The sustainability of deletions - can the tribunal review the Minister's decisions?

70. The status of the exemptions under consideration raises a number of points requiring clarification. The first matter of note is that the seven documents (or sets of documents) listed in the schedule of exempt documents (Ex R9) were all released with deletions on one of three dates: 27 April 2001 (as explained in Ex R4), 30 April 2001 (as explained in Ex R5) or 7 June 2001 (as explained in Ex R12). The next matter of note is that the decision to release such of the documents as has been released was made by the relevant Minister in accordance with reg 63(3) of the Regulations. That decision was reinforced on 7 June 2001 when a senior air force officer also claimed the same deletions as exempt material under s 41 of the Act.

71. The next and final matter is to note that s 38 might appear impregnable to review. That is to say that, because s 38 appears automatically to attract an exemption in relation to material the subject of a secrecy provision such as reg 63 in this case, that disposes of the matter. However, that would seem not to be the case. The Attorney-General's Department's FOI Memorandum 98 (http://law.gov.au/foi/memos/memo98.htm#sect38) reflects government policy as to the proper interpretation of s 38 of the Act and it suggests that the invocation of s 38 does not rule out some review of the decision to use that exemption. The tribunal hastens to indicate that it is not bound by the FOI memoranda, however Commonwealth agencies operating under the Act, who are also not strictly bound by the memoranda, should pay due deference to the memoranda as expressions of a mixture of government policy, a distillation of principles derived from the experience of the Attorney-General's Department and other agencies in operating under the Act, including explaining their actions to tribunals, and as documents designed to foster consistency of decision-making under the Act. The tribunal regards the memoranda as useful resource documents for it in its deliberations.

1. The use of s 38 where preferably ss 41, 43 or 45 of the Act would be more appropriate. Paragraph 9.1.4 of FOI Memorandum 98 applies here.

2. Paragraph 9.1.5 of FOI Memorandum 98 states, "Most secrecy provisions allow disclosure in certain circumstances such as with consent, where the information relates to the applicant, where it is in the course of an officer's duty to do so or in an officer's performance of duties, or exercise of powers or functions. This last mentioned phrase is to be interpreted broadly so as to encompass not only FOI disclosure but any other routine disclosures that may be linked to those duties or functions (Canadian Pacific Tobacco Company Ltd v Stapleton [(1952) [1952] HCA 32; 86 CLR 1]). However, where the secrecy provision restricts the disclosure to performance of duties under this Act, that phrase will not encompass FOI disclosure unless that is required by s 38(2)." In the instant case, therefore, it is necessary to consider the precise terms of reg 63(2), the relevant secrecy provision.

3. Paragraph 9.1.6 of FOI Memorandum 98 deals with s 38(2) of the Act. Where the documents contain personal information about only the FOI applicant s 38 does not apply to exempt the documents. Where the documents contain personal information about the FOI applicant jointly with some other individual the memorandum holds that s 38(2) is nevertheless applicable and exemption under s 41, to protect the "other individual" should be considered. This will have some application in the present case.

4. Paragraph 9.1.7 of FOI Memorandum 98 suggests that s 22 should be used to delete certain personal information if that can result in release of a document, albeit with deletions. The tribunal is satisfied that this principle is well known to the respondent and was applied by it in a fashion it considered appropriate.

73. The first of the above bases for review may have application here. The interests to be protected here are the identities of, and information transmitted by, certain staff in the department. Arguably this equates to personal information that is covered by s 41 of the Act.

74. Second, the secrecy provision reads, "a person to whom this regulation applies shall not, except in the performance of the duties of the office of that person: ... disclose to a person ... information contained in the records of, or a report of a Court of Inquiry; ...". This formulation leaves open the possibility, raised in paragraph 9.1.5, that one of the duties of the office of the person or persons considering whether to release the requested material was the release of documents in accordance with the Act. The secrecy provision in the Regulations does not confine the power to disclose such that it can be used only for disclosures associated with the performance of duties under the Regulations.

75. Third, the deleted material in issue in this case refers frequently to the applicant's representative in the current tribunal proceedings and/or to the applicant herself. The applicant and her representative have mutually agreed with the respondent that each consents to the disclosure of any material about him or her to the other person. According to paragraph 9.1.6 of FOI Memorandum 98 this material is best considered for exemption under s 41 of the Act.

76. The tribunal concludes from this discussion that, despite the role of the relevant Minister in this FOI application, the outcomes are amenable to review by the tribunal, largely because the exemptions would have been most appropriately invoked on the basis of only s 41 of the Act.

The sustainability of deletions - the folios considered

77. Document number 1, a report entitled "Summary of circumstances surrounding allegations made by [the applicant]" contains two sentences deleted in full and another partially deleted. The tribunal considers that the deletions are curious as they largely repeat material in the document that has not been deleted. The unexpurgated material indicates that a female person stated that there was a relationship between the applicant and her representative over a period of time during which the representative was having a relationship with another named female staff member. The deleted material identifies the informant and the tribunal considers that the informant's name is correctly deleted. However, the other material is already available to the applicant in another form. Paragraph 11 is therefore to be provided with these words no longer deleted:

"[Deletion as present] has stated that [name of representative] also formed a relationship with [name of other female staff member] (Attachment 11, statement [delete as present])".

78. As regards paragraph 12, this should remain deleted. It relates in whole to a third party and certain disciplinary taken against that person.

79. As regards paragraph 14, some of the deleted words should be provided. These are, "when they each discovered the nature of the others relationship with the man". The remainder of the deleted material should remain deleted as it identifies a witness.

80. Document number 2, a record of a conversation, contains one deletion, the whole of paragraph 3. The name of the applicant's representative, part of the deleted material, should be provided to the applicant in accordance with s 38(2) of the Act, paragraph 9.1.6 of FOI Memorandum 98 and s 41 of the Act. However, the remainder of the material should remain deleted as the identity of the speaker, Ms Hill, has been disclosed and the nature and content of some of those disclosures relates to a third party. The privacy interests of both Ms Hill and the third party dictate an exemption under s 41 of the Act.

81. Document number 3, a minute from a wing commander to the investigator, has been deleted to the extent that all parts other than formal parts have been deleted. The deleted material is opinion material concerning a party other than the applicant or the representative. The tribunal finds that it has been properly deleted in accordance with s 41 of the Act.

82. Document number 4 is a record of interviews by the investigator with other persons. One sentence is deleted on page 3. This sentence should have been deleted only in part. The first two words should be deleted. The remainder involves a reference to the representative and his alleged activities. The deletion is to protect the privacy interests of a person named and the source of the information, whose identity has been disclosed. The deletion will only leave uncertain the extent of that informant's knowledge, or supposed knowledge.

83. One sentence has been deleted on page 4. It contains the names of the applicant and her representative. A third party is named and that person's name should be deleted as personal information about that person appears in the sentence. Some deletions should be removed. The applicant should be given a version that reads,

"[Name of representative] had been going out with [name to remain deleted] before [name of applicant]."

84. Two sentences have been deleted on page 6. The first of these refers to the applicant's representative and another person. The sense of the sentence is the same as in paragraph 11 of document number 1 (see paragraph 76 above). The speaker has been identified. The sentence, as provided to the applicant, should read, "He also had a relationship with [retain deletion of named third party] while he was at Glenbrook". This deletion is justified under s 41 to protect the privacy interests of the speaker and the third party whose name was mentioned.

85. The second sentence refers to the applicant's representative and is a more emphatic rendering of a direct quote that has been provided without deletion. The tribunal considers that there is no justification for deleting this sentence when it adds little, if anything, to the sentence that has not been deleted. The sentence, "Described him as a 'creep of the highest order'" is to be provided unexpurgated.

86. Document number 5 is a minute in which part of a sentence has been deleted. This deletion adds nothing to the material in paragraph 14 of document number 1 which has been ordered for release. This deletion is excessive and not justified as the information is already known to the applicant.

87. Document number 6 is a transcript of an interview of a named third party by the investigator. There are deletions involving several questions and answers. The applicant's name is mentioned in several of these. The deletions relate to a confidential plans of action proposed by the interviewee. This material has been appropriately deleted in the tribunal's view in accordance with s 41 of the Act. The interviewee's plans are her own business and there is no reasonable basis for disclosure of the deleted material.

88. Document number 7 is a similar transcript of an interview with a named person. The applicant and her representative are named in some of the questions and answers. These names are to be provided. However, the remainder of the material is to remain deleted to protect the privacy interests of the speaker and a third party.

The respondent's compliance with the requirements of the Act

89. As will have been clear from the chronology at the beginning of these reasons, the respondent provided no response to the applicant's FOI request until 17 July 2000, more than six weeks after the applicant regularised her request by providing the application fee. That letter notified only a partial decision. In a later letter (T32, 16 October 2000) to the applicant Mr Phillips communicated that at least one unit would require until November 2001 (ie 18 months from the date of the valid request) in order to make a decision. There was no apology offered for this. There was no explicit recognition of the fact that the decision-makers were ignoring the requirements of the Act in s 15(5)(b), ie that documents are to be provided within 30 days of the date of receipt of the request. Arguably, an additional 30 days could have been allowed under s 15(6) of the Act, but no further extension appears permissible under the Act. Thus, by about 31 July 2000 at the latest the respondent should, in accordance with the Act, have provided the relevant documents and claimed the relevant exemptions.

90. On 15 February 2002 Ms Nanson wrote to the tribunal, as she had foreshadowed she would do at the hearing. She had obtained instructions relating to these matters of non-compliance with the Act's time limits. That letter included the following comments:

"With regard to the application before the Tribunal for a review of a deemed refusal decision, as the Tribunal is aware, the majority of documents sought were provided to the applicant prior to the hearing of this application. This was facilitated, in part, by the agreement of the applicant to those documents being forwarded to the Minister Assisting the Minister for Defence for a decision on disclosure not limited by the provisions of [the Act]. That agreement was reached on 18 February 2001 and 5 April 2001, the Minister consented to the release of certain material to the applicant. During this period of time, with the consent of the applicant, action under the Act was suspended.

"The respondent believes it approached the task of providing all documents to the applicant in as efficient and timely a manner as that task would permit and that is evident by the fact of that production and the appreciation expressed by the applicant towards the efforts made by Mr Neil Phillips, FOI Co-Ordinator of the Department of Defence, in effecting that result."

91. The tribunal records those comments with no comment of its own.

92. The tribunal recognises that the time limits in the Act are relatively short for certain types of request. It is perhaps unfortunate that there is no statutory mechanism for the grant of a longer period in an appropriate case. However, at present there is no such facility and an agency should do all it can to comply with a request within time. Failing that, at the very least, it could liaise with a requester to try and seek agreement to a refinement of the request or an amendment to the request. The parties could agree, for example, that a requester will submit a string of smaller requests rather than a single omnibus request. Of course, an agency in such a case might be advised to waive the application fees for the later requests.

93. The tribunal has decided that a number of the deletions in the documents included in the schedule of exempt documents should be removed in whole or in part.

94. The tribunal has decided that the respondent is to conduct a new and thorough search of DEO records to try and locate the reports and other materials that the DEO can be expected to hold if the provisions of Defence Instruction 35-3 had been applied.

95. The tribunal has decided that the respondent is to conduct a new and thorough search of its records for any documents relating to the applicant's never finalised AER.

96. The tribunal varies the decision under review to the following extent:

1. Copies of the documents identified in the schedule of exempt documents are to be provided to the applicant with only those deletions approved by the tribunal after its findings in paragraphs 76 to 87 above have been implemented.

2. The respondent is to conduct a new and thorough search of DEO records to try and locate the reports and other materials that the DEO can be expected to hold if the provisions of Defence Instruction 35-3 have been applied in relation to the applicant's complaint.

3. The respondent is to conduct a new and thorough search of its records for any documents relating to the applicant's never finalised AER.

4. The respondent is to conduct a new and thorough search of its records for any additional documents that might exist relating to the letters sent to participants involved in the investigations after the investigations were concluded, with a particular emphasis on documents explaining why the final letters differed from the drafts prepared by legal advisers and the investigator.

I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: .....................................................................................

Solicitor for the Respondent Australian Government Solicitor