Martinez and National Crime Authority [2003] AATA 88 (31 January 2003)

Last Updated: 31 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 88

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1001

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ALEJANDRO TORO MARTINEZ

Applicant

And

NATIONAL CRIME AUTHORITY

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 31 January 2003

Place Lismore

Decision

The decision under review is affirmed.

(Sgd) M.D. ALLEN

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

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION - Application for disclosure of tapes or transcripts of alleged telephone intercepts - Existence of documents neither confirmed or denied - Exemptions claimed pursuant to Telecommunications (Interception) Act 1979 as well as tendency to disclose investigative methods and the identity of an informer - Exemptions upheld.

Freedom of Information Act 1982 s11, s61, ss37(1), ss37(2) and s38

Telecommunications (Interception) Act 1979 s6E, 6EA and s63

Re Anderson and Australian Federal Police 11 ALD 355

Attorney General (NSW) v Stuart 34 NSWLR 667

REASONS FOR DECISION

31 January 2003

M D Allen, Senior Member

1. By application made the 6th of July 2001 the Applicant sought review of a decision made on behalf of the Respondent denying him access pursuant to the Freedom of Information Act 1982 ("FOI Act") to certain documents.

2. Although the original application to the Respondent and the "appeal" to this Tribunal were made by the Applicant himself, subsequently he was able to obtain legal representation.

3. By the time the matter came on for hearing before me at Lismore on 9 December 2002 the Applicant's request had been defined so as to relate to two classes of documents only, namely:

(1) any tapes or transcripts of conversations Mr Warren had with any person in South America during Operation Colombia;

(2) any and all files, documents, file notes, correspondence, letters of exception under the Ministerial Agreement of 1987 or other between the NCA (both to and from), the Australian Postal Service and the Department of Customs in particular all files/documents and other relating to "a Controlled Operation" application/facilitation "Operation Colombia" [sic].

4. When the matter came on for hearing the following documents were taken in as exhibits and are marked as follows:

Exhibit	Description	Date
T1-T27	Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Statement by David James Frewin	5 January 1998
R1	Transcript Sentencing Remarks of Ainslie Wallace DCJ	26 November 1999
R2	Copy Judgement Regina v Toro-Martinez [2000] NSWCC 216	7 June 2000
R3	Copy transcript of Hock, DCJ on sentencing Applicant	26 July 2002
CR1	Confidential Affidavit

In addition oral evidence was given by Mr Lovatt, an officer of the National Crime Authority.

5. Section 11 of the FOI Act states:

"(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b)...

(2) Subject to this Act, a person's right of access is not affected by:

(a) the reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access."

Whereas section 61 FOI Act provides that the onus of establishing that the decision given in respect to the request was justified or that the Tribunal should give a decision adverse to an applicant lies upon the agency concerned.

6. Following cross-examination of Mr Lovatt, Mr Weller the solicitor for the Respondent, stated so far as item two of the Applicant's request was concerned, namely the production of correspondence files etc relating to a controlled operation, namely "Operation Colombia" was concerned, he was satisfied that pursuant to s24A FOI Act that all reasonable steps had been taken to find the said documents.

7. In fact I would deduce from the evidence of Mr Lovatt that the said documents do not in fact exist but it is not necessary that I proceed to a finding as to that matter.

8. As to item one, namely tapes or transcripts of any conversations "Mr Warren" (aka Warren McGregor) had with persons in South America during Operation Colombia, having regard to the material before me in particular the confidential exhibit I find:

i. Mr Warren McGregor was a confidential source of information to the National Crime Authority.

ii. Any transcripts relevant to the Applicant had been provided to him upon his trials for drug importation.

iii. The existence or non-existence of any other documents is neither confirmed or denied by the Respondent.

9. If any transcript of conversations had been created as a result of telephone interceptions authorised by a warrant issued under the Telecommunications (Interception) Act 1979 ("TI Act"), then the Respondent claims that they would be exempt from disclosure pursuant to section 38 of the FOI Act.

10. Section 38 FOI Act states inter alia:

"(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)..."

11. Schedule 3 to the FOI Act specifies section 63 of the TI Act, which in turn reads inter alia that:

"a person shall not communicate to another person lawfully obtained information or designated warrant information or give any evidence of that information in a proceeding".

There is an exemption subject to part IV of the said TI Act but that does not pertain to this matter. Section 6E TI Act then defines lawfully obtained information as:

"information obtained by intercepting a communication passing over a telecommunications system"

whereas section 6EA of the said TI Act defines designated warrant information as a reference to:

"Information about an application for a warrant, the issue of a warrant, the existence or non-existence of a warrant, the expire of a warrant or any other information that is likely to enable the identification of the telecommunications service or a person likely to use the service to which the warrant relates."

12. The evidence made available to me enables me to find that any transcripts or tapes which would fall within the Applicant's request were obtained by the Respondent pursuant to the authority of a warrant or warrants issued under the TI Act.

13. Given the provisions of the FOI Act and the TI Act referred to above, it seems clear to me that if transcript of any intercepted telephone conversations made pursuant to the TI Act were to exist then they would be exempt from disclosure to the Applicant, save and except those which have been disclosed to him in the prosecution brief of evidence.

14. The Respondent also submitted that if any such tapes or transcripts existed, they would be exempt documents pursuant to paragraph 37(2) (b) FOI Act. That paragraph reads:

"1) 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

..."

15. In re Anderson and Australian Federal Police 11 ALD 355 Deputy President Hall at paragraph 36 said:

"A document may disclose methods or procedures either by specifically referring to or describing them or by providing information from the nature of which the methods or procedures employed may be capable of being inferred. Thus, the disclosure of a document containing information that, on the face of it, is purely factual may nevertheless be information known only to a chosen few members of a particular group. To reveal that information, may disclose the existence or identify a confidential source of information and relation to the enforcement or administration of the law. It may equally serve to confirm what may otherwise only be suspected, namely the methods or procedures for preventing or detecting possible breaches or evasions of the law employed by the police in order to meet the perceived threat. I agree, in this regard, with the views expressed by a differently constituted Tribunal in re Mickelberg and Australian Federal Police 6 ALN N176 where it was said that:-

"...it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies' own documents or in the proceedings of a Tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them.""

The learned Deputy President continued at paragraph 38:

"...Where a lawful Police method or procedure would be disclosed, s37(2)(b) requires that prejudice to the effectiveness of those methods or procedures must be established before the exemption is made out. Questions of prejudice are, I think, more likely to arise where the disclosure of a document would disclose covert as opposed to overt or routine methods or procedures...It is my view that disclosure of methods or procedures would be "reasonably likely" to prejudice their effectiveness if, on reasonable grounds, it is found that there is "real risk" of such prejudice. Finally, it must be noted that, for the purposes of s37, no consideration may be given to any countervailing public interest in favour of disclosure (see Department of Health v Jephcott 62 ALR 421)."

16. As to the phrase "could reasonably be expected to" see the judgment of Bowen C J and Beaumont J in Attorney General's Department and Anor v Cockcroft 10 FCR 180 at 190 where their Honours said: that the words "could reasonably be expected to" in the FOI Act ss43(1) were intended to receive their ordinary meaning. That is to say they required a judgement to be made as to whether it is reasonable as distinct from something that is irrational, absurd or ridiculous. The Court further added that it was undesirable to attempt to paraphrase the said words and in particular undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. The preferable approach was to confine the inquiry as to whether the expectation claimed was reasonably based.

17. Having regard to the contents of the confidential exhibit I am satisfied that were any tapes or transcripts to exist as per the Applicant's request, then to make those tapes or transcripts available, recognising that under the FOI Act they are available not only to the Applicant but the whole world, would reasonably be expected to disclose lawful methods of detecting or investigating matters arising out of breaches of the law and are thus exempt from production pursuant to para 37(2)(b) FOI Act.

18. For the reasons outlined above it is my opinion that the said decision under review should be affirmed. The Respondent also raised the point that the identity of an informer remains protected not withstanding that it may become known in specific proceedings, see Attorney General (NSW) v Stuart 34 NSWLR 667. Paragraph 37(1)(b) FOI Act would thus also form another ground of exemption and the material in the confidential exhibit support this ground of exemption also.

19. The decision under review is therefor affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member

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

Associate

Date of Hearing 9 December 2002

Date of Decision 31 January 2003

Solicitor for the Applicant John D Weller and Associates

Solicitor for the Respondent Mr C Bonici, National Crime Authority