AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Australian Information Commissioner
You are here:  AustLII >> Databases >> Australian Information Commissioner >> 2023 >> [2023] AICmr 73

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Context] [No Context] [Help]

Asher Hirsch and Department of Home Affairs (Freedom of information) [2023] AICmr 73 (28 August 2023)

Last Updated: 6 September 2023

Asher Hirsch and Department of Home Affairs (Freedom of information) [2023] AICmr 73 (28 August 2023)

Decision and reasons for decision of
Acting Freedom of Information Commissioner, Toni Pirani

Applicant
Asher Hirsch
Respondent
Department of Home Affairs
Decision date
28 August 2023
Application number
MR18/00643
Catchwords
Freedom of Information — Whether reasonable steps taken to find documents - Whether disclosure would cause damage to international relations of the Commonwealth - (CTH) Freedom of Information Act 1982  ss 24A  and 33(a)(iii).

Decision

  1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the s 55G decision of the Department of Home Affairs (the Department) of 29 September 2022.

Background

  1. On 12 August 2017, the applicant made an FOI request to the Department of Foreign Affairs and Trade, as follows:
    Correspondence between Australia and Indonesia, and between Australia and the International Organisation for Migration (IOM), regarding the establishment of the Regional Cooperation Agreement (RCA). Correspondence may include letters, emails, phone call logs or transcripts or any other form of communication. Please limit this request to correspondence in 2000 and 2001.
  2. The request was transferred in accordance with s 16 of the FOI Act to the Department of Home Affairs (the Department) on 17 August 2017.
  3. The Department identified two documents as falling within the scope of the request. These were a letter from the Department to the International Organisation for Migration (IOM), to which a Schedule was attached, and a letter from the IOM to the Department.
  4. In its original decision of 19 September 2017, the Department refused access to each document, on the basis that they were exempt in full under ss 33(a)(ii) and s 47(1)(b) of the FOI Act.
  5. The applicant sought internal review of this decision on 16 October 2017. Prior to the commencement of this IC review[1], on 5 July 2018, the Department purported to set aside its decision of 19 September 2017 and to make an internal review decision under s 54C of the FOI Act. However, by that time, the Department had been deemed by operation of s 54D of the FOI Act to have affirmed its original decision on 15 November 2017.
  6. In its purported internal review decision, the Department contended that no documents consisting of correspondence between the government of Indonesia and the government of Australia could be found.
  7. The applicant sought IC review under s 54L of the FOI Act on 4 September 2018. In broad terms, the applicant did not accept that no correspondence between the governments of Australia and Indonesia could be found, and sought review of the exemptions relied upon by the Department.
  8. The Department made a varied decision under s 55G of the FOI Act on 29 September 2022. Section 55G permits an agency to vary (or set aside and substitute) an access refusal decision at any time during an IC review of the decision if the revised decision would have an effect of giving access to a document in accordance with the request. The Department decided that no material in the documents was exempt under s 47(1)(b), and that some material it had previously contended was exempt under s 33(a)(iii) was not exempt. It maintained that no documents consisting of correspondence between the government of Australia and Indonesia could be found.

Scope of IC review

  1. The issues to be decided in this IC review are:
  2. The Department bears the onus of establishing that its decision is justified, or that I should make a decision adverse to the IC review applicant (s 55D(1)).
  3. In making my decision I have had regard to the following:

Whether reasonable steps taken to find documents (s  24A )

  1. Section  24A  requires that an agency take ‘all reasonable steps’ to find a document before refusing access to it on the basis that it cannot be found or does not exist. The FOI Guidelines explain that
    [t]he Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the context of s  24A (1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged appropriate or suitable to the circumstance or purpose.

    Agencies should undertake a reasonable search on a flexible and common-sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment. At a minimum, an agency should take comprehensive steps to locate documents, having regard to:

  1. Whether ‘all reasonable steps’ have been taken is a question of fact to be decided having regard to matters such as the terms of an applicant’s request, the document creation and retention practices in an agency, and the steps taken by the agency to identify and locate documents requested by the applicant.[4]

Parties’ submissions

  1. In its purported decision, the Department stated that:
    Searches for correspondence between Australia and Indonesia regarding the establishment of the RCA were undertaken by officers in the Department’s South-East Asia and ASEAN Section, International Policy Division. These officers had also conducted the successful searches for correspondence between Australia and the IOM.

    The searches involved checking of the electronic file holdings on Total Records and Information Management (TRIM – the Department’s records management system), archived email folders and the section’s local drives (both Protected and general unclassified folders). Officers within the section also requested staff based at the Department’s Jakarta post to undertake similar searches.

  2. The applicant submitted:
    I do not accept that the Department is unable to find documents concerning correspondence between Australia and Indonesia on the Regional Cooperation Agreement (RCA) ... Numerous Federal Government documents refer to the Regional Cooperation Agreement between Indonesia and Australia. For example, the 2011-12 Budget papers note that:

    “$23.8 million over three years will be provided to continue the Regional Cooperation Agreement with Indonesia where the Department of Immigration and Citizenship provides funding to the International Organization for Migration (IOM) ...”

    I would like the Commissioner to review the process which the Department undertook to ascertain the whereabouts of these documents, including assessing how the Department keeps a record of documents from 2000 and 2001, which may pre-date electronic databases.

  3. In its s 55G decision, the Department indicated that no further searches had been undertaken.
  4. During this review, my office asked the Department to provide information and evidence concerning consultations, including with other government agencies and with other business areas of the Department, undertaken in relation to making its decisions, and of searches conducted in relation to the decisions. In response, the Department reiterated what it had said in its purported decision. The Department did not address the question of whether there could be any relevant hard copy documents in existence.
  5. On 28 June 2023, my office asked the Department to address the possibility that relevant hard copy documents might exist, including by providing information about how records from the relevant time were stored, evidence of steps taken to search for hard copy documents and if relevant, information as to why hard copy material may no longer exist.
  6. The Department provided a detailed response on 1 August 2023. It advised that:
  7. The Department contended that it had, for the purposes of s  24A , it had taken all reasonable steps to find any potentially relevant documents. In relation to the fifth file, the Department submitted that searching manually through 700-800 boxes of files was not reasonably practicable.

Finding in relation to s  24A 

  1. I have considered the applicant’s submissions and the Department’s responses to the OAIC. I consider that the Department, having undertaken the additional searches outlined in its advice of 1 August 2023, met the minimum requirements for searches as outlined in the FOI Guidelines.[5] It is unfortunate that the fifth file has been stored in a manner that makes its retrieval extremely difficult and time-consuming – as the FOI Guidelines note, ‘[a]gencies and ministers are responsible for managing and storing records in a way that facilitates funding them for the purposes of an FOI request’.[6]
  2. However, as the AAT noted in Re Cristovao and Secretary, Department of Social Security[7] and in De Tarle and Australian Securities and Investments Commission (Freedom of information)[8] s  24A  does not require searches that ‘go beyond the limit assigned by reason’; it requires searches that are ‘not extravagant or excessive, moderate and of such amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose’.[9] Having regard to the Department’s advice that this file is unlikely to contain documents relevant to the request, as the second part of the file encompassed the relevant time period, I consider that to require the Department to locate this file in circumstances which would entail 700-800 boxes of files being manually searched would be not be reasonable or appropriate to the circumstances in the sense outlined above.
  3. Accordingly, based on the evidence before me, I am satisfied that the Department has taken all reasonable steps to find documents within the scope of the request and that further documents cannot be found or do not exist.

Documents affecting national security, defence or international relations

  1. Paragraph 33(a) of the FOI Act provides that a document is an exempt document if disclosure of the document under the Act:
    (a) would, or could reasonably be expected to, cause damage to:
    (i) the security of the Commonwealth;

    (ii) the defence of the Commonwealth; or

    (iii) the international relations of the Commonwealth; ...

  2. In relation to the concept of ‘damage’ in s 33(a), the FOI Guidelines explain:
    ‘Damage’ for the purposes of this exemption is not confined to loss or damage in monetary terms. The relevant damage may be intangible, such as inhibiting future negotiations between the Australian Government and a foreign government, or the future flow of confidential information from a foreign government or agency.[10]

The international relations exemption (s 33(a)(iii))

  1. The Department found material in each of the documents at issue to be exempt under s 33(a)(iii).
  2. As discussed in the FOI Guidelines and IC review cases,[11] for a document to be exempt under s 33(a)(iii), it must be shown that disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. The phrase ‘international relations’ has been interpreted as meaning the ability of the Australian Government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them.[12]
  3. The FOI Guidelines explain:
    The mere fact that a government has expressed concern about a disclosure is not enough to satisfy the exemption, but the phrase does encompass intangible or speculative damage, such as loss of trust and confidence in the Australian Government or one of its agencies. The expectation of damage to international relations must be reasonable in all the circumstances, having regard to the nature of the information; the circumstances in which it was communicated; and the nature and extent of the relationship. There must also be real and substantial grounds for the exemption that are supported by evidence. These grounds are not fixed in advance, but vary according to the circumstances of each case.[13]
  4. In Secretary, Department of Foreign Affairs and Trade v Paul Whittaker[14], the Full Federal Court considered the predecessor to s 33(a)(iii).[15] The Full Court reiterated the following propositions which the AAT had accepted:

The parties’ submissions

  1. In its original decision, the Department contended, in relation to its s 33(a)(iii) claim, that:
    the release of these documents would, or could reasonably be expected to, cause damage and significant harm to the bilateral relationship between Australia and Indonesia.

    The release of the information contained within the documents could diminish the trust placed in the Department’s officials by the Indonesian Government.

    The documents ... have had a very limited circulation and are only available to a select number of people on a strict needs-to-know-basis.

    This assessment is made considering the material contained within the documents and the current nature and extent of the Department’s relationship with Indonesia.

  2. The applicant contended that the release of any agreement and relevant documents surrounding that agreement would not impact international relations, especially as Indonesia is likely to be a party to the agreement and would already know the details of the arrangement. The applicant contended that the fact that the documents have had a very limited circulation and are only available to a select number of people on a strict needs-to-know basis is not a ground for refusal under the FOI Act.
  3. In its purported internal review decision, the Department contended that disclosure of the documents would or could reasonably be expected to cause damage to the relationship between the governments of Australia and Indonesia because:
  4. The Department also contended that disclosure of the documents would or could reasonably be expected to cause damage to the relationship between the government of Australia and the IOM, which is an international organisation to which the International Organisations (Privileges and Immunities) Act 1963 applies and is also a related organization of the United Nations, which plays a significant role in multilateral regional cooperative efforts against people smuggling, as well as in providing services to migrants in Australia and in regional processing countries. The Department said that damage would arise because disclosure:
  5. The applicant argued, in his application for IC review, that the Department had not satisfactorily demonstrated that the documents are exempt under s 33(a)(iii), and had not evidenced ‘real’ or ‘substantial’ grounds for expecting the specified damage.
  6. In its s 55G decision, the Department reiterated its views expressed in its purported decision. In summary, it stated that:
  7. The Department further submitted that the views expressed by the IOM in relation to the question of release of the documents supported its contentions about the likelihood of damage to international relations resulting from their disclosure. The IOM indicated that ‘the information contained in the ... documents ... should, in principle, be withheld in its entirety’, but that it did not object to the release of the elements of the documents which the Department did not contend were exempt.

Consideration

  1. I have reviewed an unredacted version of the documents, and considered them in light of the parties’ submissions, the FOI Guidelines, the FOI Act and relevant judicial, tribunal and IC review decisions.

Information concerning the governments of Australia and Indonesia

  1. I agree that the documents describe the methods used by the governments of Indonesia and Australia to combat people smuggling and the overall strategy on this issue adopted by both countries, and that disclosure of this information could compromise the effectiveness of these methods, which I accept are still in use. This does not on its own justify an exemption under s 33(a)(iii). However, I accept that disclosure of this category of information could reasonably be expected to damage international relations between Australia and Indonesia, as I consider there is a ‘real, significant or material possibility’[17] as ‘distinct from something that is irrational, absurd or ridiculous’[18] that Indonesia’s trust and confidence in Australia[19], and preparedness to work with and share information with Australia, would be compromised by Australia releasing information which reveals Indonesia’s operations and strategies to deal with people trafficking/irregular migration, particularly where the consequences of this could reasonably be expected to compromise the effectiveness of those operations/strategies.[20] As noted above, the phrase ‘damage to international relations’ includes intangible and speculative damage, such as the loss of trust and confidence in the Australian Government.
  2. I agree that release of the documents would also reveal details of the negotiations between the governments of Australia and Indonesia, which I accept were conducted in an expectation of confidence. I consider the release of such information is likely to diminish the strength of the relationship and trust between the two governments and lead to the government of Indonesia being less likely to cooperate with the Australian government in the future, in a context where Indonesia is an important partner of Australia in efforts to combat people smuggling.

Information concerning the IOM

  1. I agree that the release of documents would disclose details of the negotiations between, and contractual arrangements between, Australia and the IOM, which I accept would have been conducted and concluded in an expectation of confidence.
  2. The FOI Guidelines make clear that the reference to ‘international relations’ in s 33(a)(iii) is not confined to relations between governments [21], and that it extends to relations between the Australian government or government agencies with international organisations, such as the IOM. The IOM is an organisation affiliated with the United Nations and is declared to be[22] an international organisation for the purposes of the International Organisations (Privileges and Immunities) Act 1963.
  3. Disclosure of information concerning negotiations conducted in confidence between the Australian government and the IOM and information setting out the details of the confidential contractual arrangements between the IOM and Australia would, in my view, compromise the ability of the two parties to communicate freely with each other in the future, and may limit the willingness of the IOM to work with Australia. Disclosure of some of this information could also be reasonably likely to disclose the methods and activities of the IOM which could undermine the effectiveness of those methods and activities. I consider disclosure having this consequence is reasonably likely to reduce the willingness of the IOM to work with Australia. I consider there is more than a mere risk, possibility or chance[23] of this damage occurring.
  4. I have taken into account, and given appropriate weight to[24], the fact that the IOM expressed the view that ‘the information contained in the ... documents ... should, in principle, be withheld in its entirety’, but that it did not object to the release of the documents as redacted by the Department.

Age of the documents

  1. The documents in issue in the present case came into existence in 2000. I note that the relevant time for considering damage that might be caused by disclosure for the purposes of s 33(a)(iii) is the time at which disclosure is to occur, in contrast to s 33(b). As the Full Federal Court observed in Whittaker:
    disclosure of a document at the time of its creation might cause damage, but if at the time when access is sought disclosure would not cause damage, the document will not be exempt under [s 33(a)(iii)].[25]
  2. Because of the age of the documents, it might be contended that disclosure of them 23 years later could not reasonably be expected to damage Australia’s international relations. However, because the partnership between Australia and Indonesia, and Australia and the IOM, in relation to the issue of people smuggling continues today, and because the methods employed by the two countries and the IOM in relation to that issue have not changed, I consider that disclosure of the documents at the present time could reasonably be expected to damage Australia’s international relations, notwithstanding their age.

Finding in relation to s s 33(a)(iii)

  1. I consider that there are real and substantial grounds for concluding that the release of the information in the documents which the Department withheld on the basis of s 33(a)(iii) would cause damage to Australia’s international relations.
  2. The material in issue is exempt under s s 33(a)(iii) of the FOI Act.
  3. The application of s 33 of the FOI Act is not subject to public interest considerations and therefore whether disclosure of the documents would be contrary to the public interest is not a relevant consideration in deciding whether s 33 applies.

Toni Pirani

Acting Freedom of Information Commissioner

6 September 2023

Review rights

Review by the Administrative Appeals Tribunal

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal (AAT). The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman’s website at http://www.ombudsman.gov.au.

Accessing your information

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[1] The Department was notified of the IC review under s 54Z of the FOI Act on 20 October 2018.

[2] For the purposes of this IC review, I have considered the Department’s reasons for its purported decision of 5 July 2018 to be submissions in support of its varied s 55G decision.

[3] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act (FOI Guidelines) [3.88] — [3.89]. For further information, see [3.85] — [3.94]; ‘ADN and the Australian Taxation Office (Freedom of information) [2023] AICmr 44; ‘RD’ and Comcare (Freedom of information) [2019] AICmr 61; ‘PK’ and Department of the Prime Minister and Cabinet (Freedom of information) [2018] AICmr 65.

[4] Generally, see FOI Guidelines [3.85] — [3.94]; ‘PK’ and Department of the Prime Minister and Cabinet (Freedom of information) [2018] AICmr 65; ‘PI’ and Department of Human Services (Freedom of information) [2018] AICmr 62; ‘PF’ and Department of Human Services (Freedom of information) [2018] AICmr 59;.

[5] FOI Guidelines [3.89].

[6] FOI Guidelines [3.91].

[7] (1998) 53 ALD 138 (Re Cristavao).

[8] [2015] AATA 770 (De Tarle).

[9] Re Cristovao [19]; De Tarle [19].

[10] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 [5.25].

[11] FOI Guidelines at [5.36] – [5.38]; Kellie Tranter and Department of Home Affairs (Freedom of information) [2019] AICmr 44; Reece Walters and Great Barrier Reef Marine Park Authority (Freedom of information) [2019] AICmr 9; William Summers and Department of the Prime Minister and Cabinet (Freedom of information) [2018] AICmr 9; Sea Shepherd Australia and Department of Immigration and Border Protection (Freedom of information) [2017] AICmr 48.

[12] FOI Guidelines at [5.36].

[13] FOI Guidelines [5.37] (footnotes omitted).

[14] [2005] FCAFC 15; (2005) 143 FCR 15 (Whittaker).

[15] Prior to amendments made to s 33 of the FOI Act by the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009, s 33(a)(iii) appeared in the FOI Act as s 33(1)(a)(iii). The terms of s 33(a)(iii) are identical to those of s 33(1)(a)(iii).

[16] Whittaker, [17].

[17] FOI Guidelines [5.18].

[18] Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180, 190.

[19] See for example Maksimovic and Attorney-General’s Department [2008] AATA 1089.

[20] See FOI Guidelines [5.38] and the cases mentioned there.

[21] FOI Guidelines [5.37].

[22] See International Organization for Migration (Privileges and Immunities) Regulations 1991.

[23] FOI Guidelines [5.18].

[24] In Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of information) [2019] AATA 5537, the AAT noted that the views of an international partner about disclosure are relevant, but ‘the mere fact that a foreign State has expressed concern about disclosure is sufficient to attract the operation of s 33(a)’ [ at 57].

[25] [2005] FCAFC 15; (2005) 143 FCR 15, [26].

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AICmr/2023/73.html