This is an application by Ric Prichard Throssell ("the applicant") for the review of a decision made under the Freedom of Information Act 1982 (Cth) ("the Act") refusing to grant him access to certain documents.

2. The applicant, who was formerly an officer of the Department of Foreign Affairs (or the Department of External Affairs as it was previously known), had made a request in writing to that Department for access to his "personal Departmental file". He was given access to much of the material on that file but was refused access to the whole or part of ten documents. Those documents are said to be exempt documents by virtue of the provisions of s.33(1)(a) or s.36(1) of the Act. Access was given to copies of parts of three of the documents, the exempt matter having been deleted (see s.22(1) of the Act). In communicating to the applicant the decision that the ten documents were exempt documents, reference was made to the circumstance that the Prime Minister had, on 1 November 1985, signed certificates under s.33(2) and s.36(3) of the Act in relation to the documents.

3. It is unnecessary to trace in detail the history which led to the matter coming before the Tribunal. The general background to the making of the request for access to the file may, however, be shortly stated.

4. The applicant was the subject of certain statements and allegations made by Mr Vladimir Petrov following his defection in 1954. Evidence in relation to those statements and allegations was given to the Royal Commission on Espionage and the applicant himself gave evidence before the Commission. The matter was adverted to in the Commission's report (see pars 496-510). Although the Commission was not prepared to make a firm finding adverse to the applicant, the statements and allegations made before the Commission were of concern to the Department and led to the applicant no longer having a full security clearance. As the applicant says in his affidavit sworn in this matter, he was denied promotion "by reason partly of my inability to have access to material classified 'Secret' and 'Top Secret'".

5. The applicant reactivated the question concerning his security rating in 1972. At his request he was interviewed on 14 December 1972 by two officers of the Australian Security Intelligence Organization and an officer of the Department of Foreign Affairs. In the course of that interview the applicant was informed that the refusal to restore his full security clearance was based not only on the Petrov allegations and statements but on other information to like effect. The documents with which this review is concerned, which bear dates between 23 January 1973 and 25 January 1974, relate to action taken within the Department subsequent to that interview in connection with the applicant's request for the restoration of his full security clearance.

6. Before referring further to the documents, it will be convenient to set out relevant provisions of the Act.

7. Section 33, so far as material, provides:

"(1) A document is an exempt document if

disclosure of the document under this Act would be

contrary to the public interest for the reason that

the disclosure -

(a) would, or could reasonably be expected to,

cause damage to -

(i) the security of the Commonwealth;

(ii) ...

(iii) the international relations of the

Commonwealth; or

(b) ....

(2) Where a Minister is satisfied that the

disclosure under this Act of a document would be

contrary to the public interest for a reason referred

to in sub-section (1), he may sign a certificate to

that effect (specifying that reason) and, subject to

the operation of Part VI, such a certificate, so long

as it remains in force, establishes conclusively that

the document is an exempt document referred to in

sub-section (1).

(3) Where a Minister is satisfied as mentioned in

sub-section (2) by reason only of matter contained in

a particular part or particular parts of a document, a

certificate under that sub-section in respect of the

document shall identify that part or those parts of

the document as containing the matter by reason of

which the certificate is given.

..."

"(1) Subject to this section, a document is an

exempt document if it is a document the disclosure of

which under this Act -

(a) would disclose matter in the nature of, or

relating to, opinion, advice or

recommendation obtained, prepared or

recorded, or consultation or deliberation

that has taken place, in the course of, or

for the purposes of, the deliberative

processes involved in the functions of an

agency or Minister or of the Government of

the Commonwealth; and

(b) would be contrary to the public interest.

....

(3) Where a Minister is satisfied, in relation to

a document to which paragraph (1)(a) applies, that the

disclosure of the document would be contrary to the

public interest, he may sign a certificate to that

effect (specifying the ground of public interest in

relation to which the certificate is given) and,

subject to the operation of Part VI, such a

certificate, so long as it remains in force,

establishes conclusively that the disclosure of that

document would be contrary to the public interest.

....

(5) This section does not apply to a document by

reason only of purely factual material contained in

the document.

....

(7) Where a decision is made under Part III that

an applicant is not entitled to access to a document

by reason of the application of this section, the

notice under section 26 shall state the ground of

public interest on which the decision is based.

...."

9. Section 58 deals with the powers of the Tribunal in a proceeding under Part VI of the Act for review of a decision refusing to grant access to a document. Sub-sections (3), (4) and (5) of that section provide:

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

document a certificate under section 33, 33A, 34, 35

or 36, the powers of the Tribunal do not extend to

reviewing the decision to give the certificate, but

the Tribunal, constituted in accordance with section

58B, may determine such question in relation to that

certificate as is provided for in whichever of

sub-sections (4), (5) and (5A) applies in relation to

that certificate.

(4) Where application is or has been made to the

Tribunal for the review of a decision refusing to

grant access to a document in accordance with a

request, being a document that is claimed to be an

exempt document under section 33, 33A, 34 or 35 and in

respect of which a certificate (other than a

certificate of a kind referred to in sub-section (5A))

is in force under that section, the Tribunal shall, if

the applicant so requests, determine the question

whether there exist reasonable grounds for that claim.

(5) Where application is or has been made to the

Tribunal for the review of a decision refusing to

grant access to a document in accordance with a

request, being a document that is claimed to be an

exempt document under section 36 and in respect of

which a certificate is in force under that section,

the Tribunal shall, in a case where it is satisfied

that the document is a document to which paragraph

36(1)(a) applies, if the applicant so requests,

determine the question whether there exist reasonable

grounds for the claim that the disclosure of the

document would be contrary to the public interest."

Sub-section (5A) has no relevance to the present case.

10. Reproduced as a schedule to these reasons is a document which forms part of the affidavit of Neil Donald McInnes filed on behalf of the respondent. It conveniently sets out, in respect of each document, a description of the document, the identity of the person by whom it was created and the person to whom it was directed and summarises the effect of the certificates issued under s.33(2) and s.36(3) of the Act. The documents are identified in the schedule by the numbers 1 to 10 inclusive and it is convenient to adopt that identification in these reasons. Some further details concerning the documents are set out hereunder.

11. This is a minute dated 24 January 1973 from Mr J.E. Ryan, First Assistant Secretary, Management Services Division, Department of Foreign Affairs to the Secretary to that Department. The document refers to what the author had done by way of investigation and research into the question whether the applicant's full security clearance should be restored and, after commenting on what he had learned, sets out views which the author formed as a result. No part of this document has been disclosed to the applicant.

12. This document is a note for file prepared by Mr J.E. Ryan and dated 31 August 1973. Its subject matter is a request dated 8 August 1973 made by the applicant's solicitors that a copy of the transcript of the interview which the applicant attended on 14 December 1972 be provided. The document refers to a discussion which Mr Ryan had with the Acting Secretary to the Department of Foreign Affairs on the subject and the nature of the advice which might be tendered to the Minister for Foreign Affairs. It records the result of certain inquiries Mr Ryan made in relation to the request. It refers to the document now identified as Document 1 and repeats part of what is there said in relation to the applicant's security rating. The applicant has been given access to the first two paragraphs of the document.

13. Document 4 is a minute dated 11 September 1973 from the Acting Secretary to the Department of Foreign Affairs to the Minister. While its subject matter is, again, the request by the applicant's solicitors for a copy of the transcript of the interview with the applicant, there are references to the reasons why the applicant's security clearance was less than a full clearance. Document 3 is a file copy, undated, of Document 4. The applicant has been given access to the first two paragraphs of each document.

14. This document, dated 5 January 1974, is a handwritten minute addressed by the Secretary to the Department of Foreign Affairs to Mr J.E. Ryan. In it the Secretary suggests a discussion concerning the applicant's security rating and the reasons why he did not at that time have a full clearance. Preliminary views are expressed. No part of this document has been made available to the applicant.

15. This is a communication dated 7 January 1974 from the Secretary to the Department of Foreign Affairs to the Director-General of the Australian Security Intelligence Organization concerning the applicant's request for the restoration of his security clearance. The document canvasses the issue and seeks a discussion and access to further information so that the author might be in a better position to make a decision upon the applicant's request. The applicant has not been given access to any part of this document.

16. Document 8 is a file note dated 24 January 1974 prepared by the Secretary to the Department of Foreign Affairs recording his impressions following his review of the matter in the light of the further information which was made available to him and to which some reference is made. The minute also suggests certain courses of action. Document 7 is a copy of Document 8 as originally typed but it does not bear certain handwritten alterations that appear on Document 8. The applicant has not been given access to any part of these documents.

17. Document 10 (of which Document 9 is a copy) is a further file note dated 24 January 1974 prepared by the Secretary to the Department of Foreign Affairs. It records a discussion which the Secretary had with a representative of a foreign government. The applicant has not had access to any part of these documents.

Claim under s.33(1)(a)

18. It is made clear by the certificate signed by the Prime Minister that he was satisfied that the disclosure of any of the ten documents in question would be contrary to the public interest for the reason referred to in s.33(1)(a)(i) of the Act, namely that disclosure would, or could reasonably be expected to, cause damage to the security of the Commonwealth. In relation to the documents identified as Documents 1, 7, 8, 9 and 10, that conclusion was reached by reason of the whole of the material contained in those documents. In relation to the documents identified as Documents 2, 3, 4, 5 and 6, the certificate records that the Prime Minister was so satisfied by reason of particular parts of those documents, parts which are identified in the certificate and are referred to in the schedule to these reasons. The Prime Minister was also satisfied that, by reason of the whole of the material contained in Documents 9 and 10, disclosure of those documents would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth.

19. The nature of the oral evidence given before the Tribunal on behalf of the respondent is such that I can say little about it in these reasons without running the risk of disclosing matter that could involve the very damage to the security of the Commonwealth or its international relations which the decision under review seeks to avoid. Suffice it to say that the oral evidence has served to explain the significance, for security intelligence purposes, of certain of the statements made in the documents, statements which might otherwise appear to be perfectly innocuous.

20. In Re Throssell and Australian Archives, in which the Tribunal's decision has just been given, I had occasion to discuss some aspects of the provision, s.33(1)(a), in the Archives Act 1983 (Cth) which, like s.33(1)(a) of the Freedom of Information Act, makes a document an exempt document if it contains matter the disclosure of which could reasonably be expected to cause damage to the security or international relations of the Commonwealth. I need not repeat what I there said.

21. From an inspection of the documents and a consideration of the oral evidence given in relation to them, I am left in no doubt that it may reasonably be apprehended that disclosure of any of the documents would reveal, or assist in revealing, the source from which certain information concerning the applicant was communicated, on an understanding of strict confidentiality, to the Australian Security Intelligence Organization. In consequence, I am satisfied that there exist reasonable grounds for the claim that each of the ten documents in question is an exempt document by reason of the circumstance that disclosure of the document under the Act would be contrary to the public interest for the reason that the disclosure would, or could reasonably be expected to, cause damage to the security of the Commonwealth. I am also satisfied that there exist reasonable grounds for the claim that Documents 9 and 10 are exempt documents by reason of the circumstance that their disclosure under the Act would be contrary to the public interest for the reason that the disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth.

22. I might add that, even if, contrary to the view expressed in Re Throssell and Australian Archives, it is appropriate to take into account the interests of the applicant in having access to the documents - and it may be thought that he has a strong case to be informed of the basis on which he was denied a full security clearance - the public interest in maintaining the secrecy of the documents is of such a high order that there exist reasonable grounds for concluding that the public interest in non disclosure far outweighs the individual interests of the applicant, however strong they might be thought to be.

23. The decision which I have reached in relation to the claim under s.33(1)(a) of the Act appears to make it unnecessary to consider the claim under s.36(1). This arises from the circumstance that, while the certificate under s.33(2) is in force - and, in the light of the decision that there exist reasonable grounds for the claim under s.33(1)(a), no occasion arises for consideration to be given to revoking that certificate under s.58A(1) - each of the documents to which it refers is an exempt document. That is to say, the document as a whole is an exempt document. Clearly, that must be so in relation to the documents identified as Documents 1, 7, 8, 9 and 10 for, in the case of those documents, the conclusion that they are exempt documents was reached by reason of the whole of the material contained in them. But the position is no different, I think, in the case of the remainder of the documents even though the conclusion that they are exempt documents was reached by reason only of material contained in particular parts of them. This is because, once it is established that a document contains exempt material, the whole document, and not only the exempt material, is protected from disclosure. Section 22 may, of course, operate, as it did in this case in respect of Documents 2, 3 and 4, to require access to be given to a copy of such a document from which all exempt material has been deleted. But, absent any obligation arising under that section, access may not be given to the document or any part of it. I would add, however, should it be relevant to do so, that this is not an appropriate case in which to give access to a copy of Documents 2, 3 4, 5 and 6 (except in so far as that has already been done in the case of Documents 2, 3 and 4) with the exempt material identified in the certificate under s.33(2) deleted. The exempt material is an essential part of the deliberative processes recorded in the documents and to give access to an expurgated copy may not totally avoid the damage which s.33(1)(a) is designed to avoid and may well be misleading.

24. However, in case the view expressed above may be thought to be incorrect, I shall deal shortly with the claim under s.36(1)

25. The certificate given under s. 36(3) identifies Documents 1, 5, 6, 7, 8, 9 and 10 as being exempt documents under s. 36(1)(a) by reason of the whole of the contents thereof. Documents 2, 3 and 4 are said to be exempt under that provision by reason of identified parts of their contents. Those parts include the material claimed to be exempt under s.33(1)(a). Access to the remainder of each of those three documents has been given to the applicant.

26. As required by s. 36(3), the certificate specifies the following as the grounds of public interest in relation to which the certificate is given:

". effective administration would be inhibited by

doubts about confidentiality if documents

reflecting advice, opinion, recommendation or

deliberation were to be disclosed;

. disclosure would damage the effective

decision-making processes and operations of

departments by inhibiting candour in the

expression of views and deliberations by senior

officers on options for action; and

. it would also undermine the necessary

confidentiality associated with the

investigation and preparation of advice on

matters which deal with very sensitive

considerations about the security of the

Commonwealth and, inter alia, the international

relations of the Commonwealth."

27. In relation to this claim there are two questions for the Tribunal. First, it must be satisfied that each of the documents is a document to which s.36(1)(a) applies. Secondly, if the answer to that question is in the affirmative, and the applicant requests the Tribunal to do so, the Tribunal is to determine whether there exist reasonable grounds for the claim that the disclosure of each document would be contrary to the public interest.

28. As to the first question, a consideration of the short description of each of the documents as set out in the schedule to these reasons supplemented by what has been said above in relation to them is sufficient to establish that each of the documents is a document to which s.36(1)(a) applies. The applicant is, as I understand it, prepared to accept that that is so. Inspection of the documents has confirmed that they are all properly so described. I should add that none of the documents is taken outside the provisions of s.36(1)(a) by sub-s.(5) of that section. The material contained in the documents cannot properly be said to be purely factual material.

29. As to the second question, the matters which support the conclusion that there exist reasonable grounds for the claim under s.33(1)(a) require an answer to this question which favours non-disclosure. The likelihood that disclosure would, or could reasonably be expected to, cause damage to the security or the international relations of the Commonwealth clearly establishes that there are reasonable grounds for the claim that the disclosure of each of the documents would be contrary to the public interest. It is not, in my opinion, a permissible approach to confine the inquiry to the question whether it would be contrary to the public interest to give access to so much of the documents as would remain after deleting from them the particular material referred to in the certificate under s.33(2) although that would be a material matter for an agency or a Minister to take into account in complying with s.22 of the Act.

30. For the applicant it was submitted that the respondent was not entitled to rely upon the aspect of the public interest to which I have referred because it was not specified in the certificate under s.36(3) as a ground of public interest in relation to which the certificate was given. I am unable to accept this argument. In the first place, the question for the Tribunal is whether, at the time the matter is adjudicated upon by the Tribunal and upon the material before it, there exist reasonable grounds for the claim that disclosure of the documents would be contrary to the public interest (s.58(5)). The question is not simply whether the grounds specified in the certificate pursuant to s.36(3) have been made good. Secondly, on the facts of this case it would be unreal to suppose that the Prime Minister, having before him for signature two certificates, one under s.33(2) and the other under s.36(3), had put out of mind in dealing with the latter certificate the very cogent and compelling considerations relating to the public interest that formed the basis for the signing of the certificate under s.33(2).

31. In the result, I am satisfied that there exist reasonable grounds for the claim that each of the ten documents is an exempt document as being a document the disclosure of which would be contrary to the public interest for a reason within s.33(1)(a) of the Act. I am also satisfied that each of the ten documents is a document to which s.36(1)(a) applies and that there exist reasonable grounds for the claim that the disclosure of the document would be contrary to public interest.