Gersten and Australian Federal Police [1999] AATA 819 (1 November 1999)

Last Updated: 2 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 819

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/1255

GENERAL ADMINISTRATIVE DIVISION )

Re JOSEPH GERSTEN

Applicant

And AUSTRALIAN FEDERAL POLICE

Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date 1 November 1999

Place Sydney

Decision The decision under review is affirmed.

(Sgd) BJ McMahon

..............................................

Deputy President

CATCHWORDS

FREEDOM OF INFORMATION - exempt documents - exempt agency - application of Mutual Assistance in Criminal Matters Act 1987 - whether the agency had a statutory power - adequacy of searches - false and misleading documents - whether confidentiality still a consideration - purported documents - question of improper purpose - whether disclosure has an adverse and substantial effect on agency operations - no public interest

WORDS AND PHRASES - "purported documents" - "adverse and substantial effect"

Freedom of Information Act 1982 ss 4, 15(2), 24(6), 24A, 40(1)(d), 40(2), 42, 41(1), 33(1)(b), 50, 54

Administrative Appeals Tribunal Act 1975 s26

Mutual Assistance in Criminal Matters Act 1987

Joseph Gersten v Minister for Immigration and Multicultural Affairs [1999] AATA 527

Commissioner of Australian Federal Police and another v Propend Finance Pty Limited and others 188 CLR 501

Annotated Freedom of Information Act NSW, Anne Cossins LBC 1997

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

1. This is an application brought to review a decision made under the Freedom of Information Act 1982. At the outset, I was asked to disqualify myself from hearing the application on the grounds of actual and apprehended bias. On 21 July 1999 I gave a decision in another application brought by the same applicant under the Freedom of Information Act against the Minister for Immigration and Multicultural Affairs ([1999] AATA 527). At the opening of the present proceedings, counsel for the applicant submitted that the earlier case dealt with the same issues of law and many of the facts grounding the present proceedings. An appeal to the Federal Court against that decision is still pending. I declined to disqualify myself. In my opinion, it is not evidence of actual or apprehended bias to have formed a view on issues of law. I also came to the conclusion that the facts in the present application were likely to be different from the facts in the earlier application and in this respect, I believe that my predictions proved correct. In the earlier application there was a different respondent. I had inspected the documents in the present application for which exemptions had been claimed. None of them was identical with any of the documents in the earlier matter. There was no question of credit involved. I therefore saw no reason why I should not proceed to hear the present application.

2. On 9 March 1998, the applicant wrote to the respondent in these terms (omitting formal parts):

"FoI Application - Joseph M Gersten DOB 19.07.47

Please consider this letter an application under the FoI Act.

This application is intended to have the broadest scope and is not limited to any single subject matter. It is intended to include, but not be limited in any way, to documents that relate to inquiries made by Mr Greenaway of the AFP to the NSW Law Society or any other legal practice admission authority in respect of the applicant.

The application is intended to include documents that indicate or tend to indicate the persons in the AFP who directed the inquiries of Mr Greenaway and/or any person in any agency of the Australian government or the government of any foreign state that communicated with Mr Greenaway or any other person within the AFP in respect of the applicant.

"Documents" are intended to include but not be limited to all reports, file notes, personal diary notes, email/ccmail (whether in print or not in print) and any form of documentary communication that relates to the applicant directly or indirectly.

A cheque in the amount of $30.00 made payable to the Receiver of Public Money is enclosed."

3. The extended meaning intended for the word "documents" in the second last paragraph above is not necessary, having regard to the definition of "document" in section 4. It is, however, an indication of the type of documents, the absence of which constitutes one of the principal complaints of the applicant. The use of the word "documents" in inverted commas in the second last paragraph indicates that it refers to the same word in the preceding paragraph. Thus, the application was for access to documents with the extended meaning that tended to indicate persons in the respondent organisation who directed the inquiries of Mr Greenaway or others, and which tended to indicate the government of any foreign state that communicated with Mr Greenaway or others. The application commences with the words: "This application is intended to have the broadest scope and is not limited to any single subject matter". If the request finished there, it would not comply with subsection 15(2) as it would not provide such information as was reasonably necessary to enable a responsible officer of an agency to identify it. However, subsection 24(6) provides that an agency must not refuse to grant access to a document on subsection 15(2) grounds unless certain procedures have been complied with. It was not apparent from the evidence given at the hearing that any such procedures had taken place.

4. The request is not to be read narrowly but has to have some focus in order to determine what documents fall within its scope. This is particularly important when an applicant alleges that documents, other than those produced, do exist and fall within the terms of the request. Reading the request in the most liberal way consistent with its terms, it seems to me that it seeks access to documents (as defined) leading up to and dealing with inquiries made by Mr Greenaway of the respondent to the NSW Law Society, or any other legal practice admission authority in respect of the applicant. In exploring the documents leading up to this event, the applicant also seeks documents tending to identify relevant participants in the event.

5. On 7 February 1996, a request was received from the Embassy of the United State of America to ascertain the applicant's current residence and details of his travel to and from Australia. Sergeant Greenaway recalled that the application had been delivered by hand from the Embassy and that he was then directed to deal with it. He did not consider it to be unusual.

6. On 21 February 1996, he sent a message to Mr Castrission of the Law Enforcement Liaison Unit with a Department then called the Department of Immigration and Ethnic Affairs. The text of the message was:

"Could you please conduct movement history check on - Joseph Morris, Gersten (FN)

A/N is a fugitive from the USA & believed to be currently in Australia, possibly in Melbourne."

7. This document has been released to the applicant, together with a copy of the alert raised under the Passenger Automatic Selection System (PASS) which is a computer-based system which allows the respondent and customs officers to place alerts regarding persons of interest on the system. This in turn notifies officials at customs barriers that certain actions may be required whenever such a person is about to enter or leave Australia.

8. Mr Castrission gave evidence that it was likely he received it personally. He certainly allocated it for an answer to Ms Wallace. His evidence was that he made no notes at the time. The request would have been placed on a bulk file of requests from the AFP. It was not unusual to receive such a request.

9. On 21 February 1996, a reply was sent by Ms Wallace on instructions from Mr Castrission. The substance of the message was:

"Joseph Gersten arrived in Australia on 18 February 1995 and has appealed against the Department's decision on not granting him refugee status. I have attached his movement details and the name and address of his solicitor."

10. This letter and its attachments have also been released to the applicant. It was Mr Castrission's evidence that it was by no means unusual for the Department to advise appropriate other authorities of the refugee status of the persons about whom they inquired.

11. As the applicant's address was recorded with a Melbourne law firm, Sergeant Greenaway faxed a request to the location co-ordination unit of the AFP (Southern Region) on 22 February 1996 requesting discreet inquiries to be made to ascertain the applicant's current whereabouts. On 26 February 1996, an email was sent on behalf of Federal Agent Dumas to Sergeant Greenaway. This document has also been made available to the applicant. It sets out the results of Mr Dumas' inquiry. It stated that he had a Victorian motor vehicle licence which had been surrendered and that, according to Victorian records, he had applied for a NSW licence on 7 August 1995. He had been convicted for refusing preliminary breath testing and his licence had been cancelled for 24 months from 27 March 1995. The email went on to give details of a motor vehicle registered in his name and showing his address as 39/101 Collins Street Melbourne. Mr Dumas stated that he went to this address and made a discreet inquiry at the desk in the foyer and was told that the address shown was that of the law firm Blake, Dawson and Waldron.

12. Mr Dumas volunteered that he had a file. At first he considered that the email was the only document on the file. On further cross-examination, however, it appeared the file contained 4 documents namely, his handwritten draft of the email, a copy of the email itself, the request from Sergeant Greenaway (which is one of the documents for which exemption was later claimed) and a printout from the motor registry. The handwritten draft and the computer printout had not been made available to the applicant. After the conclusion of the hearing, I was advised that copies of these two documents were provided to the applicant by letter dated 10 September 1999. As they clearly fall within the terms of the request, failure to give access to them previously was unjustified. Had the documents not been made available, I would have varied the decision under review to include a reference to them. As it now appears that this variation to the decision under review has been made unilaterally by the respondent, I indicate that pursuant to section 26 of the Administrative Appeals Tribunal Act 1975, I consent to the making of the alteration.

13. The printed email included the sentence: "Could be living in hiding in NSW". Mr Dumas thought that his clerical assistant had misread his handwriting and that he had written: "Could be living and working in NSW". Release of the handwritten draft will clarify this detail.

14. Apart from these documents, Agent Dumas denied that there were any other written records of his involvement. He did not make any entries in a notebook or diary. He worked from a file. He was not aware of any procedure manual for people in intelligence work. He simply carried out his instructions in the manner which appeared to him to be most appropriate. He considered Sergeant Greenaway's request to be simple. He said that he received many such requests regularly. In his field of work, he said that he did not carry a diary with him.

15. On 11 March 1996, Sergeant Greenaway wrote to the United States Embassy advising that the applicant had been located. This document is the subject of a claim for exemption. Sergeant Greenaway gave evidence that he did not have any documents relating to the applicant, nor did he ever have any such documents in his possession, apart from those which I have described. He made no diary note as he was working on an official file. Any note that he made would be on the file.

16. As he had been informed as the applicant's address was in the care of certain lawyers, he said he "did a bit of lateral thinking" and decided to approach the Law Society of NSW in order to find the applicant's address. He obtained that body's telephone number from the ACT Law Society. He could not recall the date on which he telephoned the NSW Law Society or the name of the person he spoke to. He remembered that it was a woman. His evidence was that he had had only one contact. On that occasion, he introduced himself and without saying why, said that he wished to locate Mr Gersten. The woman who attended to his call asked him to wait while she left to obtain advice. She later returned to tell Sergeant Greenaway that she could not give him Mr Gersten's address but she could tell him that he was an applicant for admission as a solicitor. Sergeant Greenaway said that he was not previously aware of this. He made a note of this intelligence from the Law Society on the Dumas email, together with a note of NSW Drivers Licence details. These notes are on the copy of the document that was made available to Mr Gersten.

17. Sergeant Greenaway said that apart from this notation, he made no other diary note or entry in a notebook. Although he had had a notebook when he was in uniform, this had not been for some years and he had not made a notebook entry for a considerable period prior to this inquiry. The information which he gathered from the Victorian office of the AFP, from the Department of Immigration and from his own inquiries, formed the basis of his report to the United States Embassy in a letter which is now the subject of one of the claims for exemption. Apart from this letter, he said there was no other document even within the expanded meaning intended by the applicant in his request.

18. Evidence was given by Ms English who is now a Judge of the District Court. At the relevant time, she was a councillor of the NSW Law Society and a member of the Legal Practitioners Admission Board. She gave evidence as to the report she prepared in relation to Mr Gersten's application for admission. She was aware that Sergeant Greenaway had telephoned the Law Society and discussed the interest of the AFP with the Chief Executive Officer, Mr Wescombe. She did not discuss the matter with any other person or Department. She could not recall what the board did after it received her report. She did not give any evidence, in my view, which might indicate that there were other records of Sergeant Greenaway's contact with the Law Society.

19. A good deal of the evidence was directed to the possibility of the existence of documents falling within the terms of the request but to which the applicant had not been given access. Section 24A empowers an agency to refuse a request for access to a document if all reasonable steps have been taken to find the document and the agency (or this Tribunal) is satisfied that the document does not exist. Subsection 55(5) empowers this Tribunal to require an agency to conduct further searches for a document if access is refused on grounds mentioned in section 24A. I do not understand the respondent's decision to be a refusal of access under that section. The respondent does not say that there were documents but they cannot be found. It does not say that the documents which the applicant seeks do not exist. It simply says that a request for access was made under section 15 and that there has been a full compliance with that request, subject to claims for exemption made in relation to 7 documents pursuant to the Act. The applicant continues to insist that there must be other documents and invited me to infer their existence.

20. The adequacy of searches for documents is a matter that has attracted academic comment. References can be found in Cossins, "Annotated Freedom of Information Act NSW" paragraph 29.25. A report of the Commonwealth Ombudsman dated June 1999 dealt with the problems which may arise from inadequacies in record management. He reported:

"Record Management

3.85 A common concern expressed by FOI practitioners is the difficulty in identifying and obtaining agency records. It appears that few agencies have a central record of documentary or electronic records and in larger agencies record keeping has become so fragmented that it would be an extremely difficult task to identify all agency records. This is more so in the case of re-structured departments where the record audit trail is becoming increasingly faint.

3.86 This trend has implications for the accountability of agencies for their actions and general efficiency, quite apart from its impact on FOI compliance.

3.87 Because of the frequent inability to identify agency documents, greater reliance is being placed upon FOI applicants to provide specific details of documents sought.

3.88 Section 24 of the Act permits agencies to refuse a request where the work in processing a request would substantially and unreasonably divert resources of the agency. Additionally, s.24A permits refusal of a request if reasonable steps are taken to find a document but it cannot be found or does not exist.

3.89 It would be unreasonable for an agency to refuse a request on this basis if the problem in locating documents resides in poor recordkeeping.

3.90 At times, the applicant will not be able to provide specific details, or may simply wish to access all relevant documents held by the agency. In these circumstances, poor agency record management may serve to neutralise the right of access provided by the Act as agencies claim lost or no documents, or even unreasonable diversion of resources.

3.91 The ALRC/ARC in its report on the review of the FOI Act highlighted the lack of statutory regulation of recordkeeping in the federal public sector, and made a number of recommendations for amendment to the Archives Act to expand role of the Director-General of Archives.

3.92 The ALRC report of its review of the Archives Act, commented:

In the Commission's view one of the main challenges for the Commonwealth recordkeeping in the coming decade will be to maintain, and if possible enhance, the FOI and Archives access regimes in a way that makes information available effectively and economically unless there are justifiable grounds for withholding it.

3.93 Previous Ombudsmen have expressed similar concerns over the quality and problems encountered with Commonwealth recordkeeping.

3.94 There is concern that if the issue of Commonwealth recordkeeping is not addressed in the near future with a view to establishing uniform guidelines and practices, then the existing inadequate practices are likely to have a sustained adverse impact upon the operation of both the FOI and Archives Acts. It also raises questions about the efficiency of an agency's current archives, if its recordkeeping activities are such that the agency is unable itself to fully draw on the repository of relevant knowledge it holds.

3.95 These issues will become increasingly important as Government services continue to be outsourced to Government Business Enterprises or contracted to the private sector. While the Government has undertaken to extend the provisions of the Privacy and Freedom of Information Acts where government services are delivered by the private sector, it will be equally important to ensure compliance by these bodies with accepted standards of recordkeeping.

3.96 These bodies are likely to rely on advice from the host agency as to best recordkeeping practice, yet the level of efficiency of recordkeeping in a number of agencies leaves considerable room for improvement."

21. The Ombudsman pointed out that the Government has not acted in relation to the Law Reform Commission Reports on this subject and recommended that it give priority to a consideration of the matters and recommendations contained in those reports. Until the present Act is amended, it seems to me that ordinary rules applicable in administrative inquiries are appropriate. On the basis of the material put before me, I have to be satisfied that there has been a compliance with the applicant's request subject to the claims for exemption. The fact that there are no diary entries or notebook entries where the applicant might expect them does not derogate from the full extent of the respondent's compliance. These records, in any event, are not electronically stored and would not show up in the computer searches, which the respondent carried out. Nevertheless there are no real grounds for believing that any such subsidiary documents are being withheld. The positive evidence to the contrary is overwhelming.

22. When the application was first made the primary decision maker, Mr Drewett, made a number of electronic searches in an endeavour to find any record held by the agency relating to the applicant, whether or not it dealt with Sergeant Greenaway's contact with the Law Society. In his affidavit Mr Drewett said:

"3 Prior to 1 January 1999, information held by the Australian Federal Police was stored electronically on the Australian Federal Police ("AFP") computer system known as MNIFTY (Master Names Indexing Facility). MNIFTY allowed you to search AFP information holdings using a person's name and/or date of birth. The system also allowed you to search phonetically for a person's name to cater for any variations in spelling. MNIFTY contained entries on any person that was recorded by the AFP.

4. The only information that was not stored on MNIFTY was Intelligence and Interpol checks which were conducted by the National Operations area of the AFP. Upon receiving a request for information under the provisions of the Freedom of Information Act 1982 ("FOI Act"), staff of Information Access refer to copy of that request to National Operations for search of their databases. Parallel searches were made through the Intelligence and Interpol databases by personnel in National Operations. The area/s identified as holding the material would then be requested to provide the relevant documentation to Information Access.

5. Since 1 January 1999, all the AFP's computer databases have been merged into one system which is known as PROMIS (Police Realtime Online Management Information System). This system obviates the need to refer requests through National Operations.

6. Once a name search is conducted and it is identified that the AFP holds material in relation to that subject, the individual area identified as holding material is requested to provide the relevant documentation.

7. In this particular matter, I am the officer in Information Access who conducted the search of the then MNIFTY system on 17 March 1998, a copy of the search results is at annexure "CD1". The system showed that Mr Gersten was recorded on an Interpol file, reference IP/082/94/1.

8. On the same day I wrote to National Operations requesting that they search the databases and provide me with a copy of the relevant file, a copy of that letter is at annexure "CD2".

9. On 23 March 1998, National Operations provided me with a response to my earlier request for any documents held in the area. Responses were received from both Federal Agent Greenaway, Team Leader National Operations Coordination and Federal Agent Power, Team Leader Interpol, a copy of these responses is at annexure "CD3". The relevant documents were provided to me on 23 March 1998.

10. All documents held by the AFP in relation to the applicant were then examined and released in accordance with his FOI request and the initial decision dated 9 April 1998."

23. The applicant's solicitor requested a reconsideration, possibly on the grounds that there must have been documents other than those that were made available to the applicant. The review was carried out by Mr Guilfoyle. The relevant parts of his affidavit are as follows:

"1. On 9 March 1998, the Applicant sought access under the Freedom of Information Act 1982 ("the FOI Act"), to documents relating to inquiries made by Federal Agent Greenaway of the AFP to the NSW Law Society or any other legal practice admission authority regarding the Applicant and any documents relating to communications between the AFP and any Australian and/or foreign government agencies regarding the Applicant. A copy of the AFP's initial decision of 9 April 1998 is at annexure "HG-A".

2. Certain documents or parts were then provided to the Applicant. On 24 April 1998 the Applicant sought an internal review of that decision under section 54 of the FOI Act. On 3 June 1998 I advised the applicant of my decision at internal review, a copy of the internal review decision is at annexure "HG-B".

3. As part of my review of that decision, on 11 May 1998 I requested a further search by all AFP staff for all documents in relation to the applicant's request. In relation to this search I refer to paragraphs 3 and 4 of my affidavit sworn on 3 December 1998.

4. On 7 August 1998 the Applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the decision. Following the preliminary conference on 16 October 1998 a further release of material occurred, namely folios 21 to 28 of the exempt documents."

24. In an earlier affidavit, Mr Guilfoyle detailed the additional searches, which he made as a result of the request for reconsideration. He said:

"1. On 9 March 1998, the Applicant sought access under the Freedom of Information Act 1982 ("The FOI Act"), to documents relating to inquiries made by the Federal Agent Greenaway of the AFP to the NSW Law Society or any other legal practice admission authority regarding the Applicant and any documents relating to communications between the AFP and any Australian and/or foreign government agencies regarding the Applicant. A copy of the AFP's initial decision of 9 April 1998 is at annexure "HG1".

2. Certain documents or parts were then provided to the Applicant. On 24 April 1998 the Applicant sought an internal review of that decision under section 54 of the FOI Act, a copy of the request for internal review is at annexure "HG2".

3. As part of my review of that decision I requested a further search of AFP holdings by all AFP staff on 11 May 1998, a copy of my request is at annexure "HG3". I received two responses to my search, these responses are noted at annexures "HG3" and "HG4" respectively. In addition, I telephoned Federal Agent John Greenaway to enquire as to the existence of any further material relating to his inquiry to the NSW Law Society regarding the Applicant. My notes made at the time of that conversation are at annexure "HG3".

4. The Applicant was advised of the outcome of the internal review on 3 June 1998; a copy of that letter is at annexure "HG5". To date there have been no further documents located in relation to the Applicant's request under the FOI Act."

25. The documents identified as HG3 and HG4 consisted of emails sent to the entire AFP staff in these words:

"To All Staff

I am the Internal Review Officer for an FOI request by Joseph Gersten for all information held by the AFP re Joseph Gersten.

The request in particular seeks any documents covering any contact between the AFP and the Law Society of NSW re Joseph Gersten, and any documents dealing with a direction that such contact be made.

The request also seeks any documentation on a request for Gersten's movement history under the Mutual Assistance in Criminal Matters Act.

Anyone with any documentation on the above request should contact me by 18 May 1998.

Hugh Guilfoyle

FOI Reviewing Officer

11 May 1998."

26. Mr Guilfoyle gave evidence that he personally spoke to Sergeant Greenaway, requesting he provide any further material as Sergeant Greenaway's name had been mentioned specifically in the request. Sergeant Greenaway again affirmed that there was no further material. Mr Guilfoyle noted on a copy of the email (which was made available to the applicant) that he also spoke to Federal Agent McQuillan, who later gave evidence before me. Mr McQuillan said that he was speaking to an officer of the Law Society of NSW concerning a totally unrelated person who had been posing as a solicitor. During his conversation with Mr Hawthorn at the Law Society, he was asked whether he (Mr McQuillan) had ever heard of Joseph Gersten. Mr Hawthorn told Mr McQuillan that "he's a high flying lawyer in Melbourne". Mr Hawthorn indicated that he had information that the AFP might be making inquiries concerning Mr Gersten. Mr McQuillan said he had never heard of the man. He did not make any notes of his conversation.

27. Although he was not given the correct spelling of Mr Gersten's name, and he did not write any details of the conversation in any diary, notebook or running sheet, he did make an attempt to check the name on the AFP computer without success. He gave the matter no further thought until he received Mr Guilfoyle's email. Mr Guilfoyle has noted that when Mr McQuillan spoke to him he said, "Gersten was raised by Law Society with F.A. McQuillan - not us with them".

28. It is difficult to envisage what more could have been done by officers of the AFP in tracking down any documents falling within the terms of the request. It would be unreasonable to expect Mr Guilfoyle (the Freedom of Information Review Officer) to make a physical search among the possessions of all the above persons. He found no electronic record, nor did he find any written record when these were specifically requested. He spoke to people who were involved in the events. Further than that, he could not reasonably go. He is not involved in operational areas. He does not know what AFP members' note, or even whether or not they are issued with a notebook or diary when working on intelligence. Notebooks, of course, are issued to uniformed police, as they are often in situations where they would not have access to electronic means of recording information. On the basis of the evidence put before me, I am satisfied that the respondent has met its obligations.

29. Before dealing with the claims for exemption made in relation to the 7 documents, I will deal with the written submissions of the applicant. He has not addressed the actual claims for exemption but rather has put forward general submissions.

30. His first submission is that the respondent claimed that at all relevant times it was acting pursuant to the statutory power flowing from the Mutual Assistance in Criminal Matters Act 1987. The applicant complained that he was unable to discover which provision of that Act was the basis of the relevant statutory power. Accordingly, the applicant submitted that the respondent was acting without proper statutory authority. In my view, this submission is irrelevant to the matters in issue. This application is concerned merely to review a decision claiming that the whole or part of certain documents are exempt under the Act, no matter how those documents came into being.

31. The second submission of the applicant is that the respondent's decision reflected an inflexible application of policy and a failure to consider the merits of the applicant's case. This submission is also irrelevant. The present application is, of course, a re-hearing. The basis upon which the respondent came to its decision is in no way binding upon me. I have not approached my task using only an inflexible application of policy.

32. The next submission of the applicant asserted that the respondent had been on notice that the applicant alleged the documents contained fraudulent content or were fraudulent in intent and contained false material. The submission was that the AFP made no attempt to determine if the applicant's assertions were true or tended to be true. Even if this be the case, and even if the documents contained false material (and there is no evidence of this whatsoever) this would still be an irrelevant submission. This application is concerned to review a decision refusing access. Section 48 deals with applications for amendment or annotation of personal records where the truth or otherwise of the contents of records might have some relevance. This is not the present case.

33. The fourth submission of the applicant was that the respondent made no enquiries after early 1996 to determine whether or not the FBI had altered its position in respect of the respondent releasing the exempt documents to the applicant. This submission is simply not in accordance with the evidence. Annexures to the affidavit of Federal Agent Hughes disclose that as late as May 1999, the FBI had indicated its opposition to release of the relevant documents through a legal attache at the United States Embassy.

34. The fifth submission by the applicant dealt with what he referred to as "purported documents". The submission made under this heading was identical with the submission made in the earlier proceedings against the Department of Immigration. I gave my views on the legal effect of the submission in paragraphs 23 to 31 and, for convenience, repeat them here. For ease of reading, I will maintain the sequential numbering, but the following paragraphs 35 to 43 are taken from the earlier decision.

35. In response to the claim for exemption under paragraph 33(1)(b) the applicant, through his counsel, raised a number of arguments. The most important of these was referred to as the "purported documents" argument. The applicant contended that the core documents were false and fraudulent in content and/or purpose and were thus, not legally documents but rather purported documents. As such, it was submitted that they were not documents within the meaning of the Freedom of Information Act.

36. "Document' is defined in section 4 in the following terms:

"document" includes:

any of, or any part of any of, the following things:

any paper or other material on which there is writing;

a map, plan, drawing or photograph;

any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

any article on which information has been stored or recorded, either mechanically or electronically;

any other record or information; or

any copy, reproduction or duplicate of such a thing; or

any part of such a copy, reproduction or duplicate; but does not include:

library material maintained for reference purposes; or

Cabinet notebooks;"

37. There is no reference in the definition to the veracity of any material, nor would one expect to find it. The applicant, as I understand his argument, relies on an analogy drawn from a decision by the High Court in considering claims for legal professional privilege in Commissioner of Australian Federal Police and another v Propend Finance Pty Limited and others 188 CLR 501. At 514, Brennan C.J. said (omitting references):

"In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest. I state the criterion as "reasonable grounds for believing" because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something "to give colour to the charge", a "prima facie case" that the communication is made for an ulterior purpose. The purposes that deny the protection of privilege for a communication (whether documentary or oral) between a client and the client's solicitor or counsel include the furthering of the commission of an offence."

38. It was submitted by the applicant that considerations to which His Honour referred, ought to be imported into determinations as to whether documents were entitled to exemption under one or other of the provisions of the Act. If the document was made for some illegal or improper purpose or for a purpose contrary to the public interest then, the applicant submitted, it should not fall within the relevant exemption provisions.

39. The first objection to that submission is that there is no evidence of any kind that the contents of the core documents fall within these categories, nor could there be any such evidence unless the applicant was given access to those documents, thus defeating the whole purpose of the Act. When this was put to the applicant's counsel, he pointed to certain documents which had been released to his client by other agencies, or possibly by the present respondent, and pointed to errors in those documents. A minute from Sergeant Greenaway to Mr Castrission (exhibit A) referred to the applicant as "a fugitive from the USA". Mr Gersten denied that he was such a fugitive and therefore contended that this document was false. A minute from an officer of the respondent to Sergeant Greenaway in ultimate response to his request referred to the fact that Mr Gersten had appealed against the Department's decision not granting him refugee status. Mr Gersten says that applications of that nature should have been kept confidential under the relevant statute. To pass on information that he had in fact made such an application, was contrary to public policy. Mr Gersten, furthermore, was under the impression that his possible extradition had been discussed in some of the documents and to show that he was not liable to extradition, produced a copy of a warrant which had been issued for his apprehension but which was enforceable only in the State of Florida. Mr Gersten agreed that he had been the subject of investigation for criminal activities but asserted that he had not been charged. If there was any suggestion that he was liable to extradition, this would (he said) have given a false impression. [Some of the above facts in this paragraph were referred to in evidence in the earlier proceedings and relate to different documents].

40. Whether there were errors of fact contained in material in these documents, it seems to me, is irrelevant. To support the applicant's argument, he would need to show a "prima facie case" (as Brennan C.J. put it) that the core documents were false or fraudulent or were created contrary to the public interest. The so-called evidence to which the applicant has pointed does nothing to support this allegation.

41. More importantly however, it seems to me, that even if by some means it was possible to prove these mendacious qualities in relation to the information contained in documents for which a claim for exemption had been made, this would not be an objection to the sustaining of an exemption claim. There is no analogy available between arguments based on claims for legal professional privilege and claims for exemption under the Freedom of Information Act. As Dawson J pointed out in Propend (at 515), it is not the document to which legal professional privilege attaches. It is the information communicated in the document. It is the communication constituted by the document, which is privileged. In the Freedom of Information Act, the legislation is concerned only with access to documents, whatever their contents. There is no way that one can re-write the Act in such a fundamental way (or indeed in any way) on the basis of such a submission. Legal professional privilege and claims for exemption under the Freedom of Information Act are two quite different concepts, except where specifically cross-referenced as in section 42 of the Freedom of Information Act where exemption may be claimed on the basis of legal professional privilege.

42. The Act recognises that there may be false statements in documents, which are in the custody of agencies. If those statements relate to personal information and the information is incomplete, incorrect, out of date or misleading, then an applicant may apply under section 50 to have the records amended. It would appear from the text of the FBI minute quoted in an earlier paragraph that similar provisions are to be found in United States domestic law. In the absence of any successful amendment application, documents in the form in which they are held would be accessible subject to the general exemption provisions of the Act.

43. Were it otherwise, then an agency would be called upon to make an assessment as to the truth or falsity of all documents to which access is sought. Not only would this be an inappropriate exercise for a decision maker, who would have no resources to determine the truth or falsity of allegations in the document, it could also lead to manifestly bad results. Assuming an agency came to the conclusion that there were false statements in a document, then it could simply take the view, according to the applicant's submission, that the document was not a document for the purposes of the Freedom of Information Act but was merely a purported document. This false document could then lie in the agency's file and not be subject to access. Clearly this is contrary to the whole purpose of the legislation.

44. Allied to the previous submission concerning purported documents was a final submission made by the applicant alleging an exercise of the respondent's power for an improper purpose. It was alleged in the submission that Sergeant Greenaway and Agent Dumas acted in a way which would harm the applicant. He submitted that the nature of Sergeant Greenaway's approach to the Law Society was both gratuitous and improper. The applicant asserted that any documents created by Sergeant Greenaway flowing from such contact was not sanctioned by the Mutual Assistance in Criminal Matters Act and not amenable to any claim for exemption. In my view, this again misconceives the nature of the present proceedings as a review of claims for exemption under the Freedom of Information Act. Those claims relate to particular documents. The manner in which they came into being is not relevant accept insofar as it may affect the nature of the claim for exemption. There is no such effect in the present proceedings.

45. I will now turn to the actual 7 documents and the respective claims for exemption. Document 1 is a facsimile from an officer of the Department of Immigration to Sergeant Greenaway. It deals partly with the applicant. Exemption is claimed for another paragraph dealing with a totally different person. The remainder of the facsimile has been made available to Mr Gersten. The claim for exemption was not addressed by the applicant during the course of the hearing nor in his submission. Clearly, the claim should be allowed. The part of the facsimile for which exemption is claimed does not fall within the terms of the request. It is not necessary to rely on subsection 41(1) to support this claim.

46. Document 2 is a letter from the Embassy of the United States. Document 3 is Sergeant Greenaway's reply. Document 6 is another letter from that Embassy. Document 7 is a letter from Interpol, Nauru. Exemption is claimed in respect of the whole of these documents under subsection 33(1)(b). This provides that a document is exempt if disclosure under the Act would divulge any information communicated in confidence by or on behalf of an authority of a foreign government. Having examined the documents and having regard to the evidence of Agent Hughes, I am satisfied that the information was conveyed by and to authorities of two foreign governments in circumstances clearly indicating confidentiality. The section requires only that the communication should be in confidence. The section has no regard to the age of the communication or to the nature of the information concerned having regard to the passage of time. If it was communicated in confidence, then it remains within the terms of paragraph (b).

47. In fact, however, as indicated earlier, attempts were made successfully to confirm that the FBI continued to regard the relevant information as confidential.

48. Document 4 is a facsimile from Sergeant Greenaway to the respondent's Canberra and Melbourne offices with information and request for advice on the applicant's current whereabouts. Document 5 is a passenger alert message originated by Sergeant Greenaway. Exemption is claimed for these documents under subsection 40(1)(d). This section provides that a document is exempt if its disclosure would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

49. Disclosure of these documents on the evidence of Agent Hughes would inflict damage on the respondent's relations with overseas law enforcement authorities such as the FBI. Mr Hughes' evidence went to the extent to which the respondent relies upon good relations with these authorities and the way in which these relations would be affected by disclosure of documents such as those under consideration.

50. This evidence was not really challenged. There was nothing in his cross-examination which would give rise to any doubt about the validity of his evidence. This was that a disclosure of the material would result in damage to the respondent's working relationships with foreign law enforcement bodies which are essential to the AFP maintaining and carrying out proper and efficient police services. That being so, disclosure would have a substantial adverse effect on the proper and efficient conduct of its operations. The evidence of Agent Hughes is sufficient to support the respondent's contention that this effect would be both adverse and substantial, irrespective of the nature of the information contained in the communications.

51. There is a public interest test in subsection (2). In my view, there is no public interest favouring disclosure of this material, nor has the applicant attempted to identify any such public interest.

52. For these reasons the decision under review is affirmed.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President).

Signed: Jacqueline Healy .....................................................................................

Associate

Date/s of Hearing 30 & 31 August 1999

Date of Decision 1 November 1999

Counsel for the Applicant Mr J Coombs

Solicitor for Applicant Mr A Lee

Counsel for the Respondent Mr M Chilcott

Solicitor for the Respondent Ms V Kanellopoulos