"SROOO" and Department of Defence [2002] AATA 115 (22 February 2002)

Last Updated: 11 April 2002

DECISION AND REASONS FOR DECISION [2002] AATA 115

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1708

GENERAL ADMINISTRATIVE DIVISION )

Re "SROOO"

Applicant

And Department of Defence

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date 22 February 2002

Place Sydney

Decision 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.

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

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION - deemed decision to refuse access to documents - extension of time granted for lodging application for review of deemed decision - consent to alteration of reviewable decision by respondent while application still before the tribunal - exemptions based on application of secrecy provision in legislation - exemptions based on personal privacy - deletions in documents provided - additional searches required - excessive delays in providing copies of documents

Freedom of Information Act 1982 - ss 4(1) "document", "edited copy", "exempt document", "personal information", "request", 14, 15, 18, 22, 27A, 37(2)(b), 38, 41(1), (2), 54(1)(a), (b), (1A), (1B), 55(1)(a), (aa), (3), (4)(a), (b), 56(1), (1A), 61(1)

Administrative Appeals Tribunal Act 1975 - ss 25(1)(a), (5), 26, 29(1)(a), (b), (c), (d), (3), (7), (8)

Defence (Inquiry) Regulations - regs 63, 78

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1

REASONS FOR DECISION

22 February 2002 Mr M J Sassella, Senior Member

Chronology of events

1. On 15 May 2000 the applicant wrote to the directorate of FOI in the Department of Defence ("the respondent") enclosing a request for documents under the Freedom of Information Act 1982 ("the Act") (T3). The applicant had submitted a complaint on 15 February 2000. An investigation had occurred ("the first investigation"). A navy captain ("the investigator") carried it out. The applicant sought the following:

* Copies of all documents pertaining to the first investigation.

* A copy of the terms of reference issued to the investigator.

* Copies of all administrative and legal correspondence between certain air force officers relating to the applicant and her complaint and dated on or after 1 August 1999.

* Copies of any correspondence between a certain air force senior officer and the investigator.

* Copies of all witness and respondent statements taken during the course of the first investigation.

* Copies of the investigator's deliberations and recommendations.

* Copies of the investigator's interview notes and of transcripts of recorded interviews.

* Copies of correspondence from the Support Command Legal Office to the certain air force senior officer nominated above or to any other agency concerning the applicant's complaint.

* Copies of the deliberations, comments and decisions made by the certain air force senior officer nominated above concerning the applicant's complaint, and copies of any correspondence generated by that senior officer's office to other agencies concerning the applicant's complaint.

* Copies of documents concerning counselling or cautions administered to two named officers.

2. In the same freedom of information ("FOI") request she sought the following documents associated with another investigation ("the second investigation") concerning her attachment to "HQINTERFET":

* Copies of all correspondence pertaining to the second investigation.

* Copies of all administrative and legal correspondence between certain air force officers relating to the applicant and dated on or after 1 August 1999.

* Copies of all witness and respondent statements taken during the course of the second investigation.

* Copies of the deliberations, comments, decisions and recommendations made by certain air force senior officers and any correspondence generated by one of them concerning the applicant and addressed to other agencies.

* Copies of decisions and actions taken by certain nominated senior air force officers based on correspondence about the applicant.

* Copies of all the messages released by a certain nominated senior air force officer concerning the applicant's attachment to and from HQINTERFET CAOC (including method of travel), with some more specific definition of this request provided.

* Copies of all records of all records of conversations relating to the applicant by a certain nominated officer.

3. The applicant requested exemption from fees and charges.

4. On 24 May 2000 a Mr N Phillips responded for the Director, FOI, stating that the request dated 15 May 2000 was not competent because the applicant had not enclosed the $30.00 application fee. She needed to do this even though she was seeking exemption from fees and charges. She had provided insufficient information to permit a decision on that exemption to be made. If she were to pay the $30.00 and seek the exemption, and if the respondent were to agree to the exemption, the $30.00 would be refunded.

5. On 31 May 2000 the applicant provided a cheque for $30.00 (T5). Documents T5 and T6 indicate that Mr Phillips has accepted that the applicant should have to pay no FOI processing charges. The respondent would retain the $30.00 application fee. The FOI request was registered on 5 June 2000 and the 30 day time limit ran from then.

6. Various branches within respondent department and the air force contacted Mr Phillips to report on the relevant documents they were holding and with reasons why certain documents should not be released. These responses included:

* No documents held by one operational unit, the Defence Equity Organisation ("the DEO") (T8). On 24 August 2000 Mr Phillips communicated this to the applicant (T28).

* Information was passed by one other unit "orally or physically" to the investigator (T9).

* One operational unit possessed "four documents that meet the parameters of the request which, if released, may affect the privacy of another person". Mr Phillips' assistance under s 27A of the Act was requested (T10). On 5 July 2000 Mr Phillips responded by stating that an extension of the Act's deadline was not possible to permit consultation under s 27A of the Act because an interim decision had not been made as to whether disclosure of personal information would or would not be unreasonable (T14).

* One operational unit considered that as the investigation was initiated by another unit that other unit should make the relevant decisions (T11). That unit also said that the request for release of the investigator's report would be treated as an application under the Defence (Inquiry) Regulations ("the Regulations"), regs 63 and 78. That unit also stated, "pursuant to the FOI Act S. 38(1)(b)((i) schedule 3, the applications for the [investigator's] report are exempt. However, I note the requests and arrangements will be made for applications to the Minister assisting the Minister for Defence for approval to release the reports to the applicants". It was noted that the Minister may take into account privacy and security in exercising his discretion as to release. On 4 July 2000 Mr Phillips notified this unit that the applicant wanted her request dealt with under the Act, not the Regulations (T13).

* One operational unit sought an extension to the 30 days allowed for compliance under the Act because it was desired to ascertain whether the first investigation had been completed (T12).

7. On 17 July 2000 Mr Phillips wrote to the applicant to advise that documents held by one operational unit would be released to the applicant in full (T21). Decisions had yet to be made as regards documents held by five other units.

8. On 3 August 2000 another unit agreed to the release of documents it had generated relating to the HQINTERFET attachment. It possessed other relevant documents originating elsewhere but considered that release of those should be handled by the originators (T24). On 21 August 2000 Mr Phillips wrote to the applicant to notify her of this decision (T26). On 28 September 2000 this unit again contacted Mr Phillips to say that it would not be releasing documents numbers 1 to 6 as these originated elsewhere and others should make the decisions. Documents numbers 7 to 11 were to be released (T31). On 16 October 2000 Mr Phillips wrote to the applicant to notify her of this outcome (T32). He told her that documents numbers 1 to 6 were being considered by another unit.

9. On 9 August 2000 another unit reported that it held only a copy of a statement by the applicant dated 9 November 1999 obtained during an investigation of a third party (T25). On 22 August 2000 Mr Phillips was cleared to provide this document to the applicant (T27). On 24 August 2000 Mr Phillips wrote to the applicant to communicate that decision to her (T28).

10. On 24 August 2000 Mr Phillips wrote to a senior air force officer to query decision-making progress by two operational units (T29). A response (T30) was received on 25 August 2000 with some decisions noted as requiring until November 2001 before the relevant decision could be made. Some $555.80 was also sought in expenses, apparently for transcription of tapes. On 16 October 2000 Mr Phillips informed the applicant of this material (T32).

11. On 29 October 2000 the applicant sent an electronic mail message to Mr Phillips querying the delays foreshadowed in T30. She said that she wished to appeal against that unit's response to her FOI request (T35). On 31 October 2000 Mr Phillips advised the applicant of her appeal rights (T36).

12. On 9 November 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision dated 16 October 2000 that a certain air force unit would take 155 days to finalise its response to the applicant's FOI request (T1). On the same date the applicant lodged with the tribunal an application for an extension of time for applying to the tribunal (T1). This would be because her right to apply to the tribunal would have accrued much earlier when the relevant documents were not provided within the statutory time frame. This extension of time application has not yet been acted upon by the tribunal.

13. On 12 January 2001 the respondent filed with the tribunal a Section 37 Statement and associated T documents (Ex TD1). As at that date a decision had not been made by the respondent in respect of certain documents (T2/12, paragraph 16).

14. On 18 February 2001 the applicant wrote to the respondent expressing her concern as regards the time taken for processing of her request (Ex A8). She mentioned that Mr Phillips had suggested that she might have her request expedited by having part of the request actioned under the Regulations. She doubted that this would be attractive as it could mean she might lose her rights to some documentation. Nevertheless she agreed to have certain elements of her request considered simultaneously under the Act and under the Regulations. She queried the respondent's reliance on s 38 of the Act because the material in question was not caught by official secrets legislation and the investigation had not been carried out under the Regulations. She proposed a resolution:

"12. I wish to expedite the process to resolution, and I had indicated below the actions and outcomes I am seeking. I consider that I have been unfairly treated and my complaint was not probably investigated, nor was any action taken against those who set out to ruin me. Despite the assertions of zero tolerance over harassment in the Defence Force, no action has been taken to hold those accountable for vindictive acts against myself and others, and destroying my more than 21 years of loyal service.

"I seek independent review of the investigation of my complaint by higher authority ie, CAF or CDF. I do not have confidence in Support Command considering my FOI, as they cannot be seen as impartial. It is fact that the Support Commander decided on my case and was provided guidance by the very department that is administering my FOI request. (Indeed, some of the previous actions of Support Command leave me very suspicious of their intentions.)

"I propose that an independent investigating officer be appointed by mutual agreement with myself to review the case and make recommendations to the higher authority. Also, I propose that I am granted a meeting with the chosen higher authority to put forward my case.

"I seek apologies from those persons that have wronged me, for them to be held accountable for their actions and appropriately cautioned that their behaviour is not tolerated and will not be in the future. Officers of the RAAF took action against myself that was far from professional, fair or even reasonable.

"I want to ensure that there is real protection and support available to those that find themselves in similar situations and that no-one else is treated like I have been. Further, that there is equal protection and support given to those who freely take on the responsibility of an 'airman's friend' and that they are not subjected to the same amount of persecution."

15. On 29 May 2001 Mr Phillips responded to Ex A8 on behalf of the respondent. He regretted the delayed response. He said that as the FOI matter was before the tribunal that was the appropriate venue for resolution of any issues that remain outstanding regarding the FOI request. He said that resolution of the complaint made by the applicant during her air force service is not a matter that falls within the Act. Thus, on 21 February the matter was referred to an Air Commodore for consideration outside the FOI process. The Air Commodore considered that he could not deal with the complaint any further. "[The] Air Commodore ... also noted that [the applicant] had the opportunity to appeal, or make complaint against ... [the] decision at the time it was made, but chose not to do so". She was invited to contact the Air Commodore further as to the resolution of her complaint.

16. On 27 March 2001 a decision-maker in an operational unit within the respondent agency made a decision to release documents not referred to the Minister for his approval for release in accordance with reg 63(2) and (3) of the Regulations (Ex R1). The relevant documents were first flagged in T11 (see paragraph 6 above). The affected documents are in annex A to Ex R1. They are said in Ex R1 to contain deletions relating telephone numbers, credit card details and personal addresses of persons other than the applicant.

17. On 2 April 2001 the respondent's solicitor informed the tribunal of the newly made decision (Ex R2).

18. On 19 April 2001 the respondent wrote to the applicant (Ex R3). This was to inform the applicant that the Minister had agreed on 5 April 2001 to release the documents referred to him for consideration. He had required that they be disclosed to no one else.

19. On 27 April 2001 the respondent wrote to the applicant (Ex R4). The writer was Mr Phillips. He was writing to provide a schedule of documents that were subject to a claim of exemption under s 38 of the Act. On 30 April 2001 Mr Phillips sent another letter to the applicant amending aspects of the list provided on 27 April 2001 (Ex R5).

20. On about 9 May 2001 the applicant wrote to Mr Phillips identifying her remaining concerns (Ex A1). These included that documents numbers 1 to 6 first identified in August 2000 (see paragraph 8 above) had still not been provided and no explanation had been offered. Correspondence relating to a charge that the applicant had been absent without leave had not been provided and no decision on that had been provided. Some other documents appeared to be provided in part only or in draft only form. Some handwritten notes were illegible. Some discrepancies between draft and final versions of documents were unexplained.

21. On 23 May 2001 Mr Phillips wrote to the applicant notifying fresh decisions in relation to items numbers 1 to 6 discussed in T32 (see paragraph 8 above) (Ex A9). Some documents were withheld and some contained deletions. There was an apology also for the respondent not having provided to the applicant copies of certain materials provided to another FOI requester, a Squadron Leader ("the Squadron Leader") despite his agreement that she could have them.

22. On 7 June 2001 Mr Phillips wrote to the applicant to inform her that the respondent was claiming exemption under s 41 of the Act in respect of the documents considered exempt under s 38 of the Act as notified to the applicant on 27 April 2001 (Ex R4) and 30 April 2001 (Ex R5) (Ex R12).

23. On 16 July 2001 the applicant wrote to the tribunal deputy registrar (Ex A2). She sought to appeal against the deletions in documents the subject of recent decisions. She queried the applicability of ss 38 and 41 of the Act as the Regulations relating to courts of inquiry and boards of inquiry had not been invoked. In her case, she said, there was never any court or board of inquiry. There had been only the appointment of an investigating officer. She also argued that she had a legitimate interest in seeing in full the documents said to attract exemption under s 41 of the Act.

24. On 31 August 2001 the applicant wrote to the tribunal's deputy registrar seeking to amend her application for review (Ex A4). She updated her application to refer to the decisions made progressively by the respondent in the period since she had lodged her original application. She summarised the position as she understood it in relation to outstanding and disputed documents. She also notified her wish to challenge the applicability of s 38 of the Act in her case. She queried the apparent failure of those handling her complaint to involve the DEO in her case. She raised the issue of an unresolved outcome for a disputed annual evaluation report ("AER"). She sought information as to why outcome letters sent to those implicated in her complaint were not in the form recommended by the investigator and legal counsel.

25. On 6 November 2001 the respondent's solicitor provided a schedule of exempt documents (Ex R6). Nine documents were listed. The only grounds of exemption claimed were based on ss 38 and 41 of the Act.

26. On 12 November 2001 the applicant wrote to the tribunal deputy registrar addressing the schedule in Ex R6 and confirming her desire for full access to all documents except for one set of documents that had been provided (Ex A3).

27. On 11 December 2001 the respondent wrote to the applicant referring to a letter from Mr Phillips to the applicant dated 23 May 2001, to which the tribunal has no access (Ex R7). Apparently, in that letter Mr Phillips told the applicant that the commander of the unit implicated in relation to T25 (see paragraph 9 above) had denied the applicant access to an investigation plan and a telephone listing on the basis of the exemption in s 37(2)(b) of the Act. Section 22(1) had been invoked to delete material. The commanding officer had reconsidered his decision and authorised their disclosure to the applicant. A fresh schedule of exempt documents was provided (Ex R8).

28. On 25 January 2002 the respondent filed with the tribunal a copy of the respondent's written submissions (Ex R10).

Relevant legislation

29. The following provisions from the Act are relevant: sections 4(1) "document", "edited copy", "exempt document", "personal information", "request", 14, 15, 18, 22, 27A, 37(2)(b), 38, 41(1), (2), 54(1)(a), (b), (1A), (1B), 55(1)(a), (aa), (3), (4)(a), (b), 56(1), (1A), 61(1).

FREEDOM OF INFORMATION ACT 1982

...

SECT 4

Interpretation

4. (1) In this Act, unless the contrary intention appears:

...

"document" includes:

(a) any of, or any part of any of, the following things:

(i) any paper or other material on which there is writing;

(ii) a map, plan, drawing or photograph;

(iii) any paper or other material on which there are marks,

figures, symbols or perforations having a meaning for persons qualified to

interpret them;

(iv) 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;

(v) any article on which information has been stored or recorded,

either mechanically or electronically;

(vi) any other record of information; or

(b) any copy, reproduction or duplicate of such a thing; or

(c) any part of such a copy, reproduction or duplicate;

but does not include:

(d) library material maintained for reference purposes; or

(e) Cabinet notebooks;

...

"edited copy", in relation to a document, means a copy of the document from

which deletions have been made under section 22;

...

"exempt document" means:

(a) a document which, by virtue of a provision of Part IV, is an exempt

document;

(b) a document in respect of which, by virtue of section 7, an agency is

exempt from the operation of this Act; or

(c) an official document of a Minister that contains some matter that does

not relate to the affairs of an agency or of a Department of State;

...

"personal information" means information or an opinion (including

information forming part of a database), whether true or not, and whether

recorded in a material form or not, about an individual whose identity is

apparent, or can reasonably be ascertained, from the information or opinion;

...

"request" means an application made in accordance with subsection 15 (1);

...

PART III - ACCESS TO DOCUMENTS

...

SECT 14

Access to documents apart from Act

14. Nothing in this Act is intended to prevent or discourage Ministers and

agencies from publishing or giving access to documents (including exempt

documents), otherwise than as required by this Act, where they can properly do

so or are required by law to do so.

SECT 15

Requests for access

15. (1) Subject to section 15A, a person who wishes to obtain access to a

document of an agency or an official document of a Minister may request access to the document.

(2) The request must:

(a) be in writing; and

(b) provide such information concerning the document as is reasonably

necessary to enable a responsible officer of the agency, or the Minister, to

identify it; and

(c) specify an address in Australia at which notices under this Act may be

sent to the applicant; and

(d) be sent by post to the agency or Minister, or delivered to an officer of

the agency or a member of the staff of the Minister, at the address of any

central or regional office of the agency or Minister specified in a current

telephone directory; and

(e) be accompanied by the fee payable under the regulations in respect of

the request.

(3) Where a person:

(a) wishes to make a request to an agency; or

(b) has made to an agency a request that does not comply with this section;

it is the duty of the agency to take reasonable steps to assist the person to

make the request in a manner that complies with this section.

(4) Where a person has directed to an agency a request that should have been

directed to another agency or to a Minister, it is the duty of the

first-mentioned agency to take reasonable steps to assist the person to direct

the request to the appropriate agency or Minister.

(5) On receiving a request, the agency or Minister must:

(a) as soon as practicable but in any case not later than 14 days after the

day on which the request is received by or on behalf of the agency or

Minister, take all reasonable steps to enable the applicant to be notified

that the request has been received; and

(b) as soon as practicable but in any case not later than the end of the

period of 30 days after the day on which the request is received by or on

behalf of the agency or Minister, take all reasonable steps to enable the

applicant to be notified of a decision on the request (including a decision

under section 21 to defer the provision of access to a document).

(6) Where, in relation to a request, the agency or Minister determines in

writing that the requirements of section 26A, 27 or 27A make it appropriate to

extend the period referred to in paragraph (5) (b):

(a) the period is to be taken to be extended by a further period of 30 days;

and

(b) the agency or Minister must, as soon as practicable, inform the

applicant that the period has been so extended.

...

SECT 18

Access to documents to be given on request

18. (1) Subject to this Act, where:

(a) a request is made in accordance with the requirements of subsection 15

(2) by a person to an agency or Minister for access to a document of the

agency or an official document of the Minister; and

(b) any charge that, under the regulations, is required to be paid before

access is granted has been paid;

the person shall be given access to the document in accordance with this Act.

(2) An agency or Minister is not required by this Act to give access to a

document at a time when the document is an exempt document.

...

SECT 22

Deletion of exempt matter or irrelevant material

22. (1) Where:

(a) an agency or Minister decides:

(i) not to grant a request for access to a document on the ground

that it is an exempt document; or

(ii) that to grant a request for access to a document would

disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document

with such deletions that the copy:

(i) would not be an exempt document; and

(ii) would not disclose such information; and

(c) it is reasonably practicable for the agency or Minister, having regard

to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a

result of consultation by the agency or Minister with the applicant, that the

applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

(2) Where access is granted to a copy of a document in accordance with

subsection (1):

(a) the applicant must be informed:

(i) that it is such a copy; and

(ii) of the ground for the deletions; and

(iii) if any matter deleted is exempt matter because of a

provision of this Act - that the matter deleted is exempt matter because of that provision; and

(b) section 26 does not apply to the decision that the applicant is not

entitled to access to the whole of the document unless the applicant requests the agency or Minister to furnish to him or her a notice in writing in

accordance with that section.

...

SECT 27A

Procedure on request in respect of documents containing personal

information

27A. (1AA) This section applies if:

(a) a request is received by an agency or Minister in respect of a document containing personal information about a person (including a person who has died); and

(b) it appears to:

(i) the officer or Minister dealing with the request; or

(ii) a person (the "reviewer") reviewing under section 54 a

decision refusing the request;

that the person referred to in paragraph (a) or, if that person has died, the

legal personal representative of that person, might reasonably wish to contend that the document, so far as it contains that information, is an exempt

document under section 41.

(1) A decision to grant access under this Act to the document or an edited

copy of the document, so far as it contains that information, must not be made

unless, where it is reasonably practicable to do so having regard to all the

circumstances (including the application of subsections 15 (5) and (6)):

(a) the agency or Minister has given to the person or the legal personal

representative of the person, as the case may be, a reasonable opportunity of making submissions in support of a contention that the document or edited copy, so far as it contains that information, is an exempt document under section 41; and

(b) the person making the decision has had regard to any submissions so

made.

(1A) In determining, for the purposes of subsection (1AA), whether a person

might reasonably wish to contend that a document, so far as it contains

personal information, is an exempt document under section 41, the officer,

Minister or reviewer, as the case requires, must have regard to the following

matters:

(a) the extent to which the personal information is well known;

(b) whether the person to whom the personal information relates is known to

be associated with the matters dealt with in the document;

(c) the availability of the personal information from publicly accessible

sources;

(d) such other matters as the officer, Minister or reviewer, as the case

requires, considers relevant.

(2) Where, after any submissions have been made in accordance with

subsection (1), a decision is made that the document or edited copy, so far as

it contains the information referred to in paragraph (1) (a), is not an exempt

document under section 41:

(a) the agency or Minister shall cause notice in writing of the decision to

be given to the person who made the submissions, as well as to the person who made the request; and

(b) access shall not be given to the document or edited copy, so far as it

contains the information referred to in paragraph (1) (a), unless:

(i) the time for an application to the Tribunal in accordance with

section 59A by the person who made the submissions has expired and such an application (other than an application that has subsequently been withdrawn) has not been made; or

(ia) such an application has been made but the Tribunal has

dismissed the application under section 42A of the Administrative Appeals Tribunal Act 1975; or

(ii) such an application has been made and the Tribunal has

confirmed the decision.

(3) Nothing in paragraph (2) (b) prevents access being given to a document

of a kind referred to in that paragraph if a further request has been made for

access to the document and there is no failure to comply with this section in

dealing with the further request.

...

PART IV - EXEMPT DOCUMENTS

...

SECT 37

Documents affecting enforcement of law and protection of public safety

...

(2) A document is an exempt document if its disclosure under this

Act would, or could reasonably be expected to:

...

(b) disclose lawful methods or procedures for preventing, detecting,

investigating, or dealing with matters arising out of, breaches or evasions of

the law the disclosure of which would, or would be reasonably likely to,

prejudice the effectiveness of those methods or procedures; or

...

SECT 38

Documents to which secrecy provisions of enactments apply

38. (1) Subject to subsection (1A), a document is an exempt document if:

(a) disclosure of the document, or information contained in the document, is

prohibited under a provision of an enactment; and

(b) either:

(i) that provision is specified in Schedule 3; or

(ii) this section is expressly applied to the document, or

information, by that provision, or by another provision of that or any other enactment.

(1A) A person's right of access to a document under section 11 or 22 is not

affected merely because the document is an exempt document under subsection

(1) of this section if disclosure of the document, or information contained in

the document, to that person is not prohibited by the enactment concerned or

any other enactment.

(2) Where a person requests access to a document, this section does not

apply in relation to the document so far as it contains personal information

about the person.

...

SECT 41

Documents affecting personal privacy

41. (1) A document is an exempt document if its disclosure under this Act

would involve the unreasonable disclosure of personal information about any

person (including a deceased person).

(2) Subject to subsection (3), the provisions of subsection (1) do not have

effect in relation to a request by a person for access to a document by reason

only of the inclusion in the document of matter relating to that person.

...

PART VI - REVIEW OF DECISIONS

...

SECT 54

Internal review

54. (1) Subject to subsection (1A), where a decision has been made, in

relation to a request to an agency, otherwise than by the responsible Minister

or principal officer of the agency, being:

(a) a decision refusing to grant access to a document in accordance with a

request; or

(b) a decision granting access to a document but not granting, in accordance

with the request, access to all documents to which the request relates; or

...

(1A) The application must be made:

(a) in the case of a decision of a kind mentioned in paragraphs (1) (a),

(c), (d), (e), (g) and (h) - within 30 days, or such further period as the

agency allows, after the day on which the decision is notified to the

applicant; or

(b) in the case of a decision of a kind mentioned in paragraph (1) (b), (ba)

or (f):

(i) within 30 days, or such further period as the agency allows,

after the day on which the decision is notified to the applicant; or

(ii) within 15 days after the day on which the access referred to

in that paragraph was granted;

whichever period is longer.

(1B) A decision by an agency to allow a further period for making an

application may be made whether or not the time for making such an application has already expired.

...

SECT 55

Applications to Administrative Appeals Tribunal

55. (1) Subject to this section, an application may be made to the

Administrative Appeals Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with a

request; or

(aa) a decision granting access to a document but not granting,

in accordance with a request, access to all documents to which the request relates; or

...

(3) Subsection (2) does not prevent an application to the Tribunal in

respect of a decision where:

(a) the person concerned has applied under section 54 for a review of the

decision;

(b) a period of 30 days has elapsed since the day on which that application

was received by or on behalf of the agency concerned; and

(c) he or she has not been informed of the result of the review;

and such an application to the Tribunal may be treated by the Tribunal as

having been made within the time allowed by subsection (4) if it appears to

the Tribunal that there was no unreasonable delay in making the application to

the Tribunal.

(4) Notwithstanding section 29 of the Administrative Appeals Tribunal Act

1975, the period within which (subject to any extension granted by the

Tribunal) an application under subsection (1) of this section is to be made in

respect of a decision is:

(a) except where paragraph (b) or (c) applies - the period commencing on the

day on which notice of the decision was given to the applicant in accordance

with section 26 and ending on the sixtieth day after that day;

(b) where the decision is a decision that is to be deemed by subsection 56

(1) or (3) to have been made - the period commencing on the day on which the decision is to be deemed to have been made and ending on the sixtieth day after that day; or

...

SECT 56

Application to Tribunal where decision delayed

56. (1) Subject to this section, where:

(a) a request has been made to an agency or Minister in accordance with

section 15; and

(b) the period of 30 days, in relation to the request, mentioned in

paragraph 15 (5) (b), or that period as extended under subsection 15 (6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and

(c) notice of a decision on the request has not been received by the

applicant;

the principal officer of the agency or the Minister shall, for the purpose of

enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.

(1A) Subject to this section, where:

(a) an application has been made to an agency or Minister under section 48;

and

(b) a period of 30 days, in relation to the application, mentioned in

section 51D has expired since the day on which the application was received by or on behalf of the agency or Minister; and

(c) notice of a decision on the request has not been received by the

applicant;

the principal officer of the agency or the Minister is, for the purpose of

enabling an application to be made to the Tribunal under section 55, taken to

have made, on the last day of that period, a decision refusing to amend or

annotate the record of personal information to which the application relates.

...

SECT 61

Onus

61. (1) Subject to subsection (2), in proceedings under this Part, the

agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or

that the Tribunal should give a decision adverse to the applicant.

...

30. The following provisions from the Administrative Appeals Tribunal Act 1975 ("the AAT Act") are relevant: sections 25(1)(a), (5), 26, 29(1)(a), (b), (c), (d), (3), (7), (8).

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975

...

SECT 25

Tribunal may review certain decisions

25. (1) An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment; or

...

(5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.

...

SECT 26

Restriction on powers of decision-maker after application for review is made

26. (1) Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:

(a) the enactment that authorised the making of the application expressly permits the decision to be altered; or

(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.

(2) A reference in subsection (1) to the alteration of a decision is a reference to:

(a) the variation of a decision; or

(b) the setting aside of a decision; or

(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.

...

SECT 29

Manner of applying for review

29. (1) An application to the Tribunal for a review of a decision:

(a) shall be in writing; and

(b) may be made in accordance with the prescribed form; and

(c) except if paragraph (ca) or (cb) applies - must contain a statement of the reasons for the application; and

...

(d) if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of subsection 25 (5) - shall be lodged with the Tribunal within the prescribed time.

...

(3) In the case of a decision that is deemed to be made by reason of the operation of subsection 25 (5), the prescribed time for the purposes of paragraph (1) (d) is the period commencing on the day on which the decision is deemed to be made and ending:

(a) in a case to which paragraph (b) does not apply - on the twenty-eighth day after that day; or

(b) in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection 25 (5) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was furnished to the applicant - on the twenty-eighth day after:

(i) if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or

(ii) if the decision does not set out those findings and reasons - the day that would be ascertained under paragraph (2) (b) if subsection (2) were applicable in relation to the decision.

...

(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).

(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

31. The following provisions from the Regulations are also relevant.

Defence (Inquiry) Regulations 1985

...

PART V - GENERAL PROVISIONS RELATING TO COURTS OF INQUIRY

...

REG 63

Disclosure of records or reports of Courts of Inquiry

63. (1) In this regulation:

"person to whom this regulation applies" means a person employed by the

Commonwealth and includes a member of the Defence Force;

"records", in relation to a Court of Inquiry, means:

(a) the transcript or other record of any oral evidence taken;

(b) any documents received by the Court and accepted as evidence; and

(c) any statement made under regulation 52 and received by the Court, whether or not accepted as evidence;

during the course of the inquiry by the Court;

"report" means a report of a Court of Inquiry and, in the case of a General

Court of Inquiry, includes a statement of an assessor made under subregulation 19

(2) Subject to subregulations (6), (7) and (8), a person to whom this regulation

applies shall not, except in the performance of the duties of the office of that

person:

(a) disclose to a person or make available to the public generally information

contained in the records of, or the report of, a Court of Inquiry;

(b) copy a document, or part of a document, forming part of the records of, or

the report of, a Court of Inquiry; or

(c) disclose to a person or make available to the public generally a document,

part of a document, or a copy of all or part of a document, forming part of the records of, or the report of, a Court of Inquiry;

being information that comes to the knowledge of that person, or a document or part of a document that comes into the possession of that person, during the course of the employment of that person.

Penalty: $500 or imprisonment for 3 months.

(3) The Minister may, by instrument, authorize a person to whom this regulation

applies to disclose to particular persons or make available to the public

generally:

(a) all or part of the information contained in the records of, or the report

of, a Court of Inquiry; or

(b) a document or part of a document forming part of those records or of that

report.

(4) An authorization under subregulation (3) may be expressed:

(a) to permit disclosure to a person, or to persons included in a class of

persons, specified in the authorization; or

(b) to be subject to conditions.

(5) An authorization may be given under subregulation (3) notwithstanding that

the information or the documents to which it relates is or are the subject, in

whole or in part, of a direction under subregulation 62 (1).

(6) Subregulation (2) does not apply to a person who discloses to particular

persons or makes available to the public generally information, a document, or

part of a document, in accordance with an authorization under subregulation (3).

(7) Subregulation (2) does not apply to or in relation to information, to a

document, or to part of a document, that has been made available to the public

generally by virtue of an authorization under subregulation (3).

(8) Subregulation (2) does not apply to a person who discloses to a person or

makes available to the public generally information contained in oral evidence

given in public in the course of an inquiry.

(9) Subregulation (2) shall not be taken to limit the operation of subregulation

62 (7).

...

PART 6 - INVESTIGATING OFFICERS AND INQUIRY ASSISTANTS

...

REG 78

Application of provisions to Investigating Officers and inquiry assistants

78. (1) If a person is appointed as an Investigating Officer, regulations 49, 50, 53, 56, 57, subregulations 60 (5) and (6), regulations 61 and 63 and subregulations 64 (1) and (3) apply to and in relation to the Investigating Officer as if the Investigating Officer constituted a Court of Inquiry.

(2) However:

(a) a reference to the appointing authority in a provision mentioned in subregulation (1) is to be read as a reference to the appointing officer; and

(b) a power or function that may be exercised or performed by the President of a Court of Inquiry under a provision mentioned in subregulation (1) may, in relation to an inquiry under this Part, be performed by the Investigating Officer.

(3) If a person is appointed as an inquiry assistant, subregulation 49 (2), regulations 50, 53, 56, subregulation 57 (1), subregulations 60 (5) and (6), regulations 61 and 63, subregulations 64 (1) and (3) apply to and in relation to the inquiry assistant as if the inquiry assistant constituted a Court of Inquiry.

(4) However:

(a) a reference to the appointing authority in a provision mentioned in subregulation (3) is to be read as a reference to the appointing officer; and

(b) a power or function that may be exercised or performed by the President of a Court of Inquiry under a provision mentioned in subregulation (3) may, in relation to an inquiry under this Part, be performed by the inquiry assistant.

...

Hearing and appearances

32. The tribunal convened a hearing in this matter in Sydney on 31 January 2002. The applicant represented herself, assisted by a person whose identity is to remain confidential ("the representative"). Ms Angela Nanson of the Australian Government Solicitor's Office represented the respondent.

33. The tribunal had access to the following documentary evidence:

* Exhibit TD1 - Section 37 Statement and associated T documents provided by the respondent, 12 January 2001.

* Exhibit A1 - Undated letter from the applicant to Mr Phillips.

* Exhibit A2 - Letter dated 16 July 2001 from the applicant to the deputy registrar of the tribunal.

* Exhibit A3 - Letter dated 12 November 2001 from the applicant to the deputy registrar of the tribunal.

* Exhibit A4 - Applicant's amended application for review and supporting letter, 31 August 2001.

* Exhibit A5 - Minute to applicant's representative dated 3 March 2000 requiring attendance at interview with investigator together with extracts from Defence Instruction (General) Administrative 34-1.

* Exhibit A6 - Extracts from Defence Instructions (General) Personnel 35-3.

* Exhibit A7 - Extract from applicant's official complaint.

* Exhibit A8 - Minute dated 18 February 2001 from applicant to Mr Phillips.

* Exhibit A9 - Letter dated 29 May 2001 from Mr Phillips to the applicant.

* Exhibit A10 - Extracts from Defence Instructions (General) Administrative 34-1.

* Exhibit R1 - Letter dated 27 March 2001 from Mr Phillips to the applicant.

* Exhibit R2 - Letter dated 2 April 2001 from the respondent's solicitor to the tribunal.

* Exhibit R3 - Letter dated 19 April 2001 from Mr Phillips to the applicant.

* Exhibit R4 - Letter dated 27 April 2001 from Mr Phillips to the applicant.

* Exhibit R5 - Letter dated 30 April 2001 from Mr Phillips to the applicant.

* Exhibit R6 - Schedule of exempt documents provided by respondent's solicitor, 6 November 2001.

* Exhibit R7 - Letter dated 11 December 2001 from the respondent to the applicant.

* Exhibit R8 - Amended schedule of exempt documents, 18 January 2002.

* Exhibit R9 - Copies of extracts of allegedly exempt documents sent to the tribunal on 22 January 2002.

* Exhibit R10 - Respondent's written submissions, 25 January 2002.

* Exhibit R11 - Letter dated 23 May 2001 from Mr Phillips to the applicant.

* Exhibit R12 - Letter dated 7 June 2001 from Mr Phillips to the applicant.

* Exhibit R13 - Same document as T28 in Exhibit TD1.

Background

34. This material is derived from Ex R10. The applicant lodged a complaint with the air force alleging inappropriate and unacceptable behaviour by certain personnel over a period of four years.

35. On 25 February 2000 an investigating officer was appointed under regs 69-71 of the Regulations. The investigating officer interviewed a number of witnesses and took a number of statements. The investigation concluded on 17 March 2000.

36. On 15 May 2000 the applicant lodged her FOI request (T3).

The applicant's case

37. The applicant's case was largely presented by her friend, the representative. The representative is not legally qualified and is mentioned in many of the documents requested by the applicant. As the matter proceeded he provided many answers and much evidence himself on behalf of the applicant. Both the applicant and the representative were sworn as witnesses.

38. The representative summarised the issues as the applicant saw them.

1. The rationale for and sense of deletions in the seven small sets of documents still in dispute is not clear.

2. The applicability of ss 38 and 41 of the Act is doubtful.

3. Issues arise from the fact that the DEO had no documents.

4. The applicant's AER had not been satisfactorily finalised.

5. There was no explanation for the complaint outcome letters differing from the letters as recommended in draft form.

6. The outstanding matters should have been resolved at a conciliation meeting as suggested by the applicant in her letter dated 18 February 2001 (Ex A8) (paragraph 14 above).

7. The respondent has a cavalier attitude to the appeal rights of persons such as the applicant.

39. Ms Nanson for the respondent submitted that certain of the issues raised by the representative were not amenable to resolution under the Act and are not before the tribunal. These include issues relating to the alleged conduct of certain air force officers which are not connected with documentation and access to documentation.

The applicability of ss 38 and 41 of the Act is doubtful.

40. The representative presented the following argument for the inapplicability of s 38 of the Act. Section 38 of the Act exempts from release documents to which certain secrecy provisions within various pieces of legislation apply. Schedule 3 of the Act includes reg 63(2) of the Regulations as a provision specified in the Act. The respondent argued that reg 63(2) applies to information contained in the records of, or the report of, an investigating officer. That would capture the material included in the first investigation.

41. The representative argued that the first investigation was not an inquiry by an investigating officer within the meaning of Part 6 of the Regulations. Section 38 therefore has no relevance to the first investigation and its records and recommendations.

42. He supported this argument by referring to several indicators. In a minute to the representative requiring his attendance at a place at a time for an interview by the investigator (Ex A5) supporting documentation was extracted from Defence Instructions (General) Administrative 34-1. These extracts detailed the duties of the investigator (known as the "investigating officer"). It summarised the rights and obligations of witnesses. Exhibit A10 consisted of extracts from the same Defence Instruction. This document was well known to the applicant and the representative. It is entitled "Inquiries into matters affecting the Defence Force". It refers to investigating officers, boards of inquiry, combined boards of inquiry and other forms of inquiry. So far as the tribunal could gauge, the document refers explicitly to the Regulations seldom if at all. It certainly does not say that the material on investigating officers is based on, or is consistent with, the Regulations. Paragraphs 8 and 9, in fact, say that an investigating officer can be appointed at any time for the purpose of inquiring into a matter concerning the force and that such an officer "may also be appointed to make an immediate inquiry into the facts of a matter even though it appears likely that a superior authority will appoint a Court or Board of Inquiry to inquire into that matter in due course. This may be appropriate when the situation is not sufficiently clear to enable the superior authority to decide the type of inquiry necessary or where, in the opinion of the appointing officer, there is a danger that vital information may be lost by delay".

43. The terms of reference for the investigation were attached by the respondent's representative to Ex R10. These require the investigator to familiarise himself with only two sets of defence instructions. It does not refer him to the Regulations. However, the heading makes it clear that the appointing officer is acting under reg 69 of the Regulations.

44. The applicant and her representative understood the Defence Instructions, where they referred to an investigating officer, to be not referring to a person appointed under the Regulations. They understood the material to refer to a quick inquiry of an informal nature intended to work out what matters required deeper attention. In all the documentation there was a stress on informality of the processes that the investigator would adopt.

45. The representative argued that s 38 of the Act did not apply to a request concerning materials associated with the type of informal investigation involved here.

46. As regards s 41 of the Act, the representative assisted the tribunal by explaining that the applicant was not interested in any names or other content in the deleted material that would reveal the identity of anyone who had given information or had been implicated with any censurable conduct. The interest was only in the substance of what had been recorded. Additionally, in Ex A4/3 the applicant had submitted in August 2001 that, as a person adversely affected by those who had (presumably) provided the deleted material, her interest in finding out as much as possible about the adverse activities outweighed the privacy interests of those referred to in the deleted passages. This latter argument was not pressed at the hearing.

The DEO's report that it held no documents

47. The DEO had reported to Mr Phillips in T8 that it held no documents caught by the applicant's request. The applicant had queried this in her letter of 31 August 2001 (Ex A4/3). She said that the DEO had been consulted by an authority in the department to provide guidance and recommendations on the conduct of the investigation. She noted also that Defence Instructions (General) Personnel 35-3, referring to unacceptable behaviour, the subject matter of the applicant's complaint, requires that any formal complaint of that type is to be reported to the DEO when it involves a defence member, regardless of outcome. She wrote, "If the DEO is claiming they have no documentation concerning the investigation into my complaint then it seems as though the Department has failed to adhere to their own Defence Instructions by not formally advising the DEO of my Complaint, Investigation, or Investigation outcomes". She thought it clear that the DEO had not been consulted about the investigation outcomes. She alleged that the outcomes were "hidden" from the DEO.

The applicant's AER

48. The chronology was explained to the tribunal.

1. The AER in question covered July 1998 to June 1999. The deputy of a group captain ("the deputy") wrote an AER on the applicant. It included reference to rumours circulating about the applicant.

2. The applicant saw the report. She objected to the content and gave reasons. In defence terms that was a "representation".

3. The AER was referred to the group captain as the "group 3 assessor". The reference to group 3 assessor is intended to connote that he was an assessor in a group superior in rank to that of the original assessor.

4. At the same time others in the applicant's work unit had taken the rumours to the deputy. This was why she had referred to them in the AER. The applicant had complained to the deputy about the rumour mongering in March or April 1999. However, so far as she knew, nothing had been done about it. No progress had been reported to the applicant.

5. The group captain did not change the AER. He told the applicant of this outcome in an interview with her. The applicant described his demeanour as intemperate. She lodged a further protest.

6. The applicant then returned to discuss the matter with the deputy and the group captain in turn.

7. A new version of the AER was forthcoming in February 2000. The applicant signed off on it but sought its referral to a "Part 5 assessor".

8. The AER has never emerged, so far as the applicant is aware.

49. Ms Nanson submitted, for the respondent, that the AER was not within the applicant's FOI request.

Outcome letters inconsistent with drafts

50. The applicant asked that the tribunal issue orders requiring the defence senior officer who signed letters consequent on the outcome of the investigation to give reasons why those letters disagreed with the drafts recommended for signature. These drafts had been devised by legal staff and the investigator.

Appeal against the outcome of the investigation

51. The applicant was aggrieved by the outcome of the investigation. She understood that it had been recommended that certain individuals should be disciplined. Instead, they had been sent letters thanking them for co-operating in the inquiry.

Final submissions

52. The representative made the following points in summarising the applicant's case:

* The applicant had been undermined during her time in East Timor in 1999.

* She had left the air force in disgust, as had the representative who was also the target of rumour and innuendo.

* The representative had taken a cut in his defence force retirement benefits pension because of his age when he left the air force.

* The applicant had been effectively told to "jump in the lake" when she had written seeking to expedite a conclusion to the problems.

* The applicant and the representative had been nominated for Queen's Birthday medals in recognition of some technical work they had done for the air force. The nominations were quashed because of these issues.

* Had the air force followed the Regulations the applicant would not be at the tribunal.

* The applicant had suffered stress and depression over a period of a year.

53. The tribunal discussed with Ms Nanson the deleted material in the absence of the applicant and her representative.

Procedural decisions

Application for extension of time

54. The applicant's request for an extension of time in which to lodge her application for review has never been formally acted on by the tribunal.

55. The tribunal therefore notes that:

* the applicant has applied in writing to ask that the tribunal extend the time for her to make an application to the tribunal for a review of a decision; and

* the respondent has not objected to this application; and

* the tribunal is satisfied that criteria for extending time, as laid down in such cases as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309, have been met.

56. The tribunal therefore decides, under s 29(7) of the AAT Act, that the time for the applicant to make application to the tribunal is to be extended to 9 November 2000.

Section 26 of the AAT Act

57. The tribunal has noted that the respondent proceeded to make fresh decisions as to the release of documents even after the applicant applied to the tribunal for a review of the deemed decision. Section 26 of the AAT Act is intended to impede such activity. It restricts the powers of a decision-maker after a person applies for a review. If the decision under review is to be altered this can occur only if the Act permits it (which it does not), or if the parties to the application, and the tribunal, consent to the making of the alteration. Alterations of decision occurred as late as 11 December 2001 (Ex R7).

58. The tribunal dealt with this at a directions hearing by inviting the applicant to amend her application to refer to the issues that remained outstanding as at the end of August 2001. The applicant did this in her extremely helpful letter dated 31 August 2001 (Ex A4). The tribunal formally approves the applicant's request to amend her application for review.

59. As regards the decision in Ex R7, it was clear at the hearing that the tribunal and the parties present appreciated that this fresh decision resulted in the release of further documentation and that all parties approved of the development. The tribunal therefore refers to s 26 of the Act and accepts the alteration of the decision under review as recorded in Ex R7. The decision(s) under review are therefore all the relevant decisions of the respondent taken up to and including 11 December 2001.

Findings on material questions of fact with reference to the evidence and other material in support of the findings

Section 38 of the Act

60. The tribunal finds that s 38 of the Act applies to the documents sought by the applicant where those documents are contained in a record of the investigation or in the report of the investigator. The tribunal makes this finding for the following reasons:

* The investigation was an investigation by an investigating officer as provided for in the Regulations. Although the documents given to the applicant did not state this, the description of the investigation and how it would be run is identical to the material included in the Regulations about investigating officer inquiries. The investigation can be an inquiry officer investigation even if not consistently described as such. This is a matter where one has regard to the substance rather than the form of documents relating to an inquiry. In any event, the inquiry's terms of reference referred to reg 69 which relates to investigating officers.

* Reg 78 of the Regulations provides that reg 63 applies to and in relation to the investigating officer as if the investigating officer constituted a court of inquiry.

* Reg 63 applies to any person employed by the Commonwealth including a member of the defence force. It provides in reg 63(2) that a person to whom the regulation applies is not, except in the performance of his or her duties of office, to disclose information in the records or report of a court of inquiry, or to copy any such document, or to disclose part or all of such a document. The Minister may authorise action inconsistent with this regulation.

61. The tribunal will return to s 41 of the Act later.

Documents held by the DEO

62. The tribunal is impressed by the applicant's submissions to the effect that it is curious that the DEO had no documents in its possession relating to the applicant's request. Exhibit A6, extracts from Defence Instructions (General) Personnel 35-3, "Discrimination, harassment, sexual offences, fraternisation and other unacceptable sexual behaviour in the Australian defence force", accords a significant role in such matters to the DEO. Paragraph 131 requires a report to the DEO wherever there is a formal resolution with a finding of unacceptable behaviour. A record is to be kept with a view to identifying repeat offenders. No record is kept if the resolution is informal.

63. Any formal complaint of unacceptable behaviour must be reported to the DEO when it involves a defence member irrespective of outcome (paragraph 146). Standard forms for these reports are included in the instruction.

64. The tribunal understands that the applicant lodged a formal complaint of unacceptable behaviour, that it was a complaint against other defence members (and some civil public servants), and that it should have been reported to the DEO. The DEO should have received a report and retained a record on its files. In case this did occur but the material was overlooked in searches, the tribunal will require a new search of DEO records to be conducted.

65. If the DEO holds no records, and if the applicant believes this to run counter to the instructions, she has other possible remedies in the defence Ombudsman, the Human Rights and Equal Opportunity Commission, and other similar bodies.

The applicant's AER

66. The tribunal finds that the applicant's complaints about the "never finalised" AER are relevant to her FOI request. Accordingly, any documentation relating to the processes involving the AER and held by the Department of Defence is to be provided to the applicant unless an exemption is to be claimed. The FOI request comprehensively requests documentation relevant to the investigation. Exhibit A7, an extract from the applicant's complaint that precipitated the investigation, refers to her concerns about the handling of the AER issue. The terms of reference of the investigation refer, amongst other things, in paragraphs 6(d) - (f), to issues surrounding the AER. The tribunal considers that any documentation relevant to the AER is within the scope of the applicant's FOI request. This material has not been provided and must now be provided unless an exemption is claimed.

The content of the investigation outcome letters

67. The tribunal cannot require the writer of the outcome letters to provide reasons for redrafting the letters. The tribunal can ask the respondent only to check whether all drafts and other writings pertaining to the drafts, especially those proposing changes to the drafts, have been provided to the applicant. They are to be provided, if they have not already been provided, unless an exemption is claimed.

The applicant's proposal for resolution as presented to defence authorities

68. The tribunal has no jurisdiction to assist the applicant in any way regarding her proposal to the defence authorities concerning ways to bring the matters to a close. There is no FOI issue here. There may be some elements of discourtesy in the fact that the response to the applicant's letter was delayed for three or more months and in the curt dismissal of her proposal.

69. It would also seem from the evidence given to the tribunal that the "appeal" referred to in the letter (Ex A9) is a "redress of grievance" as described in Ex A6, the Defence Instructions (General) Personnel 35-3, paragraph 134, and Defence Instructions (General) Personnel 34-1 "Redress of grievance - tri-service procedures". Paragraph 11(j) of that latter instruction states, "while there is no absolute time frame for the submission of a complaint, ideally it should be submitted within 90 days of the events that gave rise to the complaint, or sooner if possible". The person whose comments are reported in the letter in Ex A9 was therefore ill informed, at the very least, in suggesting in any way that the matter of an "appeal" might be closed for time reasons.

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.

72. Some of the bases for possible review are:

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) 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.

Conclusion

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.

Decision

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: .....................................................................................

Associate

Date of Hearing 31 January 2002

Date of Decision 22 February 2002

Counsel for the Applicant Confidential

Solicitor for the Applicant Self-represented

Counsel for the Respondent Ms Angela Nanson

Solicitor for the Respondent Australian Government Solicitor