Archives Act 1983 (Cth), ss.33(1), 34, 44

1. That there exist reasonable grounds for the claim

that the records referred to in the Ministerial

certificate given under sub-s.33(1) of the Archives

Act (Cth), being the records identified as

Commonwealth Record Series A6119, Item 95, folios

54-58 and 111 and Item 97, folio 20 are exempt

records as containing information or matter of a

kind referred to in pars (a) and (b) of sub-s.33(1)

of the said Act.

2. That the decision under review in respect of the

following records forming part of Commonwealth

Record Series A6119, namely -

Item Folio

44 1, 30-32, 101, 111, 112, 113,

119-121, 129, 147, 148-149, 154c,

154d, 158 and 159-161

95 10, 13-15, 18, 39-51, 54-58, 79,

88, 89, 91-94, 95-99, 103-110, 111

and 112

96 44, 47, 48, 49, 50, 51, 52, 56, 57,

58, 66, 74, 76, 77, 79, 95, 97,

100-101, 102-103, 110, 114, 115,

116, 119, 120 and 126

97 3-9, 20, 31-36, 39, 40, 45-53 and

91

be affirmed.

3. That the decision under review in respect of the

following records forming part of Commonwealth

Record Series A6119, namely -

Item Folio

44 79, 81, 100, 107, 117, 130b, 141, 153c and

153d

95 66-67 and 90

96 65, 70, 75, 121, 125 and 128

97 78 and 95

be varied by giving access to that part of each of

those records which would not disclose -

(i) symbols (including symbols relating to

sources or the evaluation of information

received), codewords, file numbers, notations

which indicate part of the internal structure

of the Australian Security Intelligence

Organization or other material of a similar

kind;

(ii) the identity of an officer of that

organization;

(iii) information relating to the organizational

structure of that organization; or

(iv) information designating an officer of a

foreign intelligence service.

4. That either party have liberty to apply on 7 days'

notice.

5. That this decision be not operative for a period of

28 days from its date.

The Tribunal has before it two applications by Ric Prichard Throssell ("the applicant") for the review of decisions made under the Archives Act 1983 (Cth) ("the Act") that certain Commonwealth records are exempt records and, therefore, not available for public access (sub-s.31(1)). The first application (No. A 86/14) concerns documents relating to the applicant. The second application (No. A 86/15) concerns documents relating to Katherine Susannah Prichard (Throssell), the applicant's mother, who died in 1969. Each of the documents to which access is sought is a record in what is referred to in the Act as "the open access period". A record is in that period if a period of 30 years has elapsed since the end of the year ending on 31 December in which the record came into existence (sub-s.3(7)).

2. Sub-section 31(1) of the Act provides that, subject to Part V, the Australian Archives is to cause all Commonwealth records in the open access period that are in the custody of the Archives or of a Commonwealth institution, other than exempt records, to be made available for public access. A Commonwealth record is an exempt record if it falls within any of the descriptions in s.33 of the Act. For present purposes it is necessary to refer to pars (a), (b), (d), (e)(i), (e)(ii) and (g) of sub-s.33(1). Those provisions are in the following terms:

"(1) For the purposes of this Act, a

Commonwealth record is an exempt record if it

contains information or matter of any of the

following kinds:

(a) information or matter the disclosure of

which under this Act could reasonably be

expected to cause damage to the

security, defence or international

relations of the Commonwealth;

(b) information or matter communicated in

confidence by or on behalf of a foreign

government, an authority of a foreign

government or an international

organization to the Government of the

Commonwealth, to an authority of the

Commonwealth or to a person receiving

the communication on behalf of the

Commonwealth or of an authority of the

Commonwealth, being information or

matter the disclosure of which under

this Act would constitute a breach of

that confidence;

(c) ....

(d) information or matter the disclosure of

which under this Act would constitute a

breach of confidence;

(e) information or matter the disclosure of

which under this Act would, or could

reasonably be expected to -

(i) 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;

(ii) disclose, or enable a person to

ascertain, the existence or

identity of a confidential source

of information in relation to the

enforcement or administration of

the law;

(iii) ....

(f) ....

(g) information or matter the disclosure of

which under this Act would involve the

unreasonable disclosure of information

relating to the personal affairs of any

person (including a deceased person)."

3. The present proceedings arise out of a request by the applicant for access to a number of files of the Australian Security Intelligence Organization. The files relating to himself are conveniently referred to as Commonwealth Record Series A6119, Items 95, 96 and 97. The file relating to his mother is identified as Commonwealth Record Series A6119, Item 44. The applicant has been given access to a large number of folios on those files. Some folios have been made available in full, others have had material deleted from them. The applicant seeks a review of the decisions which denied him access to the following folios:

Item Folio

44 1, 30-32, 79, 81, 100, 101, 107, 111, 112,

113, 117, 119-121, 129, 130b, 141, 147,

148-149, 153c, 153d, 154c, 154d, 158 and

159-161.

95 10, 13-15, 18, 39-51, 54-58, 66-67, 79, 88,

89, 90, 91-94, 95-99, 103-110, 111 and 112.

96 44, 47, 48, 49, 50, 51, 52, 56, 57, 58, 65,

66, 70, 74, 75, 76, 77, 79, 95, 97, 100-101,

102-103, 110, 114, 115, 116, 119, 120, 121,

125, 126 and 128.

97 3-9, 20, 31-36, 39, 40, 45-53, 78, 91 and 95.

Hyphenated folio numbers indicate a single document or record.

4. To facilitate the examination of the claim that the records are exempt records, a schedule of the records claimed to be exempt was prepared by the respondent showing, in respect of each record, by whom it was created, to whom it was addressed, a short description of the record and the paragraphs of sub-s.33(1) under which exemption was claimed. The respondent formulated twelve categories into at least one of which each of the records was said to fall. A substantial number of the records were said to fall into two of the categories: some were said to fall into three. A further schedule was prepared identifying each category, the records said to fall within that category and the paragraphs of sub-s.33(1) said to make those records exempt. It is convenient to deal with the matter by reference to those categories though not necessarily in their numerical order. It is convenient to begin with Category 6.

5. This category, as formulated by the respondent, comprises records which are said to contain information provided to the Australian Security Intelligence Organization by a foreign intelligence service. The relevant records are identified as Item 95, folios 54-58 and 111 and Item 97, folio 20. During the course of the hearing before the Tribunal, the Attorney-General of the Commonwealth, pursuant to sub-s.34(1) of the Act, signed a certificate to the effect that he was satisfied that the records described as "folios 111 and 20 of the Commonwealth Record Series A6119, items 95 and 97 and folios 54, 55, 56, 57 and 58 of Commonwealth Record Series A6119, item 95" contained information or matter of a kind referred to in par.33(1)(a) of the Act, being information or matter the disclosure of which under the Act could reasonably be expected to cause damage to the security and international relations of the Commonwealth, and in par.33(1)(b) of the Act, being information or matter communicated in confidence by or on behalf of a foreign government or an authority of a foreign government to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth being information or matter the disclosure of which under the Act would constitute a breach of that confidence. The certificate concluded:

"I am so satisfied by reason of the information

or matter contained in each record as a whole and

not by reason only of information or matter

contained in a particular part or particular

parts of the records."

6. The reference in the certificate to "folios 111 and 20 of the Commonwealth Record Series A6119, items 95 and 97" is to be read distributively. The relevant records are Item 95, folio 111 and Item 97, folio 20. Those records, together with those identified as Item 95, folios 54-58, comprise the whole of the records in Category 6.

7. Sub-section 34(1) of the Act, so far as material, provides that where a Minister is satisfied that a record contains information or matter of a kind referred to in paragraph 33(1)(a) or (b), he may sign a certificate to that effect and, subject to the operation of Part V of the Act, such a certificate, so long as it remains in force, establishes conclusively that the record is an exempt record referred to in the relevant paragraph of sub-s.33(1). Sub-section 34(2) provides that, where a Minister is satisfied as mentioned in sub-s.(1) by reason only of information or matter contained in a particular part or parts of a record, the certificate is to identify that part or those parts of the record as containing information or matter by reason of which the certificate is given. Section 44 of the Act deals with the powers of the Tribunal in proceedings under Division 4 of Part V. Sub-sections (4) and (5) of that section provide:

"(4) Where there is in force in respect of a

record a certificate under section 34,

the powers of the Tribunal do not extend

to reviewing the decision to give the

certificate but the Tribunal,

constituted in accordance with section

46, may determine such question in

relation to that certificate as is

provided for in whichever of

sub-sections (5) and (6) applies in

relation to that certificate.

(5) Where application is or has been made to

the Tribunal for the review of a

decision refusing to grant access to a

record in accordance with an application

under section 40, being a record that is

claimed to be an exempt record under

paragraph 33(1)(a) or (b) and in respect

of which a certificate is in force under

sub-section 34(1), the Tribunal shall,

if the applicant so requests, determine

the question whether there exist

reasonable grounds for that claim."

Sub-section (6) has no application to the present case.

8. The question was raised during the hearing whether the limitation upon the Tribunal's powers for which sub-ss 44(4) and (5) provide operates in a case such as this where the certificate under s.34 was not signed until after the application was made to the Tribunal to review the decision of the respondent refusing access to the relevant records and the Tribunal had commenced to hear that application.

9. In this connection reference should be made to sub-ss 46(1) and 47(2). The former prescribes how the Tribunal is to be constituted where a request is made in accordance with sub-s.44(5). The latter provides that, where there is in force a certificate under sub-s.34(1), certain parts of the proceeding before the Tribunal are to be heard in private. Both those provisions clearly contemplate that it will be known prior to the constitution of the Tribunal being determined and the hearing of the application for review being commenced whether there is in force a certificate under sub-s.34(1) and, if so, whether the applicant has made a request to the Tribunal under sub-s.44(5).

10. However, nothwithstanding the difficulties to which a belated signing of a certificate under sub-s.34(1) may give rise, a consideration of the legislation as a whole has led me to the conclusion that, if a certificate be signed before the Tribunal adjudicates upon the application for review of the decision to refuse access to the records, the Tribunal may not review that decision on the merits but, is limited to determining, if the applicant so requests, the question whether there exist reasonable grounds for the claim that the records are exempt.

11. Against the possibility that the Tribunal might determine that the certificate was effective to limit the scope of the Tribunal's power of review in relation to the records identified in it, the applicant requested that, in that event, the Tribunal determine the question whether there exist reasonable grounds for the claim that those records are exempt. I proceed to consider that question.

12. The record identified as Item 95, folios 54-58 consists of a letter dated 21 March 1952 from an overseas governmental agency enclosing a note concerning two named persons and their associates said to have been compiled from records held by the overseas agency. Item 95, folio 111 and Item 97, folio 20 contain information concerning the applicant furnished to the Australian Security Intelligence Organization by a governmental agency in another overseas country. Those records are dated respectively 6 June 1952 and 30 November 1953.

13. Prior to the certificate under sub-s.34(1) being signed, oral evidence had been placed before the Tribunal to support the claim that the above records are exempt. Evidence was given, which I accept, that the information contained in those records was given to the Australian Security Intelligence Organization on an understanding of strict confidentiality. Evidence was also adduced to show that the relevant overseas agencies had been asked to indicate their attitude to the records being made available for public access and that, in the case of each of the records, objection was taken to the records being so made available. The evidence also addressed the question of the likely consequences to the security and the international relations of the Commonwealth if the records were disclosed.

14. As I have already said, it is not for the Tribunal to determine whether, on the material before it, it would have reached the conclusion that the records are exempt under par.(a) or par.(b) of sub-s.33(1). The question for the Tribunal is whether there exist reasonable grounds for the claim that the records are exempt under those provisions.

15. In Re Maher and the Attorney-General's Department (1985) 7 ALD 731, Davies J., speaking of s.33(1)(a)(iii) of the Freedom of Information Act 1982 (Cth), a provision which exempts from disclosure under that Act a document which would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth, said at p 742:

"I accept that it must be shown that the

publication of a document claimed to be exempt

could reasonably be expected to cause damage to

the international relations of the Commonwealth.

A mere allegation to that effect is not enough.

There must be cause and effect which can

reasonably be anticipated. But if it can

reasonably be anticipated that disclosure of the

document would lessen the confidence which

another country would place on the Government of

Australia, that is a sufficient ground for a

finding that the disclosure of the document

could reasonably be expected to damage

international relations. Trust and confidence

are intangible aspects of international

relations."

What His Honour there said is apposite to the corresponding provision of the Act now under consideration.

16. The material before the Tribunal tends to support the conclusion that the disclosure to the public of the records identified in the certificate could have the result of impairing the degree of trust and confidence which foreign governments place in the Government of the Commonwealth and, in consequence, of inhibiting the flow of information relating to security which might otherwise come to Australia from the overseas governmental agencies concerned and, possibly, similar agencies in other overseas countries. If such a result ensued, damage would be caused to the security and international relations of the Commonwealth. Whether such action on the part of the foreign governments and agencies would be a rational or otherwise proper reaction to the disclosure of these particular records is not to the point. The question is whether such action could reasonably be expected in the event of access being granted.

17. Having given the matter anxious consideration, I have reached the conclusion that reasonable grounds do exist for the claim that the records are exempt under par.(a) of sub-s.33(1).

18. As to the claim that the records are exempt under par.(b) of that sub-section, I accept, as I have already said, that the information was communicated in confidence. It must be accepted, however, that, although communicated in confidence, material may lose its confidential character over a period of time: Attorney-General v. Jonathan Cape Ltd. (1976) QB 752 at p 771. The question is whether, by reason of the length of time since the information was communicated - a period in excess of 30 years - the information has lost its confidential character so that its disclosure would not be a breach of confidence.

19. An argument was presented on behalf of the applicant that, for a record to be an exempt record under par.(b) of sub-s.33(1), it must be shown by the respondent that disclosure would amount to a breach of confidence according to common law and equitable principles. It was submitted that the words in the paragraph "would constitute a breach of that confidence" were used in a technical sense.

20. A similar argument was addressed to a Full Court of the Federal Court of Australia in Corrs Pavey Whiting & Byrne v. Collector of Customs (Vic.) [1987] FCA 266; (1987) 74 ALR 428 in relation to sub-s.45(1) of the Freedom of Information Act 1982 (Cth), a provision which makes a document an exempt document if its disclosure under the Act "would constitute a breach of confidence". The argument was rejected by a majority of the Court. The reasoning of the majority is, in my view, equally applicable to par. (b) of s.33(1) of the Archives Act.

21. That reasonable grounds exist for the claim for exemption under par.(b) can more readily be seen in relation to Item 95, folios 54-58 than in the case of the other records. In relation to the former, an assertion is made by the overseas agency concerned that there is current confidentiality in the information, though it must be said that the assertion is expressed in general terms, unsupported by detail. No similar assertion in respect of the other records has been put before the Tribunal. Although the making of such an assertion cannot be conclusive of the question, it is a matter relevant to be taken into account giving it such weight as the circumstances of the case seem to require.

22. An examination of the records has demonstrated to my satisfaction that the information contained therein cannot be said to be of historical interest only. I am satisfied that reasonable grounds exist for the claim under par.(b) in respect of Item 95, folios 54-58. I think it proper to reach a similar conclusion in relation to the other records, although the position is by no means so clear.

23. It is convenient next to deal with Category 2. That category comprises documents which are said to contain symbols (including symbols relating to sources and the evaluation of information received), codewords, file numbers, notations which indicate part of the internal structure of the Australian Security Intelligence Organization and other material of a similar kind. It is claimed that to make that material public would disclose part of the modus operandi of the organization. The records identified as falling within this category are:

Item Folio

44 1, 81, 100, 117, 119-121, 129, 130b, 147,

148-149, 153c, 153d, 154c, 154d, 158 and

159-161

95 91-94

96 44, 47, 48, 49, 50, 51, 56, 57, 58, 66, 74,

75, 76, 77, 79, 95, 97, 102-103, 110, 114,

115, 116, 119, 120, 125 and 126

97 31-36, 39, 40 and 78.

Those records are said to be exempt under pars (a) and (e)(i) of sub-s.33(1).

24. I have examined each of those records in the light of the oral evidence. I am satisfied that each of the records contains material of the kind referred to and that the records are exempt by virtue of the provisions of par.(a) of sub-s.33(1) in that the disclosure of that material could reasonably be expected to cause damage to the security of the Commonwealth. In the light of that conclusion, it is unnecessary to consider whether there is any foundation for the claim that the records are, by reason of that material, exempt under par.(e)(i) of that sub-section.

25. I am, however, also satisfied that it would be practicable for access to be given to that part of each of the above records which would not disclose the information or matter of the kind mentioned and by reason of which the record is an exempt record. This could be done by giving access to a copy of each of the records with the symbols, codewords, file numbers and other material of the kind referred to deleted. It is, however, necessary to consider the records identified above in relation to other of the categories identified by the respondents. In doing so, I shall assume that those deletions have been made.

26. The records in this category are said to contain information the disclosure of which would reveal the identity of a covert human source or would assist in revealing such identity through the application of the "mosaic" method of analysis. The records which are said to answer that description are -

Item Folio

44 81, 100, 129, 147, 148-149, 154d and 159-161

96 110

27. On the basis of the oral evidence put before the Tribunal on behalf of the respondent, I am satisfied that the information contained in certain of the above records, if disclosed, could be used to assist in the process of ascertaining, by the application of the "mosaic" method of analysis, the identity of the person or persons who supplied that information to the Australian Security Intelligence Organization. I am so satisfied in respect of each of the above records other than those identified as Item 44, folios 81 and 100 and Item 96, folio 110.

28. It may be accepted that the disclosure of information that a particular person had gathered intelligence for the Australian Security Intelligence Organization could, in many cases, reasonably be expected to cause damage to the security of the Commonwealth. It is, however, not necessarily so in every case: see Alister v. The Queen (1984) 154 CLR 404 per Gibbs C.J. at pp 413 and per Brennan J. at pp 452-3. The same may be said of information which, considered in conjunction with other material of a similar kind, could assist in identifying such a person. Whether it may reasonably be expected that damage to security will be caused by disclosure will depend upon a consideration of the particular circumstances in which the question arises.

29. The evidence which has been given as to the circumstances in which the information was obtained, the nature of the activities in which the agent or agents concerned were engaged and the effect that disclosure might have both on the willingness of other agents to continue with their activities and on the recruitment of agents in the future, provides, I think, a legitimate basis for a claim that the records identified as Item 44, folios 129, 147, 148-149, 154d and 159-161 are exempt under par.(a) of sub-s. 33(1) as containing information or matter the disclosure of which could reasonably be expected to cause damage to the security of the Commonwealth.

30. The nature of each of the records is such that deletion of the information or matter which results in the record being an exempt record and the granting of public access to what remains is not practicable.

31. As appears from what I have said, I am not satisfied that any sufficient basis has been shown for treating the records identified as Item 44, folios 81 and 100 and Item 96, folio 110 as falling within this category. It will be necessary to consider whether they are exempt as falling within one of the other categories.

32. An argument advanced on behalf of the applicant in relation to par.(a) of sub-s.33(1) should here be noticed. It was submitted that, in considering whether a record is exempt as being one the disclosure of which could reasonably be expected to damage the security of the Commonwealth, the Tribunal was required to balance conflicting public interests in much the same way as a court is required to do in considering, in particular legal proceedings, a claim that documents should not be disclosed because of public interest immunity. The argument, if accepted, would require the Tribunal, in determing whether a record is exempt under par.(a) to strike a balance between the considerations which support the claim that damage to security could reasonably be expected to follow disclosure and the statutory obligation upon the respondent to make the records available for public access. There was said to be a public interest in an individual having access to documents which were of particular concern to that individual and, more especially so when the documents related to the individual's personal affairs. The submission was summarised thus:

"The question whether disclosure would be

harmful to the security of the Commonwealth

requires, where appropriate, a balance between,

on the one hand, the needs of security and, on

the other, the civil liberties of an Australian

citizen. The end to be served by the protection

of the nation's security is the protection of

the liberties of its citizens. This end is not

served where the protection of the nation's

security trespasses unduly on those liberties or

which would frustrate the exercise by the

citizen of his rights (s.11 of the Freedom of

Information Act) or the compliance by agencies

of their duties towards citizens (s.31 of the

Archives Act)."

33. The suggestion that this argument involved reading into par.(a) of sub-s.33(1) additional words referring to the public interest (cf. ss.33(1)(c) and 33(2)) was denied. It was said that the balancing process was inherent in the concept of national security.

34. I am unable to accept this argument. In my opinion, par.(a) of sub-s.33(1) does not require the decision-maker to balance the suggested competing public interests. What the paragraph requires is a finding whether the circumstances are such that disclosure of the record in question could reasonably be expected to damage the nation's security. The public's right to access to the record will depend upon the answer which is given to that question. The interests of a particular individual in seeking access to the particular document, assuming them to be of a higher dimension than those of the public generally, have, in my opinion, no part to play in determining the question which par.(a) of the sub-section poses.

"Information obtained from telephone intercept

operations (the disclosure of) which would

constitute an unreasonable disclosure of

personal affairs."

The category is said to include two sub-categories - one where the applicant was a party to the telephone conversation being intercepted and the other where he was not. Each of the records within the category is claimed to be exempt by virtue of par.(g) of sub-s.33(1).

36. The documents said to be included in this category are -

Item Folio

44 1, 101, 117, 154c and 158

95 79 and 112

96 44, 47, 48, 49, 50, 51, 52, 56, 57, 58, 65,

66, 70, 74, 75, 76, 77, 79, 95, 97, 100-101,

102-103, 110, 114, 115, 116, 119, 120, 125

and 126

97 40, 45-53, 78, 91 and 95

37. I have examined each of the records identified as being within this category. That examination discloses that some of the records state who were the parties to particular telephone conversations and set out the substance of the conversation, the conclusions drawn from it or a verbatim account of what was said. Many of the conversations were obviously on a purely personal or social plane. Other records set out the text of telegrams. Some of the records also contain, in relation to one or other of the persons involved, information additional to that resulting from the telephone interception.

38. I am satisfied that each of the records contains information relating to the personal affairs of a person. In the case of Item 44, folio 117, Item 96, folios 65, 70, 75 and 125 and Item 97, folios 78 and 95 the information relates only to the personal affairs of the applicant or his mother.

39. In order that the records fall within the relevant exemption, it is necessary for the Tribunal to be satisfied that in each case the disclosure of the information relating to the personal affairs of the person concerned would be an unreasonable disclosure. I have not found that aspect of the matter easy of resolution when regard is had to the length of time which has elapsed since the conversations took place or the telegrams were sent and the nature of the information that would be disclosed by giving public access to the records. In reaching a decision upon the question I have thought it proper to give considerable weight to the circumstance that the records emanate from the Australian Security Intelligence Organization and to the significance which members of the public might, rightly or wrongly, attribute to the disclosure that the person's name and some details of his or her personal affairs appear in a document emanating from that source.

40. In my opinion, to give public access to the records identified as being within Category 3, with the exception of Item 44, folio 117, Item 96, folios 65, 70, 75 and 125 and Item 97, folios 78 and 95, would involve the unreasonable disclosure of the personal affairs of a person. Those records are, therefore, exempt. The records specifically identified by item and folio number in the last sentence relate solely to the personal affairs of the applicant or his mother. The applicant, by requesting that access be given to those documents, must, I think, be taken to have consented to the public disclosure of whatever information those records contain. In the circumstances, I am unable to conclude that the disclosure of the information relating to the personal affairs of the applicant or his mother would be unreasonable.

41. This category also consists of records which are said to contain information which, if public access were given, would constitute an unreasonable disclosure of information relating to the personal affairs of a person. They are claimed to be exempt under par.(g) of sub-s.33(1). This category differs from Category 3 in that the information contained in the records in this category is said to have been obtained otherwise than by way of telephone interception.

42. The schedule prepared on behalf of the respondent lists only the following folios as falling within this category, namely Item 95, folios 18, 91, 92, 97, 98 and 106-110. However, the material put before the Tribunal as representing that which is said to fall within this category includes a number of additional folios in Item 95 and folios in Items 44 and 97. I shall proceed on the basis that the claim for exemption under this category is made in respect of all the material included in the bundle marked "Category 4", namely:

Item Folio

44 30-32, 79, 112, 113, 119-121, 141, 148-149

and 159

95 10, 13-15, 18, 88, 89, 91-94, 95-99 and

103-110

97 3-9

43. I have already determined that the records identified as Item 44, folios 148-149 and 159-161 are exempt records under Category 1. It is, therefore, unnecessary to consider those records further in relation to this category.

44. In relation to the other records identified as being within this category, I am satisfied that, with the exception of the records identified as Item 44, folios 79 and 141, they are exempt records by virtue of par.(g) of sub-s.33(1). To give public access to those documents would, in my opinion, for reasons similar to those expressed in relation to the records in Category 3, involve an unreasonable disclosure of the personal affairs of the persons whose names appear in those records. Access to Item 44, folios 79 and 141, however, would not, in my opinion, do so.

45. The following records are said to fall into this category on the basis that access could disclose the identity of an officer of the Australian Security Intelligence Organization:

Item Folio

95 39-51, 89 and 90

96 121

97 3-9

These records are claimed to be exempt under pars (a), (e)(i), (d) and (g) of sub-s.33(1).

46. Inspection of the records identified as Item 95, folios 89 and 90 confirms that their disclosure would reveal the identity of an officer of the Australian Security Intelligence Organization at the time the records were brought into existence and the position in the position in the organization which he then held. By reason of that circumstance, I am satisfied that those records are exempt under par.(a) of sub-s.33(1) as being records the disclosure of which could reasonably be expected to cause damage to the security of the Commonwealth. The reference to the officer's name and his signature, however, could be deleted if that were the only matter which resulted in the records being exempt records. Item 95, folio 89 has already been found to be an exempt record under Category 4.

47. The records in this category identified as Item 96, folio 121 and Item 97, folios 3-9, are signed by persons who, on the evidence before me, were officers of the Australian Security Intelligence Organization either at the time the record was prepared or subsequently. The records are, in my opinion, exempt by reason of that circumstance. The signatures may, of course, readily be deleted from the copies of the records to which access is given. But, in any event, Item 97, folios 3-9 has been found to be exempt under Category 4.

48. The remaining record in this category (Item 95, folios 39-51) is said to be exempt because the information contained in the record could reasonably be expected to lead to the disclosure of the author of the record, that person being an officer of the Australian Security Intelligence Organization. I am satisfied, from the nature of the information contained in the record and the circumstances, as disclosed in the oral evidence, in which the information came to the author's notice, that this record is an exempt record under par.(a) of s.33(1).

49. The records identified as Item 44, folios 1, 100, 113 and 117 are said to fall into this category as being records which, if access were given, would disclose information relating to the organizational structure of the Australian Security Intelligence Organization. They are claimed to be exempt under pars (a) and (e)(i) of sub-s.33(1). They are said to be exempt because of the notations appearing on them.

50. On the evidence, I am satisfied that the records are exempt under par.(a) of sub-s.33(1) but that the matter by reason of which the records are properly regarded as exempt may readily be deleted from any copy which is made available for public access. It may be noted that Item 44, folio 1 has been found to be exempt under Category 3 and Item 44, folio 113 exempt under Category 4.

51. The records in this category are said to contain information designating an officer of a foreign intelligence service. The records are Item 44, folio 32 and Item 96, folio 58. The records are claimed to be exempt under pars (a) and (b) of sub-s.33(1).

52. As I have determined that Item 44, folio 32 is an exempt record under Category 4 and Item 96, folio 58 is an exempt record under Category 3, I need not consider those records further under this category.

53. This category is described as records containing information the disclosure of which would prejudice current operations of the Australian Security Intelligence Organization. The records are claimed to be exempt under pars (a) and (e)(i) of sub-s.33(1). The records said to fall into this category are:

Item Folio

44 81, 100 and 111

96 110

54. I am satisfied, on the evidence, that the record Item 44, folio 111 properly falls within this category and is exempt. I am not so satisfied as to the other records. In any event, Item 96, folio 110 has been found to be exempt under Category 3.

55. This category is described as records containing information provided in confidence by members of the public. The records are identified as

Item Folio

95 66-67, 88, 89 and 90

96 128

Reliance is placed on pars (a), (d), (e)(i), (e)(ii) and (g) of sub-s.33(1).

56. I have already determined that Item 95, folios 88 and 89 are exempt records under Category 4 and I need not consider them further under this category.

57. The evidence shows that the Australian Security Intelligence Organization relies heavily on the public as a source of information relevant to its activities and it is, no doubt, true that much of the information provided is given in confidence. One may accept that it is often the case that the information would not be given unless the member of the public were assured that it would be received in confidence and kept confidential. However, in order to sustain the claim now made, it is necessary for the respondent to establish a proper basis for concluding that the information was, in fact, given on a confidential basis. That the information was given and received on that basis may appear expressly from what was said at the time or may be implied from the circumstances in which the information was given.

58. In my opinion, the respondent has not established that the records identified as Item 95, folios 66-67 and 90 and Item 96, folio 128 contain information that was given in confidence. In the case of the first of those records, the author has not been identified nor have the circumstances in which the document came to be prepared been established.

59. Item 95, folio 90 appears to record a conversation at a social gathering with no indication in the report itself or in any of the material before the Tribunal that the information was given in confidence. The information set out in Item 96, folio 128 appears to have been given without insistence on confidentiality and there is nothing in the evidence to suggest the contrary.

60. The above records, in my opinion, do not properly fall within Category 10. Whether, if they did so, they would be exempt records I need not stay to consider. It would appear, however, that Item 96, folio 128 contains information as to the identity of an officer of the Australian Security Intelligence Organization and, although that document is not listed in Category 5, it would be appropriate to delete that information in the copy of the document to which access is given.

61. Category 11 consists of records said to contain information provided by a covert source, not being a registered source. The records are said to be exempt under pars (a), (d), (e)(i), (e)(ii) and (g) of sub-s.33(1). The records are identified as:

Item Folio

44 30-32, 79, 107, 111, 112, 113 and 141

95 10, 13-15, 91-94, 95-99 and 103-110

97 39

62. A number of these records has been found to be exempt under other categories and I need say no more about them. It remains to consider Item 44, folios 79, 107 and 141 and Item 97, folio 39.

63. In my opinion, the mere fact that information has been supplied by a covert source is not, of itself, sufficient to warrant the conclusion that a record containing the information is an exempt record under any of the paragraphs of sub-s.33(1) relied upon. My reasons for reaching that opinion are similar to those set out earlier in discussing Category 1. The substantial question is whether access to the informtion may identify, or assist in identifying, the covert source and whether it is reasonable to expect that that could cause damage to the security of the Commonwealth.

64. In relation to the records other than Item 97, folio 39, the evidence does not satisfy me on either of those counts, particularly when regard is had to the length of time which has elapsed since the records were brought into existence. In my opinion, they have not been shown to be exempt under any of the paragraphs of sub-s.33(1) upon which reliance is placed. Those records do, however, contain codewords, notations and names which, in accordance with what I have said in relation to other categories, might properly be deleted from the copy of the records to which access is given.

65. I am satisfied that Item 97, folio 39 is an exempt record under par.(a) of sub-s.33(1)

66. The remaining category consists of records described as containing information provided by a covert source whose role has been revealed publicly. The claim is made under pars (a) and (e)(i) of sub-s.33(1). The records are identified as Item 44, folios 119-121 and Item 97, folios 31-36.

67. The records in this category are akin to those dealt with in Category 1. The rationale for keeping those documents secret is set out in what I have written in relation to the records in that category. But for the circumstance that the identity has been revealed of the person who was the author of the records now under consideration, I would, for the reasons expressed in relation to the Category 1 records, have been satisfied that they are exempt records. Does that circumstance require a different conclusion? In my opinion it does not for the reason that, although the person's identity has been revealed, it has been revealed in relation to other activities and not in relation to the activities in the course of which the information contained in these records was obtained. I, therefore, determine that the records are exempt under par.(a) of sub-s.33(1).

68. For the reasons set out above the Tribunal determines -

(a) that there exist reasonable grounds for the

claim that the records referred to in the

Ministerial certificate given under sub-s.34(1)

of the Act, being the records identified as

Commonwealth Record Series A6119, Item 95,

folios 54-58 and 111 and Item 97, folio 20 are

exempt records as containing information or

matter of a kind referred to in pars (a) and

(b) of sub-s.33(1) of the Act;

(b) that the decision under review be affirmed

except as to the following records contained in

Commonwealth Record Series A6119 namely:

Item Folio

44 79, 81, 100, 107, 117, 130b, 141,

153c and 153d

95 66-67 and 90

96 65, 70, 75, 121, 125 and 128

97 78 and 95;

(c) that the decision under review be varied by

giving access to that part of each of the

records specifically identified in par.(b)

above which would not disclose -

(i) symbols (including symbols relating to

sources or the evaluation of

information received), codewords, file

numbers, notations which indicate part

of the internal structure of the

Australian Security Intelligence

Organization or other material of a

similar kind;

(ii) the identify of an officer of that

organization;

(iii) information relating to the

organizational structure of that

organization; or

(iv) information designating an officer of

a foreign intelligence service.

In case difficulty should arise in implementing this decision, I reserve liberty to either party to apply on 7 days' notice. I also direct that the decision be not operative for a period of 28 days from its date.