CONCLUSIONS ON THE APPEAL
55 It will be recalled that the essential steps taken in the reasoning of Allen SM here, were:
· The force or effect of s 17 is that if information appears on a computer screen being material that can be downloaded then there is a duty to do so.
· However, to be a "document" within the meaning of s 4(1) the article or material must be a "document of an agency" which is in turn defined as a document "in the possession" of an agency whether created in the agency or received by it.
· The observations of Bayne SM in Sullivan as to the meaning of "possession" as "physical possession" (that is, an actual holding with or without ownership rights) should be adopted here.
· The mere fact that the AFP can access the LEAN system does not mean that the AFP is in possession of a document; it is only if the information on the computer screen is reduced to printed form or transferred into the AFP's database that the AFP can be said to be "in possession".
56 With respect, I have difficulty accepting the logic of this process of reasoning. Moreover, I cannot accept that either Sullivan or Information Commission of Western Australia bears directly upon the present case. Their context was far removed from this and those decisions could not be decisive of the present case. In any event, neither case stands for a narrow interpretation of the legislation. If anything, their approach is to the contrary. In truth the instant context is free from authority although several commentators have recognised aspects of the issues that now arise.
57 For instance, in a paper, "FOI Access to Electronic Records", submitted to the "Australian Archives 'Playing For Keeps' Conference" (1994), Madeleine Campbell, dealing with "Problems for Agencies", specifically under a heading "Searching", wrote:
"Another issue that may arise is: whether an agency that ordinarily has computer access to databases held by other Commonwealth or State agencies, or private organisations, is required to search those databases. This situation may arise, for example, from information sharing arrangements. In most cases the FOI Act will not apply to such information, because its operation is limited to documents (including computer disks or tapes) in the possession of agencies subject to the FOI Act. For example, on-line access by a Commonwealth law enforcement agency to databases of State and Territory law enforcement agencies would not lead to a right of access under the Commonwealth FOI Act to those other databases. However, where an agency has provided another person or body with computerised data, for example under an 'out‑sourcing' agreement relating to certain tasks or functions of the agency, and has an immediate right of access to that data, whether by on-line access or by obtaining computer disks or tapes, then the data would be subject to FOI access on the basis of the agency's right to possession (or constructive possession). [Emphasis added]
A further instance is where an agency shares its computer facilities with an outside person or agency not subject to the FOI Act, for example a consultant or a contracted service provider. If the information provided by that organisation is available to officers of the agency in the course of their duties, it would be subject to FOI access as being in the possession of the agency. The outcome in a particular case will depend on the form of any agreement with an outside organisation and the actual dealings between the agency and the organisation in relation to such matters." (Emphasis added)
58 This issue was also addressed in the Joint Report by the Australian Law Reform Commission and the Administrative Review Council entitled "Open Government: A Review of the federal Freedom of Information Act 1982", Report No. 77 published in 1995. Dealing with the topic "Documents 'in the possession of' an agency" the Report stated (at 80):
"The FOI Act provides access to documents in the possession of an agency, whether or not they were created in that agency… In determining whether a document is in the possession of an agency, relevant considerations are the purposes for which it was created, the capacity in which it is handled by official and, most particularly, whether the agency is in a position to exercise control over it. Even if documents are not in the physical possession of an agency they will be subject to an FOI request made to that agency if it has a right to immediate physical possession10. It was suggested to the Review that documents that are accessible to an agency on public access electronic networks such as the Internet are in its possession and therefore accessible under the FOI Act. The Review does not consider that information is in the possession of an agency merely because the agency may access that information via a link to another agency's computer system or the Internet11. To suggest that it is would be like arguing that every book in a public library is in the possession of a person with borrowing rights. If an agency has downloaded information from a computer network, that information is clearly in its possession for the purpose of the FOI Act. Until it is downloaded, however, it remains merely accessible to the agency, not in its possession." (Emphasis added)
59 In footnotes 10 and 11 the following is stated:
"10. This is known as constructive possession. See new FOI memo 19 para 3.16 and M Campbell "FOI Access to Electronic Records in S. Yorke (ed) "Playing For Keeps" Australian Archives Canberra 1995, 188, 190. If an agency contracts out its electronic information management requirements, the terms of the contract should ensure that the agency retains control over the information." (Emphasis added)
11. This view is supported in submissions. See, eg, Australia Post Submission 44; Australian Consumers' Association Submission 55; Dept of Defence Submission 76; Dept of Employment, Education and Training Submission 60; Litigation Law Practice Committee, Law Society of NSW Submission 91."
60 The examples given of the public library and the Internet are, of course, far removed from the present context. It is clear that the definition of "document" provided in s 4 is not intended to be exhaustive. It merely identifies some of the things or matters which fall within the term. It is, however, evident, as independent counsel submitted, from the things and matters that are specified in the s 4(1) definition that the term was intended to have a broad meaning. Relevantly, the definition picks up any article on which information has been stored or recorded, either mechanically or electronically, and this would incorporate computer tapes or disks.
61 It will be noted further that this inclusive definition extends to "any record of information" and, taken literally, this would extend to any record of electronic information not recorded on a tape or a disk but which was otherwise stored on the database of a computer.
62 As I followed the arguments before me, it does not appear to be in dispute that any record of information which fell within the terms of the access request which has, in fact, been downloaded by the AFP from LEAN, or any other database and stored in hard disks or file servers in the AFP's physical possession, should be treated as a "document" of the AFP for the purposes of s 4.
63 The issue between the parties is, as independent counsel observed, one of law, and it is, in essence, whether the AFP should be regarded to be in possession of electronic information stored in the LEAN database in the following circumstances. That is to say, where the AFP has a right, along with other agencies, to access that data base which is managed by the Department of Justice where the actual terms of the right of access of the AFP to that data base have not been, to this point, fully or properly explored in the evidence before the Tribunal. In particular, the relevant memorandum of understanding governing the access was not before the Tribunal; and there appeared to be no evidence on the question whether or not the AFP had in fact exercised its right of access or downloaded any information from LEAN which would answer the description of the request for access.
64 As independent counsel pointed out, the real question for the Court is whether the relevant information now sought may be properly characterised as information which is "a document" in the "possession" of the AFP within the meaning of s 4. This, in turn, depends upon the proper meaning to be attributed to the concept of "possession" in this statutory context. Specifically, the question arises whether a document as defined in s 4 may qualify for the characterisation as one in the "possession" of an agency only if (as the AFP argument proceeded and as the Tribunal appeared to hold) the agency has actual physical possession of the document.
65 It is true, as counsel for the AFP pointed out in his written and oral submissions, that the decisions in both Sullivan and in Information Commissioner for Western Australia are consistent with an outcome that if an agency does have actual physical possession, the definition of "possession" in s 4(1) will be satisfied. However, as has been seen and as independent counsel observed, in both those cases the issue of the meaning of "possession" arose in the context of the question of whether the legislation applied to a document which happened to be in the physical possession of one agency although it actually belonged to or was controlled by another agency. It was in that sense that (as I have already said) both Bayne SM and Wheeler J adopt a broader, rather than a narrower, approach to the legislation.
66 In this way, the approach taken in each of those cases was consistent with the promotion rather than the impeding of access to information, consistently with the object of FOI legislation encouraged by the observations of the High Court in Victorian Public Service Board v Wright, mentioned above. However, it is also pertinent to observe, as independent counsel noted, that a general approach of this kind must nonetheless be supported by the express terms of the relevant statutory provision.
67 As I have already said, neither the decision in Sullivan nor in Information Commissioner for Western Australia was concerned with a context similar to the present. Both involved access to information in written form and there was no suggestion in either case of access to electronic information. In that important sense, both decisions may be distinguished for present purposes. Nor was it necessary in either case to consider in any depth the concept of "constructive possession" for the purposes of FOI legislation.
68 However, that concept has, as independent counsel pointed out, been upheld as appropriate in two Victorian decisions. In Re Guide Dog Owners' & Friends Association and Commissioner for Corporate Affairs (1988) 2 VAR 405, the President of the Victorian Tribunal, Jones J, said (at 408):
"In my view, having regard to the scheme and objects of the Act, possession embraces legal or constructive possession: that is a right and power to deal with the document in question. It is not confined to actual or physical possession."
69 That decision was followed by M.F. Macnamara (Deputy President) in Re Mildenhall and Department of Premier and Cabinet (No 2) (1995) 8 VAR 478 at 481. It was there held that, for the purposes of the definition of "document of an agency" within s 5(1) of the Victorian FOI Act, a document that is not in the actual physical possession of an agency is "in the possession of the agency" where the agency has an immediate right to possession of the document. The context of Mildenhall was a hard disk containing or recording the original data of the results of a survey conducted by a company at the request of State Cabinet pursuant to an agreement between the company and the Department. It was held that the terms of that agreement were apt to create a right in the Department to immediate possession of the hard disk.
70 In rejecting the application of the concept of "constructive possession" for the purposes of s 4, Bayne SM in Re Sullivan was much influenced by the provisions of the s 4(1) definition in their application to an "official document of a Minister". But taken literally, those provisions are severable from the position of a Minister; and, as independent counsel pointed out, the Explanatory Memorandum to the Freedom of Information Bill 1981, make it clear that the position of the Minister (and with it the special aspect of individual ministerial responsibility) has no counterpart in the context of the position of the agency itself; and, for that reason, throws no light on the question whether the concept of "constructive possession" may be applied to agency documents.
71 Reliance was also placed by Bayne SM upon the words of limitation in the statutory definition, in particular the requirement that the document must be "received" in an agency. However, I agree with the submission of independent counsel that it is but a small step to regard this limitation as satisfied where there is a right to immediately receive a document, even if there is not actual (but notional) receipt at the relevant time.
72 In my opinion, the concept of "constructive possession" in the sense explained by Jones J in Re Guide Dog Owners and Friends Association is apposite in the present context. Its application of course, is another matter.
73 As I have said, on the approach it took, the Tribunal did not need to address the question which is, as the commentator Madeline Campbell has noted, whether the terms of access actually provided rights of access to data, so that the data would be subject to FOI access on the basis of the agency's right to possession (i.e. as constructive possession). That question was simply not explored in any real sense by the Tribunal and for that reason alone, in my opinion, the matter must be remitted to the Tribunal.
74 For completeness, I should add that I agree with the submission of independent counsel that s 17 does not have any free-standing operation in the present context; that is to say, whilst this provision is clearly a deeming provision, it is limited in its terms to operate where there has been a written document produced by an agency as a consequence of a valid request having been made for access to information in electronic form, and the FOI applicant does not desire the information to be provided on a computer tape or computer disk. In other words, the deeming provision in s 17 does not operate to deem the electronic information, the subject of a request, to be, by force of the section, in the possession of the agency. At the same time, the concept of "constructive possession" may produce that result, but only by application of that concept rather than by virtue of the operation of s 17.
75 In summary then, in my opinion, the Tribunal erred by failing to address the relevant legal question, that is to say, whether the AFP had an immediate right to the possession of the articles or materials the subject of the applicant's request.