Maksimovic and Australian Customs Service [2009] AATA 28 (16 January 2009)

Last Updated: 19 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 28

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1658

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DEJAN MAKSIMOVIC

Applicant

And

AUSTRALIAN CUSTOMS SERVICE

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 16 January 2009

Place Melbourne

Decision

The decision under review with respect to the documents remaining in issue at the commencement of the hearing is affirmed.

(Sgd) John Handley
Senior Member

FREEDOM OF INFORMATION - application for release of documents, if not exempt, would (i) disclose lawful methods of procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law – (ii) prejudice the effectiveness of those methods – (iii) unreasonably disclose personal information about persons – decision affirmed

Administrative Appeals Tribunal Act 1975 (Cth) s 35

Commonwealth Electoral Act 1918 (Cth)s 4 and s 90B

Electoral and Referendum Regulations 1940 (Cth)

Freedom of Information Act 1982 (Cth) s 3, s 11, s 37(2)(b, s 41(1), s 47A, s 47A(2)(g), s 63 and s 64

Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180

Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111

Crown Bedding Co Ltd v Inland Revenue Commissioners (1946) 1 All ER 452

Re Dwyer and Department of Finance and Ors (1986) 8 ALD 474

Jarrad v Silver Top Taxi Service (1980) 29 ALR 533

News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400; (1984) 5 FCR 88

Re Anderson and Australian Federal Police (1986) 11 ALD 355

Re Campillo and Australian Customs Service [2005] AATA 1196

Re Wallace and Australian Federal Police [2004] AATA 845

Taikato v R (1996) 139 ALR 390 and 391

REASONS FOR DECISION

16 January 2009

Mr John Handley, Senior Member

1. On 21 February 2008 the applicant applied under the Freedom of Information Act 1982 for All documents pertaining to a parcel that was detected by Australian Custom's Officers on 01 March 2005 at the Melbourne Mail Transit Centre during overseas mail screening process. The parcel had a registered mail sticker number RR 113428229CR. The request also recorded the name of the person and the address to whom the parcel was addressed in Australia and the name of the person and the address of the person in Costa Rica who forwarded the parcel to Australia. (All references to sections of legislation in these reasons will be of the Freedom of Information Act unless otherwise indicated).
2. An officer of the respondent decided to release some documents in whole and in part. An exemption was claimed with respect to those parts of the documents not released. That decision was affirmed upon internal review on 14 April 2008 and it is that decision for which review is sought by the applicant in this Tribunal.
3. Subsequent to the commencement of these proceedings and the day of hearing, the respondent decided to release further information and documents to the applicant. The hearing was concerned only with two documents described as an Information Report of five pages and an extract from the Detained Goods Management System being two pages. The respondent sought exemption from release of certain parts of those documents pursuant to the provisions of s 37(2)(b) and s 41(1) of the Act.
4. Section 37(2)(b) is reproduced as follows:

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
. . .

5. Section 41(1) is reproduced as follows:

41 Documents affecting personal privacy

(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).
. . .

6. The circumstances of the applicant giving rise to this application may be briefly summarised as follows. On 1 March 2005 a package was inspected under x-ray by an officer of the respondent during a mail screening process at its offices in Melbourne. The officer regarded the package with suspicion, it was opened and the white powder content was later found by the Australian Federal Police (AFP) to be cocaine. Eventually the applicant was arrested and tried in the County Court of Victoria. He was found guilty and sentenced to a period of seven years imprisonment with a non parole period of four years. Consequently, the applicant presently resides at Fulham Prison in Victoria. An appeal against that conviction was dismissed by the Full Court of the Victorian Supreme Court.
7. Release of information is not personal to an applicant, but to the world at large, the only exception being disclosure of personal records (Re Dwyer and Department of Finance and Ors (1986) 8 ALD 474 at 482). The provisions of s 3 and s 11 permit access by a legally enforceable right to documents of an agency except those documents which are exempt. The respondent is an agency within the meaning of s 4 and the respondent maintains that the remaining parts of the documents in issue are exempt having regard to their nature and to the provisions of s 37(2) and s 41(1).
8. Having regard to the content of s 37(2) (especially) and s 41(1), I decided that regard should be had to the provisions of s 63 and s 64 with respect to the confidential nature of some of the evidence that would be heard and disclosed by these proceedings. Accordingly, Orders were made under s 35 of the Administrative Appeals Tribunal Act 1975 restricting the identity of persons who may have access to the evidence heard and read in these proceedings. I also ordered that the applicant would be excluded from hearing some of the evidence and having access to some of the documents received in these proceedings. It followed that I was provided with the documents which remained in issue by this review and which contained the information which the respondent sought to have declared as exempt. I indicated to both parties that the decision which will eventually be published will be in two versions, being a decision over which the s 35 Order was made and the other version being that which will be made available to the applicant and all others who are outside the ambit of the s 35 Order and which will have deleted from it references to the confidential evidence heard and reference to any other material that might other wise identify those parts of the documents which the applicant sought to have released.
9. The Order made on 10 November 2008, pursuant to s 35 of the AAT Act is as follows:

Pursuant to s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 IT IS DIRECTED, that the evidence recorded in the Schedule below be prohibited from disclosure except to Members, Officers and Staff of the Administrative Appeals Tribunal, Officers and Staff of the Respondent and its Solicitors and the Staff of Auscript:
SCHEDULE
1. The transcript of evidence of Rodney John Winchester.
2. Exhibits R 4 and R5.
3. Parts of the Reasons for Decision, when published, which refer to the evidence of Mr Winchester, and Exhibits R4 and R5.

10. Prior to the commencement of the hearing, the respondent lodged Affidavits with the Tribunal sworn by Rodney John Winchester, a Director of the respondent. One of the Affidavits was described as a Confidential Affidavit and referred to matters which were the subject (in part) of the respondent's claim for exemption. Between the lodging of that Affidavit and the commencement of the hearing, the respondent sought a Confidentiality Order over limited parts only of that Confidential Affidavit. There was some discussion with Mr Winchester (in the absence of the applicant) at the outset of the hearing and eventually the respondent withdrew its application to have those parts regarded as being confidential.
11. Accordingly the hearing then proceeded by Mr Winchester being examined by Mr Kennedy who appeared on behalf of the respondent. His evidence was heard in the absence of the applicant.
12. The first of the two documents remaining in issue is described as an Information Report of five pages found at pages 36 – 40 inclusive of the T-documents. Those pages indicate those parts which have been deleted and which the respondent asserts should be exempt.
13. A matter common to all five pages is an internet address located at the foot of each page. Whilst the document is in the nature of a report which can only be accessed by an appointed user, the internet address provides another basis of access to the report and its content. The respondent asserted that persons external to its organisation could potentially hack into its data bases and obtain information which would compromise its security objectives.
14. The Information Report is generated (deleted by Direction made 10 November 2008). The first date appearing is 1 March 2005 being the date that the parcel (refer earlier) was seized. The report is compiled by a limited number of appointed persons within the employ of the respondent who have access to the (deleted by Direction made 10 November 2008) and who are authorised to both record information on it and to view the information which is stored in it. (deleted by Direction made 10 November 2008).
15. The only other information exempted from page 36 is (deleted by Direction made 10 November 2008) because in the event that unauthorised persons obtained access to the report, obtaining knowledge of the existence of (deleted by Direction made 10 November 2008).
16. Page 40 has a number of entries excluded. The data first excluded on this page appears in the second line after the date 21 March 2005. The data excluded is (deleted by Direction made 10 November 2008).
17. The next part of the document excluded is in the third line after the abbreviation E/roll. (deleted by Direction made 10 November 2008)
18. The next entry excluded is (deleted by Direction made 10 November 2008).
19. The majority of the information on this page appears within a box which in the T-documents appears as blank. (deleted by Direction made 10 November 2008).
20. Page 37 of the T-documents has a single line only excluded which contains (deleted by Direction made 10 November 2008).
21. The remaining page in this document appears at page 39 of the T-documents and the only matters in issue from that page are the names of the data fields at numbers 12, 13, 15, 16 and 17. Number 12 is (deleted by Direction made 10 November 2008), Number 13 is (deleted by Direction made 10 November 2008), Number 15 is (deleted by Direction made 10 November 2008), Number 16 is (deleted by Direction made 10 November 2008) and Number 17 is (deleted by Direction made 10 November 2008).
22. Mr Winchester said that the (deleted by Direction made 10 November 2008).
23. Mr Winchester said that the respondent sought to exempt the five data fields from page 39 because (deleted by Direction made 10 November 2008).
24. The second document comprises two pages and are extracted from the (deleted by Direction made 10 November 2008). The relevant pages are found at pages 41 and 42 of the T-documents. Most of the information on those pages which was previously exempted has now been released to the applicant. There is only one entry on page 41 over which the respondent maintains exemption and there are two entries on page 42 for which it maintains exemption.
25. On page 41 the entry on the sixth line in the box immediately after AFP is asserted as being exempt. The data in that space is (deleted by Direction made 10 November 2008). A similar exemption is claimed on page 42 in the second last line. (deleted by Direction made 10 November 2008).
26. The remaining data field description in issue is found at page 42 on the fifth line immediately before the box which has the letters N/A. The words appearing in that box are (deleted by Direction made 10 November 2008). Additionally, the information relates to (deleted by Direction made 10 November 2008).

CONCLUSION AND REASONS FOR DECISION

27. Section 37(2)(b) is part of the respondent's focus in its claim for exemption from release of the two documents remaining in issue. The section may be deconstructed into the following parts namely,
    • The document is exempt if its disclosure would or could reasonably be expected to;
    • Disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law; and
    • The disclosure of which would or would be reasonably likely to prejudice the effectiveness of those methods or procedures.
28. There are a number of features of this section which deserve comment. The use of the less stringent could as an alternative to would in the first dot point concerning exemption requires no more than a degree of reasonableness being applied to deciding whether disclosure would cause the consequences found within sub paragraph (b). Such a finding need not be made by the decision-maker being satisfied on the balance of probabilities (refer Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180) (Cockcroft). Whilst Cockcroft was decided under s 43 of the Act and the Court was concerned with exempting a document which could reasonably be expected to prejudice the future supply of information to the Commonwealth, sub-section (b) of s 37 of the Act is not so limited. It is concerned with the prevention, detection, investigation and processes concerning breaches or evasions of the law. Those activities might reasonably be expected to have occurred, be presently occurring or could occur in the future.
29. Sheppard J in Cockcroft was concerned with the word expected. Whilst he agreed with Woodward J in News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400; (1984) 5 FCR 88 that a reasonable expectation required more than a possibility, risk or chance, he disagreed with the conclusion also reached by Woodward J that it would be reasonable to expect that an event to occur if there was about an even chance of it happening. Sheppard J thought that requirement was too stringent and not intended and he preferred the conclusion reached in a Court of Appeal decision in Crown Bedding Co Ltd v Inland Revenue Commissioners (1946) 1 All ER 452 (Crown Bedding) where the Court was required to decide whether a benefit would be expected to accrue from a scheme of avoidance or reduction in taxation. (Sheppard J decided that the word would, was not used in any different context to the word could in Crown Bedding). The Court concluded that the expectation would fall somewhere between probability and possibility but not so high as to find that a hypothetical observer would have had a degree of confidence in the future as to expect that the benefit would materialise.
30. Section 37(2)(b) is not concerned with the identification of methods or procedures but rather the disclosing of them if it would be reasonably likely to prejudice the effectiveness of those methods or procedures (refer Re Wallace and Australian Federal Police [2004] AATA 845 at paragraph 115). The methods or procedures must be lawful that is to say, not contrary to law (refer Jarrad v Silver Top Taxi Service (1980) 29 ALR 533) or a purpose not forbidden by law or positively authorised by law (refer Taikato v R (1996) 139 ALR 390 and 391).
31. The word would, or the phrase would be reasonably likely in the third dot point is an indication of a belief by Parliament (preferring it to the word could) that the methods and procedures described in the second dot point if disclosed, would, on the probabilities, cause prejudice.
32. With respect to the claim for exemption under s 37(2)(b) it is worthy to reproduce and (adopt) the decision in part in Re Anderson and Australian Federal Police (1986) 11 ALD 355 at paragraphs 35 and 36 as follows:

(35) Intelligence gathering is a time-honoured method of preventing breaches or evasions of the law. The lawful methods and procedures employed in so doing may vary from quite routine overt police enquiries to a range of more clandestine or covert operations. Section 37(2)(b) is capable of protecting these methods or procedures where their disclosure would, or would be reasonably be likely to, prejudice their effectiveness.
(36) 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 in relation to the enforcement of 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 a perceived threat. I agree, in this regard, with the views expressed by a differently constituted Tribunal in Re Mickelberg and Australian Federal Police (1984) 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.”

33. I was impressed by the breadth of the procedures and methods undertaken by the respondent. As a number of other decisions of this Tribunal and the Federal Court have decided, it may reasonably be inferred that traditional investigation involves interview, fingerprinting, taking of photographs and perhaps some other forensic analysis. Those types of procedures are well known to the public at large. None of those procedures or anything like them approach the level of sophistication evident from the documents in issue by this review. Access to those parts of the documents exempted would be reasonably likely to prejudice the effectiveness of the methods and procedures evident from the documents. It is for those reasons that those parts of the documents currently withheld by the respondent should remain exempt and that will be the decision that I ultimately make.
34. The applicant is broadly aware of a description of some parts of the documents (refer paragraph 18 of the respondent's written submissions which were provided to the applicant). He would be aware that some of the parts concealed from him contain a report identification number, web page addresses and user identification codes of authorised officers of the respondent. The respondent has also described by paragraph 19 of its submissions that it does gather and store intelligence information which obtains from its own officers and from other agencies and sources.
35. I am satisfied that none of the material exempted by the respondent from the documents in issue should be disclosed.
36. Knowledge of the web address would permit access to the respondent's intelligence network. Whilst specific information can only be accessed by (deleted by Direction made 10 November 2008), in the event that web entry gave access to (deleted by Direction made 10 November 2008) thereby putting the stored data at risk. Some entries indicate that (deleted by Direction made 10 November 2008). Knowledge of (deleted by Direction made 10 November 2008).
37. The integrity of the investigation, detection and prevention methods undertaken by the respondent could seriously be at risk in the event that any of the data withheld was disclosed.
38. Having observed the documents in their entirety and having heard the evidence of Mr Winchester, I am satisfied that disclosure of the data to the applicant and the world at large could reasonably be expected to disclose the lawful methods or procedures undertaken by the respondent for the prevention, detection, investigation and dealing with matters arising out of breaches or evasions of the law and that disclosure would reasonably be likely to prejudice the effectiveness of those methods or procedures.
39. I am also satisfied that certain parts of the documents in issue should remain exempt from disclosure because to do so would involve the unreasonable disclosure of personal information about a person – refer s 41(1) of the Act.
40. The documents (deleted by Direction made 10 November 2008).
41. (deleted by Direction made 10 November 2008) lawfully obtained as part of the respondent's investigative and detection procedures. The applicant and the world at large should not (deleted by Direction made 10 November 2008). Whilst it is not known whether (deleted by Direction made 10 November 2008).
42. I am satisfied that the information contained within these documents, would (deleted by Direction made 10 November 2008) if those parts of the documents do not remain exempt. In making this finding, I am also satisfied that if it became known that (deleted by Direction made 10 November 2008), the respondent's (deleted by Direction made 10 November 2008). The exemption from disclosure of such information is not to protect the private rights; rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided that the other conditions mentioned in s 41 and s 43 are satisfied (refer Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111 at 121).
43. In reaching these conclusions the definition of personal information at s 4 includes information or an opinion, whether it be true or not, whether it is recorded in a material form or not and whether it can be reasonably ascertained or become apparent.
44. I am not required to make any finding of the truthfulness or significance of the information giving rise to (deleted by Direction made 10 November 2008) but for the reasons given above the value to government and its agencies of having knowledge (deleted by Direction made 10 November 2008) satisfies me that it would be unreasonable to disclose it. Indeed should that information ever become known it would go beyond creating a prejudice to the effectiveness of the lawful methods of prevention, detection and investigation of breaches or evasions of the law and may well cause the effectiveness to have been rendered abortive (refer Re Campillo and Australian Customs Service [2005] AATA 1196 at paragraph 27).
45. In concluding this part I am also satisfied that (deleted by Direction made 10 November 2008) in issue has in part been obtained from electoral rolls which, having regard for the provisions of s 47A, are exempt from disclosure. Some of the information – (deleted by Direction made 10 November 2008) – (deleted by Direction made 10 November 2008) within the meaning of the Electoral Act which are also exempt under (deleted by Direction made 10 November 2008).
46. In making the above findings I am satisfied that the Australian Customs Service is a prescribed authority within the meaning of s 4 of the Commonwealth Electoral Act 1918 and s 90B of that Act. I am also satisfied that the Electoral Commissioner is empowered pursuant to that Act to provide information to the respondent of certain data recorded in the electoral rolls for the purposes described in Schedule 1 of the Electoral and Referendum Regulations 1940. It follows that I am satisfied that the respondent has lawfully obtained (deleted by Direction made 10 November 2008).
47. In all of the circumstances and for the reasons recorded above I am satisfied that the decision under review with respect to exempting disclosure of certain information within the two documents in issue by these proceedings should be affirmed.
    

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed: Grace Carney, Personal Assistant

Date of Hearing 7 November 2008

Date of Decision 16 January 2009

Solicitor for the Applicant Self Represented

Solicitor for the Respondent Mr L Kennedy, Australian Government Solicitor