted material is exempt under s 33(1)(b) Document 197 The decision to exempt material from Document 197 is affirmed in part and set aside in part as follows: The redacted extract on p1 apart from the last 4 lines is not exempt under s 33(1)(b) The last 10 lines of text on p 5, the first 16 lines of p 6, and lines 7-12 on p 8 are not exempt under s 33(1)(b) The remaining redacted material is exempt under s 33(1)(b) Document 199 The decision to exempt material from Document 199 is affirmed in part and set aside in part as follows: The entire contents of p 1 apart from the last 2 lines of text are not exempt under s 33(1)(b) The entire contents of p 4 apart from lines 22-25 are not exempt under s 33(1)(b) The last 4 lines of p 5 and the first 5 lines of p 6 are not exempt under s 33(1)(b) The remaining redacted material is exempt under s 33(1)(b) Document 220 The decision to exempt material from Document 220 is affirmed in part and set aside in part as follows: The entire contents of p 1 are not exempt under s 33(1)(b) The remaining redacted material is exempt under s 33(1)(b) Document 222 The decision to exempt material from Document 222 is affirmed in part and set aside in part as follows: The last 5 lines on p 1 and the first 6 lines on p 2 are not exempt under s 33(1)(b) The remaining redacted material is exempt under s 33(1)(b) Document 271 The decision to exempt material from Document 271 is affirmed in part and set aside in part as follows: The redacted material on the first page of the document is not exempt under s 33(1)(b) The remaining redacted material is exempt under s 33(1)(b) Document 278 The decision to exempt material from Document 278 is affirmed in part and set aside in part as follows: The first 6 pages are not exempt under s 33(1)(b) The remaining redacted material is exempt under s 33(1)(b) Section 41(1) The decision to exempt material redacted from the following documents under s 41(1) is affirmed: Documents 11, 12, 19, 20, 21, 22, 23, 24, 25, 28, 30, 32, 35, 36, 37, 38, 40, 43, 47, 48, 49, 50, 54, 59, 60, 65, 66, 68, 70, 72, 75, 76, 78, 82, 83, 86, 94, 95, 96, 97, 98, 100, 101, 102, 103, 104, 105, 107, 113, 114, 115, 116, 119, 122, 124, 125, 126, 127, 128, 129, 131, 132, 133, 135, 136, 137, 138, 140, 141, 142, 144, 145, 146, 147, 149, 152, 153, 154, 155, 156, 158, 160, 161, 162, 163, 164, 167, 168, 169, 170, 171, 172, 174, 175, 176, 177, 178, 180, 181, 186, 190, 192, 194, 195, 196, 200, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 225, 226, 227, 228, 233, 239, 243, 247, 248, 249, 250, 263, 264, 271, 274, 275, 276, 277, 278, 279, 281, 285, 293, 294, 295, 298, 299, 300, 309, 310, 311, 312, 313, 314, 315, 316, 318, 327, 331, 333, 334 and 342 Document 1 The decision to exempt material from Document 1 is affirmed in part and set aside in part as follows: The redacted entries on p 1 of Document 1 are exempt under s 41. The last full sentence of the text above the line on p 1 is not exempt under s 41 is set aside. Document 27 The decision to exempt material from Document 27 is varied as follows: The text on the last page of Document 27 is not exempt under s 41 The remaining redacted text in Document 27 is exempt under s 41 Document 34 The decision to exempt material from Document 34 is set aside: The document is not exempt under s 41 Document 51 The decision to exempt material from Document 51 is varied as follows: The exemption under s 41 is only available in respect of the name of the individual referred to in the second paragraph Document 55 The decision to exempt material from Document 55 is affirmed in part and set aside in part as follows: The redacted entry on p 1 of Document 55 is not exempt under s 41 The remaining redacted text is exempt under s 41 Document 59 The decision to exempt material from Document 59 is affirmed in part and set aside in part as follows: The last 3 lines of text apart from the last 4 words in the last full paragraph above the footnotes on p 1 are not exempt under s 41 The other passages within that document are exempt under s 41 Document 74 The decision to exempt material from Document 74 is affirmed in part and set aside in part as follows: The last entry on p 2 of Document 74 is not exempt under s 41 The remaining redacted text in Document 74 is exempt under s 41 Document 183 The decision to exempt material from Document 183 is affirmed in part and set aside in part as follows: The last redacted entry in Document 183 is not exempt under s 41 The remaining redacted text in Document 183 is exempt under s 41 Document 184 The decision to exempt material from Document 184 is affirmed in part and set aside in part as follows: The first redacted entry in Document 184 is not exempt under s 41 The remaining redacted text in Document 184 is exempt under s 41 Document 193 The decision to exempt material from Document 193 is affirmed in part and set aside in part as follows: The second redacted entry in Document 193 is not exempt under s 41 The remaining redacted text in Document 193 is exempt under s 41 Document 224 The decision to material from Document 224 is affirmed in part and set aside in part as follows: The first redacted entry on p 2 of Document 224 is not exempt under s 41 The remaining redacted text in Document 224 is exempt under s 41 Document 235 The decision to material from Document 235 is affirmed in part and set aside in part as follows: The first redacted entry on p 1 and the identical redacted entry on p 2 of Document 235 is not exempt under s 41 The remaining redacted text in Document 235 is exempt under s 41 Document 241 The decision to material from Document 241 is affirmed in part and set aside in part as follows: The first three words of the first redacted entry on p 1 of Document 241 are not exempt under s 41 The remaining redacted text in Document 241 is exempt under s 41 Document 266 The decision to exempt material from Document 266 is set aside: All five redacted entries in Document 266 are not exempt under s 41 Document 267 The decision to exempt material from Document 267 is set aside: The redacted entry in Document 267 is not exempt under s 41 Document 317 The decision to exempt material from Document 317 is affirmed in part and set aside in part as follows: The redacted entry in the third paragraph of Document 317 is not exempt under s 41 The remaining redacted text in Document 317 is exempt under s 41 Document 69 The decision to exempt material from Document 69 is set aside: The redacted text in Document 69 is not exempt under s 41 Document 269 The decision to exempt material from Document 269 is set aside: The redacted text in Document 269 is not exempt under s 41 Document 306 The decision to exempt material from Document 306 is set aside: The redacted text in Document 306 is not exempt under s 41 Document 307 The decision to exempt material from Document 307 is set aside: The redacted text in Document 307 is not exempt under s 41 Document 308 The decision to exempt material from Document 308 is set aside: The redacted text in Document 308 is not exempt under s 41 Document 189 The decision to exempt material from Document 189 is affirmed in part and set aside in part as follows: The redacted text on p 8 of Document 189 is not exempt under s 41 The remaining redacted text in Document 189 is exempt under s 41 Document 191 The decision to exempt material from Document 191 is affirmed in part and set aside in part as follows: The second redacted extract on p 1 of Document 191 is not exempt under s 41 The remaining redacted text in Document 191 is exempt under s 41 Document 268 The decision to exempt material from Document 268 is affirmed in part and set aside in part as follows: The redacted text on pp 8-9 of Document 268 is not exempt under s 41 The remaining redacted text in Document 268 is exempt under s 41 Document 272 The decision to exempt material from Document 272 is affirmed in part and set aside in part as follows: The last two pages of Document 272 are not exempt under s 41 The remaining redacted text in Document 272 is exempt under s 41 Document 301 The decision to exempt material from Document 301 is affirmed in part and set aside in part as follows: The last 8 lines of p 1 and the first line of p 2 of Document 301 are not exempt under s 41 The remaining redacted text in Document 301 is exempt under s 41 Document 319 The decision to exempt material from Document 319 is set aside: The document is not exempt under s 41 Section 40(1)(d) The decision to exempt material redacted from the following documents under s 40(1)(d) is affirmed: Documents 1, 2, 7, 14, 16, 19, 20, 21, 23, 24, 25, 26, 28, 32, 36, 37, 38, 43, 46, 47, 48, 49, 50, 52, 54, 55, 59, 60, 62, 65, 66, 67, 68, 70, 71, 73, 74, 75, 77, 78, 79, 80, 82, 83, 84, 85, 86, 90, 91, 92, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107, 108, 109, 110, 111, 112, 119, 120, 122, 124, 125, 126, 129, 131, 132, 133, 135, 136, 137, 138, 140, 142, 144, 146, 147, 148, 149, 150, 151, 152, 155, 158, 161, 162, 163, 164, 167, 168, 169, 170, 171, 172, 173, 174, 175, 178, 184, 194, 195, 196, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 221, 226, 239 and 249 Document 12 The decision to exempt material from document 12 is set aside: The redacted text in Document 12 is not exempt under s 40(1)(d) Section 33(1)(a) The decision to exempt material redacted from the following documents under s 33(1)(a) is affirmed: Documents 1, 6, 19, 54, 55, 60, 67, 68, 86, 95, 96, 97, 101, 119, 120, 124, 129, 135, 140, 142, 144, 149, 158, 161, 163, 169, 170, 172, 173, 177, 178, 180, 183, 197, 198, 199, 200, 215, 217, 218, 219, 221, 225, 227, 228, 229, 232, 233, 234, 245, 260, 267, 268, 284, 296, 297, 303, 304, 317 and 320 Document 231 The decision to exempt material from Document 321 is affirmed in part and set aside in part as follows: The redacted text under the heading “media issues” on p 7 to the end of Document 231 is not exempt under s 33(1)(a) The remaining redacted text in Document 231 is exempt under s 33(1)(a) Document 236 The decision to exempt material from Document 236 is affirmed in part and set aside in part as follows: The redacted text on pp 8-11 of Document 236 is not exempt under s 33(1)(a) The remaining redacted text in Document 236 is exempt under s 33(1)(a) Section 43 The decision to exempt material from Documents 1, 22, 34, 35, 47, 51, 54, 55, 69, 74, 78, 84, 85, 88, 90, 95, 97, 98, 102, 119, 125, 129, 140, 142, 144, 151, 162, 164, 171, 172, 173, 175, 177, 206, 209, 223, 225, 226, 228, 230, 250, 268, 287, 330, 333, 334, 336, 337 and 338 is set aside: The extracts redacted pursuant to s 43(1)(c)(i) are not exempt. The decision to exempt material from Documents 38, 59, 71, 82, 83, 92, 100, 102, 126, 136, 153, 155, 161, 178, 183, 184, 189, 191, 194, 196, 204, 216 and 221 pursuant to s 43(1)(c)(i) is affirmed: The extracts redacted pursuant to s 43(1)(c)(i) are exempt. Section 37(1)(b) The decision to exempt material redacted from the following documents under s 37(1)(b) is affirmed: Documents 38, 47, 65, 66, 70, 103, 185, 215, 218 and 285 The extracts redacted pursuant to s 37(1)(b) are exempt. Section 37(2)(b) The decision to exempt material redacted from the following documents under s 37(2)(b) is affirmed: Documents 47, 59, 68, 78, 120, 148, 149, 150, 185, 190, 196, 224, 290 and 305 Document 102 The decision to exempt material from Document 102 is set aside: The redacted text in Document 102 is not exempt under s 37(2)(b) Document 207 The decision to exempt material from Document 207 is set aside: The redacted text in Document 207 is not exempt under s 37(2)(b) Document 190 The decision to exempt material from Document 190 is varied as follows: The third line of the fourth paragraph of folio 632 through to the end of the eighth paragraph on that page is not exempt under s 37(2)(b) The last six lines of folio 632 and the first line of folio 633 are not exempt under s 37(2)(b) The remaining portions of text redacted pursuant to s 37(2)(b) are exempt. Section 33A The decision to exempt material redacted from the following documents under s 33A is affirmed: Documents 36, 43, 59, 71, 97, 101, 248 and 318 Section 36 The decision to exempt material redacted from the following documents under s 36 is affirmed: Documents 78, 108, 137, 164, 185 and 216 Document 190 The decision to exempt material from Document 190 is varied as follows: The redacted text in folios 631-633 is not exempt under s 36 The remaining redacted text in folios 634-635 is exempt under s 36 Section 42 The decision to exempt material redacted from the following documents under s 42 is affirmed: Documents 2, 7, 8, 12, 22 and 48 Document 173 The decision to exempt material from Document 173 is set aside: The redacted text in Document 173 is not exempt under s 42 Section 22 The decision that the material redacted from the following documents is irrelevant under s 22 is affirmed: Documents 22, 34, 115, 128, 133, 135, 161, 169, 174, 183, 184, 197, 198, 199, 200, 212, 218, 219, 222, 224, 227, 229, 230, 231, 232, 233, 234, 237, 238, 239, 240, 244, 245, 246, 247, 249, 251, 252, 253, 254, 258, 259, 261, 262, 263, 269, 270, 300, 306, 308, 309, 310, 311, 312, 313, 314, 315, 319, 323, 324 and 325 Document 40 The decision to delete material from Document 40 is varied as follows: The second page of Document 40 is not irrelevant within the meaning of s 22 The remaining redacted text in Document 40 is irrelevant within the meaning of s 22 Document 51 The decision to delete material from Document 51 is set aside: The whole document is not irrelevant within the meaning of s 22 Document 158 The decision to delete material from Document 158 is varied as follows: The text following the first dot point on p 1 of Document 158 is not irrelevant within the meaning of s 22 The remaining redacted text in Document 158 is irrelevant within the meaning of s 22 Document 163 The decision to delete material from Document 163 is varied as follows: The two lines of text of the first sub-paragraph following the “-” mark in Document 163 is not irrelevant within the meaning of s 22 The remaining redacted text in Document 163 is irrelevant within the meaning of s 22 Document 168 The decision to delete material from Document 168 is set aside: The whole document is not irrelevant within the meaning of s 22 Document 171 The decision to delete material from Document 171 is varied as follows: The first page of Document 171 is not irrelevant within the meaning of s 22 The remaining redacted text in Document 171 is irrelevant within the meaning of s 22 Document 175 The decision to delete material from Document 175 is set aside: The whole document is not irrelevant within the meaning of s 22 Document 235 The decision to delete material from Document 235 is varied as follows: The second paragraph of text on the first page of Document 235 is not irrelevant within the meaning of s 22 The remaining redacted text in Document 235 is irrelevant within the meaning of s 22 Document 248 The decision to delete material from Document 248 is varied as follows: The third paragraph of text on p 2 of Document 248 is not irrelevant within the meaning of s 22 The remaining redacted text in Document 248 is irrelevant within the meaning of s 22 Document 250 The decision to delete material from Document 250 is varied as follows: The line of text immediately below the heading numbered “V” on p 5 of Document 250 is not irrelevant The remaining redacted text in Document 250 is irrelevant within the meaning of s 22 Document 268 The decision to delete material from Document 268 is varied as follows: The text of numbered paragraph 5 on the first page of Document 268 is not irrelevant within the meaning of s 22 The remaining redacted text in Document 268 is irrelevant within the meaning of s 22

.......................[Sgd].......................

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – request for access – respondents claiming exemptions on release of documents – Customs and the AFP made separate decisions on request for access to documents – joinder of proceedings – respondents’ claims affirmed, varied, set aside and remitted for reconsideration.

Freedom of Information Act 1982 (Cth), ss 22(1)(a)(ii), 33(1)(a), 33(1)(b), 33A, 36, 37(1)(a), 37(1)(b), 37(2)(b), 40(1)(d), 41(1), 42, 43(1)(c)(i), 43(1)(c)(ii), 45(1)

Attorney-General’s Department v Cockcroft (1986) 12 ALD 468

Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111

Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55

Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257

Re Haneef and Australian Federal Police [2009] AATA 51

Re Maher and Attorney-General’s Department (No 2) (1986) 13 ALD 98

Re Rees and Australian Federal Police [1999] AATA 252; (1999) 57 ALD 686

Re Russell Island Development Association Inc and Department of Primary Industries and Energy [1994] AATA 2; (1994) 33 ALD 683

Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15

REASONS FOR DECISION

1 December 2010 Senior Member Bernard J McCabe

1. Mr Kell Walker has sought access under the Freedom of Information Act 1982 (Cth) (“the Act”) to documents held by the Australian Customs Service (“Customs”) and the Australian Federal Police (“the AFP”). A number of the documents have been wholly or partly released but the respondents say a number of documents (or parts of documents) cannot be released because they are exempt or irrelevant to the request. Mr Walker has asked the Tribunal to reconsider the decisions.

THE BACKGROUND TO THE DISPUTE

2. Customs and the AFP often collaborate in the course of their work, and they share intelligence pursuant to a memorandum of understanding. The AFP in particular has an international dimension to its role. It maintains a presence in some overseas countries to provide assistance to local agencies and deal with matters of interest to Australia.
3. Mr Walker has a colourful past. In his unsigned affidavit of 8 October 2009, he describes himself as a salvage master with expertise in explosives and firearms. He says he was involved in “security matters” for overseas countries with links to Australian agencies.
4. The applicant was the master of the MV Retriever 1, a former naval mine sweeper that had been extensively refitted for work as a dive support vessel. Mr Walker said in his statement that he planned to conduct wreck investigations off the coast of various islands in the Pacific. He left Australian waters on 6 December 2006 bound for Suva. While there, he met with Mr Peter Foster, a notorious confidence trickster. Mr Walker said in his statement that he was contacted by someone with connections to the Australian government who asked that Mr Walker assist Mr Foster to leave Fiji and escape to Vanuatu where he would be met by Australian officials. The applicant claimed he was told Mr Foster had sensitive information about the recently installed military dictatorship in Fiji, and that Mr Foster’s life was in danger as a result. Mr Walker said he agreed to assist and allowed Mr Foster to board the vessel. Mr Foster managed to go ashore quietly in a small boat without Mr Walker’s permission before the vessel arrived in Vanuatu on 8 January 2007.
5. The vessel was held in Vanuatu by the local authorities in the days following the arrival of the vessel in Port Vila. The ship was searched and the crew questioned. Mr Walker said AFP officers were observed “directing” the local authorities as they carried out their initial searches. Importantly, though, those initial searches were conducted by the local authorities. Information obtained in the course of those searches was provided to Customs and the AFP by the Vanuatu authorities. An Australian investigation team arrived days later. The affidavit from Ms Jennifer Robinson, a senior Customs officer, confirms that a team from Customs was involved in that investigation although most of the work was done by the AFP.
6. The policing relationship between Vanuatu and Australia was explained in the affidavits of Mr Jared Taggart of the AFP. Mr Ramzi Jabbour of the AFP also discussed the relationship in his confidential affidavit. Mr Taggart says the terms of the relationship are set out in a memorandum of understanding known as the Memorandum of Cooperation between the Australian Federal Police and the Vanuatu Police Force on the Development and Sustainability of the Vanuatu Transnational Crime Unit (“the MoU”). A copy of that MoU was included in Mr Jabbour’s confidential affidavit. The MoU records the parties’ agreement that any classified information exchanged under the terms of the agreement must remain confidential. Mr Taggart says all information exchanged between the AFP and the Vanuatu police is exchanged on this basis under the terms of the MoU. He said the Vanuatu police have not consented to disclosures being made. Mr Paul Spooner, another AFP officer with experience of dealing with the Vanuatu authorities, provided further information in his confidential affidavit about the expectations that the Vanuatu authorities have in relation to documents and information they provide. His evidence suggested, in summary, that the Vanuatu authorities take confidentiality very seriously. I have no reason to reject that evidence, although I accept it can lead to curious results. There are a large number of documents that have been provided by overseas agencies. Not all of them are in and of themselves confidential. For example, the bundle of material includes copies of public records, court orders and references to media reports. That information is in the public domain. Even so, the AFP says those documents were supplied in confidence pursuant to the agreement and there is an expectation that they would remain confidential.
7. Not all of the law enforcement agencies involved in the investigation are covered by the terms of the MoU. The documents held by the AFP in particular include information provided by other agencies. The circumstances in which that information was sought is explained in Mr Taggart’s confidential affidavit at paragraphs [47]-[90]. I am satisfied from that evidence that the information provided by those agencies was also provided in confidence.
8. Mr Walker and others were charged with immigration and firearms offences in Vanuatu following the search and released on bail. Mr Walker was arrested again within a week and charged in relation to the assistance he had provided to Mr Foster. There was a good deal of media comment about Mr Foster at the time. Mr Walker was subsequently charged with threatening to kill a resident of Vanuatu. He was gaoled in relation to that last offence and deported to Australia a year later. All of the charges were laid by the local authorities.
9. Mr Walker wants access to information relating to him and his vessel that is held by the AFP and Customs. He is also annoyed that AFP officers in particular may have spoken to the media about his background and shared information (and, he says, misinformation) about him. He says the AFP, Customs and the Vanuatu authorities acted improperly and illegally detained him and his property. He suspects he is being targeted for political reasons. He is particularly upset at some of the allegations that he thinks have been made against him in background briefings to the press. That much was obvious from his oral and written evidence.
10. Customs and the AFP have made separate decisions on Mr Walker’s request for access to documents. The two matters were joined at the hearing because the issues and evidence were essentially the same. The bulk of the evidence was provided by AFP officers, and Customs relies on that evidence where relevant in its case.

EVIDENCE FROM OFFICERS OF THE AFP AND CUSTOMS

11. I received open and confidential affidavits from the following individuals, all of whom also gave oral evidence:
    • Jennifer Robinson of Customs. Ms Robinson’s affidavits described Customs’ involvement in the whole affair. They also included information about the different exemptions that were claimed.
    • Jacqueline Matan of the AFP. Ms Matan spoke about the search for documents and the basis upon which exemptions were claimed.
    • Jared Taggart of the AFP. Mr Taggart discussed the relationship with Vanuatu and provided information about the bases of some of the claims for exemption.
    • Paul Spooner of the AFP. Mr Spooner spoke about the relationship between Australia and Vanuatu and provided evidence about the bases of some of the claims for exemption.
12. In addition, I received a confidential affidavit from Ramzi Jabbour of the AFP, who gave oral evidence by telephone. James Watson of the AFP also provided an affidavit and gave oral evidence.

THE CUSTOMS’ DOCUMENTS

THE TERMS OF THE REQUEST TO CUSTOMS

13. Mr Walker made a request to Customs for the release of information about him on 9 April 2008. The terms of that request are as follows:

“I refer to the caption and request all information that you have or have access to including but not limited to secret files, restricted files and any file that you have used to inform other law enforcement agencies, courts in Australia and overseas on my character, perceived or otherwise, criminal history and all intelligence reports.

Further I request that you inform me of what countries you have sent information to and on what basis this information [was] sent.

Further again, I request that you provide me with all information that the Customs supplied to the Press including but not limited to comments made by the then Minister on or before January 2007.

The request in respect of the Ship Retriever 1 is made by me as the Master of the said ship.”

14. The applicant raised questions about additional documents in the course of email communications on 30 June 2008 and 1 July 2008. I will not repeat the text of those emails here. I am satisfied Customs have comprehensively summarised the terms of the totality of the correspondence as a request to provide documents containing information about the applicant or information about his vessel, the MV Retriever 1. My deliberations in relation to the Customs’ documents will proceed on that basis.
15. I was provided with unexpurgated hard-copies of the documents in question. I was also provided with an electronic copy of the documents on CD-ROM. I relied principally on the electronic version of the documents for the purpose of my analysis which I carried out having regard to the schedule. The final schedule of documents was filed by Customs under cover of a letter dated 28 October 2009. It sets out the exemptions claimed in respect of the many documents involved in this case. In some cases, a number of different exemptions have been claimed in respect of the same portion of text in a document. Where I am satisfied that text is exempt under at least one of the heads of exemption provided for in the Act, I do not necessarily proceed to consider all of the other claims that have been made. I have provided reasons for my decision in each case.

THE INDIVIDUAL CUSTOMS DOCUMENTS

16. Document 1 is an information report. On p 3, there is a series of names and telephone numbers and other information which Customs says should be exempt from disclosure by reason of s 41(1). Section 41(1) provides that a document may be exempt if disclosure would involve the “the unreasonable disclosure of personal information about any person (including a deceased person)”. The courts have taken a wide view of what constitutes personal information in cases like Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111. The expression potentially includes addresses, telephone numbers, dates of birth and information about a person’s health, financial and legal affairs and some other matters. There is some doubt over whether a bare reference to the name of an individual constitutes personal information within the meaning of the section. It may be that something must actually be said about the person: see, for example, Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55 at [27] per Kiefel J. However one must consider the reference in the context of the document as a whole. The appearance of a name in a particular context might create a link between the individual and the subject matter of the document, thereby disclosing personal information.
17. The decisions in Colakovski and Kristoffersen underline the importance of considering each piece of information in the circumstances when deciding whether or not it constitutes personal information. It is difficult to analogise and general rules or sweeping definitions are unlikely to be helpful. Consider the example of information about a person’s behaviour or about his or her whereabouts. News that a person was seen walking across King George Square in the city might not be personal information, whereas information that a person was observed in the bed of his or her lover would probably qualify as personal information that might attract the operation of s 41(1). Similarly, the fact someone was prosecuted for an offence might not be personal information, but news that someone was the subject of (or involved in) a police investigation might qualify as personal information in some circumstances.
18. A decision-maker must also remember that a document might reveal nothing about anyone if read in isolation, but it could still reveal personal information if the apparently harmless document is read in conjunction with other documents or information.
19. The fact information is widely known does not stop it being considered personal information. Notorious information might not be private, but it can still be regarded as personal information in the right circumstances: see Colakovski at 118-119 per Lockhart J.
20. The section also makes clear that the exemption is not automatic. The decision-maker is required to make an assessment of reasonableness in each case. That assessment involves a balancing act between the public’s interest in having access to information held by an agency and the interests of the individual whose details might be disclosed. In Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 at N259, the Tribunal observed that a decision-maker carrying out such an assessment should have regard to all the circumstances, but consider in particular:
    • The nature of the information;
    • The circumstances in which the information was obtained;
    • The likelihood that the identified person would object to the release of the information; and
    • Whether the information has any current relevance.
21. The first redacted entry on p 3 of document 1 under the heading “cabin search” includes information recording the interaction between an individual and the investigators. His name, his date of birth and other details are included and discussed. It seems to me that information is personal information. The individual obviously has an interest in maintaining the privacy of that information, and it is unlikely he would want it released – especially when it was obtained in the context of what amounted to a police raid. I am not satisfied the general public interest in accessing the information outweighs the specific interest of the individual in maintaining privacy. Therefore the first redacted entry on p 3 of document 1 is exempt. The second and third redacted entries immediately below the first also name an individual and would, if released, reveal information about that person’s financial affairs. The individual’s interests outweigh the public interest in disclosure. That material is also exempt.
22. The remaining entries on p 3 of the document include the names of individuals and their telephone numbers (although one of the entries also includes an individual’s date of birth and some other details). With one exception, I am satisfied all of that information is exempt under s 41(1): it is private information and the public interest in access is outweighed by the interests of the individuals concerned who would almost certainly be concerned if they knew their names were being raised in this context. The exception is the sixth name and telephone number in the last redacted portion of text on p 3. The name and telephone number in question is that of a hotel. Information about a hotel is probably not personal information of the kind protected by the Act. Even if it were, the entity’s interests in preserving its privacy, such as it is, do not outweigh the public’s interest in accessing information.
23. The redacted passages on p 4 of the document also include personal information about individuals. The contact details and information recorded about the individuals is clearly private, as is the information about their interaction with officials and other observations made about them. The individuals in question might be understandably reluctant to have that information disclosed given the context and what is said. I think the public interest in access is outweighed by the individuals’ interest in privacy.
24. Page 5 of the document includes a large passage which is said to be exempt pursuant to s 37(2)(b) and two other names that have been deleted pursuant to s 41(1). I am satisfied that the names are exempt under s 41(1) as the damage to the individuals’ privacy that would flow from the release of that information in context would outweigh the public interest in disclosure. I turn then to the large redacted passage which is the subject of a claim under s 37(2)(b). That provision creates an exemption for documents that:

...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 ...

25. The requirement that the decision-maker have a particular expectation was discussed in Attorney-General’s Department v Cockcroft (1986) 12 ALD 468. In that case, the Full Court said it required “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” something would come to pass: Bowen CJ, Beaumont and Sheppard JJ at 470. In this case, it is unclear how any of the material disclosed in the relevant passage would disclose let alone prejudice lawful methods or procedures used by the police. I would not allow the exemption under s 37(2)(b). I would however remit the matter so that Customs might reconsider whether an alternative exemption under s 37(1) ought to be claimed. In the interim, I am satisfied that the names and identifying information within that passage which have been the subject of a claim under s 41(1) should be exempt from disclosure. The privacy interests of the individuals in question will be affected given the circumstances in which the information was collected. The serious privacy implications of being connected with a police raid outweighs the public interest.
26. I turn to p 6 of the document, which includes two proposed exemptions under s 40(1)(d). That section permits the decision-maker to exempt documents if disclosure:

...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 ...

27. The exemption is not available if disclosure is, on balance, in the public interest: s 40(2).
28. The meaning of the qualifier “substantial” has been discussed in a number of cases. I am not sure it is helpful to use synonyms. The word is a plain English word and it should be given its ordinary meaning.
29. Documents of the kind under consideration in this case might adversely affect the conduct of an agency’s operations in several ways. The documents which describe information gathered overseas might create political difficulties in the countries in question. A hostile political environment in those countries could hamper the vital operations of Australian agencies in those places. It might be more difficult to obtain cooperation from local bodies, for example. That cooperation might not be forthcoming if frank comments were revealed. Other documents could disclose information about an agency’s operations that would expose its priorities and reach, or shed light on any incapacity or vulnerabilities or limitations. That information could compromise investigations and force the agency to adopt different, less efficacious methods of doing its job.
30. I am satisfied that disclosure of the information in the redacted portion of the text on p 6 would have a substantial and adverse effect on the operations of an agency, at least in relation to its handling of this case. It is likely that the agencies involved would be forced to change their approach to the investigation if the matter were disclosed, which would put them at a disadvantage. I am not satisfied that the public interest suggests that disclosure is inappropriate; indeed, I think the public interest militates against disclosure. The exemptions under s 40(1)(d) are affirmed.
31. There are a number of other redacted entries on p 6 where Customs has sought an exemption under s 37(2)(b). The excluded text sets out codes used by Customs’ officers that I am told would be of interest to any person seeking to hack into Customs’ computer databases: see the affidavit of Ms Robinson at [22]-[23]. I am satisfied that disclosure of that information would disclose information about procedures for dealing with matters. The risk of the information being misused is easy to understand, and it is real. I am satisfied disclosure of that information would result in prejudice in the sense contemplated in s 37(2)(b). I think the claims for exemption are made out in each case. I would reach the same conclusion in relation to the redacted entries at the foot of p 7.
32. That leaves only the claims for exemption under s 41(1) in respect of the personal details that are set out on pp 6-7. I am satisfied that release of the personal details (which includes names and other information about the individuals) would substantially prejudice the privacy of the individuals, and might be especially embarrassing given the circumstances in which the information came to light (i.e. in the context of a raid). That prejudice outweighs the public interest in disclosure. The decision is therefore affirmed in that respect.
33. Document 2 is another information report. There are exemptions claimed under ss 33A(1)(a) and (b), 37(1)(b) and 41(1) in respect of the eighth, ninth, tenth, thirteenth and fourteenth paragraphs. I will say at once that I do not think the exemption under s 41(1) is available as the personal information in question relates to the applicant. It is not unreasonable to disclose information to the applicant about himself: see Re Haneef and Australian Federal Police [2009] AATA 51 at [98] per DP McPherson. I also have some difficulty seeing how the claim under s 37(1)(b) could be made out. There is no reference to confidential sources of information whose identity is likely to be compromised by disclosure. On balance, I am satisfied that the material is exempt pursuant to s 33A(1)(b). That section deals with the disclosure of documents that:

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.

34. Section 33A(5) adds that disclosure must nonetheless be allowed where it is in the public interest.
35. The information in the redacted extracts was provided to the AFP and Customs by state authorities. I was told that information of this kind is provided in confidence under the terms of a memorandum of understanding: see the affidavit of Ms Robinson at [19]. The disclosure of the information would plainly be contrary to that obligation of confidentiality. There is no evidence to suggest or reason to believe that disclosure would be in the public interest. In those circumstances I am satisfied the claim under s 33A(1)(b) is made out.
36. There are a number of other redacted extracts of text on pp 4-5 which are said to be exempt under s 37(2)(b). In each case, disclosure of the document would reveal codes used by Customs’ officers. I am satisfied those codes are exempt for the reasons I gave in relation to similar material in document 1. I would also conclude that the passages which are said to be exempt under s 41(1) should not be disclosed. The material is similar to the material in document 1 that I have already considered. I think the material in document 2 is exempt for the same reasons.
37. Document 3 is another information report. Customs says a number of entries that disclose Customs officers’ codes are exempt under s 37(2)(b). I agree that is so for the same reasons I gave in relation to similar entries in documents 1 and 2.
38. Document 4 is yet another information report. There are two redacted paragraphs at the top of page 2 that are said to be exempt under ss 37(1)(a) and 37(2)(b). Section 37(1)(a) provides for an exemption where disclosure of a document:

...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...

39. I am satisfied the exemption is properly available in respect of the material in the first paragraph. The likelihood of prejudice is clear enough on the face of the document. However, it is unclear to me how disclosure of the redacted material in the second paragraph could be expected to prejudice any investigation. Indeed, I do not see how anyone could reasonably conclude that the redacted material would, if disclosed, tell anyone anything about lawful methods or procedures used in an investigation. I would set aside the decision in relation to the second paragraph on p 2 and decide in substitution that it should be released.
40. The fourth, fifth and sixth paragraphs of document 4 are said to be exempt pursuant to s 41(1) (although another exemption is also claimed in respect of paragraph 6). I am satisfied those extracts include personal information in the sense intended by the Act. Disclosure of that information would clearly be embarrassing to the individuals in question, particularly given the circumstances in which it was gathered and recorded. I think the public interest in disclosure is outweighed by the interest in privacy. The exemption under s 41(1) is allowed.
41. The ninth paragraph on p 2 is said to be exempt pursuant to s 37(2)(b). I am satisfied the claim is properly made. The information, if disclosed, could reasonably be expected to disclose lawful methods or procedures for detecting breaches of the law. I am satisfied from the confidential evidence and the text of the documents that the effectiveness of those measures would be prejudiced if that material was disclosed.
42. The exemptions claimed under s 41(1) on pp 3-4 and the first and second paragraphs on p 5 are also appropriate. The redacted entries include personal information about individuals in each case. The privacy of those individuals would be compromised and they would almost certainly be embarrassed to no particular end if the material was disclosed given the circumstances in which the information was gathered and recorded. I am satisfied the public interest in disclosure is outweighed by the interests of the individuals in maintaining privacy.
43. The claim for exemption under s 33A(1)(b) on p 3 is also appropriate. The information was obviously communicated by a state agency to Customs and the AFP in confidence. Disclosure of the material would breach that confidence. There is also an exemption claimed in respect of the fourth paragraph on p 3 under s 33A(1)(a). It is unclear why Customs did not also seek an exemption under s 33A(1)(b). I think an exemption would be available in the circumstances on the same basis that I exempted the earlier entry on p 3 in which a claim under s 33A(1)(b) was made. But I shall deal with the claim under s 33A(1)(a). That provision permits an exemption where disclosure of the material:

...would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State ...

44. The exemption is not available if disclosure would be in the public interest: s 33A(5).
45. I was not provided with any evidence on the likely reaction of the state authorities to the release of the redacted passages. A perusal of the passages suggests, however, that the reaction would almost certainly be negative and damaging to the relationship between the Commonwealth and the states (and, in particular, between the agencies concerned). I am inclined to accept that the exemption is made out notwithstanding the absence of direct evidence.
46. Customs has sought exemptions under ss 41(1) and 37(2)(b) in respect of the material in the sixth paragraph of p 5. I will not address the claim under s 41(1) as I am satisfied the claim under s 37(2)(b) is made out in respect of that material and also in respect of the identification codes appearing on that page. Release of the redacted material would disclose lawful methods for investigating, detecting and dealing with matters that would prejudice the effectiveness of those methods or techniques.
47. Document 5 has been released in full.
48. Document 6 is a record on the Customs Intercept System. On p 2 of the document, the names of three individuals are mentioned. Customs says these names should be deleted pursuant to s 41(1). Even if I accept a bare reference to a name is personal information, there is little else in the document that tells us anything about the individuals. But I think it is appropriate to view this document in the context of a tranche of documents, some of which I have already discussed. Those documents do reveal personal information about the individuals, even if the individuals have not been identified in those documents. It would be an odd result if the material in those documents was suppressed but the missing details could be obtained from another document released at the same time. Given I was not persuaded that any of the other information should be released notwithstanding the public interest in disclosure, I do not think I should release these names either. The same reasoning applies to the names referred to on p 2 of document 7. The redacted material is exempt under s 41(1).
49. Document 8 has been released in full.
50. Document 9 is a request for assistance addressed to the Vanuatu police commissioner. Customs says this entire document is exempt pursuant to ss 33(1)(a), 33(1)(b) and 40(1)(d). I think the exemption under s 33(1)(a)(iii) is apposite here. That exemption is available where disclosure:

(a) would, or could reasonably be expected to, cause damage to: ... (iii) the international relations of the Commonwealth ...

51. The evidence of Mr Jabbour and Mr Taggart is important here. In their confidential affidavits, they spoke of the extreme sensitivity of some of the international relationships. I have no reason to doubt that evidence. Document 9 makes some frank comments that would be plainly embarrassing if they were released. I think the frank nature of the comments could reasonably be expected to damage the international relations of the Commonwealth if the document were released. In the circumstances, I am satisfied the exemption under s 33(1)(a) is available.
52. Document 10 is an email that accompanied document 9. Customs has claimed an exemption under s 33(1)(b) in respect of most of the document. It has also argued that part of the document is exempt under ss 37(1)(a) and 40(1)(d).
53. Section 33(1)(b) exempts documents that would, if disclosed:

...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 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.

54. A number of documents under consideration in this decision are said to be exempt pursuant to s 33(1)(b). Some of the documents are not in and of themselves confidential. As I have previously observed, some of the documents are public documents, or have come to public attention through other means. But that is not the test. The question is whether the material was communicated in confidence: see Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15 at [25]. I have already accepted Mr Taggart’s evidence that all of the material supplied by the overseas agencies was communicated on that basis. While I am conscious that such a broad interpretation of the provision creates a risk of abuse, I have no reason to doubt Mr Taggart’s evidence in this case.
55. Document 10 repeats information that was provided by another country, apparently under the terms of the MoU. The rest of the email sets out the reply of the author to that response. I am satisfied that information is exempt under s 33(1)(b) because disclosure of the response to the confidential information would tend to reveal the confidential information to which it responds: see Re Rees and Australian Federal Police [1999] AATA 252; (1999) 57 ALD 686 at 705.
56. Customs says that the whole of document 11 is irrelevant within the meaning of s 22. Section 22(1)(a) permits Customs to delete material from a document that “would reasonably be regarded as irrelevant to th[e] request”. I have already set out the terms of the request at the outset of these reasons. The question is “whether disclosure of certain information might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request for access made under the Act”: see Re Russell Island Development Association Inc and Department of Primary Industries and Energy [1994] AATA 2; (1994) 33 ALD 683 at 691 per DP Forgie.
57. The document sets out the travel arrangements for a team of Customs officers. I do not see how disclosure of those purely logistical arrangements would disclose anything about the applicant or his vessel. I am satisfied the material is irrelevant within the meaning of s 22(1)(a)(ii). I think the same reasoning and conclusion applies to document 12, another email dealing with purely logistical arrangements.
58. Document 13 is a three page document. Customs says the first redacted entry on p 1 is exempt under s 33(1)(b). It is unclear how or why that information attracts the exemption under s 33(1)(b). I would set aside the decision to exempt that portion of the document under s 33(1)(b) but I would remit the matter to Customs to reconsider whether an alternative exemption under ss 37(1)(a) or 37(2)(b) can be claimed.
59. Customs says a number of entries on pp 2-3 of the document are exempt pursuant to s 33(1)(b). Customs argues the information in the document discloses their response to confidential information that was provided by the Vanuatu authorities under the terms of the MoU. If the response to that information was disclosed, it is argued, the confidential information would effectively be disclosed. I agree.
60. Customs has also sought to exempt the whole of the second and third pages of the document on the basis that they are irrelevant. While I agree there is some irrelevant material in the mix, there is some material that clearly falls within the terms of the applicant’s request. As it happens, most of the meaningful text is exempt under s 33(1)(b) but I do not think the balance of the document is irrelevant, and I would set aside the decision in relation to s 22(1)(a)(ii) and release the other material.
61. I turn next to document 14. This document is a lengthy intelligence report under cover of an email. The intelligence report sets out or summarises a number of matters, some of which have already been dealt with in earlier documents.
62. The first two redacted extracts on p 1 of the document are said to be exempt pursuant to s 33(1)(b) because releasing the redacted information would effectively disclose the contents of a confidential communication from a foreign government. I do not see how that is so. The decision to exempt that material is set aside and I decide in substitution that it should be released.
63. Customs says the bulk of the intelligence report should be exempt pursuant to s 33(1)(b), although it has claimed a number of other exemptions in respect of discrete parts of the document. Parts of the document have also been released.
64. I should say that some information in the redacted portions of the document has already been discussed in the media, so the information is not necessarily a secret. But Customs says that does not matter for the purposes of s 33(1)(b). That section only requires that the information be communicated in confidence. It does not matter that the material is not at the time, or by reason of subsequent disclosures, inherently secret: see Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15 at [25] per Black CJ, Kiefel and Emmett JJ.
65. Some of the redacted portions of the document disclose information that has already been released in other documents. The Whittaker principle does not assist Customs here because much of that information has not been provided by a foreign government but observed by Australian agencies, and that information disclosed reveals nothing about other confidential information that may have been provided under the MoU. Subject to one exception, I think the connection between what the Australian authorities might have learned or been told under the MoU and what appears in the document is too tenuous to justify an exemption under s33(1)(b).
66. The exception relates to the material in paragraphs 5-9 on p 9, the second paragraph on p 10 and the fourth dot point on p 10. That information was obviously communicated to the AFP and Customs by the Vanuatu authorities, presumably in confidence, under the terms of the MoU. It should not be disclosed and is exempt pursuant to s 33(1)(b). With those exceptions, I would set the decision under s 33(1)(b) aside although I would remit those portions of the document to Customs to consider whether other exemptions are appropriately invoked, most obviously under ss 37 and 40.
67. I turn to the claims for exemption in respect of other discrete portions of text. I think the exemptions claimed in respect of the redacted extract in the second paragraph on p 2 and first two paragraphs on p 3 are problematic. I do not see how disclosing the information would reveal anything about lawful methods or procedures of police, so the exemption under s 37(2)(b) is not available. Nor do I see how the information could reasonably be expected to prejudice the conduct of an investigation, which means the exemption under s 37(1)(a) is unavailable. I am also unclear how disclosure could reasonably be expected to have a substantial adverse effect on the efficient operations of an agency, as contemplated in s 40(1)(d). I would set aside the decision to allow those exemptions and direct that the material be released.
68. I accept that the material disclosed in the second dot point at the foot of the third page of the combined document (page 2 of the report) could reasonably be expected to prejudice the conduct of an investigation within the meaning of s 37(1)(a). The exemption in respect of that extract should be affirmed.
69. I turn now to the fifth page. Customs says the first two sentences of the fifth paragraph are exempt pursuant to s 43(1)(c)(ii). That provision says a document may be exempt if its release would disclose:

(c) information ... concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information: ...
(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.

70. The extract includes business information that has been provided to an agency. It is obvious in the circumstances that the disclosure of the information in question would embarrass the person who supplied it and make it more difficult for the agency to obtain that sort of cooperation in the future. I am satisfied the exemption is made out.
71. A large portion of the sixth paragraph on p 5 is said to be exempt pursuant to s 41(1). The extract in question is almost identical to the first redacted entry in document 1 that I have already decided was exempt pursuant to s 41(1). I would reach the same view on the extract appearing on p 5 of document 14. The same is true of the references to personal information on pp 6-7 which have been deleted pursuant to s 41(1). There are some fresh names mentioned on p 8. I am satisfied that all of the entries which have been redacted on p 8 pursuant to s 41(1) include personal information about individuals, and that the public interest in access does not outweigh the prejudice done to the individuals whose information is being released. That prejudice is likely to be particularly grave given the circumstances in which the information has been collected and recorded. I would add that I am satisfied the material deleted from paragraphs 3 and 4 of p 9 (which include personal information) is exempt on the same basis. I would also exempt from disclosure the contents of the first paragraph on p 10 which includes names and telephone numbers. I am satisfied the public interest in access is outweighed by the prejudice to the privacy of the individuals concerned.
72. I note Customs has also claimed that a significant portion of p 6 of the document is exempt pursuant to s 37(2)(b). I do not see how the release of the text and the disclosure of the few investigative techniques referred to therein could or would prejudice the effectiveness of those procedures. I would not allow the exemption.
73. Customs has also claimed an exemption under ss 37(1)(a) and 37(2)(b) in respect of the first sentence in the second paragraph on p 8. I do not see how disclosure of that material could prejudice the conduct of an investigation or disclose lawful methods or processes within the meaning of s 37(2)(b). Those exemptions are set aside.
74. Customs has also claimed an exemption under s 43(1)(c)(i) in respect of three words on the second line of the fifth paragraph on p 8 The relevant provision of s 43 says an exemption may be claimed where the release of a document would disclose:

(c) information ... concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs ...

75. The reference to “unreasonably” affecting a person or organisation necessitates consideration of a modified public interest test, much like that which applies in relation to s 41(1). As Lockhart J explained in the course of the Full Court’s decision in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111 at 120-121, the policy objective underlying the Act is the same in relation to each exemption:

...it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents.

76. As I understand the argument, disclosure of the name of the enterprise referred to in the document might impact on that company’s reputation or business. The name of the enterprise and the people who work there might be blackened by the association with a criminal investigation. That predictable adverse effect outweighs the public interest in access to the information. I accept that disclosure of the material would be unreasonable and agree that it is exempt pursuant to s 43(1)(c)(i).
77. I turn to the dot points on p 10. The text accompanying the first dot point is said to be exempt under ss 37(1)(a) and 37(2)(b). I do not understand how either exemption is available in the circumstances. There is no reason to believe the disclosure would, or reasonably could be expected to, prejudice the conduct of an investigation, and the material does not disclose anything about any method or process. I would set aside the decision on both exemptions, however I would remit the matter for reconsideration on the basis that an exemption under s 33A might be available.
78. I take a different view of the text accompanying the second dot point. Customs says an exemption under s 37(2)(b) should apply. I agree. There is a reference to a technique or process which would be prejudiced if the information were disclosed.
79. I turn now to document 15. This document is a brief note referring to logistical matters. Customs says it is irrelevant to the terms of the request, and I agree. I would reach the same view in relation to the contents of document 16. It also details logistical arrangements that are irrelevant to the terms of the request.
80. Document 17 is a chain of email correspondence. On p 1, Customs claims that all six lines of the first email should not be disclosed because they are irrelevant to the request under s 22(1)(a)(ii). I agree that is true of lines 1-2 and 5-6, but I am not satisfied lines 3-4 are irrelevant. Customs has claimed an exemption under s 33(1)(b) in respect of the first 12 words of line 4, but it is unclear how that information, if disclosed, would divulge anything communicated in confidence by a foreign government or agency. I would set aside the decision to grant an exemption over the third and fourth lines of that email.
81. I turn to the second email in document 17. The first two lines (following the sixth word in line 1 and the third to twelfth paragraphs are said be exempt pursuant to s 33(1)(b). The information set out in the text was not itself provided by a foreign government but it appears to be a response to such information. If the redacted material were disclosed, the information provided from overseas would also effectively be revealed. This material is therefore exempt as claimed. I do not accept that the material is irrelevant to the terms of the request within the meaning of s 22(1)(a)(ii). It is plainly relevant.
82. The second paragraph of the email is said to be exempt on a number of bases. I am satisfied that disclosure of the information would prejudice an investigation into a breach of the law. It is exempt pursuant to s 37(1)(a).
83. Document 18 includes more logistical information. Customs says several exemptions are available but adds that the whole document is irrelevant in any event. While I think the question of irrelevance is finely balanced, I am ultimately persuaded that the material does not fall squarely within the terms of the request. It is not to be released pursuant to s 22(1)(a)(ii). I would reach the same conclusion in relation to documents 20 and 21. Those documents contain information that is purely logistical. They do not contain information about the applicant or his vessel.
84. Document 19 is an email chain. Customs says one line in the third paragraph on p 1 is exempt on several bases. I agree it is exempt under s 37(1)(a). It includes information that could reasonably be expected to prejudice an investigation if it were released prematurely.
85. I turn now to document 22. Customs says large parts of the document should not be released because they are irrelevant to the request. I agree. Those extracts include logistical information and say nothing about the applicant or his vessel. I would affirm the decision in respect of s 22(1)(a)(ii). Customs also says several passages are exempt pursuant to s 33(1)(b). I will start with the subject header. I have already decided (in relation to document 13) that it was unclear why the information should be exempt under s 33(1)(b). I set aside the decision to claim the exemption under s 33(1)(b) in respect of that portion of text in document 13. I remitted the document for reconsideration to determine whether another exemption was available. I would do the same thing here in relation to the header.
86. I am not persuaded that the balance of the claims for exemption under s 33(1)(b) has been made out – with one exception. The exception is paragraph 15 which clearly sets out details of an exchange with Vanuatu authorities. I am satisfied the exchange would disclose confidential communications if it were released. That portion of text is exempt under s 33(1)(b). I do not accept that the balance of the text discloses anything that was communicated in confidence by a foreign government.
87. Customs also says paragraphs 4-9, 12 and 14-16 are exempt by reason of s 37(2)(b). I think that claim is not justified, except in relation to paragraphs 7 and 14. Those two paragraphs disclose information about techniques that could reasonably be expected to prejudice the effectiveness of those techniques in the future. It is not clear, for example, whether the public is aware that law enforcement has access to that technology. The things that are disclosed in the other redacted passages are not news, and could not reasonably be expected to prejudice the effectiveness of those procedures. They should not be exempt under s 37(2)(b).
88. Document 23 is an email recording information of a purely logistical nature. I am satisfied the information contained in the email is irrelevant to the request that has been made. The document does not say anything about the applicant or his vessel. I am satisfied the document should not be released pursuant to s 22(1)(a)(ii). I would reach the same view in relation to the entirety of the first email in the chain of emails that is reproduced in document 24. Customs has also claimed that two paragraphs of the second email in document 24 are exempt pursuant to s 33(1)(b). I agree. That portion of the document refers to a confidential exchange with the Vanuatu authorities. The material is exempt.
89. Document 25 is a hand-written note. Customs says most of the document is irrelevant. I agree. The hand-written notes which have not been released pursuant to s 22(1)(a)(ii) do not say anything about the applicant or his vessel. Both of the extracts deleted pursuant to s 22(1)(a)(ii) (lines 1-4 and line 6 to the end of the page) should not be released. That leaves only a single line – line 5 – which is said to be exempt on a variety of bases. I am satisfied it is exempt under s 37(1)(a). The information, if disclosed, would prejudice an ongoing investigation if it were released prematurely.
90. Document 26 is said to be exempt in its entirety pursuant to s 33(1)(b). I will say at once the document was not communicated to an overseas government: that much is clear from the distribution list at the foot of the document. Some of the information in the document has already been released in other documents. Even so, I think the exemption is available because this document sets out the formal plan of action for responding to requests for information and assistance received from Vanuatu. The document also includes a number of items of information that were supplied by the Vanuatu authorities. Releasing the document would have the effect of disclosing the content of those communications. The decision in respect of this document must be affirmed. Document 27 is the email which included document 26 as an attachment. The deleted material uses a code discussed in document 26. I have questioned elsewhere whether that information should be exempt however I think, given the conclusions I reached in relation to document 26, that the code should also be suppressed pursuant to s 33(1)(b) where it appears in document 27.
91. Document 28 is a chain of emails. Customs says most of the text of the various emails should not be released because it is irrelevant within the meaning of s 22(1)(a)(ii). I agree with the deletions that have been made pursuant to that section, with one exception. The exception is the heading to the fourth email. Customs has deleted the heading pursuant to s 22(1)(a)(ii) although has not claimed the same heading to earlier emails as irrelevant. The heading clearly refers to matters that fall within the terms of the applicant’s request. The balance of the material that has been deleted pursuant to s 22(1)(a)(ii) is irrelevant.
92. Customs has argued that the headings are all exempt in any event pursuant to s 33(1)(b). I do not agree because I think the headings communicate little information that is capable of shedding light on anything that has been communicated in confidence by a foreign government. The decision in respect of those claims for an exemption is set aside, and I decide in substitution that the material should be released. I would reach the same view in relation to the third paragraph in the first email. The text communicates nothing of substance about what might have been said in confidence by a foreign government.
93. I am troubled by the second paragraph of the first email. Customs says it is exempt pursuant to s 33(1)(b), but I fail to see how it tends to reveal information provided in confidence by a foreign government. I do not think an exemption can be sustained on that basis. Customs also relies on s 41(1), but the entry does not provide the identity of the subject or any other detail apart from the unnamed person’s age. I do not think there is any personal information that can be exempted pursuant to s 41(1). I would set aside both exemptions but remit the decision to Customs to consider whether any other exemption is available since the information is clearly sensitive.
94. Document 29 is another chain of emails which deal with logistical matters. Customs says the entire document should not be released because it is irrelevant within the meaning of s 22(1)(a)(ii). I agree, except in relation to the headings to each of the three emails. The headings refer to the subject matter of the applicant’s request. I do not agree that they are exempt pursuant to s 33(1)(b) for the same reasons I gave in relation to the headings I discussed in document 28. I would vary the decision in relation to this document to release the headings.
95. I would reach the same conclusion in relation to the two emails in document 30. The bulk of the two emails include material that is irrelevant in that it does not fall within the scope of the applicant’s request. That material should be deleted pursuant to s 22(1)(a)(ii). The only exception is the headings, which are also said to be exempt pursuant to s 33(1)(b). I think they should be released for the same reasons I gave in relation to similar headings in document 28 and document 29.
96. The next document is a chain of emails. Customs says the entire first page of document 31 is irrelevant within the meaning of s 22(1)(a)(ii). Having regard to the terms of the request, I agree. I should say I hesitated in reaching that conclusion with respect to the words in the second paragraph of the second email, but I take those words to be a reference to the individuals listed in the email rather than the subject matter of the applicant’s request.
97. The redacted material in the first and second paragraphs of p 2 is said to be exempt under s 33(1)(b). A perusal of the text confirms that the exemption is clearly appropriate. It discusses confidential communications passing between Australian and foreign agencies. The decision must be affirmed in this respect.
98. Customs says the entirety of document 32 is exempt pursuant to s 33(1)(b). I agree. It is a formal briefing note passed to executives within an Australian agency that discloses the contents of confidential communications between Australian agencies and foreign agencies. The decision in relation to this exemption is affirmed.
99. Document 33 is a copy of document 28. I would reach the same decision as I did in relation to document 28.
100. Document 34 is a chain of emails and a note about Customs’ response to media inquiries. Customs says the bulk of the document is irrelevant within the meaning if s 22(1)(a)(ii). I am inclined to agree, with one exception: the material in the second paragraph of p 2 clearly falls within the terms of the applicant’s response in that it refers to his vessel. Customs says the second paragraph of text on p 2 is also exempt pursuant to s 41(1). I accept that the information is personal information, and it may well be true that the named individual (in fact there are two individuals named in the extract) would be embarrassed were that information to be released. But the rest of the document makes it clear that Customs was prepared to name the individual and provide much of the information in the redacted extract to the media if asked. Indeed, the document suggests the media already knows much of the information in question. Given the information is already in the public domain, it is difficult to argue that suppression of the material would protect the individual’s privacy. I do not think the material is exempt, although I would remit that part of the document to Customs for reconsideration to determine if an alternative ground of exemption is available.
101. The next document is document 35. It is an intelligence report that is an updated version of document 14. I will deal firstly with the claim under s 33(1)(b), which extends over large portions of the document. I do not think most of it can be sustained because the bulk of the material in respect of which the exemption is sought does not disclose information communicated in confidence, or give any clue as to what that information might be. I also note some curious discrepancies: for example, Customs has released the text appearing at the first dot point on p 3, but has claimed an exemption (that I have refused) in relation to the identical text in document 14. Having said that, I am satisfied there are some redacted portions of text that are exempt pursuant to s 33(1)(b) because they do recount information supplied by overseas authorities, or effectively reveal that information. Those extracts are:
     • In the sixth paragraph on p 2 – the first 9 words on the second line;
     • The seventh paragraph on p 2;
     • The ninth paragraph on p 8;
     • The first, second, fourth, sixth, seventh, eighth and ninth paragraphs (i.e. all material following the fifth paragraph to the end of the page) on p 9
     • The fourth and seventh paragraphs on p 11.
102. I would vary the decision so that only those portions of the document are exempt pursuant to s 33(1)(b).
103. What of the other claims for exemption? The first claim relates to the material in the second paragraph of p 1. Customs says most of the second and third lines are exempt under ss 37(1)(a) and 40(1)(d). I do not see how disclosure of that material could be reasonably expected to prejudice the conduct of an investigation or have a substantial (as opposed to a theoretical) adverse effect on the proper and efficient conduct of the operations of an agency. It follows I would set aside the decision to claim the exemption in respect of that entry. I take the same view in relation to the redacted material in the second paragraph on p 2.
104. There are three photographs of individuals on the first page of the document. Customs says two of the photographs are exempt pursuant to s 41(1). The pictures include a caption identifying each individual. There is a nice question as to whether a name and an image constitute personal information if viewed in isolation, but I think the additional information available in the released portions of this and other documents puts the names in a context that potentially reveals a good deal of personal information that those individuals would undoubtedly prefer not to share. The photographs have the effect of putting names and faces to information. I think the context in which all of the information (including the photographs) was collected and recorded would suggest disclosure would have an adverse effect on the individual’s privacy that outweighs the public’s interest in open access. The exemptions are properly claimed.
105. Customs says the first four lines of the final paragraph on p 4 are exempt pursuant to s 43(1)(c)(ii). I am satisfied this extract is exempt for the same reason I gave in relation to the identical extract appearing on the fifth paragraph of p 5 of document 14. I would also accept that all of the extracts on p 5 that have been deleted pursuant to s 41(1) are exempt for the same reasons I exempted the same set of names on p 6 of document 14.
106. Customs has also claimed that the material from paragraph 4 to the end of the page on p 5 is exempt pursuant to s 37(2)(b). After reviewing the evidence of the various witnesses, I am not persuaded that the release of the text and the disclosure of the material referred to therein could or would prejudice the effectiveness of any procedures. The decision to claim the exemption is set aside. I would reach the same view in relation to the material deleted from paragraphs 1-5 on p 6.
107. A number of names and other personal information have been deleted pursuant to s 41(1) in entries throughout p 6. I am satisfied all of that material is exempt for the same reasons I have given in relation to other personal information that was found to be exempt in document 14. I would reach the same view for the same reasons in respect of the names and information which are said to be exempt under s 41(1) on pp 7-9.
108. I would set aside the decision to claim exemptions under ss 37(1)(a) and 37(2)(b) in respect of the material in the third paragraph of p 7, which is identical to the material referred to in the first sentence of the second paragraph of p 8 in document 14. I fail to see to how disclosure of the material could prejudice the conduct of an investigation or disclose lawful methods or procedures used by the agency or agencies in question. I would accept the claim for exemption under s 43(1)(c)(i) in respect of the material appearing on the second line of the sixth paragraph on p 7 for the same reasons I gave in relation to the similar entry on the second line of the fifth paragraph on p 9 of document 14.
109. I turn now to the dot points on p 11. The text accompanying the first dot point is said to be exempt under ss 37(1)(a) and 37(2)(b). I do not understand how either exemption is available in the circumstances. There is no reason to believe the disclosure would or reasonably could be expected to prejudice the conduct of an investigation and the material does not disclose anything about any method or process. I would set aside the decision on both exemptions however I would remit the matter for reconsideration on the basis that an exemption under s 33A might be available.
110. The text accompanying the second dot point on p 11 is more sensitive. I agree that an exemption under s 37(2)(b) should apply. There is a reference to a technique or process. I am satisfied from the confidential evidence and from the documents themselves that the efficacy of those techniques and processes would be prejudiced if the documents were released.
111. I turn now to document 36. The whole of the first page of the document is said to be irrelevant within the meaning of s 22(1)(a)(ii). (The same claim is made with respect to the contents of document 37.) I am inclined to agree in both cases. The material refers to transport arrangements. It is purely logistical information that I do not think falls within the terms of the applicant’s request. The first and second paragraphs on the second page of document 36 sets out information provided in confidence by a foreign government. It is clearly exempt pursuant to s 33(1)(b).
112. Document 38 is an email including the intelligence report referred to as document 14 or 35, or some version of either of those documents. I have already found that large parts of those documents can be released because I disallowed an exemption under s 33(1)(b) in respect of a good deal of the material in those documents. I am satisfied that references to those documents in the body of the email in document 38 cannot be exempt in those circumstances under s 33(1)(b). However, I do accept that the second sentence of the second paragraph in the forwarded email does include a reference to material communicated in confidence from an overseas agency. Disclosing that material is not acceptable and the exemption in respect of that material under s 33(1)(b) is made out. I note that document 39 is the original of the email that was forwarded under cover of another email in document 38. My reasons in relation to the claims for exemption are the same: only the second sentence of the second paragraph is exempt pursuant to s 33(1)(b).
113. Document 40 is substantially similar (although not identical) to document 26. I would exempt the document in its entirety pursuant to s 33(1)(b) for the same reasons I gave in relation to document 26.
114. There have been a number of claims for exemption in relation to document 41. I will say at once that I have no difficulty with the claim made under s 33(1)(b) in relation to the second sentence of the first paragraph on 2. That material would, if released, disclose material that was provided in confidence by a foreign government. I have more difficulty with the other claims made under s 33(1)(b). I do not think disclosure of that material would or could reasonably be expected to disclose anything communicated in confidence by a foreign government. I think the decision to exempt that material must be set aside and the material should be released.
115. I am satisfied that the whole of document 42 is exempt pursuant to s 33(1)(b). While some of the material is purely a factual account of events, disclosure of the contents of that document would also disclose material that was communicated in confidence by a foreign government.
116. I am satisfied the entire contents of document 43 are irrelevant within the meaning of s 22(1)(a)(ii). The document should not be released. I take the same view in relation to the contents of documents 44-46.
117. Document 47 includes a liberal sprinkling of material that was plainly provided in confidence by an overseas government agency. I think the whole of the document is exempt under s 33(1)(b). I would reach the same conclusion for the same reasons in respect of documents 48-50.
118. Document 51 records information provided in confidence by a foreign agency, and details the response in a way that might, if disclosed, reveal the information that was provided in confidence. I agree the exemptions that have been claimed in respect of several passages under s 33(1)(b) are available.
119. Document 52 is a document created and communicated by a foreign government. I take it that the document was provided in confidence and revealing the contents of the document would presumably destroy the confidential nature of what was said. It is exempt pursuant to s 33(1)(b).
120. I turn now to document 53. I am satisfied the document contains information that falls outside the terms of the applicant’s request, and is therefore irrelevant within the meaning of s 22(1)(a)(ii) – with one exception, which clearly does fall within the terms of the applicant’s request. The exception is the extract stretching over the second and third paragraphs of the second email in the chain (i.e., the last two paragraphs of the email above the signature block). The extract in the first of those paragraphs recounts information provided to a foreign agency that was subsequently passed to Australian authorities in confidence. The second of the paragraphs suggests a line of enquiry generated by the information. Revealing the line of enquiry would tend to reveal the confidential information provided by the overseas agency. I am satisfied that material is exempt pursuant to s 33(1)(b).
121. Customs says the entirety of document 54 is irrelevant within the meaning of s 22(1)(a)(ii) and exempt pursuant to s 33(1)(b). I am not persuaded that the material is irrelevant, but I accept it should be exempt pursuant to s 33(1)(b). It reveals details of cooperation and communication between Australian and overseas agencies that would, if released, disclose information provided in confidence.
122. Document 55 has been released in full.
123. Document 56 includes a line that refers to the subject matter of document 55. I do not see how that material could be said to be exempt pursuant to s 33(1)(b). The deleted line does not disclose confidential communications. However I can readily see how the comment could reasonably be expected to damage the international relations of the Commonwealth within the meaning of s 33(1)(a)(iii). I would exempt the material on that basis.
124. Document 57 is a chain of emails. Customs says the contents of the first paragraph of the first and second emails and the body of the third email are irrelevant within the meaning of s 22(1)(a)(ii). I am inclined to agree. I do not think they fall within the scope of the applicant’s request.
125. Document 58 has been released in full.
126. I turn then to document 59. Customs says the first three pages of the document are exempt pursuant to s 33(1)(b). I am inclined to agree. The document is a formal report that responds to information provided in confidence by a foreign government. The report sets out some of that information. I am satisfied the claim for an exemption is made out. I would reach the same conclusion for the same reasons in relation to document 60, which is another report.
127. Two entries in document 61 are said to be exempt pursuant to s 37(2)(b). The entries identify codes used by Customs’ officials. That information would disclose methods or procedures used by law enforcement. In particular, the information would be useful to a hacker who was endeavouring to access a Customs’ database. That would seriously prejudice the effectiveness and integrity of Customs’ databases. I am satisfied both claims for exemption under s 37(2)(b) are made out. That leaves the last entry in the report. Customs says it is exempt on a variety of bases. I do not accept the material is exempt pursuant to s 41(1). While it is clearly personal information that would be deeply embarrassing, it is personal information belonging to the applicant which means its disclosure is not unreasonable: see Re Haneef and Australian Federal Police [2009] AATA 51 at [98] per DP McPherson. It is also unclear to me how the entry, especially the first three words, could be said to disclose a confidential source of information. I am not persuaded the release of any of the deleted information could reasonably be expected to disclose the existence or identity of a confidential source of information. The exemption under s 37(1)(b) is unavailable. However I am satisfied the exemption under s 33A(1)(b) is available. That material must have come from a state government agency, and the nature of the material confirms it was communicated in confidence. I am satisfied the material is exempt on that basis.
128. Document 62 is an information report. Customs says several entries are exempt pursuant to s 41(1). I am satisfied that each of the entries contains personal information, and that disclosure of the information would be unreasonable. Given the context in which the information was gathered and recorded, I am satisfied the individual’s interests in keeping the information private outweigh the public interest in access. Customs also says that a number of entries are exempt pursuant to s 37(2)(b). I agree the exemption is available in each case. The entries disclose information that reveals lawful methods and processes used in the prevention, detection of investigation of crime. Disclosure of those matters is reasonably likely to prejudice the effectiveness of those procedures. I would reach the same view for the same reasons in relation to the entries that are said to be exempt pursuant to s 37(2)(b) in document 63. I would reach the same conclusions for the same reasons in relation to the claims for exemption under ss 37(2)(b) and 41(1) in document 64.
129. I turn now to the second page of document 65. The information set out under the heading “persons associated” is said to be exempt pursuant to s 41(1). I am inclined to agree, for the same reasons I gave in relation to the similar claims made in documents 62-64.
130. The whole of document 66 is said to be irrelevant within the meaning of s 22(1)(a)(ii). Some of that material is also said to be exempt pursuant to s 45(1). I will deal with that claim first. Section 45(1) says:

A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.

131. In other words, the material is exempt if its disclosure would provide a basis for another person to sue Customs in a court of equity for breach of confidence. The information must be confidential and it must have been provided in circumstances that suggest it was intended to remain confidential in the absence of authorisation: see, for example, Re Maher and Attorney-General’s Department (No 2) (1986) 13 ALD 98 at 109.
132. In this case, the material which is subject to the claim for an exemption recounts information supplied by a confidential source. I am satisfied it is confidential information and it was clearly provided in confidence. It is obvious the informant did not intend that the material would be released. An action for breach of confidence would lie against the agency if it were released now. The claim for an exemption under s 45(1) is made out.
133. I return to Customs’ claim that the balance of the document is irrelevant within the meaning of s 22(1)(a)(ii). Having regard to the scope of the request, I agree – with two exceptions. The first exception is the text accompanying numbered entry “2 Title” on the first page of the document. The second exception is found in the first box under the heading “19 Value added text”. I think the text on the second line of the box after the first compound word up to (but not including) the entry in parenthesis at the end of the third line is relevant. It should not be deleted.
134. Document 67 has been released in full.
135. Document 68 is a chain of emails. I turn to the third email in the chain, which is reproduced on the first page of the document. Customs says the first paragraph is exempt on a number of bases. I am satisfied it is exempt under s 37(1)(a) in that it refers to information that could reasonably be expected to prejudice the investigation of another individual. The deleted entry in the third paragraph of the same email is also exempt pursuant to s 41(1). It discloses personal information and it would be unreasonable to disclose that information given the circumstances in which it was collected and recorded. Customs also says paragraphs 3-5 on the second page of the document are exempt pursuant to s 37(1)(a). I agree. That material refers to other lines of enquiry which may or may not have anything to do with Mr Walker. That investigation could reasonably be prejudiced if that raw intelligence were disclosed. I would reach the same conclusion for the same reasons in relation to the entry on the top of the third page of the document.
136. I also accept that the contents of the four paragraphs of the third email in the chain starting on p 3 of the document are irrelevant within the meaning of s 22(1)(a)(ii). They do not fall within the terms of the applicant’s request.
137. Document 69 has been released in full.
138. I have also perused the contents of documents 70, 71 and 72. I am satisfied that the redacted contents of the documents do not fall within the scope of the applicant’s request. They should therefore be deleted pursuant to s 22(1)(a)(ii).

THE AFP DOCUMENTS

THE TERMS OF THE REQUEST TO THE AFP

139. The applicant first wrote to the AFP on 10 January 2008 in the following terms:

“I refer to the caption and request all information that you have or have access to including but not limited to secret files, restricted files and any file that you have used to inform other law enforcement agencies, courts in Australia and overseas on my character, perceived or otherwise, criminal history and all intelligence reports.

Further, I request that you inform me or what countries you have sent information to and on what basis was this information sent.

Further again, I request that you provide me with all information that the AFP supplied to the Press including but not limited to comments made by the Police Commissioner on or about January 2007.

The request in respect of the Ship Retriever 1 is made by me as the Master of the said ship.”

140. Mr Walker made a further request on 23 April 2008 in these terms:

“Further to my telephone conversation I am requesting FOI on myself Kell Walker DOB 5/6/1948.

This should include all intelligence reports, secret document, all information supplied to other agencies worldwide.

This should include comments made by the Commissioner to the press that I was a drug smuggler and the intelligence report that states that I am a pedophile [sic].

I also have no money and seek waiver of any fees.”

141. The applicant subsequently asked for tape recordings and transcripts on 15 June 2008.
142. The essence of the request directed to the AFP is the same as that directed to Customs. The applicant wants access to documents held by the AFP containing information about him or his vessel.

THE INDIVIDUAL AFP DOCUMENTS

143. I have been provided with hard copies of all of the documents. I have also been provided with copies of the documents on CD-ROM. Because of the volume of the documents, I relied principally on the hard-copies of the documents for the purpose of my analysis. As a result, I have addressed the individual claims for exemption in the AFP documents in a slightly different way to the way in which I addressed the Customs documents. I have had regard to the schedule dated 23 October 2009.
144. Document 1 in the AFP bundle is a case note which is also described as a “finalisation report”. A number of exemptions have been claimed. I will deal firstly with the claims under s 37(1)(a) which are made in respect of:
     • the fourth, fifth, ninth and fourteenth lines of text on p 1,
     • the last two sentences of the second paragraph on p 1
     • the whole of the seventh paragraph on p1
     • the last word on the fourth line of p 2,
     • the fifth line on p 2, and
     • the contents of the third column in the table under the heading “Involved cases” on p 2.
145. Mr Taggart was the AFP’s principal witness in relation to this issue. I have had the benefit of reading his confidential and open affidavits. He acknowledged in his confidential affidavit that it might not be immediately obvious how discrete portions of text would attract the exemption under s 37(1)(a) if the text were read in isolation. But he argued discrete entries should not be read in isolation. This approach suggests individual scraps of information are like pieces in a jig-saw puzzle. Each piece, on its own, might mean little but if enough pieces came together they would reveal a tolerably clear picture of an AFP investigation. Those scraps of information, either alone or in conjunction with other portions of text, might disclose the state of the AFP’s knowledge, or lines of inquiry, or connections with other investigations, or investigative strategies, or a range of other matters that would be of interest to a person being investigated. If that information were released at a sensitive point in the investigation – which according to the AFP would be at almost any point before arrests occurred, and perhaps even later – the investigation could be prejudiced in a variety of ways.
146. A finding that an investigation might be prejudiced is not enough, of course. The section says the document will only be exempt if the disclosure “would, or could reasonably be expected to” result in prejudice. It follows that I am required to predict the effect of disclosure. That prediction must have a factual basis. The factual basis might be found in the text which is said to be exempt, or in another document, or in some other fact which might be adduced or explained in evidence.
147. Mr Taggart also pointed out that intelligence gathering is an ongoing process that may be occurring independently of an individual investigation, or which might cut across or sustain a number of investigations that may or may not have anything to do with Mr Walker. I do not think s 37(1)(a) goes as far as protecting the intelligence gathering process more generally. The section refers to investigations, not operations, although I accept other exemptions may be available to protect at least some aspects of the intelligence gathering process that are not covered by s 37(1)(a).
148. I accept Mr Taggart’s argument about the need to view discrete items of information in a larger context. While some of the text in document 1 that is said to be exempt under s 37(1)(a) is pregnant with prejudice on its face, the prejudicial potential of other portions of text only becomes apparent when read in conjunction with other documents. I have read all of the documents, although I have been assisted by the evidence of Mr Taggart in particular.
149. I am satisfied the material said to be exempt under s 37(1)(a) in document 1 is, in fact, exempt. Disclosure of the information – especially in conjunction with other information that has been released, or which is publicly or privately known – would reveal things about an AFP investigation that would (or could reasonably be expected to) cause prejudice. I would reach the same view in relation to the exemptions claimed under s 37(1)(a) in the following documents: documents 2, 7, 14, 16, 17,19, 28, 32, 36, 38, 47, 49, 50, 54, 59, 66, 71, 74, 77, 78, 85, 90, 91, 92, 94, 95, 98, 100, 101, 102, 103, 104, 105, 107, 108, 109, 110, 111, 112, 119, 120, 122, 125, 131, 132, 133, 135, 136, 137, 138, 140, 142, 144, 146, 147, 148, 149, 150, 151, 152, 161, 162, 163, 164, 167, 168, 169, 170, 171, 172, 173, 174, 175, 177, 178, 184, 185, 194, 196, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 216, 217, 218, 219, 221, 223, 225, 226, 239, 248, 249 and 290.
150. I would not allow the exemption under s 37(1)(a) in respect of several entries on p 1 of document 97. There are 12 lines in a dialogue box on that page which the hard and electronic copies of the documents suggest are exempt. I do not think the claim can be sustained in respect of lines 1, 2, 4, 5, 9 and 12. Those entries reveal nothing – in the case of four of those lines, literally nothing – that could prejudice an investigation. I would however affirm the decision to exempt the other entries in that document which are said to be exempt pursuant to s 37(1)(a).
151. I turn next to the exemption that has been claimed in respect of the whole of the second paragraph of document 1 apart from the second sentence. The AFP says that document is exempt pursuant to s 33(1)(b) because it reveals confidential information: either directly, by actually recounting the information that was provided in confidence, or indirectly, by detailing the response in a way that would allow the alert reader to correctly surmise the confidential information to which the document responds. I note that many of the documents I refer to below contain information that was gathered by the AFP pursuant to a request from an overseas agency. Where I am satisfied the exemption under s 33(1)(b) is available, I have elected not to describe the contents of the document.
152. I have already explained the operation of s 33(1)(b). I have also referred to the evidence of Messrs Taggart and Jabbour in particular. I note Mr Taggart’s evidence that all of the information provided by the overseas agencies in question here was provided in confidence pursuant to established arrangements and on the understanding that the confidence would be respected.
153. I am satisfied that the extract in document 1 that was redacted pursuant to s 33(1)(b) is exempt. I would reach the same conclusion for the same reasons in relation to the s 33(1)(b) claims made over documents 4, 6, 11, 12, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 42, 43, 44, 45, 46, 47, 48, 49, 50, 54, 55, 56, 58, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 71, 73, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 87, 90, 91, 92, 94, 95, 96, 97, 100, 101, 104, 105, 106, 107, 109, 110, 111, 112, 113, 114, 115, 116, 119, 120, 122, 126, 127, 129, 130, 135, 137, 138, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 153, 154, 155, 156, 157, 158, 160, 161, 163, 164, 167, 169, 170, 171, 172, 173, 175, 176, 177, 178, 180, 181, 183, 184, 185, 186, 187, 188, 189, 191, 192, 193, 195, 196, 198, 200, 207, 216, 217, 218, 219, 221, 223, 224, 225, 226, 228, 229, 230, 231, 232, 234, 235, 236, 239, 241, 242, 243, 245, 247, 248, 249, 250, 252, 255, 257, 260, 265, 267, 268, 269, 275, 276, 280, 281, 282, 284, 286, 289, 290, 291, 293, 294, 295, 296, 297, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 312, 313, 314, 315, 316, 317, 318, 320, 322, 323, 324, 327, 328, 332, 333, 334, 335, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354 and 355.
154. I would not allow the exemption under s 33(1)(b) in respect of document 88 because it is unclear whether this document (or the information in it) was provided by an overseas agency, and I am not satisfied that the material in the document indirectly reveals any information provided by an agency. I reach the same view for the same reasons in relation to the claim for an exemption under s 33(1)(b) over:
     • the entire contents of document 99;
     • the text accompanying the dot points on p 1 of document 102;
     • the entire contents of document 121 apart from the two words following the heading “Reason for travel” in the middle of the document;
     • the redacted extract on p 1 of document 197 apart from the last 4 lines,
     • the last 10 lines of text on p 5, the first 16 lines of p 6, and lines 7-12 on p 8 of document 197;
     • the entire contents of p 1 of document 199 apart from the last 2 lines of text;
     • the entire contents of p 4 of document 199 apart from lines 22-25;
     • the last 4 lines of p 5 and the first 5 lines of p 6 of document 199;
     • the entire contents of p 1 of document 220;
     • the last 5 lines on p 1 and the first 6 lines on p 2 of document 222;
     • the redacted material on the first page of document 271;
     • the entire contents of documents 272, 273, 274, 277 and the first 6 pages of document 278;
155. The other material that is said to be exempt pursuant to s 33(1)(b) in documents 102, 121, 197, 199, 220, 222, 271 and 278 is exempt.
156. I shall now return to document 1. The AFP says a number of entries on p 1 of that document are exempt pursuant to s 41, which prohibits the unreasonable disclosure of personal information about a person. I have already discussed this ground of exemption in some detail in relation to the Customs’ documents. I will not repeat that discussion here.
157. I am satisfied that all of the information in the redacted passages of document 1 constitutes personal information within the meaning of s 41. I am not satisfied it would be unreasonable to disclose the information in the last redacted passage (the last full sentence of text above the line) given that the individual in question, the information which accompanies his name and his connection with the events in question is well-known to the public following extensive media coverage. I would therefore set aside the decision in respect of that portion of text. After having regard to all of the circumstances and balancing the public interest in open access to information against the named individuals’ interests in preserving their privacy, I am satisfied that it would be unreasonable to disclose the personal information contained in the other redacted extracts in document 1.
158. I have undertaken the same analysis in relation to each of the other documents that is subject to a claim for exemption under s 41. I am satisfied the exemptions have been properly claimed in relation to documents 11, 12, 19, 20, 21, 22, 23, 24, 25, 28, 30, 32, 35, 36, 37, 38, 40, 43, 47, 48, 49, 50, 54, 59, 60, 65, 66, 68, 70, 72, 75, 76, 78, 82, 83, 86, 94, 95, 96, 97, 98, 100, 101, 102, 103, 104, 105, 107, 113, 114, 115, 116, 119, 122, 124, 125, 126, 127, 128, 129, 131, 132, 133, 135, 136, 137, 138, 140, 141, 142, 144, 145, 146, 147, 149, 152, 153, 154, 155, 156, 158, 160, 161, 162, 163, 164, 167, 168, 169, 170, 171, 172, 174, 175, 176, 177, 178, 180, 181, 186, 190, 192, 194, 195, 196, 200, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 225, 226, 227, 228, 233, 239, 243, 247, 248, 249, 250, 263, 264, 271, 274, 275, 276, 277, 278, 279, 281, 285, 293, 294, 295, 298, 299, 300, 309, 310, 311, 312, 313, 314, 315, 316, 318, 327, 331, 333, 334 and 342.
159. I do not think the exemption under s 41 is available in respect of the text on the last page of document 27. The document is an email addressed to a newspaper. It makes for unedifying reading, but that is not the test. The text is not personal information, although it may disclose something about the author’s personal views. The name of the author, his email address and signature block are personal information, but even that information should not be exempt because the individual was plainly prepared to give up his privacy when he sent the communication to a newspaper for the purposes of publication. I am satisfied that it would not be unreasonable to disclose the information in the circumstances. I am satisfied that the claim for exemption under s 41 over other text in document 27 is made out.
160. I do not think the exemption under s41 is available in respect of document 34. The author of the letter is a firm of solicitors. The identity of the firm’s client is unclear from that letter. While the name of the firm and its address might be regarded as personal information of the partners, I am not persuaded it would be unreasonable to release that information in the circumstances. The same question arises in relation to document 51, which is another letter from the same firm. It refers to a forthcoming media report. The client is identified as a corporate entity, although there is also an obscure reference to a natural person. Even if I were satisfied that the information about the firm and the corporation were personal information, I do not think, on balance, that it would be unreasonable to publish the material given it responds to a media report. I would take a different view in relation to the individual named in the document. It would be unreasonable to disclose his information without knowing more about the media report in question. In those circumstances, I am satisfied the exemption under s 41 is only available in respect of the name of the individual referred to in the second paragraph.
161. I would also release the redacted entry on p 1 of document 55 that is said to be exempt under s 41. The person is a director of a company that is named in the document. The individual’s relationship with the company can be readily uncovered by searching a public data-base. It would be futile to suppress the name of the individual if the name of the company is to be released. I do not think it would be unreasonable to release that information in the circumstances. I note there are references to the individual throughout the document, but those references occur in connection with other matters that would unreasonably disclose other personal information. The other claims for exemption under s 41 are affirmed.
162. The exemption claimed in respect of the last three lines of text (apart from the last four words) in the last full paragraph above the footnotes on p 1 of document 59 must also be declined. I accept the information is personal, but the identity of the individual and the rest of the information are already in the public forum. It would not be unreasonable to release that information. The decision to exempt other passages within that document pursuant to s 41 is affirmed. I reach the same view for the same reason in relation to:
     • the last entry that is said to be exempt under s 41 on p 2 of document 74. The other claims for exemption under s 41 that have been made in relation to that document are made out;
     • the last redacted entry in document 183 that is said to be exempt under s 41. The other claims for exemption under s 41 that have been made in relation to that document are made out;
     • The first redacted entry in document 184 that is said to be exempt under s 41. The other claims for exemption under s 41 that have been made in relation to that document are made out;
     • The second redacted entry on p 1 of document 193. The other claims for exemption under s 41 that have been made in relation to that document are made out;
     • The first redacted entry on p 2 of document 224. The other claims for exemption under s 41 that have been made in relation to that document are made out;
     • The first redacted entry on p 1 and the identical redacted entry on p 2 of document 235. The other claims for exemption under s 41 that have been made in relation to that document are made out;
     • The first three words of the first redacted entry on p 1 of document 241. The other claims for exemption under s 41 that have been made in relation to that document are made out;
     • All five redacted entries in document 266;
     • The redacted entry in document 267; and
     • The redacted entry in the third paragraph of document 317. The other claims for exemption under s 41 that have been made in relation to that document are made out.
163. The information contained in document 69 is also a matter of public record (although I have already decided it is exempt pursuant to s 33(1)(b)). While the document does disclose personal information about at least two individuals, the information is widely available. It would not be unreasonable to release it having regard only to s 41. I would refuse the exemption under s 41 on that basis. I reach the same view for the same reasons in relation to the material said to be exempt in document 269. The redacted material is comprised of a court document. It is not unreasonable to disclose the information in all the circumstances given that it is already in the public forum. I reach the same view for the same reasons in relation to document 306, document 307 and document 308.
164. I am not satisfied the information on p 616 of the bundle (p 8) of document 189 is personal information that can be traced back to particular individuals. The exemption under s 41 is not available in respect of that extract. The other claims for exemption under s 41 in respect of document 189 are made out. I would reach the same view in relation to the second redacted extract on p 1 of document 191. The information cannot be traced back to anyone if the other material in the document is exempt – and I am satisfied it is. The exemption in respect of the second extract is set aside.
165. The information on pp 8-9 of document 268 and the last two pages of document 272 is not personal information and cannot be exempted pursuant to s 41. I reach the same view for the same reasons in relation to the last 8 lines of p 1 of document 301 and the first line of p 2 in the same document. I accept that the other extracts from all three documents that have been redacted pursuant to s 41 are exempt.
166. Document 319 is a media report about an apparently unrelated issue. A number of individuals are named in the course of the report. While there is personal information contained in the report, I do not think its disclosure would be unreasonable given that the report has apparently already been published.
167. I return now to the other claims for exemption in document 1. There are two claims made under s 40(1)(d). I have already explained during the course of my discussion of the Customs’ documents that the provision exempts from disclosure documents if disclosure

...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...

I have also noted the obligation under s 40(2) to consult the public interest. That provision says the document should be disclosed if disclosure would be in the public interest.

168. The Tribunal has previously accepted that there was a degree of overlap between ss 40(1)(d), 33 and 37: see, for example, Re Rees and Australian Federal Police [1999] AATA 252; (1999) 57 ALD 686 at 721-723. I earlier referred (in the course of my discussion of the Customs’ documents) to some of the different ways in which disclosure of some documents under consideration here might have an adverse effect. The evidence of Mr Taggart in particular suggested that Australia’s involvement in policing work in particular countries is a very sensitive issue. Disclosing the detail of that involvement could be expected to generate controversy that would make it more difficult for Australian agencies to do their job. I have no reason to doubt that evidence. I will keep that in mind as I consider the exemption claims. I am also mindful of the fact that some of the documents make comments that would, if released, make cooperation more difficult.
169. It is important to apply robust common sense to the application of this exemption, especially in circumstances like these. Police and security agencies necessarily conduct at least part of their business away from public scrutiny. The efficacy of our law enforcement agencies would be seriously impaired if they were required to operate in the glare of publicity (although I note that one of Mr Walker’s complaints is that AFP officers were selectively leaking material to the media that cast him in a bad light). That is not to say these bodies are unaccountable, of course. The existence of the public interest test in s 40(2) ensures that s 40(1)(d) cannot be used to cover up improper or unlawful behaviour. I acknowledge the exemption should not lightly be claimed given the requirement that there be an expectation of a “substantial adverse effect”, but a measure of realism is also appropriate. If the provision were given an unduly restrictive interpretation in practice, there is a danger that information will not be properly recorded in the first place as officers take steps to protect information. That will only serve to frustrate the accountability which the FOI Act intends to promote.
170. I am satisfied disclosure of the material in document 1 that was redacted pursuant to s 40(1)(d) could reasonably be expected to have a substantial adverse effect on the proper operation of at least one Australian agency. The evidence of Mr Taggart in particular suggests disclosure of material like that appearing in document 1 would result in political controversy that would present a significant obstacle to the agency as it went about its work. I am not satisfied disclosure of that material would, on balance, advance the public interest.
171. I have reviewed the other documents (or portions of documents) that are said to be exempt pursuant to s 40(1)(d). In the following cases, I am satisfied disclosure of the redacted material would create unhelpful controversy of the kind I have previously discussed that inhibited intelligence gathering and cooperation, or would otherwise compromise an agency’s legitimate responses to criminal conduct. In each case, I have considered whether disclosure would be, on balance, in the public interest and concluded the material should not be released. I am satisfied the exemption is available in relation to the claims made over documents 2, 7, 14, 16, 19, 20, 21, 23, 24, 25, 26, 28, 32, 36, 37, 38, 43, 46, 47, 48, 49, 50, 52, 54, 55, 59, 60, 62, 65, 66, 67, 68, 70, 71, 73, 74, 75, 77, 78, 79, 80, 82, 83, 84, 85, 86, 90, 91, 92, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107, 108, 109, 110, 111, 112, 119, 120, 122, 124, 125, 126, 129, 131, 132, 133, 135, 136, 137, 138, 140, 142, 144, 146, 147, 148, 149, 150, 151, 152, 155, 158, 161, 162, 163, 164, 167, 168, 169, 170, 171, 172, 173, 174, 175, 178, 184, 194, 195, 196, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 221, 226, 239 and 249.
172. After analysing the material, I would not exempt the redacted material in document 12 under s 40(1)(d). The information in the redacted material is so obscure that it is hard to see how it will generate controversy or “tip the hand” of the agency in an unhelpful way.
173. I turn next to the claims for exemption that have been made under s 33(1)(a). That provision exempts documents from disclosure if disclosure “would, or could reasonably be expected to cause damage to “the security, defence or international relation of the Commonwealth”. I have already spoken about this exemption in the course of my discussion of the Customs’ documents. I referred there to the confidential evidence of Mr Jabbour and Mr Taggart who described the extreme sensitivity of some of the international relationships that might be affected by information contained in some of these documents. I would interpolate that the damage which could reasonably be expected to result from a disclosure need not be reasonable before the exemption becomes available. The reaction of other countries or international organisations might be quite unreasonable or cynical. That does not matter: the question is simply whether a damaging reaction can be expected. That damage might be large or small, and it may be intangible. The AFP, for its part, is particularly concerned about disclosures that ultimately impact on its ability to obtain formal and informal cooperation. In essence, Mr Jabbour and Mr Taggart appear to believe the AFP would prefer to maintain a low profile as they think any news of its involvement or active presence in some countries is likely to be problematic. As I understand the thrust of their evidence, even news of AFP assistance to some local authorities is likely to be controversial and unhelpful.
174. In those circumstances, I am satisfied the claims for exemption under s 33(1)(a) should be accepted in relation to the following documents: documents 1, 6, 19, 54, 55, 60, 67, 68, 86, 95, 96, 97, 101, 119, 120, 124, 129, 135, 140, 142, 144, 149, 158, 161, 163, 169, 170, 172, 173, 177, 178, 180, 183, 197, 198, 199, 200, 215, 217, 218, 219, 221, 225, 227, 228, 229, 232, 233, 234, 245, 260, 267, 268, 284, 296, 297, 303, 304, 317 and 320.
175. I would not allow the exemption in respect of the material collated under the heading “media issues” on p 7 of document 231 to the end of the document. That material is a collection of media reports. Any damage that could be done by those reports has already occurred. However, I am satisfied the balance of the document is exempt pursuant to s 33(1)(a). I am satisfied the material on pp 8-11 of document 236 is exempt for the same reasons as the material in p 7 of document 231. I accept the rest of document 236 is exempt pursuant to s 33(1)(a).
176. Document 1 includes a claim for exemption under s 43. I have already briefly discussed the operation of the exemptions available under s 43 in relation to the Customs’ documents, but because there were only a small number of documents where this exemption required consideration I will elaborate on the discussion here. Material may be exempted under s 43 if its release would reveal trade secrets (s 43(1)(a)), diminish or destroy the commercial value of the information in question (s 43(1)(b)) or have a substantial adverse effect on the operation or activities of the business (s 43(1)(c)(i)) or prejudice the future supply of information by that business to the government (s 43(1)(c)(ii).
177. In the present case, the exemptions under s 43(1)(c) are of particular interest. The AFP is obviously concerned that it should not “out” commercial organisations that provide it with information about customers, suppliers, products or other information that has come to them in the course of their business. The exemption might be available if it “could reasonably be expected to prejudice” the future supply of information from that source to an agency. That reasonable expectation of prejudice must be reasonable in the sense that it is reasoned and grounded on fact, rather than fancy. The exemption under s 43(1)(c)(i) might be available where an enterprise unwittingly finds itself in the middle of an investigation or is linked to individuals or circumstances that would (or could reasonably be expected to) make for damaging publicity. In that case, the exemption will only apply if disclosure would “unreasonably affect that person adversely in respect of his or her lawful business or professional affairs”. The wording of the provision recognises that it may be inappropriate to protect an enterprise from public acknowledgment of an association with people, places or activities. In each case, the law contemplates a modified public interest balancing test in which one considers the private interests of the person or business affected and the public interest – most obviously the public interest in open access to information.
178. I turn to the redacted extract on the last line of the fifth paragraph of p 1 of document 1. The text refers to dealings between an individual and an enterprise. In this case, the information about the dealings was not provided by the enterprise, so s 43(1)(c)(ii) is unavailable. There is no suggestion in document 1 itself that the enterprise has anything other than an arms’ length commercial relationship with the named individual. But the document should not be read in isolation. Other documents in the bundle provide more information about the enterprise and its links with named individuals. That other information would be embarrassing, although there is limited evidence of the likely impact on the business affairs of the enterprise. But even if I were to accept the lawful business affairs of the enterprise were likely to be adversely affected by the disclosure of the information, I am not persuaded the private interest of the individuals involved outweighs the public interest in knowing what is in the documents. I do not think the exemption under s 43(1)(c)(i) is available in relation to that material. I would reach the same conclusion for the same reasons in relation to the redacted material in documents 74, 90, 95, 206, and 287
179. I would reach the same conclusion for different reasons in relation to document 22 where an exemption has been sought under s 43. The AFP has not specified whether it is making a claim under s 43(1)(c)(i) or (ii), but there is no indication that the enterprise has supplied information therefore s 43(1)(c)(ii) is not available. The business in question in that document is said to be involved in criminal conduct. Its lawful businesses would not be affected, and whatever affect it experiences would not be unreasonable in the circumstances. Given the document notes that news of the involvement of the enterprise was already in the media – which means any damage has already been sustained – I think an exemption under s 43(1)(c)(i) cannot be sustained. I would reach the same view for the same reasons in relation to document 34 and document 51.
180. In reaching that view, I am mindful of the evidence of Mr Taggart and Mr Spooner. Mr Spooner, in his confidential affidavit, refers to fears that the release of documents might reignite controversies that have already died down. He says that is a basis for withholding documents that refer to matters that have already been discussed in the public forum. Mr Taggart pointed out that some of the information that made its way into the public forum should never have been released. He says there is no purpose in repeating the information now. I accept there is some force in those contentions, but I think those concerns are of less weight when one undertakes the balancing of interests. Re-opening old wounds is not as damaging as inflicting fresh damage.
181. I would reach the same conclusion for similar reasons in document 47. In that case, the release of the document would disclose information that would adversely affect an individual’s nefarious business activities. The exemption under s 43(1)(c)(i) is not available in those circumstances. I would reach the same conclusion for the same reason in relation to the various redacted extracts in document 78 apart from the text accompanying the fifth dot point on p 12 of the document. The bulk of that material should not be exempt either, but for different reasons to those which apply to the balance of the redacted extracts. The material accompanying the fifth dot point on p 12 is not exempt because:
     • the commercial affairs of the enterprise in question; and
     • the connection between that enterprise and the individual named in the material

are already matters of public record. It is unclear what affect disclosure of the material would have on the business affairs of anyone.

182. I would not allow an exemption under s 43(1)(c)(i) in relation to the redacted material on p 2 of document 35. (There is no suggestion that s 43(1)(c)(ii) is available.) The entry refers to a company and two of its directors. It is unclear whether disclosure of the material would have any affect on the business of the company or the two individuals. But even if there were to be some adverse affect, the damage is already done: the identity and reputation of one individual and his connections with the other and the company is already a matter of public record. The public interest in open access should prevail in the circumstances. I would also disallow the exemption under s 43(1)(c)(i) claimed over portions of document 54 and document 55 for similar reasons. It is unclear what affect the disclosure would have on the business affairs of the enterprise or individual in question especially since the enterprise has already outed itself and the individual in a public forum. For similar reasons, I do not think the exemption is available in relation to document 69 and document 119. The identity of the enterprises and individuals referred to in the documents are already in the public forum, or can be readily identified from information available to the public. The affect of disclosure of these documents on those businesses is unclear.
183. The exemption should apply in relation to the redacted material in document 38. The document refers to an enterprise in circumstances that suggests the connection of its name with the information in the document would damage its business. I am satisfied that result would be quite unreasonable. The public interest in accessing this information is outweighed by the enterprise’s interests in preserving its good name.
184. I turn next to document 59. An exemption has been claimed pursuant to s 43(1)(c)(ii) over an extract on p 5 of the document. It is clear that the enterprise in question has supplied information. It is easy to see how disclosure of its role would adversely affect its business and provide a disincentive for it to supply fresh information in the future. I am satisfied the material is exempt.
185. I am satisfied the material in document 71 is exempt pursuant to s 43(1)(c)(i). The named individual may have been unwittingly caught up in this affair, but disclosure of his name in this connection would seriously affect his business. His interest in maintaining his privacy outweighs other interests. I would reach the same conclusion for the same reasons in relation to document 82 and document 83.
186. I do not think the redacted material in documents 84 and 85 is exempt pursuant to s 43(1)(c)(i) because there is no indication in the documents that the enterprises in question have done anything more than provide goods or services to an individual in the ordinary course of business. It is difficult to see how there might be any commercial implications for the enterprise in those circumstances.
187. I take a different view in relation to the enterprises and individuals named in documents 92, 100, 102, 126, 136, 153, 155, 161, 191, 196, and 204. In those documents, the individuals or enterprises concerned appear to have been caught up in the affairs discussed in the documents. Disclosure of the information would almost certainly damage reputations and unreasonably affect business. The public interest in open access would not be advanced by disclosure. On balance, I think the material should not be released. The exemption under s 43(1)(c)(i) is available.
188. The material in document 88 is not exempt pursuant to s 43(1)(c)(i). The author of the document is obviously concerned about his reputation and the commercial ramifications of being associated with named individuals. But the other documents in the bundle make it clear that the association (or the appearance of an association) is already a matter of public record. The information in the document would not damage the author’s business affairs: indeed, release of the letter might conceivably ameliorate any damage that had already occurred.
189. Document 97 refers to a number of individuals and enterprises. It is easy to see how some of the information included in the document would reflect on some of those persons. Even so, I am not persuaded the redacted passages are exempt given that the material in the rest of the document identifies the individuals and enterprises clearly enough. Any damage that would occur to their business affairs would result from the disclosure of that other material. The exemption under s 43(1)(c)(i) is not available in respect of those passages. I would reach the same conclusion for the same reasons in relation to documents 101, 142 and 144.
190. I would not allow the exemptions claimed in respect of the passages redacted from document 98 pursuant to s 43(1)(c)(i). I hesitated before reaching that conclusion in relation to the enterprises named in the fourth and ninth lines and the three sub-points accompanying the first paragraph on p 1 given there is nothing in this document which suggests the enterprises in question were acting unlawfully. There is information about the affairs of the entities set out in other documents, however, which suggest the public interest in disclosure of the material outweighs the private interest of the entities in maintaining their privacy. I do not think that material should be exempt on that basis. I do not think the balance of the redacted material should be exempt for the same reasons I identified in relation to document 97.
191. I do not think that an exemption under s 43(1)(c)(i) is available in relation to the enterprise named in the footnote on p 2 of document 125. The exemption is only available in relation to the lawful business activities of an enterprise. The redacted material refers to unlawful business. In any event, I do not think that private interest in preserving privacy outweighs the public interest in open access in this case. I would reach the same conclusion for the same reasons in relation to document 151.
192. There are two redacted extracts in document 129 that are said to be exempt under s 43(1)(c)(i). The first extract refers to a number of individuals. Some of the named individuals might have been unwittingly caught up in the affairs referred to in the document. But it is unclear what impact that involvement would have on their business. I do not think that material satisfies the test, so the material in the fist redacted extract cannot be exempt. I do not think the second extract in document 129 is exempt either. The information does not put the business in question in a bad light. It would be impossible to conclude that its business would be adversely affected by the release of the document. The other named individual (apart from the applicant) might be adversely affected but that affect would not be unreasonable given what he is said to have done. His private interest in keeping that information confidential is outweighed by the public interest in disclosure in any event.
193. Document 140 repeats the two redacted paragraphs contained in document 129. I am satisfied they are not exempt for the same reasons I gave in relation to the material in document 129. I think the first redacted passage on p 3 of the document is exempt for the same reasons I gave in relation to document 92. The second redacted extract on that page is not exempt under s 43(1)(c)(i) because the news of a role for the enterprise in question is already a matter of public record. It is impossible to gauge in any event whether there would be any affect on its business affairs, or whether that affect would be unreasonable.
194. I do not think the redacted extracts in document 162 should be exempt under s 43(1)(c)(i) because the public interest in the information clearly outweighs any private interest in keeping it confidential, assuming there are business affairs that are being affected.
195. Document 164 is properly exempt for other reasons, but I do not think it is exempt pursuant to under s 43(1)(c)(i) for the same reasons I gave in relation to document 97. I would reach the same conclusion for the same reasons in relation to documents 171, 172, 173, 175, 177 and 209.
196. Document 178 includes two extracts that have been redacted pursuant to s 43(1)(c)(i). I would exempt the two redacted portions of text in numbered paragraph 2 (on pp 2-3) for the same reasons I gave in relation to document 92. The second extract on p 3 is not exempt for the same reasons I gave in relation to document 162. The material redacted from documents 183, 184, 189 and 194 is also not exempt for the reasons given in relation to document 162.
197. Document 216 is a copy of document 78. I would deal with the exemptions on the same basis.
198. Document 221 is a copy of document 178. I would deal with the exemptions claimed over document 221 on the same basis as I dealt with the exemptions in document 178.
199. I do not think the exemption under s 43(1)(c)(i) is available in respect of the material redacted from document 223. Whether or not the information would affect the business affairs of the enterprise in question, it is doubtful that the affect would be unreasonable. I think the public interest in the information discloses any private interest of the entity conducting the enterprise. I would reach the same conclusion for the same reasons in relation to documents 225 and 226.
200. Document 228 repeats information contained in document 54. It is not exempt for the same reasons. I would reach the same conclusion for the same reasons in relation to documents 333 and 334, which also discuss matters referred to in document 54. The redacted extracts in documents 230 and 250 repeat information provided in document 51. I would not exempt the material in documents 230 and 250 for the same reasons I gave in relation to my decision on document 51. I would reach the same conclusion for the same reasons in relation to documents 336, 337 and 338, which also refer to the subject matter of document 51.
201. The material in document 268 is not exempt pursuant to s 43(1)(c)(i) because I am not satisfied that the enterprises and individuals named in the documents would unreasonably be affected in the conduct of their lawful affairs. The lawfulness of the business transactions in question has not been established; given the details of the transactions and some of the allegations that are already on the public record, it seems unlikely that any adverse affect on business affairs could be attributed to the disclosure of this document.
202. The redacted material in document 330 refers to matters that are already on the public record. Any damage done to the business of the persons mentioned in the document has already been sustained. The document does not do any further damage. The material is not exempt pursuant to s 43(1)(c)(i).
203. I will now deal with the other remaining claims for exemption. I turn firstly to s 37(1)(b). I have already discussed this exemption in the context of the Customs’ documents. Recall that it is available when the release of a document would or could reasonably be expected to directly or indirectly disclose the existence (or non-existence) or identity of a confidential source of information “in relation to the enforcement or administration of the law”. The provision protects confidential sources of information rather than confidential information. The information does not have to be reliable or even true.
204. Mr Taggart spoke briefly in his confidential affidavit about the importance of confidential informants and the desirability of keeping their existence and identities a secret. He said it was essential to preserve their safety and their value as an ongoing source of information. The policy arguments over the need to protect information about confidential sources are well known: they have been discussed over many years in relation to claims for Crown privilege.
205. I am satisfied that the redacted passages of text in the following documents that are said to be exempt pursuant to s 37(1)(b) are, in fact, exempt: documents 38, 47, 65, 66, 70, 103, 185, 215, 218 and 285.
206. I turn next to claims for exemption under s 37(2)(b). The discussion of the provision in relation to the Customs’ documents is relevant here. Recall that the provision exempts documents if disclosure:

...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...

207. I am satisfied the passages redacted pursuant to s 37(2)(b) in the documents referred to below are, in fact, exempt documents because:
     • they do (or could reasonably be expected to) disclose information about matters referred to in the sub-section; and
     • I am satisfied that disclosure would, or would be reasonably likely to prejudice the effectiveness of those methods or procedures – most obviously by “tipping off’ the subjects of this or other investigations to methods or procedures used by law enforcement agencies in a way that compromises effectiveness or utility.
208. I would add that it is accepted that the laws in question in s 37(2)(b) must be Australian laws. However, I accept that information about an agency’s methods used in the investigation of a foreign law – perhaps in the course of assisting a multi-jurisdictional investigation – might still compromise the effectiveness of those same techniques or methods when used in unrelated investigations in Australia.
209. I am satisfied the exemption is available in respect of passages referred to in the schedule of documents in documents 47, 59, 68, 78, 120, 148, 149, 150, 185, 190, 196, 224, 290 and 305.
210. I do not think the exemption is available with respect to the extracts in documents 102 and 207 because the redacted text reveals nothing – certainly nothing new or unexpected or informative, much less anything that might be damaging or compromising – about police methods or procedures. I accept the exemption is available in relation to the bulk of document 190 apart from the following extracts which reveal nothing that is not already obvious:
     • the text from the third line of the fourth paragraph of folio 632 through to the end of the eighth paragraph on that page; and
     • the last 6 lines of folio 632 and the first line of folio 633.
       
211. The AFP also relies on s 33A to exempt a number of documents, or parts of documents. I have already noted in the course of the discussion of the Customs’ documents that s 33A exempts from disclosure documents that:
     • Would, or could reasonably be expected, cause damage to relations between the Commonwealth and a State (s 33A(1)(a)); and
     • Would divulge information or matter communicated in confidence by a State agency to a Commonwealth agency (s 33A(1)(b)).
212. The AFP has not specified whether it relies on s 33A(1)(a) or (b), but the evidence given in Mr Taggart’s confidential affidavit is directed to s 33A(1)(b). Mr Taggart spoke about the basis on which information was shared between Commonwealth and law enforcement authorities. He explained that the state agencies with whom the AFP was dealing expected the AFP not to release information provided in confidence. Mr Taggart suggested those state agencies would be less inclined to share information in a forthright way if they feared the information would be released. Mr Taggart explained how information obtained by those agencies could be gleaned from individual documents.
213. I am satisfied that all of the passages in the documents that were redacted pursuant to s 33A are exempt under s 33A(1)(b). I therefore affirm the decision to exempt the relevant extracts in documents 36, 43, 59, 71, 97, 101, 248 and 318.
214. I now turn to the claims for exemption that have been made under s 36. That provision refers to internal working documents prepared in the course of a deliberative process of an agency. The exemption applies if disclosure:

(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.

215. It follows I must be satisfied in relation to each document that it was prepared in the course of a deliberative process, that it contains opinion, advice or recommendation prepared in connection with that process (or that it recorded consultation or deliberations that have taken place), and that its disclosure would be contrary to the public interest.
216. The first requirement – that the document be prepared in the course of a deliberative process – requires that I be satisfied the document was prepared in the appropriate context. The second requirement is probably more demanding in practice. Not every document that is prepared as part of a deliberative process records opinion, advice or recommendation, or records deliberation or consultation. Some documents merely record bare factual observations, for example. The additional requirement that disclosure be contrary to the public interest – most obviously the public interest in free access to documents – sets a high threshold. In a case like this which involves documents held by law enforcement agencies, the public interest questions offer an especially difficult challenge. On the one hand, law enforcement agencies have enormous power at their disposal. The consequences for an individual caught up in such an agency’s machinations are especially grave. It is essential that those agencies be held to account. The FOI legislation provides one means of doing that. On the other hand, these agencies are required to do important work that must (at least on occasion) be kept secret if it is to be done effectively.
217. After reviewing the documents, I am satisfied the passages redacted from the following documents pursuant to s 36 are exempt: documents 78, 108, 137, 164, 185 and 216. I am not persuaded that all of the material redacted from document 190 is exempt, however. Some of the passages in that document record purely factual information that does not qualify as opinion, advice or recommendation. I refer in particular to the material redacted from folios 631-633. I am satisfied the rest of the exemptions under s 36 in respect of document 190 are made out.
218. The last category of exemption under Part IV of the FOI Act is found in s 42, which deals with documents that are subject to legal professional privilege. Section 42(1) provides:

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

219. Legal professional privilege is available in relation to a confidential communication that was made or brought into existence for the dominant purpose of (a) obtaining legal advice (the advice privilege) or (b) use in legal proceedings (the litigation privilege). The privilege may be waived by the client. The advice privilege is available where a lawyer advises a client as to what may (or should) lawfully be done. Advice from in-house lawyers may attract the privilege in appropriate cases.
220. I am satisfied documents 2, 7, 8, 12, 22 and 48 are privileged and therefore exempt. Documents 2, 7 and 8 are comprised of correspondence between AFP lawyers and investigators which is clearly privileged. Documents 12, 22 and 48 are briefing papers that record questions being put to lawyers. They are also privileged. I take a different view in relation to document 173. The redacted passage records the fact that an officer of an overseas agency proposes obtaining legal advice in relation to certain matters from that agency’s own lawyers. The information is clearly privileged in the hands of that officer and agency, but it is unclear to me whether that privilege can properly be invoked by the AFP.
221. That leaves only the claims with respect to s 22. Strictly speaking, s 22 does not create exemptions. It merely authorises the decision-maker to delete material that “would reasonably be regarded as irrelevant to th[e] request”: s 22(1)(a)(ii). I have already set out the terms of the request and I have separately discussed the general approach to claims of this nature. I will follow that same approach here.
222. I am satisfied that the material redacted from the following documents on the basis that it is irrelevant should not be released pursuant to s 22: documents 22, 34, 115, 128, 133, 135, 161, 169, 174, 183, 184, 197, 198, 199, 200, 212, 218, 219, 222, 224, 227, 229, 230, 231, 232, 233, 234, 237, 238, 239, 240, 244, 245, 246, 247, 249, 251, 252, 253, 254, 258, 259, 261, 262, 263, 269, 270, 300, 306, 308, 309, 310, 311, 312, 313, 314, 315, 319, 323, 324 and 325.
223. I am satisfied that the following extracts of the following documents are relevant and should not be deleted pursuant to s 22:
     • The second page of document 40 (folio123) (although I accept the balance of the material deleted in that document pursuant to s 22 is, in fact, irrelevant and should not therefore be released);
     • The entire contents of document 51;
     • The text following the first dot point on p 1 of document 158 (although I accept the balance of the material deleted in that document pursuant to s 22 is, in fact, irrelevant and should not therefore be released);
     • The two lines of text of the first sub-paragraph following the “-“ mark in document 163 (although I accept the balance of the material deleted in that document pursuant to s 22 is, in fact, irrelevant and should not therefore be released);
     • The entire contents of document 168;
     • The first page of document 171 (although I accept the balance of the material deleted in that document pursuant to s 22 is, in fact, irrelevant and should not therefore be released);
     • The entire contents of document 175,
     • The second paragraph of text on the first page (folio 827) of document 235 (although I accept the balance of the material deleted in that document pursuant to s 22 is, in fact, irrelevant and should not therefore be released);
     • The third paragraph of text on p 2 of document 248 (although I accept the balance of the material deleted in that document pursuant to s 22 is, in fact, irrelevant and should not therefore be released);
     • The line of text immediately below the heading numbered “V” on p 5 (folio 914) of document 250 (although I accept the balance of the material deleted in that document pursuant to s 22 is, in fact, irrelevant and should not therefore be released);
     • The text of numbered paragraph 5 on the first page of document 268 (although I accept the balance of the material deleted in that document pursuant to s 22 is, in fact, irrelevant and should not therefore be released).

CONCLUSION

224. I have indicated in these reasons where the decisions with respect to the document have been affirmed, varied, set aside or remitted. The Tribunal’s decision with respect to all of the documents takes effect 30 days from the date of these reasons. Where I have indicated that a decision with respect to a document has been remitted for reconsideration, the reconsideration should be completed within 60 days from the date that the Tribunal’s decision takes effect.
     

I certify that the 224 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed:

..........................[Sgd]..............................................

Associate

Date of Hearing 26-28 October 2009

Date of Decision 1 December 2010

Applicant Self-represented

Counsel for the Respondents Mr SA McLeod

Solicitors for the Respondents Australian Government Solicitor