ss 37(2)(b), 47E(d), 47B(b), 11A(5)

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Australian Criminal Intelligence Commission (the ACIC) of 10 August 2021. I substitute my decision that:
   • the ACIC has not discharged its onus to demonstrate certain material is exempt under s 37(2)(b)[1]
   • in the alternative, this material is also not conditionally exempt under s 47E(d)
   • the remaining material, which the ACIC maintains is exempt under s 37(2)(b) of the FOI Act (and s 47E(d)) is exempt under s 37(2)(b)
   • the remaining material which the Department maintains is exempt under s 47B(b), is exempt under that provision, and release would be contrary to the public interest.
2. Within 28 days of this decision:
   • the ACIC must now provide the applicant with a copy of the documents, edited under s 22 of the FOI Act only to the extent necessary to delete material I have found to be exempt, and
   • the ACIC must advise whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal.

1. This decision discusses the application of ss 37(2)(b), 47E(d) and 47B(b) to documents related to law enforcement. It finds the material is exempt from release except for material which the agency inconsistently deleted from the documents, in circumstances where it is not apparent from the material or the submissions that disclosure would prejudice the effectiveness of particular methods or procedures.

1. In summary the applicant sought access to all documents in the date range (1 January 2018 to 22 May 2021) about them created by the ACIC or provided by third parties.
2. The ACIC maintains material in the documents is exempt under ss 37(2)(b), 47B(b)[2] and 47E(d) of the FOI Act.[3] During the IC review, the ACIC advised that it considers the material it deleted under s 37(2)(b) is also conditionally exempt under s 47E(d) of the FOI Act.[4] The applicant submitted the AIC should disclose the documents to them.
3. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified or that I should give a decision adverse to the applicant.[5]
4. The issues to be decided in this IC review are whether:
   • the material is exempt under s 37(2)(b)
   • the remaining material is exempt under ss 47B(b) or 47E(d) (as relevant), and if so, whether disclosure would be contrary to the public interest at this time.
5. In making my decision, I have had regard to the following:
   • the Department's decision and reasons for decision of 10 August 2021
   • the documents at issue
   • the FOI Act[6]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[7] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[8] and
   • the parties' submissions, including the third party's submissions.

Prejudice to law enforcement methods and procedures exemption (s 37(2)(b))

1. Section 37(2)(b) requires satisfaction of two factors. There must be a reasonable expectation that a document will disclose a method or procedure, and a reasonable expectation or a real risk of prejudice to the effectiveness of that investigative method or procedure.
2. The ACIC provided confidential and open submissions in support of its claim that the material is exempt under s 37(2)(b). The Office of the Australian Information Commissioner (OAIC) accepted the confidential submissions on the basis they contain references to exempt material. The ACIC provided an open version of the submission, which was exchanged with the applicant.
3. In its open submissions the ACIC submitted:
   • In the performance of its functions[9], the ACIC administers a number of systems including intelligence systems which hold policing information originating from all Australian policing jurisdictions.
   • The documents are extracts from relevant national policing information (NPI) systems and contain information which reveals the types, and the ways in which the ACIC and its partner agencies record and share particular types of information.
   • If disclosed, the ACIC is the view that methodology and procedure would be prejudiced. While the public may be generally aware that policing agencies gather information, the details, or the ways NPI is collected and shared, are not publicised or widely known.
   • Its partner agencies rely on the ACIC maintaining confidentiality so that law enforcement agencies are not prejudiced. Relevantly, the originating policing agency was consulted on the particular documents and affirmed the ACIC's view that the information marked s 37(2)(b) of the FOI Act is exempt on the basis that its disclosure would decrease the continuing value of the information for law enforcement purposes.
   • If details relating to the specific ways the ACIC collects and analyses information were widely known, the effectiveness of those methods would be prejudiced as it would be reasonably likely that a person engaging in serious and organised crime could adapt their behaviours to avoid detection by those methods.
4. In summary, the applicant submitted:
   • While they have not had the opportunity to sight the information, it is reasonable to propose, because of the nature of the request and the structure of the documents that have been partially released to them, that the information is about them rather than a description of law enforcement methods or procedures.
   • The functions of the ACIC, the nature of its databases, its collection sources and collection powers and techniques are in the public domain. The applicant referred to information in the ACIC's annual report in support of their submission.
   • It is unlikely that people engaged in crime would use the material to adapt their behaviour to avoid detection.[10]
5. I have examined unedited versions of the documents. In relation to the first factor, I am satisfied that the documents are extracts from the NPI systems and contain information provided by the third party. I accept that disclosure of the material includes information about the methods and procedures of the ACIC and the third party.
6. In relation to the second factor, I am satisfied that disclosure of most of the material would prejudice the effectiveness of these methods and procedures. In reaching this conclusion I have considered the nature and content of the material at issue including the nature of the information about the particular methods and procedures set out in the documents. It is apparent to me from my review of the material that the law enforcement methods in the document are not well known to the public at large and are covert rather than routine methods. I accept the ACIC's submission that disclosure of the methods would enable individuals to modify their behaviour to avoid detection by those methods.
7. The ACIC has deleted some material from the documents which is similar to material which has been released. In some cases, it is apparent from the content and context of the documents, that the material includes information about covert methods and procedures. In my view, disclosure of this material would prejudice the effectiveness of certain methods and procedures even if some of the information is similar to material which has been released.
8. However, in other cases, it is not clear that the material contains information about covert methods or procedures or why disclosure of the material would be likely to have the effect the ACIC contends.[11] In my view, the ACIC has not provided a sufficient explanation for what information about methods and procedures is contained in this material. Nor has it sufficiently explained why disclosure of this material, which is similar to other material which has already been disclosed, would prejudice the effectiveness of its methods and procedures in the circumstances.
9. For the above reasons, I consider the ACIC has not provided sufficient particulars to discharge its onus of establishing that its decision in relation to this particular material is justified or that I should give a decision adverse to the applicant.

1. For the above reasons I consider the ACIC has not discharged its onus to demonstrate certain material is exempt under s 37(2)(b).[12] Given the ACIC also maintains this material is conditionally exempt under s 47E(d), I have considered the application of that provision below.
2. I accept that the remaining material, which the ACIC maintains is exempt under

s 37(2)(b) of the FOI Act is exempt under that provision.

1. A document will be conditionally exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency (s 47E(d)).
2. In summary, similar to the ACIC's submissions above at [11], the ACIC submitted that disclosure of the material deleted under s 47E(d) would prejudice their operations by allowing people to circumvent their methods and procedures.
3. The applicant submitted the ACIC had not met the threshold under s 47E(d). The applicant submitted the ACIC was 're-litigating' their claim under s 37(2) and consequently they reiterated their submissions in relation to that provision.
4. I have examined an unedited copy of the documents. As discussed above at [15], the ACIC has deleted some material from the documents which is similar to material which has been released elsewhere in the documents. It is not clear from the material or the submissions how disclosure of the material in these circumstances would prejudice their operations by allowing people to circumvent their methods and procedures. In my view the ACIC has not discharged its onus of demonstrating that disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of its operations.

1. For the above reasons, I am not satisfied that the relevant material is conditionally exempt under s 47E(d).

1. The ACIC also found certain material to be exempt under s 47B(b). To the extent that I have found the same material to be exempt under s 37(2)(b) it is unnecessary for me to consider if that material is also conditionally exempt under this provision.
2. Subsection 47B(b) of the FOI Act states a document is conditionally exempt if disclosure of the document 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 Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth.
3. In summary, the ACIC submitted:
   • Its functions involve administering a number of national systems which hold NPI originating from State agencies. The exercise of that function is governed by the Australian Crime Commission Act 2022 (Cth) (ACC Act) and supported by formal arrangements between the ACIC and partner agencies. Those arrangements include terms about the handling of sensitive and confidential information received from State agencies.
   • The agreements acknowledge the information is provided by police agencies in confidence, and places restrictions on who can access the information and the purpose for which they can access it. For example, under the ACC Act, the ACIC cannot disclose ACC information (which includes NPI) to individuals. Further, the ACC Act places additional obligations on the CEO of the ACIC for the disclosure of NPI - it can only be disclosed to agencies which are prescribed under the ACC Act and Australian Crime Commission Regulations 2018 (Cth). If an agency is not prescribed, the ACIC needs to seek the approval of the ACIC Board under s 59AA(1B) of the ACC Act.
   • Information relevant to this request was received from a State agency, under arrangements for the ACIC to administer NPI systems. The sensitive information was provided to the ACIC with an expectation of confidence which is codified in the above agreements.
4. In summary the applicant submitted:
   • The ACIC purports that there are agreements in place with the police agency that contain confidentiality clauses, but did not provide evidence of these.
   • It is not appropriate for State or Federal officials to put in place an agreement that restricts access information in the context of 'responsible government' where openness and transparency is the default. The applicant provided specific examples where they consider this would not be appropriate.
   • If disclosure is limited in the manner that the ACIC claims, then it might be expected that all of the information in the database would have been deleted, but they were not.
   • The ACIC is not an agency included in Schedule 2 (Exempt Agencies) of the FOI Act and the ACC Act is not an Act whose secrecy provisions are included in Schedule 3 (Secrecy Provisions) of the FOI Act.
5. The ACIC consulted with the third party and sent them notice of the IC review under

s 54P. The provided a response which I have considered. 6. I have considered the submissions and the unedited documents. Though I acknowledge the applicant's submission that the ACIC did not provide the OAIC with the terms of the confidentiality agreements, it is apparent from the ACC Act and regulations, the unedited material and the relevant police agency's objection, that the information is of a sensitive nature, and the relevant police agency provided it on a confidential basis. 7. Based on the information before me and with regard to the contents of the specific material that the ACIC decided is exempt under this provision. I am satisfied that disclosure of the relevant material 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 Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth.

Whether access would be contrary to the public interest (s 11A(5))

1. Having found material to be conditionally exempt under ss 47B(b) of the FOI Act, I am required to consider whether it would be contrary to the public interest to give the applicant access to conditionally exempt material at this time. The requirements of the public interest test are set out at Annexure A. I have considered the relevant mandatory factors listed in s 11B(3) of the FOI Act. I have not considered the irrelevant factors as set out in s 11B(4) of the FOI Act.[13]
2. In summary, the ACIC submitted disclosure would promote the objects of the FOI Act as well as promote several other factors favouring disclosure.[14] However, on balance, the public interest factors against the disclosure of the documents outweigh the public interest factors in favour of disclosure. This is because of the sensitivity of the information, the fact that it relates to the ACIC's mandate to investigate organised crime and the importance of preserving the effectiveness of particular technologies, methods or procedures employed in relation to the ACIC's law enforcement activities.
3. The applicant submitted disclosure would:
   • promote the objects of the FOI Act
   • inform debate on a matter of public importance
   • promote effective oversight of public expenditure
   • allow a person to access his or her personal information
4. In addition, the applicant indicated disclosure would provide transparency and accountability in relation to a flawed police investigation targeting them.
   1. I give weight to the following factors in favour of disclosure, noting that they reflect the parties' submissions:
      • access to the documents would promote the objects of the FOI Act and allow the applicant to access their own personal information
      • disclosure would inform debate on a matter of public importance and promote effective oversight of public expenditure
      • disclosure would increase the scrutiny, discussion, comment and review of the ACIC's activities, and allow the public to scrutinise the ACIC's operations for the purpose of transparency and accountability of law enforcement.
5. Above I was satisfied that disclosure of the relevant material 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 Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth.
6. As the FOI Guidelines note, while the public interest is served by promoting the objects of the FOI Act, the risk of damage to relations between law enforcement agencies is often very high and could have serious and lasting effects on the effectiveness of agency operations in the future.[15] Based on my review of the material and the submissions, I consider that is the case in this IC review. Having regard to the material and circumstances, I give greater weight to the factors against disclosure. In particular I accept disclosure would:
   • inhibit the future supply of information, which would prejudice the conduct of future investigations
   • prejudice the ACIC's ability to obtain confidential information and
   • prejudice its ability to obtain similar information in the future.
7. On balance, I consider that the public interest factors against disclosure, which I have given significant weight, outweigh the factors favouring disclosure.

1. The material is conditionally exempt under s 47B(b) and it would be contrary to the public interest to release it.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

Prejudice to law enforcement methods and procedures (s 37(2)(b))

(2) A document is an exempt document if its disclosure under this Act 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; or

As discussed in the FOI Guidelines and in IC review cases,[16] for a document to be exempt under s 37(2)(b) of the FOI Act, it would need to be shown that disclosure would, or could, reasonably be expected to 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 could be reasonably likely to, prejudice the effectiveness of those methods or procedures.

This exemption requires satisfaction of 2 factors. There must be a reasonable expectation that a document will disclose a method or procedure and a reasonable expectation or a real risk of prejudice to the effectiveness of that investigative method or procedure.114 If the only result of disclosing the methods would be that those methods were no surprise to anyone, there could be no reasonable expectation of prejudice. However, where a method might be described as 'routine', but the way in which it is employed can reasonably be said to be 'unexpected', disclosure could prejudice the effectiveness of the method.[17]

Certain operations of agencies exemption (s 47E(d))

Section 47E(d) of the FOI Act states a document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

As discussed in the FOI Guidelines[18] and in IC review decisions,[19] a document is conditionally exempt under s 47E(d) if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

With respect to the term 'substantial adverse effect', the FOI Guidelines also explain:

The term 'substantial adverse effect' broadly means 'an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person'. The word 'substantial', in the context of substantial loss or damage, has been interpreted as including 'loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal'.

A decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons under s 26 to show their deliberations in determining the extent of the expected effect. It may sometimes be necessary to use general terms to avoid making the statement of reasons itself an 'exempt document' (s 26(2)).[20]

Further, in Re James and Others and Australian National University (1984) 6 ALD 687; [1984] AATA 501, Deputy President Hall explained:

As a matter of ordinary English, I think that the expression "the conduct of the operations of an agency" is capable of extending to the way in which an agency discharges or performs any of its functions. [21]

Information communicated in confidence (s 47B(b))

A document is conditionally exempt if disclosure of the document under this Act:

(b) 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;

This exemption only applies if disclosure would divulge information that is communicated in confidence by a State Government or authority to the Commonwealth Government or agency, and not the reverse.[22]

When assessing whether the information was communicated in confidence, the test is whether the communication was considered to be confidential at the time of the communication. The circumstances of the communication may also need to be considered, such as:

• whether the communication was ad hoc, routine, or required
• whether there were any existing, implied or assumed arrangements or understandings between the Commonwealth and State concerning the exchange or supply of information
• how the information was subsequently handled, disclosed or otherwise published.[23]

Section 11A(5) of the FOI Act states the agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

Section 11B(3) of the FOI Act sets out a non-exhaustive list of public interest factors favouring disclosure for consideration, those factors being where disclosure of the document would do any of the following:

(c) promote effective oversight of public expenditure

(d) allow a person access to their personal information.

Section 11B(4) of the FOI Act also lists the following irrelevant factors that must not be taken into consideration when deciding whether access would, on balance, be contrary to the public interest:

(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government

(b) access to the document could result in any person misinterpreting or misunderstanding the document

(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made

(d) access to the document could result in confusion or unnecessary debate.

In addition to the factors set out at s 11B(3) of the FOI Act, the FOI Guidelines set out a further non-exhaustive list of public interest factors in favour of disclosure, as well as public interest factors against disclosure.[24]

To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies based on the particular facts at the time the decision is made.[25]

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 Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

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.

[1] This includes the second deletion at the top of page 1 of Document 5, the fourth deletion on page 1 of Document 5 as well as the deletions of the same material on the same page and the following page (page 2) of Document 5, deletions under the heading 'physical descriptions' on page 4 of Document 5, and the first line of the block of deleted text at the bottom of Document 7.

[2] The ACIC's open submission of 7 June 2022 referred to 47B(a), however, it appears this was an error because the redacted document and the decision refer only to 47B(b).

[3] In the ACIC's open submission of 7 June 2022, the ACIC advised that while the decision maker relied on exemptions pursuant to s 37(2)(c) of the FOI Act, the ACIC does not wish to pursue the application of this exemption (it also noted this does not provide greater access). The ACIC also deleted a signature block of a staff member under s 22. Although the ACIC did not address this in their decision, noting the scope of the request for documents about them created or provided within a particular time period, and that the documents were created by the ACIC under s 17 (because they were not available in a discrete form), I consider it was open to the ACIC to delete that information under s 22.

[4] The ACIC's open submission of 7 June 2022.

[6] Sections 37(2)(b), 47E(d), 47B(b), and 11A(5) as set out in Annexure A.

[7] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[9] The ACIC advised it is Australia's national criminal intelligence agency, with a number of core functions set out in s 7A of the Australian Crime Commission Act 2022 (Cth) (ACC Act) including to:

− collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence; and

− to provide systems and services relating to national policing information, including collecting, correlating and organising national policing information, providing access to national policing information and supporting and facilitating the exchange of national policing information.

[10] The applicant also provided details of their particular circumstances and context and requested these be considered.

[14] These include inform debate on a matter of public importance, promote effective oversight of public expenditure, allow a person to access his or her personal information, provide the Australian community with access to information held by the ACIC, increase the scrutiny, discussion, comment and review of the ACIC's activities, allow the public to scrutinise the ACIC's operations and make its own judgment as to whether the agency is discharging its functions properly and enhance the accountability and scrutiny of ACIC decision making

[16] Generally, see FOI Guidelines at [5.124] - [5.129]; 'AED' and Australian Criminal Intelligence Commission (Freedom of information) [2023] AICmr 67 ; 'LR' and Australian Federal Police (Freedom of information) [2017] AICmr 58; and 'DP' and Department of Immigration and Border Protection [2014] AICmr 125.

[17] FOI Guidelines at [5.127] (footnotes omitted).

[18] See FOI Guidelines at [6.90] - [6.92], and [6.112] - [6.118] and the cases referenced there.

[19] See, Raymond Williams and Department of Defence (Freedom of information) [2023] AICmr 26; Refugee Advice & Casework Service and Department of Foreign Affairs and Trade (Freedom of information) [2023] AICmr 16; Christis Tombazos and Australian Research Council (Freedom of information) [2023] AICmr 14; 'ACF' and Australian Public Service Commission (Freedom of information) [2022] AICmr 73; Rex Patrick and Department of the Prime Minister and Cabinet (No. 2) (Freedom of information) [2022] AICmr 66; 'ZA' and Department of Veterans Affairs (Freedom of information) [2021] AICmr 83; Australian Society for Kangaroos and Rural Industries Research and Development Corporation trading as AgriFutures Australia (Freedom of information) [2019] AICmr 31; and 'PR' and Comcare (Freedom of information) [2019] AICmr 2.

[20] FOI Guidelines at [6.18] - [6.19] (footnotes omitted).

[22] FOI Guidelines at [6.35] (footnote omitted).

[23] FOI Guidelines at [6.36] (footnotes omitted).

[24] FOI Guidelines at [6.229] - [6.233].

[25] FOI Guidelines at [6.238] (footnote omitted).