Haneef and Australian Federal Police [2009] AATA 51; (2009) 49 AAR 395 (23 January 2009)

Last Updated: 3 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2996

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MOHAMED HANEEF

Applicant

And

AUSTRALIAN FEDERAL POLICE

Respondent

DECISION

Tribunal

The Honourable Dr B H McPherson CBE Deputy President

Date 23 January 2009

Place Brisbane

Decision

The Tribunal sets aside and remits for reconsideration in accordance with these reasons the decision of the respondent’s delegate on 13 June 2008 in relation to each of the following Documents in Issue or parts of Documents:-

(1) On each entry forming part of the respondent’s running log, the numbers (if any) indicating the recording time at the beginning of the text of that entry.

(2) The entry on each of the following folios:-

Folio No.	Description or location of entry
222	The first entry (1013) on folio 222.
234 - 235	Last paragraph of entry (1113) on folio 234 continuing on folio 235 to end of last line of 1st complete entry (1125) on folio 235.
303	Sentence beginning “An analysis ...” in 3rd line on folio 303 to end of 7th line “... management” on folio 303.
167	The 4th entry (1215) on folio 167, but concealing: the last five words on the 3rd line; and the 1st word on the 4th line; and the 2nd last word and the 3rd last word on the 5th line.
167	The 6th entry (1308) on folio 167, but concealing: all the words on the 2nd line after “... telephone call from ...”; and the 1st word in the 3rd line; and the 4th to 9th words on the 3rd line; and the last two words in the 1st sentence of the 7th line; the 4th and 5th words in the 2nd sentence of the 7th line.
177	The 5th entry (1110) on folio 177.
168 - 169	The whole of the entry (1819) beneath the heading LEGAL IN CONFIDENCE on folio 168 extending on to folio 169.
55	The 8th entry (1036) on folio 55 down to the abbreviation BNE on the 2nd line.
111	The whole of the text at the 3rd arrowpoint on folio 111.
153	The 1st paragraph under International Inquiries.
163	The paragraph numbered 2. under Future Directions.
182	The 1st sentence of the 4th entry (1703) on folio 182.
271	The 4th sentence of the 6th entry (1627) on folio 271.
272	The 6th entry (1803) on folio 272.
10	The 3rd dot point on folio 10.
10	The 6th dot point on folio 10.
10	The 7th dot point to the 14th dot point on folio 10.
11	The 1st 6 dot points on folio 11.
98	From “S Ahmed arrived ...” to “ ... address” at end of paragraph 10 on folio 98.
99	The first 2 sentences of paragraph 12 on folio 99.
106	The last sentence of paragraph 37 on folio 106.
126	Last five words “Dr Sabeel Ahmed arrived in ...” on folio 126 continuing on to end of 1st two lines on folio 127.
127	Subparagraphs d. to k. of paragraph 5.19 on folio 127.
128	Paragraph 5.33 on folio 128, but concealing the name in the 1st line of that paragraph.
142	On folio 142: paragraph 27; paragraph 28; paragraph 29;
57 - 58	The 7th entry on folio 57 continuing on to folio 58 but concealing the name (x2) and the acronym (x2) on folio 58.

(3) Otherwise affirms the decision on 13 June 2008 of the respondent’s delegate.

(4) The date on which this decision will take effect is 23 January 2009.

................[Sgd]..............................
Deputy President

CATCHWORDS
FREEDOM OF INFORMATION – applicant seeks disclosure of documents relating to cancellation of visa - damage to international relations exemption – damaged relations between agencies may damage relations between countries - information communicated by foreign governments exemption – communicated in confidence sufficient to attract the exemption – internal working documents exemption – revealing police methods may be contrary to the public interest - legal professional privilege exemption - dominant purpose test – waiver of privilege by client by making information public - disclosing lawful methods or procedures exemption -intensity or extent of operations not sufficient – police methods not currently known of in Australia and information concerning procedures by suspects to avoid detection and key words and code words are methods and procedures – personal information exception – balance public interest and right to protection of privacy – decision affirmed for certain documents - decision for certain documents set aside and remitted to the respondent for reconsideration.

Freedom of Information Act 1982 (Cth.) – ss 22(1), 33(1)(a), 33(1)(b), 36(1), 37(1)(b), 37(2)(b), 38, 40(1)(d), 41(1), 42(1)
Crimes Act 1914 (Cth.)
Australian Security Intelligence Organisation Act 1979 (Cth.) – ss 92(1), 92(1A)
Telecommunications (Interceptions and Access) Act 1979 (Cth.) – ss 6E, 6EA

Attorney-General v Observer Ltd [1990] 1 AC 109
Haneef & Department of Immigration and Citizenship [2008] AATA 587
Mann v Cornell [1999] HCA 66; (1999) 201 CLR 1
Minister for Immigration v Haneef [2007] FCAFC 203; (2007) 163 FCR 414
Osland v Secretary to the Department of Justice [2008] HCA 37
Re Scholes & Australian Federal Police (1996) 44 ALD 299
Secretary Department of Foreign Affairs v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54

REASONS FOR DECISION

23 January 2009

The Honourable Dr B H McPherson CBE Deputy President

A. PUBLIC OR OPEN CONCLUSIONS

BACKGROUND TO APPLICATION

1. This is an application by Mohamed Haneef to review a determination made on 13 June 2008 by the respondent Australian Federal Police (AFP) or its Delegate that various documents or parts of documents are exempt from disclosure under the Freedom of Information Act 1982 (the Act). Being an application of that character, there is strictly speaking no factual narrative to be related, but it is helpful to recount some of the facts that have brought this matter before the Tribunal. They have by now been widely published in the media.
2. The applicant was born in India on 20 September 1979. In 2002 he graduated from medical school in Bangalore. In 2004 he travelled to England, where he lived at various addresses while working at different hospitals in the National Health system. He came to Queensland in September 2006, where he was employed at the Gold Coast Hospital. Within a few days of arrival he was joined by another Indian medical practitioner, Dr Asif Ali, whom he had known in England, and who was employed with him at the same hospital on the Gold Coast in Queensland. They occupied separate accommodation at Southport. At some time before the events giving rise to this hearing, the applicant’s wife returned to India to be with her family in preparation for the birth of her baby in June 2007.
3. In the early hours of the morning of Friday 29 June 2007, the Metropolitan Police Service, Counter-Terrorism Command (MPS), located a vehicle outside a nightclub in the Haymarket in London. Internally, it was saturated with petrol or liquid gas and was prepared so as to explode on receipt of an impulse transmitted by mobile telephone. It was de-activated by the MPS. Later, in the evening of the same day Friday 30 June, another vehicle similarly prepared was discovered and defused at a garage in Park Lane, Mayfair. Then, in the afternoon of the following day, Saturday 30 June 2007, a Jeep was driven into the front doors of Terminal One at Glasgow Airport. It too was saturated with petrol and burst into flames. The vehicle had two occupants, one of whom appeared to be the driver. He was badly injured and, although taken to hospital, he died some time later.
4. His name was Kafeel Ahmed. He was also from India and was a second cousin of the applicant on his mother’s side. He was a Ph D candidate in engineering at the University of Cambridge. He had a brother in England at the time, whose name was Sabeel Ahmed, who was later arrested by MPS in connection with these bombing attempts. Kafeel’s companion in the jeep was a Dr Bilal Abdullah, who was another medical practitioner, British born, but this time of Iraqi origin. When the present application first came to a hearing before the Tribunal on 7 October 2008, I was told that Abdullah was undergoing trial in England for a terrorist offence. By the time the Tribunal hearing concluded on 30 October, no one present seemed able to say whether his trial had come to an end, or with what result, but another offender (Sabeel Ahmed) had pleaded guilty and had been sentenced for a lesser offence.
5. News of the Glasgow incident reached the applicant, probably by means of the internet through a family member in India, in the afternoon (Queensland time) of 2 July 2007. By then an arrest notice in respect of the applicant had issued in the United Kingdom and the MPS were asking the AFP to make inquiries about him in Queensland. On the afternoon of that day (2 July) the applicant approached Dr Ali at work and told him that he had arranged a period of leave of absence from his hospital duties in order to travel to India to see his wife and baby, who were suffering complications as a result of the birth on 26 June 2007. Dr Ali agreed to look after the applicant’s keys, his car, his computer and his jewellery while the applicant was absent.

ARREST AND RELEASE OF APPLICANT

6. The applicant was due to depart Brisbane Airport en route to India on an aircraft leaving at about 11:30 on 2 July; but he was arrested at the Airport before he could board and was taken into custody. There followed a series of applications to a magistrate to enlarge the time permitted for questioning the applicant under the Crimes Act 1914 (Cth). Eventually, on 14 July 2007, the applicant was charged under that Act with assisting terrorist activity in the United Kingdom. On 16 July 2007, the applicant was granted bail, and on the same day he was served by the Department of Immigration with notice cancelling his visa to remain in Australia. This was followed by a Criminal Justice Stay Certificate the effect which was to require the applicant to remain in Australia temporarily. However, on 27 July 2007 the charge under the Crimes Act was dismissed upon the Commonwealth Director of Prosecutions announcing that he would offer no evidence in support of it. The applicant was advised that he was free to leave Australia, which he did on 28 July 2007.
7. These events are recounted in greater detail in Haneef & Department of Immigration and Citizenship [2008] AATA 587; also in Minister for Immigration v Haneef [2007] FCAFC 203; (2007) 163 FCR 414, and in the respondent’s submissions to the Clarke Inquiry. As these documents disclose, on 13 March 2008 the Commonwealth Attorney General had appointed Hon Mr MJ Clarke QC to conduct an inquiry into the applicant’s arrest, detention, charging, prosecution and release, as well as other incidental matters. The Inquiry was still proceeding when the present application first came to a hearing before the Tribunal, but I understand Mr Clarke QC has since formulated his report. It has not been tendered before me and I have not seen a copy of it. As will appear, however, in the course of these reasons, the AFP was represented at the Inquiry and made detailed public submissions, to which reference will be made in the course of this decision.

THE APPLICATION TO THE TRIBUNAL

8. In this application to the Tribunal, findings about the foregoing events are not required except in limited respects. The question or questions before the Tribunal are whether the AFP is entitled under the Act to exemption from having to disclose to the applicant any of some 73 documents that have been disclosed to me but not to the applicant. There are almost 350 folios of documents to be considered many of which contain some ten or more individual entries or items of information. Some consist of no more than a few words of a particular entry or item. Part IV of the Act, entitled Exempt Documents, incorporates some 18 or more different grounds of exemption from disclosure, of which 11 or so are invoked by the AFP here as a basis for resisting disclosure in these proceedings.
9. With such a large number of entries attracting different and on occasions multiple objections, it is evident that there has been a vast amount of material for the parties to consider and for the Tribunal to rule upon. In this process, Mr Rangiah SC and Ms Kidson of counsel for the applicant have been at a serious disadvantage in not having seen the documents about which evidence was being given or with respect to which they were making submissions. I resisted attempts to exclude them and their solicitor from the hearing until the very last part of the evidence, when the senior AFP witness Mr Damien Appleby continued to testify for about 5 or 6 transcribed pages in length that what he wished to say was so sensitive that he would be unable to give evidence about it if the applicant’s representatives were present. As it was, the applicant’s counsel and solicitors had each given personal written undertakings, which were accepted by the Tribunal, not to copy or disclose any confidential material evidence or legal submissions, and to use such material solely for the purpose of the subject proceedings. See exhibit 8 and the associated undertakings, together with transcript of proceedings between pp 112 to 124, which explains the course adopted.
10. The question remains whether under the Act any and which of the exemptions claimed by the AFP is available and in respect of any and which documents or entries not already disclosed by it to the applicant. This requires some account of the layout of the documents themselves and the manner in which, in this respect, the AFP manages its affairs.

DOCUMENTS IN OPERATION “RAIN”

11. To each new investigation the AFP assigns a distinctive code name. In Australia Operation “Rain”, as it was called, was initiated on receipt of information from MPS in England asking that inquiries be made in relation to the applicant in Queensland. For each operation the AFP maintains a running log, rather like a ship’s log, on which entries of information or relevant communications are recorded. Access to it is by any one of a limited number of AFP members authorised in that behalf. The entries in this log, which are recorded sequentially in terms of time, build up into a very large volume of information distributed over many folios each containing up to some 10 or more individual items. As has been mentioned, in the case of Operation Rain there are in all some 73 documents consisting of 348 folios containing those individual entries.
12. A major practical problem in conducting a proceeding of these dimensions is to find a ready means of briefly but satisfactorily identifying and referring to each of the individual entries in dispute. The process would be greatly facilitated if in future the AFP were to adopt a practise of recording its log entries on paper on which each line was individually numbered in advance in the margin. Until this procedure is followed, the method used in the Schedule that identifies the documents in dispute is to describe each entry or part entry individually in some form such as “the fourth to eighth words in the second line of the sixth complete entry on folio 380.”
13. It hardly need be said that this method for finding, identifying and designating particular entries or words is tedious, time-consuming and prone to unavoidable errors. As matters exist, the obvious alternative is to make use of the figures or digits that in most instances appear at the beginning of each entry in the log. They represent the time at which the particular entry was recorded in the log, as for instance 0530, or 5:30am on the day of record. Unfortunately, in concealing the content of an entry for which the AFP was claiming exemption under the Act, these figures or digits were also obscured. As a result they are not available to the applicant as an indication or identifier of the entry being spoken or written about. To simplify this procedure I direct that these times or entry numbers be disclosed to the applicant. There is nothing about them that is confidential now.

COLOUR CODING OF DOCUMENTS

14. In order to facilitate matters for the Tribunal, the AFP’s solicitor at the outset of the hearing provided a set of Documents in Issue marked-up with colour-codings to identify the particular exemption or exemptions being invoked on each folio. By this means it was possible simply by looking at the surrounding colours used on a page or entry to know which exemption or exemptions it was sought to claim, checking it if necessary against the particular verbal description in the Schedule itself. Because it would have disclosed to the applicant’s representatives the content of the document or entry in respect of which the exemption was being claimed, this marked-up version of the Documents in Issue could not be and was not made available to the applicant or his representatives. Authority for adopting this course is found in s 64(1A) of the Act. Even I was not at first permitted to retain out of sitting hours a copy of these documents until after the end of the hearing when it was accommodated in a safe supplied by AFP and screwed to the floor of my study at home.
15. A considerable number of the exemptions originally claimed by the AFP consisted of claims under s 22 of the Act that particular documents or entries were not relevant to the request or application for disclosure. During the course of the hearing, which initially occupied three sitting days from 7 to 10 October 2008 and then resumed on 30 October, ostensibly for the purpose of taking submissions, the parties greatly refined their earlier attitudes by making many more concessions about the entries for which exemptions were being claimed or conceded. This is shown on the document by being struck through with a red line. Efforts by the parties to limit their differences by agreement are always welcome. However, as a result the final edition of the marked-up version of the Documents in Issue delivered in late November 2008 differed substantially from the earlier edition first used at the hearing. This meant rewriting my decision (which was then about 85% complete) pretty well from the beginning again. The obvious explanation is that the application came to a hearing well before it was truly ready for adjudication. The reason for this may well have been the natural eagerness of the applicant to appear before the Clarke Inquiry armed as far as practicable with as many documents as possible obtained as a result of the Tribunal hearing. In the result, that outcome proved not to be achievable. But what has been said on this subject may help to explain why this decision has taken longer to complete and deliver than might otherwise have been expected.

DOCUMENTS CONCERNING THE APPLICANT

16. As previously remarked, Operation Rain was triggered by the MPS in London asking the AFP for help in tracing the applicant who was wanted for questioning in the United Kingdom. As it happens, in proportion to the whole 348 folios, not many entries have turned up information about the applicant himself. There are at least two reasons for this state of affairs. First there is the fact that, from late on 2 July until 27 July 2007, the applicant was in police custody in Queensland, and he left for India on the following day, 28 July 2007. There was therefore naturally no question of conducting surveillance of him during that period. Secondly, most of the information held by the AFP about the applicant was in fact derived from the MPS in Britain. It was (as I later find) information communicated to the AFP in confidence within the meaning of s 33(1)(b) of the Act and hence exempt under that provision from disclosure to the applicant.
17. Conversely, it deserves to be mentioned that Operation Rain and the 348 folios comprehended in the Documents in Issue are concerned as much or more with other persons as with the applicant himself. Once begun, Operation Rain gathered a momentum of its own. In its submission to the Clarke Inquiry the AFP claimed to have identified 47 “persons of interest” not all of whom were suspected of terrorist activities. One of them was Dr Asif Ali, whose name appears in a large number of entries in the Documents in Issue. On 3 July 2007, he voluntarily took part in an interview with police, after which he was allowed to go without a charge being laid against him. The resulting personal publicity may have been a reason why, according to the AFP Submission to the Clarke Inquiry, he left Australia to return to India on 16 August 2007. At least one other acquaintance of the applicant also attracted police attention in Queensland. Before departing Australia he was not informed of his right to make submissions in these proceedings, which had at that time not been instituted.

DISCREPANCIES IN CLAIMS FOR EXEMPTION

18. There are some discrepancies between the undisclosed and the disclosed documents that have left me puzzled. At the hearing the AFP devoted much effort to ensuring that information derived from MPS was not disclosed to the applicant or otherwise made public. One reason for this was the sensitivity displayed by MPS to the possibility that information supplied by it might be published before the trials had been completed in England. This was true of information contained in several folios including parts of folios 4 to 7, 12 to 14, 19 to 22, 27 to 28, 29, 34 to 37 and so on. Much of it was then repeated elsewhere in later folios, for example, 123 to 125, always with an accompanying claim by AFP for exemption under s 33(1)(b) of the Act.
19. What is not easy to understand is that the same or much the same information from MPS is then repeated at folios 252 to 255 and 257 to 262, where it has been openly disclosed to the applicant. In this instance, the relevant document as a whole seems not to have been included as part of the first edition of the marked-up Documents in Issue, which was supplied before the Tribunal hearing began. It was first included in the second edition received by the Tribunal in late November 2007. The document between folios 253 and 262 is identified as a draft of Part B of a memorandum (comprising Parts A and B) that was used to brief the Minister for Immigration before he cancelled the applicant’s visa. In a letter disclosed from a senior AFP officer to the Assistant Secretary, Department of Immigration at folio 247, there is a discussion of Part A and Part B, in which the Part B is described as “confidential”. Folio 300 confirms that Part A (but not Part B) was released to the applicant, and this is supported by folio 302. On the other hand, folio 303 (which is claimed to be irrelevant under s 22 of the Act) states that analysis reveals that “the vast majority” of the information in Part B was provided to the applicant’s legal representatives “through the criminal prosecution process” and that the request to DIAC for deportation is of a “delicate nature”.
20. No doubt there is a simple explanation for what I have described here as a “discrepancy”; but, as far as I can see, it is not the only one of its kind. A similar mystery surrounds statements made by Dr Ali in the course of an interview with police in Queensland that was conducted on 3 July 2007. Details of these statements, or at least some of what he said, initially appear in folios 9 to 11 and some or all of them are repeated in folios 98 to 101 and 126 to 127. In each instance exemption is claimed by AFP pursuant to s 41 of the Act as constituting personal information that it would be unreasonable to disclose. Effect being given to the exemption in respect of some of what was said by Dr Ali to the police, one then subsequently encounters what is apparently the substance of the same information openly disclosed in para 30 on folios 257 to 260.
21. Once again, there may be a simple explanation for this that I have overlooked. I notice, however, that folios 252 to 262 were absent from the first edition of the volume of the colour coded Documents in Issue; and also that, in respect of folios 1 to 15, the most recent Schedule dated 24.10.08 notes in brackets “Further material to be released from this document”. In the circumstances, the only course open to me is to approach these matters as they appear on their face, and to rule accordingly, without being diverted by the fact that between folios 252 and 262 documents appear to have been disclosed to the applicant in respect of which exemption from disclosure has more than once been claimed earlier and elsewhere.

EVIDENCE

22. The applicant adduced no evidence at the hearing. Since the onus of establishing one or more of the exemptions plainly falls on those that maintain it, it was for the AFP to adduce the evidence in support of its contentions. It tendered an affidavit from Mr Damien Appleby, who is a National Co-ordinator of the AFP. He also gave oral evidence at the hearing. He was cross-examined, but not extensively, by Mr Rangiah of counsel for the applicant. Not having access to the content of the disputed documents, it was scarcely possible for Mr Rangiah to mount much in the way of a serious challenge to what Mr Appleby had to say. In the result, I accept generally his oral and affidavit evidence except where it appears improbable or incorrect. In addition, oral evidence was given by Mr James Watson, who is Chief Counsel to the AFP, concerning arrangements reached between the AFP and MPS for release in the Submission to the Clarke Inquiry of information communicated confidentially by the latter to the former. In the end, by letter dated 13 November 2008 to the Tribunal, the applicant formally conceded the existence of such written authorisation from MPS without requiring the authorising document itself to be tendered.
23. A category that AFP was concerned to protect from disclosure consisted of documents containing information that was claimed to fall within the ambit of the exemption envisaged by s 37(2)(b) of the Act; that is, on the ground that it would disclose lawful methods or procedures for preventing, detecting, investigating etc breaches of the law, and so be likely to prejudice the effectiveness of those methods or procedures. In his evidence, Mr Appleby placed great emphasis on both the unprecedented extent and the intensity of the efforts invested in Operation Rain. Not only agents of the AFP but large numbers of members of State Police Forces were engaged in investigation, surveillance, interviews and inquiries in connection with the Operation.
24. I am, however, unable to accept that the intensity or extent of a particular operation, or operations in general, are capable of being described as either “methods” or “procedures” in terms of s 37(2)(b). If it were so, the AFP could succeed in bringing itself within the exemption by the simple expedient of putting more people on the job. The argument that suspects would be critically forewarned by knowing of the intensity of effort being invested in an operation is counter-balanced by the deterrent effect that would be produced by such unprecedented measures. In any event, the claim to assert confidentiality in the intensity or extent of the effort invested in Operation Rain is contradicted by publication in the AFP Submissions to the Clarke Inquiry of detailed statistics of the number of police from all Australian forces who took part in that Operation. According to those Submissions (at p 37), over 500 Federal and State police took part in it.
25. It is convenient here to dispose of two other matters that were relied on to support the AFP case for exemptions. One is the “mosaic” theory that even a single piece of an investigation puzzle may, when aggregated with other pieces, reveal the larger picture. But, like circumstantial evidence, it is the pattern that emerges from the combination of items that lends form and cogency to the mosaic. In isolation, a single isolated piece of evidence is seldom if ever sufficient by itself to demonstrate much, if anything, useful or even to show that a mosaic exists.
26. It is also necessary or desirable to add something about surveillance. At base, the word simply means “observation”; but under modern policing methods surveillance may assume any of a number of different forms besides old fashioned watching of suspects. They include electronic forms of technology that are as yet only imperfectly known or revealed to general public perception. The point being made is that, to say that someone is being kept under “surveillance” ordinarily denotes no more than that he is being watched. Something extra must be found to suggest that a more sophisticated method than mere physical observation is being used. In consequence, it is not in my opinion possible to recognise exemption for statements as bland as (folio 271) “F/A Nutt has advised QPS surveillance to stand down”; or the more extensive, but comparable, entry at item 1803 on the following folio 272. They and other similar entries disclose nothing about police methods or procedures and so are liable to be disclosed.
27. Finally, I ought also to mention the extensive links that AFP has with police forces of other countries. The MPS is only one of them, although doubtless for reasons of history and culture those links are among the most intimate. Both it and some other police forces follow a practice of “embedding” members of their own in corresponding forces elsewhere. This practice is evident not only as regards the MPS in Britain but also the FBI in the United States and reciprocally the AFP in Australia. Much was hoped for from such contacts in the USA and India; but, going by the material in Documents in Issue, in the end not a great deal seems to have come of it in this instance. In so far as specific methods, scientific, technical or otherwise, are suggested in these items, they ought, in deference to s 37(2)(b), not to be disclosed; but when no more is revealed than that AFP members have been sent elsewhere to make inquiries, it cannot legitimately be said that police methods or procedures are thereby disclosed. In fact, the AFP Submission to the Clarke Inquiry (at pp6 – 7) is replete with approving references to the extent of AFP co-operation and liaison with the police forces throughout the world. There are said to be 33 AFP posts in 27 countries, which is avowedly not treated by the AFP as a confidential matter.
28. I turn now to consider the individual claims to exemption, which will be grouped according to the kind of exemption at issue. Before doing so, it is necessary to add that the taking of oral evidence and submissions at the hearing proceeded in confidence and not in public. The parties segregated their written submissions accordingly, and I was urged to do the same in my reasons for decision.

B. CONFIDENTIAL CONCLUSIONS

IRRELEVANCE: S 22(1)

29. One of the AFP’s principal claims for exemption from disclosure stems from s 22 of the Act. It provides so far as material that:

“(1) Where:

(a) an agency...decides:

• (i) ...
• (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...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...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...shall, unless it is apparent from the request or as a result of consultation by the agency...with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.”

30. From s 22 itself it is evident that the section (including the section heading) recognises irrelevance of the information contained in a document as a reason for declining access to it whether wholly or in part. It is true that s 22 does not in terms say so; but it is implicit in s 22(1) in making it the duty of the agency, if it is “reasonably practicable” to do so, to make and grant access to a copy with such deletions as would not disclose irrelevant information. Section 22(2)(a) requires that, if access is granted to such an edited copy of the document, the applicant must be informed that it is such a copy, and also of the ground for making the deletions, and, if deleted as exempt matter because of a provision of the Act, then that the deleted matter is exempt because of that provision.
31. The question whether s 22 operates to relieve an agency of the statutory duty to grant a request for access to a document depends ultimately on the terms of the request. Here the original request was contained in the application dated 8 November 2007. With the revision referred to in the applicant’s then solicitors’ letter (T8) dated 5 December 2007, what is now sought is access to documents “in relation to the following:
    1. the cancellation of Mr Mohamed Haneef’s visa subclass 457 Business (long stay) Class C Visa, which had a visa expiry date of 30 August 2010;
    2. the decision to detain Mr Mohamed Haneef, and his ongoing detention;
    3. the issue of a Criminal Justice Stay Certificate, or any Criminal Justice Certificate, in relation to Mr Mohamed Haneef;
    4. documents recording or related to communications with other government departments or agencies, regarding Mr Mohamed Haneef”

By their letter, the solicitors advised that:

“(a) The time frame for documents [at point 4 of the application] can be limited to 2 to 27 July 2007
(b) With respect to communications with the Department of Immigration and Citizenship, and the Office of the Minister for Immigration and Citizenship, the timeframe can be limited to 2 to 31 July 2007”.

32. Although as we have seen, irrelevance under s 22(1) is strictly speaking not a ground of or for exemption as such, it is nevertheless convenient to speak of it as if it were. There are now not nearly so many documents in the Schedule as there originally were for which exemption under s 22 is claimed on this ground. On folio 43, the first six entries, except for the fourth at 0830 (which has been disclosed) are each of them concerned with surveillance of Dr Ali and are not about the applicant. Those entries are therefore irrelevant. The same applies to the fourth (1930) and the sixth (1959) entries on folio 46. The former (1930) is about Dr Ali and about some other Indian doctors in Perth, and not about the applicant. The entry at 1959 relates to some people unknown who were casually noticed and reported by a passer-by in a suburban park. They cannot have included the applicant because he was by then (4 July 2007) in police custody. Irrelevance also exempts the undisclosed portion of the third entry (at 2130 hrs on 4 July 2007) on folio 47. It relates exclusively to a call received by someone else from Dr Ali and, except to the extent already disclosed, is not about the applicant at all. Access is not sought by the applicant in respect of other entries on folio 47.
33. From that point, exemption claimed on the basis of irrelevance does not re-appear until para 5.31 on folio 128, which again is limited to Dr Ali and is irrelevant to the applicant and so exempt. On folio 149 under the heading Fraud Inquiries, there are two paragraphs neither of which is relevant to the applicant’s detention or his visa cancellation or otherwise. As it happens, the applicant said the first paragraph had in fact been released to him on the first day of the Tribunal hearing. At folio 179, entry 1410 is about future police training that is irrelevant to the applicant’s request. On folio 182 there are three log entries, the first (1630), third (1652) and fourth (1657) on the page, none of which is relevant to the applicant.
34. At folio 222, there is an entry (the first, at 1013) that records receipt of a response from a named AFP agent in India. As he was sent there to check on the applicant and his family it seems to me that (for what it is worth) this entry is relevant and should be disclosed to the applicant. The agent’s name and his presence in India are in any event disclosed on folio 162 in the fifth entry. The last entry (1800) on folio 226 going over to the second complete entry at 1815 on folio 227 records a planned meeting with the press, and is of no legal relevance to the applicant’s detention or his visa cancellation. The intermediate or second entry on folio 227 concerns a purchase made by Dr Ali himself, which is not relevant to the applicant. The ninth entry at 0813 on folio 232 simply advises of a potential risk of mistaken identity that is irrelevant to the applicant or his request for access. The last paragraph on folio 234 running over to folio 235, as well as the first half entry (1125) on that folio, concerns an unsolicited email from a complete stranger in San Francisco, who had an “idea” he wished to “share” with the applicant’s solicitor. One may guess that it is irrelevant, but there is nothing to demonstrate affirmatively that that is so; accordingly I consider that this entry should be disclosed, but with the names of the hospital officers concealed.
35. On folio 268 the first complete entry (which concerns a message to the AFP Perth office) is irrelevant except in the limited respect in which it has already been disclosed. The seventh entry (1703) on folio 271 is concerned only with Dr Ali and is irrelevant to the applicant. The whole of folio 303 relates to media responses to the applicant’s visa cancellation. It is impossible to suggest that the applicant’s detention or his visa cancellation owed anything to media publicity; but, for reasons already given in paragraph 19 of this decision, I consider that the second and the third sentences on folio 303 may be relevant and should be disclosed to the applicant. Despite the heading to the letter of 30 July 2007, the content of folio 340 is relevant only to Dr Ali, whose name appears in that heading along with that of the applicant. Likewise, folios 343 to 348 relate only to Dr Ali and not to the applicant, nor to his detention or the cancellation of his visa. Those folios are therefore exempt from disclosure.

Damage to International Relations: s33(1)(a)(iii). Information communicated in confidence by foreign government: s33(1)(b)

36. Section 33(1) exempts disclosure of a document under the Act if it :

“(a) would, or could reasonably be expected to, cause damage to:
(i) the security of the Commonwealth;
(ii) the defence of the Commonwealth; or
(iii) the international relations of the Commonwealth; or
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.”

37. These two provisions (a) and (b) of s 33(1) are in their practical application associated, and the respondent has tended to deal together with documents for which exemption is claimed as falling within either or both of paras (a)(iii) and (b) of s 33(1). For my part, I would have been disposed to regard s 33(1)(a)(iii) as applying to “international relations of the Commonwealth” in the strict sense of that phrase; that is, as meaning international relations of the Commonwealth with some other foreign sovereign government or State, rather than relations between agencies of the Commonwealth and agencies of other governments or States, which are separately catered for, at least in one particular respect, in s 33(1)(b).
38. However, I was provided with a copy of a statement dated 25 September 2008 by Mr M S Clarke QC in relation to this very applicant Dr Haneef and some of the same documents. It is to the effect that the publication by the AFP, without the agreement of the MPS, of documents provided in confidence by MPS “would seriously damage the international relationship between the two countries” Britain and Australia. It may be noticed that s 33(1)(a)(iii) speaks of international relations rather than a “relationship”; but it is not desirable that there should be a difference of opinion in this matter about the proper interpretation of s 33(1)(a)(iii). I consequently agree with Mr Clarke QC that that provision extends to damage to relations between the police forces of the two countries that may have repercussions on the international relations of their respective states. Mr Appleby of the AFP gave evidence of examples of such consequences having taken place in the past, and about his concern that they will occur again if the required confidence was not observed. This evidence was given in closed proceedings after the exclusion of Mr Rangiah and Ms Kitson of counsel and their solicitor, and is to be found at pp 221-228 of the transcript.
39. In any event as it happens, I consider that, viewed by itself, s 33(1)(b) of the Act is amply broad enough to comprehend the exemption of documents in this category that the respondent AFP seeks under s 33(1) to withhold here. So far as relevant, s 33(1)(b) exempts a document if its disclosure would divulge “information or matter communicated in confidence by ... an authority of a foreign government... to an authority of the Commonwealth ...”
40. Two preliminary comments may be made in relation to this form of wording. One is that it is not a requirement of s 33(1)(b) that the information itself be confidential but only that it be communicated in confidence. The second comment, which is related to the first, is that, as the Full Court said when speaking of s 33(1)(b) in Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15 [at 25]:

“If the disclosure of a document would divulge any information or matter communicated in confidence by a foreign government to the government of the Commonwealth, that is sufficient to attract [s 33(1)(b)]. The fact that the information or matter may no longer be confidential is not to the point. The only question is whether the disclosure of the document would divulge information or matter that has been communicated in confidence.”

41. Counsel for the applicant wished to reserve for another occasion the right to challenge this interpretation, but accepted that at present I am bound to apply it here. As a result, the question now before me is quite different from that determined in Attorney-General v Observer Ltd [1990] 1 AC 109, in which an action for an injunction failed because at the time it was brought or decided the information had, through earlier publication, ceased to be confidential.
42. The question then is whether the information contained in various documents for which exemption is claimed under s 33(1)(b) was communicated in confidence to the AFP. Almost all of it emanated from MPS, although there may be a few items from the FBI or from the Indian police force. In force between AFP and MPS there is a written “Memorandum of Understanding” (ex 11) providing for exchanges of information between those parties. By cl 4.2 and cl 4.2.3, each of the parties undertakes, subject to their own domestic law, to share information to address “priority criminal issues”; to exchange information pursuant to ex 11; not, without prior permission, to use the information except for purposes for which it was requested or provided (cl 4.2.13); and to keep it secret or use it only under the conditions specified (cl 4.2.14). According to the evidence of Mr Appleby, all of the information communicated by MPS to AFP was provided under ex 11 and hence was communicated confidentially pursuant to its terms. How, then, asked counsel for the applicant did such information, said to have been communicated in confidence by MPS, come to be openly published on 23 October 2008 by the AFP in its public submission (ex 13) to the Clarke Inquiry? The answer, given in evidence on the last day of the hearing by Mr Watson, Chief Counsel to the AFP, was that the MPS and Crown Prosecutions Service in England saw and agreed to authorise the public release of what is now ex 13 to the Clarke Inquiry. This had been done, said Mr Watson, in writing by an agreement concluded after much negotiation between MPS and AFP on 22 October 2008 (trs at pp 258 – 259). As previously remarked, the applicant did not in the end require this agreement to be tendered to the Tribunal (see letter dated 13 November 2008 from applicant’s solicitors to Tribunal).
43. In the result, I am satisfied that all the information acquired by the AFP from the United Kingdom in the course of Operation Rain was communicated by MPS to AFP pursuant to the Memorandum of Understanding ex 11 and that it was communicated in confidence (see trs at p 171 and p 218). There are understandings similar to ex 11 between AFP and other police forces, notably for present purposes the FBI (trs at pp 155 – 156) and the Indian police authorities.
44. From this we may turn to particular documents or entries in them for which exemption is claimed in this way by the respondent. They are spread across many folios of documents most of which contain several individual entries. In all or most instances it is apparent on or from the face of the entry itself and its content that the information in question was obtained confidentially from the MPS. Folios 4, 5, 6 and part of 7 are early examples. As previously noted (paras 18 and 19 above), the same or similar information from MPS has, however, been disclosed to the applicant in folios 247-262; but under the decision in Whittaker’s case (above), that consideration is legally irrelevant to the application of s 33 (1)(b). The same exemption applies to the second sentence of para 34 on folio 12 (which is disclosed on folio 260), and the whole of paras 36 through 39 on folio 13 (also disclosed at folio 260), together with the whole of folio 14 (disclosed at folio 262). The exemption also applies to paras 2 to 5 on folio 19 and the formatted deletions in the right hand column of that folio, as well as to the whole of folios 20 and 21 (but omitting the third deletion at the right: see trs at p 208) and the information contained in the first eight dot points on folio 22. They are all exempt under s 33(1)(b). Again, in document 3, the second sentence in para 34 on folio 27 and paras 36 to 39 extending on to folio 28 (disclosed at folio 260), the whole of folio 29 (which is a table by MPS of the detainees arrested by MPS that is disclosed at folio 262); and the Comment in the right hand column (see trs at p 209). Also exempt are the Comments [a2] and [a3] on folio 32, which identify by his initials an officer from the MPS in the United Kingdom. These entries are all exempt under s 33(1)(b).
45. Folio 34 comprises another, or more likely the same, table received from MPS as at folio 29. Together with the last four out of five open dot points at folio 37, it was evidently communicated confidentially from the MPS. Half way down folio 44 beginning “Awaiting advice...” is another item (part of entry 1216) in respect of which exemption is claimed and is upheld under s 33(1)(b). So also are each of entries on folio 54 at 0700 (first), 0842 (sixth) and 0910 (tenth) and the entries on folio 55 at 1024 (after 1019) and on folio 56 (the fifth) at 1331. This also applies to the second last and the last entries at 1825 and 1829 on folio 59 and the fourth entry on folio 60 at 18:55. The entries (fourth) at 19:19, (seventh) at 19:30 and (eleventh) at 23.20 on folio 61 also comprise information confidentially derived from MPS over which exemptions are claimed and upheld. For the last entry on folio 57 (going over to folio 58) a special exemption is claimed that will later require separate discussion of s 33(1)(a)(i). It is considered at paragraph 107(a) of these reasons.
46. The final dot point entry on folio 76 travelling over to and including the first dot point entry on folio 77, as well as the parenthetical item following “Liverpool” in the second open dot point on that folio, also consist of information confidentially communicated by MPS that is exempt. The same applies to the entries at the last two dot points on folio 77 running over to and including the first dot point entry on folio 78. The penultimate three dot point entries on folio 84 (from “At the time ...” down to “... in this regard” are also exempt as having been supplied in confidence by MPS. On folio 85 the parenthetical item in the second open dot point is (according to my note of the evidence: trs at p 164) no longer pursued by the applicant; but, in any event, it is information confidentially provided by MPS. Equally, the first four of the last five dot points on folio 85 obviously consist of information confidentially derived from MPS and so exempt.
47. The last of the open dot points at top of folio 87 contains in brackets matter about which there is extreme sensitivity, which information is derived at least in part from MPS. It is repeated in the second sentence of the paragraph (beginning “Police suspect...”) that follows those open dot points. The same matter is then discussed and analysed in the final dot point entry on folio 88, which is continued into the first two dot point entries on folio 89. On the same folio 89 there are two further sentences (one beginning “The phone number ...” and the other “Further checks ...”) in respect of which exemption is claimed and allowed as having been communicated in confidence by the MPS in Britain. The information contained in numbered paragraphs 2, 3, 4 and 5 on folio 96, travelling over to folio 97, and the information in the entries contained in subparas a. to j. inclusive on folio 97, were all derived in confidence from the MPS in the United Kingdom.
48. In paragraph 22 on folio 101 there is a sentence (beginning “The AFP ...”) which records information acquired from MPS that is exempt under s 33(1)(b). The same applies to para 24 (although the exemption is not marked in colour as claimed in the latest Documents in Issue) on that folio running over to para 25 on folio 102. Subparas b., c., d. and e. of para 28 on folio 103 extending to folio 104, and paras 29, 30 and 32 on folio 104, are also exempt under s 33(1)(b), as is the second sentence in para 34 and the last sentence in para 35, both on folio 105. The whole of the fourth entry on folio 114 also attracts this exemption as being information communicated confidentially by MPS.
49. Moving on to folios 123– 125, paragraphs 5.1 through to and including the whole of para 5.13 on folio 125, and the first sentence of para 5.14, all record information confidentially supplied from MPS in the United Kingdom. This information is exempt for that reason, as also is that contained in para 5.22 on folio 127, in para 5.25 on folio 128, in para 5.35 going on to folio 129, and para 5.36 also on that folio. Subparas a., b., c. and d. of para 5.41, and the whole of para 5.42 on folios 129 and 130 are exempt for the same reason.
50. Paragraph 5.60 on folio 132 refers to information communicated confidentially by the MPS in the UK. It also contains a reference to the fact that inquiries are being undertaken in India. In the transcript of evidence at pp 189-190 Mr Appleby explained that the exchange of information with the police authorities in India proceeds on the same restricted basis as the information from the MPS in the United Kingdom. I have, however, serious doubts whether this particular item (para 5.60) discloses anything communicated in confidence apart at most from the fact that such inquiries are in fact being undertaken in India, which is in any event openly disclosed in paras 5.59, 5.61 to 5.63 on folio 132, para 6.3 on folio 133, and the first arrow point on folio 147. I therefore direct that disclosure of para 5.60 take place, but with the exclusion or concealment of references in it to the UK or the MPS.
51. Paragraphs 6.4 through 6.13 on folios 133 and 134 contain information confidentially derived from MPS and so are entitled to the exemption under s 33(1)(b). Folio 138 is yet another of the tabular analyses of information concerning suspects communicated in confidence from MPS that is also entitled to that exemption, as are the paragraphs numbered 1 and 2 (first sentence only) on folio 139, para 11 on folios 140 to 141, paras 14-17 inclusive on folio 141, and para 22 (not marked but exemption claimed in Schedule), and paras 23 and 24 on folios 141-142. The first two sentences under the subheading Financial Inquiries on folio 148 also attract exemption under s 33(1)(b). On folio 157, the information in the first two sentences again under the subheading Financial Enquiries came confidentially from the MPS and so is exempt under s 33(1)(b), as is the information recorded at folio 158 under heading Haneef, continuing from there on to the end of folio 159. The information in entry 1819 on folios 168 and 169 is claimed to be exempt as being subject to legal professional privilege under s 42. The second-last entry at 04:21 on folio 219 contains information confidentially communicated from MPS, as does the second-last entry at 1206 on folio 222, both of which are exempt under s 33(1)(b).
52. After about folio 200 or thereabouts the frequency of items in respect of which exemption under s 33(1)(b) is claimed diminishes markedly; but there is one at 1206 on folio 222 that attracts this exemption. On folio 269, entry 1026 (directly beneath entry 1010), and the second sentence of entry 1145, would if revealed disclose information confidentially communicated from MPS about its activities, and there is another instance of this in the second sentence of the fifth paragraph at folio 321; in the first full sentence on folio 322; and again in the second sentence of the fourth paragraph of the text (headed Inferences...) on the same folio. All of these entries are exempt. I was informed at the hearing (trs at p 203) that the information in the second sentence of the last paragraph on folio 322 came not from MPS but from the applicant himself in Australia and that a claim to exemption is no longer maintained over it. However, the alternative claim over it to exemption for legal professional privilege is still maintained in respect of the whole of folios 320 - 323.
53. Folio 328 contains two items in respect of which exemption is claimed under s 33(1)(b). The second sentence on folio 328 can only have come confidentially from MPS. The fifth paragraph, on folio 328 must also have been communicated confidentially by MPS; it contains information which on its face emanates from “the UK authorities.” There is a further reference (in a much more summary form) to this information in the ninth paragraph on folio 330 over all of which legal professional privilege is claimed. There is also a reference on folio 331, second paragraph, fifth sentence, to other material from MPS, which earns exemption under s 33(1)(b). All of these entries are entitled to exemption under that provision, and are subject also to a claim for exemption on the ground of legal professional privilege.

INTERNAL WORKING DOCUMENTS (DOCUMENT 16A)

54. Section 36(1) of the Act declares a document to be exempt if it is one of which disclosure under the Act –

“(a) would disclose matter in the nature of, or relating to opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest”.

55. There may be a question about precisely how this statutory provision is to be read: it is to my mind not completely clear to which particular words the fourth “or” (“or consultation”) in s 36(1)(a) is posed as an alternative. However, I favour an interpretation that (disregarding inessentials) involves reading it as follows:

“... would disclose matter ... relating to ... consultation or deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency ... of the Government of the Commonwealth;”

56. The dictionary meaning of deliberative is “pertaining to deliberation”, which in turn means “careful consideration with a view to decision” (Shorter OED). The word consultation implies participation in the process by some other person; but that is not necessarily so of deliberation or deliberative processes, which may be undertaken by a single individual alone, such as the Minister mentioned in s 36(1)(a). This provision is sometimes said to be designed to protect “musings”, which itself suggests that either more than one, or only one, person may be involved in the deliberation process.
57. When one turns to the single document in question (Document 16A), it is seen to be headed SIO Review of Evidence. It was prepared by the Federal agent who was at the time the manager of Counter-Terrorism in the AFP. Document 16A consists of six pages (folios 116-121), concluding on the lower portion of folio 121 subheaded Options, for which portion no exemption is claimed.
58. The contents of the Review are subdivided into three vertical columns the first two of which deal under different headings with the various kinds of evidence available against the applicant, in respect of a series of possible offences under the Commonwealth Criminal Code that are discussed in some detail in the latter part of the Review. The third column embodies the author’s comments on or assessments of that evidence. In several instances, it is apparent from particular entries in the Review that particular material has been obtained or derived confidentially from MPS in the United Kingdom. In the course of the hearing, I suggested that Document 16A bore some analogy to an Advice on Evidence by counsel in preparation of an impending trial; but it is more than that. In the Rationale at the beginning of the document the author records that this Review of Evidence was produced to enable him to consider his “investigative strategy” and to “identify outstanding lines of inquiry.” It is, I understand, designed in part for the purpose of updating his superiors in the AFP.
59. I do not think it can be doubted that Document 16A answers the description in s 36(1)(a). It would, if not exempt, disclose matter in the nature of or relating to “careful consideration” that has taken place in the course of weighing up the evidence and strategies available to the AFP in investigating and charging the applicant. Those actions seem to me to form part of the “deliberative processes” involved in the functions discharged by the AFP of safeguarding Australia, its people and property from, and preventing breaches of, the law.
60. In addition, for a document to be exempted under s 36(1), it is necessary that its disclosure would, under s 36(1)(d), “be contrary to the public interest.” In this respect, many of the previous cases in which “public interest” has been considered have stressed the undesirability of disclosing the thought processes of public servants when preparing to advise Ministers about the range of options available to them: in that context, the possibility of such advice being misunderstood has on occasions been regarded as a factor that weighs against disclosure. See, for example, in this regard, Haneef v Department of Immigration and Citizenship [2008] AATA 587 at paras 40–41, which upheld on that ground a claim to exemption for a particular document in another application by the same applicant.
61. Considerations of public interest assume another and more cogent significance in this instance. Release of Document 16A would expose it to the potential scrutiny of all members of the public some of whom are not necessarily law-abiding. It would reveal thought processes and methods adopted by the AFP in investigating suspicious behaviour; the extent and range of sources (some of them confidential or secret) of information accessible by police; the business of assessing the strengths and weaknesses of available evidence; and the practical difficulties believed to exist in enforcing particular provisions of the Commonwealth Criminal Code in matters like the present. Some police methods such as collecting fingerprint evidence are so widely known that it would be a surprise to everyone if they were not at some stage employed in the investigation in the present case; but some other forms of intelligence gathering and technology are much less familiar to the public. Nor are those to whom Document 16A would be informative restricted to persons of terrorist disposition. Drug dealers, child pornographers and other criminals would find assistance from the summary contained in Document 16A of police methods and enable them to devise methods for avoiding detection or arrest. Document 16A contains an authentic précis of police investigation techniques as well as the problems of enforcement in relation to both terrorism and other forms of crime. In a very real sense, it provides a form of Police Methods in a Nutshell.
62. Considerations like these are recognised elsewhere in the Freedom of Information Act itself. A document is exempt if its disclosure could prejudice the conduct of investigation of a possible breach of the law: s 37(1)(a). It is exempt if its disclosure would reasonably be expected to reveal lawful methods or procedures for investigating breaches of the law the disclosure of which would be likely to prejudice those methods or procedures: see s 37(2)(b). Both s 37(1)(a) and s 37(2)(b) are also invoked here to exempt Document 16A from disclosure. But whether or not those statutory provisions are available in this instance, they represent a legislative recognition of elements in the “public interest” that are within the scope of s 36(1)(b) of the Act.
63. In my view Document 16A is within the terms of s 36(1)(a) and s 36(1)(b) and so is exempt from disclosure.

IDENTITY OF CONFIDENTIAL SOURCE OF INFORMATION: s 37(1)(b)

64. Section 37(1) creates an exemption for a document if its disclosure under the Act “would, or could reasonably be expected to:

(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law”.

65. There were originally some five or more different documents for which this exemption was claimed in these proceedings. By the time the most recent edition of Documents in Issue dated 23 November 2008 was supplied to the Tribunal, there were only three or four separate entries in respect of which this ground of exemption was advanced. [Sentence deleted by order of 4 February 2009 pursuant to s35 of Administrative Appeals Tribunal Act 1975]. Each of these claims for exemption was, in the result, dealt with in a different way. On folio 52, the entry at 0045 (the second entry so numbered) is about making arrangements to meet someone at a particular location. The name and other identifying details were concealed before this entry was disclosed to the applicant.
66. Another two entries of this kind are the fourth (1215) and sixth (at 1308) on folio 167. In respect of the fourth, no fewer than four different claims for exemption are put forward, while over the latter entry (1308) there are two. The subject matter of the first (1215) of the two at folio 167 is a “growing uneasiness” among Gold Coast Muslim community members about the continued detention of the applicant. This information is said to proceed from “an unregistered contact.” [Sentence deleted by order of 4 February 2009 pursuant to s35 of Administrative Appeals Tribunal Act 1975].
67. Similar identifying details appear in the second line of the sixth entry (1308) on folio 167. It emanated from a member of the community and his wife who are named and identified by description. With those names and identifying details concealed, the entry at 1308 should also be released to the applicant. The content of this (1308) and the proceeding entry (1215) is completely innocuous, and the persons concerned can scarcely be claimed by the police to be in any sense confidential sources. Merely informing the police of something that is essentially neutral does not convert the informant into a confidential source. I do not consider that any of the other exemptions that is claimed is available in respect of either of these entries on folio 167.

LEGAL PROFESSIONAL PRIVILEGE: s 42

68. By s 42(1) a document is exempt:

“if it is of such nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.”

69. According to the headnote in Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, Mason, Wilson and Deane JJ held that legal professional privilege attaches to confidential professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice, or in connection with anticipated or pending litigation. Upon that statement of the law two comments are apposite here. One is that Waterford was in fact itself concerned with a claim for exemption under s 42(1) of the Freedom of Information Act 1982. The other is that the formulation in that case of the test of “sole purpose” in seeking or giving legal advice was, in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, relaxed by the High Court in favour of “dominant purpose” as the criterion for determining whether or not the privilege attaches to a professional legal communication.
70. Among the documents of which disclosure is sought by the applicant, there are several for which the AFP claims exemption from disclosure under s 42(1) of the Act. At folios 168 to 169 there is a document of 13 July 2007 that appears at entry 1819 under the disclosed heading “Advice provided by Clive Porritt and Robyn Curnow (CDPP Brisbane) LEGAL IN CONFIDENCE”. It contains advice to AFP from those two members of the staff of the Commonwealth Director of Prosecutions in Brisbane concerning a prospective criminal charge (the text of which is formulated by them) against the applicant and concerning the evidence available to support it. From a perusal of its contents, it is to my mind quite clear that the dominant, indeed the sole, purpose of the communication was the provision to AFP in confidence of legal advice in connection with anticipated litigation in the form of criminal proceedings against the applicant. As such it is exempt from disclosure under s 42(1). It may be added that some of the information contained in that advice recognisably consists of or includes confidential communications from MPS in England, and an exemption is also claimed (for it) under s 33(1)(b) of the Act.
71. The exemption provided for in s 42(1) is also claimed for the fifth entry (1110) on folio 177 concerning advice from one of the members of the Brisbane CDPP staff already referred to. It concerns a possible appeal against the decision granting bail to the applicant. However, on reflection I do not consider that the entry discloses anything more than:

(1) that such an appeal was being considered; and

(2) who would need to be consulted about it.

In any event, it is not advice given to a member of the AFP but to an inspector of the Queensland Police, and it concerns a state of affairs which has already taken place and that is now in the public domain.

72. Neither of those two matters (1) and (2) above can be regarded as in the nature of a confidential communication protected by legal professional privilege in favour of the client (the AFP). Ms Mortimer SC was prepared to concede this item on folio 177, but only subject to a restriction which she insisted on maintaining. I consider that the whole of the fifth entry 1110 at folio 177 should be disclosed to the applicant without any such qualification or restriction.
73. There is another item halfway down folio 302 beginning “AGS”, which communicates legal advice, and is entitled to the exemption afforded by s 42(1).
74. Folios 320 to 323 comprise a letter dated 24 July 2007 setting out in some detail professional legal advice from the Deputy Director of Public Prosecutions to the Manager AFP Counter-Terrorism, and containing discussion and advice about the prospects of conviction in a criminal charge against the applicant. It is evident that the dominant purpose of the communication is and was to provide legal advice in connection with pending or anticipated litigation. As such, those folios are entitled to the exemption in s 42(1) of the Act.
75. The ensuing folios 324 – 326 record a further but similar version of the advice provided on 13 July by Mr Porritt and Ms Curnow (see para 70, above), together with a discussion of the legal and evidentiary issues involved in mounting the charge against the applicant. Folios 327 to 329 contain a written response from Ramzi Jabbour, Manager AFP Counter-Terrorism, to the Deputy Director’s letter of advice dated 24 July. Available evidence against the applicant is canvassed in an annexure A (folios 330 – 332) together with an account of the advice originally given by the CDPP office in Brisbane. These plainly are all confidential communications that are covered by legal professional privilege in favour of the AFP. They discuss the strengths and weaknesses of the prosecution case against the applicant and are exempt from disclosure by virtue of s 42(1) of the Act.
76. It was submitted by the applicant that any legal professional privilege that might have attached to the foregoing communications had been relinquished or waived by the AFP in its public submission to the Clarke Inquiry. No such waiver could have been effected in that way by anything done by the Commonwealth Director of Prosecutions or his officers in the CDPP submissions to the Clarke Inquiry. The privilege belongs to the client (here the AFP), and a legal adviser is not in a position to waive it except with the authority of the client. “It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement”: Mann v Cornell [1999] HCA 66; (1999) 201 CLR 1, at 13. The CDPP is not shown to have had any authority to relinquish or waive any such privilege belonging to the AFP and in law it therefore cannot properly have done so.
77. In respect of its own actions, the legal position of the AFP stands on a different plane. On 23 October 2008, the AFP published its open submission to the Clarke Inquiry. At p 30 of that printed submission, it is recorded that “the senior CDPP officer provided the AFP with oral and written advice regarding the available evidence.” The submission then proceeds:

“The senior CDPP officer provided the AFP with advice that, notwithstanding certain evidentiary limitations, there was sufficient evidence to charge Dr Haneef. The advice included draft wording for a charge that could be laid.”

78. The question is whether this amounted to a waiver by the AFP in respect of the advice given by “the senior CDPP officer” (who was Mr Porritt) on 13 July 2007. I have read with close attention the decisions of the High Court in Mann v Cornell (supra) and Osland v Secretary to the Department of Justice [2008] HCA 37 in the light of the submissions in this matter of counsel on either side. Having done so, I have reached the conclusion that what happened here did amount to a waiver of privilege by the AFP, in its submission on 23 October to the Clarke Inquiry, in respect of the advice in question. That legal advice is more completely set out in the record of it supplied at the tenth entry (1819) on folios 168 and 169 (which I have, of course, read). The difference between the language used in the critical sentence in the advice and the précis of it in the submission is perhaps not substantial, but to the applicant it may justifiably appear to be of some real consequence. It might be said that there is in fact no real analogy between a waiver of privilege in the course of ordinary litigation and the state of affairs that obtains between the applicant and the respondent in these proceedings. But the respondent has set out in part at least to publicly justify its prosecution of the applicant by reference to the advice it received on 13 July 2007, with the consequence, as I see it, that it has waived its claim to legal professional privilege in respect of the whole of that advice.
79. The whole of that advice at the tenth entry (1819) on folios 168-169 should therefore be disclosed to the applicant. I may add that, when confronted by this possible result, Ms Mortimer SC seemed uncharacteristically resigned to such an outcome. At the same time, however, I do not consider the AFP has in this regard somehow waived or forfeited its legal professional privilege in respect of anything more than the content of the particular communication of 13 July 2008 that has been identified here; that is to say, the advice of that date that is recorded in full on folios 168-169 and 325-326, which include the formulated charge and the correction mentioned in the last paragraph at folio 169 and 326. These folios ought to be disclosed to the applicant.

LAWFUL METHODS OR PROCEDURES: s 37(2)(b)
EFFECT ON PROPER CONDUCT OF OPERATIONS: s 40(1)(d)

80. Under s 37(2) a document is exempt if its disclosure under the 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;”

Under the distinct but cognate exemption in s 40(1) a document is, subject subsection (2), exempt, if its disclosure under the Act would, or could reasonably be expected to:

“(d) have a substantial adverse affect on the proper and efficient conduct of the operations of an agency;”

Subsection (2) of s 40 then adds that s 40 does not apply to a document in respect of matter in it of which the disclosure would, on balance, be “in the public interest”.

81. In the present context the practical operation of these two provisions is somewhat similar, as is suggested by the fact that the respondent originally claimed exemption for 16 documents under s 40(1)(d) and for the same 16 under s 37(2)(b). The difference then was that exemption was also claimed by AFP for an additional two documents (folios 37 and 38) under s 37(2)(b) but not under s 40(1)(d). The respondent does not do so now; but it remains appropriate to focus on the s 37(2)(b) exemption, which is wider in not having the additional condition of having to satisfy the “public interest” requirement in s 40(2). That exception to the exemption in s 40(1) has the practical consequence of limiting the availability of the exemption in s 40(1)(d), with the result that there must be few if any, instances in which it operates while s 37(2)(b) does not. I propose, therefore, to confine consideration to s 37(2)(b) until there is good reason for adverting to s 40(1)(d).
82. On behalf of the AFP it is accepted that methods of investigation that are widely and publicly known are outside the exemption in s 37 (2)(b) as being unlikely if disclosed to prejudice their effectiveness. Beginning at 0000 on folio 42, which forms part of the AFP running log, the fifth and sixth entries (at 0100 and 0250) refer to forms of electronic technology for accessing information that Mr Appleby testified are not generally known in Australia (trs at p 130). Disclosure of those entries could reasonably be expected to reveal lawful methods of investigation and would be reasonably likely in terms of s 37(2)(b) to prejudice their effectiveness. That would take place, said Mr Appleby in evidence, by alerting terrorists and other criminals to the need to avoid using systems capable of being penetrated by the use of such methods by police. I accept his evidence on this matter. The same applies also to the ninth entry (0350) on folio 42, which discloses the capacity of the AFP to access such or additional methods or techniques outside Australia. In addition, the tenth entry (0420) on that folio utilises a “key” word or code word to denote a technique that the AFP is anxious to protect from being advertised to those engaged in terrorist activities. It may be recalled that at the date (4 July 2007) and times of the entries on folio 42, these methods were being directed at Dr Ali, and not to Dr Haneef, who had been taken into police custody or detention as early as 2 July 2007. As such, these entries are irrelevant to the applicant and to his request for disclosure.
83. On folio 43 (also dated 4 July), there are two further entries (the second at 0645 and the fifth at 0915), which use the same key word or code word. Again, those entries are about Dr Ali and not the applicant himself. The third entry (at 0720) is another instance of an attempt by AFP to access the offshore capability in relation to Dr Ali, while the fourth paragraph of the sixth entry (at 1000) on folio 43 involves the use of other secret devices in the case of Dr Ali. All of these entries on folio 43 are in my opinion exempt under s 37(2)(b), as well as being irrelevant to the applicant’s request.
84. Exemption is also claimed for the hitherto undisclosed portions of the second entry on folio 44 (at 1216), access to which is not sought by the applicant except in relation to the fourth (or last) paragraph of that entry. That paragraph contains information confidentially communicated by MPS and hence exempt under s 33(1)(b) independently of s 37(2)(b) or s 40(1)(d). See above, para 45 at p 22 of these reasons. On folio 45 access is not sought by the applicant to the first four entries (at 1400, 1403, 1423 and 1427) as relating to persons other than the applicant and as such being irrelevant. There are no claims for exemption under s 37(2)(b) or s 40(1)(d) in respect of folios 46, 47, 52, 53 or 54.
85. On folio 55 the seventh entry (at 1024) and the eighth entry (at 1036) are claimed to be exempt under s 37(2)(b) as disclosing police methods. The first of those two entries (the seventh entry) is independently exempt as involving confidentially communicated MPS information in terms of s 33(1)(b). See para 45, at p 22. The second of the two (the eighth at 1036) on folio 55 will in my view not reveal anything about police methods if (as I direct) it is disclosed only down to the end of the abbreviation BNE (see trs at p 212). On folio 56, the fifth entry (at 1331) contains confidential information from MPS and is therefore exempt under s 33(1)(b) independently of s 37(2)(b): see trs at p 212 and para 45 above at p 22. The second entry (13:45) on folio 57 discusses a form of computer technology that is not generally known to be in use. (The transcript of evidence at p 212, line 34, records this as “now known”; but recollection and the sense of the sentence itself confirm that this is a transcription error for “not now”). This entry at 13:45 attracts exemption under s 37(2)(b). The fourth entry (at 14:30) on folio 57 utilises the key word or code word previously encountered at folio 42 to which access is not sought by the applicant. This entry on folio 57 refers to a method of accessing information that was asserted in evidence to be secret. It is exempt from disclosure by force of a statute to be discussed. On folio 60 (beginning with “F/A Harrigan ...”) there was originally a claim for exemption on the basis of irrelevance; it was advanced in evidence at the hearing (trs at top p 214) but access to it is not now sought by the applicant. In fact the entry simply refers to passing on the message in the preceding paragraph (at 18:57), to which access is not sought. It is evident from its content that neither entry concerns the applicant, his detention or his visa application. These entries on folio 60 are thus irrelevant. The penultimate or 11th entry (at 23:20) on folio 61 discloses police methods and is in any event exempt as information derived confidentially from MPS: see para 45, p 22, above.
86. Folio 87 (12th dot point) and folio 88 (last two dot points) refer to a key word that has been identified by police after intelligence analysis of communications and is regarded as extremely sensitive: if it became known to terrorist targets that the AFP or MPS knew about it, it would alert those persons and give the secret away. I hold that that word is exempt under s 37(2)(b) as claimed. The same conclusion applies to the same word where it is discussed again at folio 89 (first five dot points). It also appears in the last sentence of para 21 on folio 101. It is discussed again in para 27 (immediately below subpara h) on folio 103, on folio 129 at paras 5.38 and 5.39, on folio 220, last sentence fourth entry, and folio 323 (first entry). I consider all of these entries to be exempt under s 37(2)(b). Their disclosure would prejudice effective methods of investigating these and related terrorist offences and activities.
87. On folio 111 the information in the third of the arrow points discusses a “strategy” of inquiring at shops about various purchases made or business done there; it is a detective method commonly in use in drug cases and its disclosure to the applicant (which I direct) of this entry will not jeopardise its effectiveness. For quite different reasons, the penultimate (or fourth) entry on folio 111 discloses a scientific method of detection not generally known to be in use and should not be disclosed. The third paragraph under Physical Evidence on folio 112 identifies methods or procedures which, if terrorist targets became aware of their use, would promote evasion and destroy their effectiveness within the meaning of s 37(2)(b). That item on folio 112 is therefore exempt from disclosure.
88. On folio 114, the first entry discusses methods of bringing together a variety of electronic and other forms of surveillance and information gathering about persons of interest to police. It proposes a new method, rather than disclosing an existing one; but that is obviously no obstacle to satisfying the description in s 37(2)(b). If it were to be disclosed in advance, these methods would be reasonably likely to be prejudiced. The entry is therefore in my view exempt under the provision.
89. The two items (5.38 and 5.39) above para 5.40 on folio 129 have already been considered earlier (paragraph 86 above), and held to be exempt, because of the presence of one of the “key” words that the police in England and Australia are following up in connection with counter-terrorism activity. The exemption of the key word is conceded; concealing the word renders the entry meaningless and irrelevant to the applicant.
90. A claim for exemption is advanced for paragraphs 6.16, 6.17 and 6.18 on folio 134 in respect of a lengthy statement or declaration by a member of the AFP, which is entitled Application for an Initial Preventative Detention Order, beginning at folio 123. The paragraphs in question discuss a particular method of intercepting, assembling, compiling and analysing certain types of information. One of those paragraphs also adverts to a procedure that has been used by a suspect to avoid such interception or analysis. It does not require much imagination to realise that, if it became widely known, that method would quickly be adopted to avoid investigation by use of the police methods described. These items on folio 134 are in my view exempt under s 37(2)(b).
91. Beginning on folio 147 is a Situation Report with respect to Operation Rain. On folio 150 (last two paragraphs), another method of using technology to identify terrorist activities is discussed. I consider this item on folio 150 to be exempt under s 37(1)(b). On folio 153, the first and third paragraphs under International Enquiries refer to attempts to obtain assistance from overseas sources. It is very doubtful whether anything is disclosed in the first of these two paragraphs (which has already been revealed at folio 147); but the second of the two is relevant to other individuals and not to the applicant (trs at p 197). I regard it, but not the first paragraph (which should be disclosed to the applicant) on folio 153, as exempt under s 37(2)(b). The final entry on folio 161 is another attempt to gain access to overseas technological assistance of a kind that is not available in Australia (see trs at pp 198-199). Disclosure of this entry would reveal the nature of the technology and so enable it to be evaded. On folio 162, the first four sentences disclose further efforts to invoke overseas assistance similar to that in folio 161 (trs at p 199). These sentences if disclosed would reveal technology to which AFP has access, as well as restrictions on the ability of AFP to make use of it. The claims to exemption in respect of folios 161 and 162 are upheld under s 37(2)(b).
92. On folio 163, exemption under s 37(2)(b) is claimed for the paragraphs numbered 1,2 and 5. The paragraph numbered 1. uses a code word for covert technology and may properly be said to reveal police methods not generally known or suspected of being in use in Australia. Disclosure would prejudice its effectiveness and it is exempt. As regards para no 2., I am unable to see that it discloses anything about police methods except that surveillance is planned for the applicant if released. This entry (para 2.) should be released to the applicant. Paragraph 5 on folio 163, is indistinguishable from para 1 c on folio 115, to which access is sought by the applicant. Since it is aimed at “identifying unknown targets”, it can scarcely refer to the applicant, and in my view it should not be disclosed to him. I regard entry 1108 at folio 166 as revealing police methods or procedures that would be jeopardised if disclosed, and that are exempt under s 37(2)(b). Entries 1215 and 1308 on folio 167 have already been dealt with above in paras 65 to 66, at pp25-26, of these reasons. At 1703 (first sentence of fourth entry) on folio 182 there is another reference to future surveillance of the applicant, which discloses nothing unexpected about police methods or procedures that would be prejudicial if revealed. It should be disclosed.
93. On folio 220, there is a part of the first text entry that is located on the second and third lines. It reveals the use of a police method that would be prejudiced if it were to be disclosed, and so is exempt under s 37(2)(b) as well as s 38, which is the statutory secrecy provision. The entry above 06:00 on the same folio 220 uses the key word previously referred to in para 86 of this decision the disclosure of which would be prejudicial to the AFP and MPS counter-terrorism efforts. Under s 37(2)(b) it is not to be disclosed. The first full sentence after “HANEEF’s premises” (beginning “Further to this...”) on folio 226 discloses the use of a secret scientific detection method that is exempt under s 37(2)(b). It is not concerned with the applicant. The last three entries on folio 236 claiming exemption under s 37(2)(b) are now conceded to be irrelevant, there being originally a mistake in the Schedule which was corrected at the hearing: see trs at p 153. Exemption is claimed over the fourth entry at 1611 on folio 239 on the basis of s 37(2)(b); in fact it also appears on its face to be irrelevant to the applicant. It would in any event disclose an offshore technological capability that is not generally known in Australia. It is another example of an attempt to invoke a special form of assistance from elsewhere and is entitled to exemption from disclosure under s 37(2)(b). The entry also discloses a restriction on the AFP’s capacity to access this technology.
94. On folio 270, part of the ninth line in the fourth item at 1250 reveals a confidential investigation technique used by AFP that is exempt under s 37(2)(b). At 1336 on folio 270 (the fourth entry) there is another reference to preparing a surveillance team if the applicant is released on bail. It is simply not possible to suggest that revealing this would be likely to prejudice police methods or procedures. It should be disclosed. On folio 271 the only part of the sixth entry at 1627 for which exemption is claimed is a single sentence: as I have said elsewhere (above para 26), I do not consider that the statement “F/A NUTT has advised QPS surveillance to stand down” reveals anything that, if disclosed, would probably be prejudicial to police methods, notwithstanding Mr Appleby’s evidence at the hearing (trs at p 159). I consider item 1803 at the sixth entry on folio 272 to be similar in its content and effect. It should also be disclosed to the applicant.

PERSONAL INFORMATION: s 41(1)

95. Section 41(1) of the Act renders a document exempt if its disclosure under the Act:

“would involve the unreasonable disclosure of personal information about any person ...”

96. This must be read in conjunction with the definition of personal information in s 4 of the Act. It is defined widely to include, so far as material:

“information, or an opinion ... whether true or not true ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

97. There are four requirements:

(1) there must be information about an individual

(2) the identity of that individual must be apparent or reasonably ascertainable from the information; and

(3) disclosure of that information would involve an unreasonable disclosure:

(4) of personal information about that individual.

98. It is obviously either implicit or explicit in the statutory provisions (see s 41(2)) that it is not unreasonable to disclose to the applicant information about himself. Apart from this, s 42(1) involves a process of balancing the competing considerations operating between the public interest in providing access to documents, and the right of an individual to protection of his privacy: see Colakowski and Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429, at 438. This calls for weighing of factors such as the nature of the information, the circumstances in which it was obtained; the likelihood or otherwise of whether the person in question would not wish it to be disclosed; and whether or not it is available from public sources: Re Scholes & Australian Federal Police (1996) 44 ALD 299, at [178].
99. Consistently with these principles or otherwise, Mr Rangiah of Senior Counsel for the applicant made it clear that his client was generally not interested in access to telephone, mobile or email numbers, residential addresses, dates of birth, signatures or names, apart from those of police officers. In the colour-coded copy documents provided to the Tribunal by the respondent information of that description, is, like other information for which exemption is claimed under s 41(1), marked in blue. In view of Mr Rangiah’s concession about matters of that description, I propose to pass over those entries without going to the trouble of expressly declaring them to be exempt on each occasion.
100. Beginning with the first dot point on folio 9, and continuing on to end of para 30 on folio 11, are some personal details supplied to AFP by Dr Ali in the course of an interview conducted in Queensland on 3 July 2007. What appears on folio 9, beginning at the first dot point through to end of the second dot point on folio 10, is personal information about Dr Ali that is, I consider, exempt under s 41(1). The information in the third dot point on folio 10 concerns Dr Ali; but it is also information “about” the applicant and it is reasonable to order disclosure of the whole of that entry. It seems to me that the information in the fourth and fifth dot points on that folio 10 is personal to Dr Ali and should not be disclosed. On the other hand, the information in the sixth dot point is about the applicant and should be disclosed to him. So also, I think, should the information included in the seventh to 14th dot points on that folio 10 (down to “activity”); but not the last (or 15th) dot point, which is about Dr Ali not the applicant, and so is exempt under s 41(1) as personal information that it would be unreasonable to disclose. The information continues over on to the six dot points on folio 11, which seem to me to be about the applicant rather than Dr Ali. There may be slightly more difficulty in classifying some of those six entries as information “about” the applicant rather than Ali, but they too should be disclosed. What appears in the 15 dot points on folio 24 is the same, or almost the same, as the information in the dot points referred to here on folios 9 to 10. In my opinion, it qualifies as personal information about Dr Ali that it would be unreasonable to disclose and is exempt. On folio 25 is the balance of that information. I would not order disclosure of information in the second and third dot points on folio 25, but the other dot point information on folio 25 and the information in the first four dot points on folio 26 is about the applicant and should be disclosed.
101. On folio 45, the last item (at 1808) identifies the applicant’s former residence, but other information in the entry is personal, its source is ascertainable, and it would be unreasonable to disclose it. This entry also identifies the informant and so is exempt from disclosure. The same is true of the person and his address that are identified at the second entry (0045) on folio 52, which has already been disposed of (para 65 above, at p 26) under s 37(2)(b)). Folio 56 in the second-last entry records personal details, which are exempt under s 41(1) and are now conceded by the applicant.
102. Folio 98 incorporates part of a statutory declaration. Beginning at para 9 on folio 98 it contains a further version of Dr Ali’s record of interview with police on 3 July 2007, which has already been considered (para 20 at p11) in folios 9, 10 and 11. As has already been said in that context, some, but not much of the information on those pages is about the applicant and should be disclosed. Hence, disclosure should be made of that part of para 10 on folio 98 beginning “S Ahmed arrived in the UK ...” down to “address”. I do not regard the reference in that context to Dr Ali’s residence at that address as involving an unreasonable disclosure of personal information about him. I have formed a different view of paragraphs 11 to 17 on folios 99 to 100 and 101, which are not about the applicant and ought not to be disclosed to him except for the first two sentences of para 12, while the last sentence of that paragraph is an opinion about Dr Ali that it would be unreasonable to disclose. The other paragraphs from 13 to 17 on folio 99 to 101 consist of personal information about Dr Ali that is exempt under s 41(1) of the Act.
103. On folio 105 there are references in para 35 to the name of yet another individual who became a person of interest to the AFP. It would be unreasonable to disclose this personal information about him. Those references should continue to be withheld from disclosure. Paragraph 36, which follows at folio 105, consists of personal details about the same individual and his travels. The whole of that paragraph 36 on folio 105 is exempt from disclosure under s 41(1), and the same applies to paras 37 to 40 on folio 106, with the exception of the last sentence of para 37. It is as much about the applicant as about the particular individual referred to in para 36, and should be disclosed but with the individual’s name and the description of the identifying relationship concealed. The information in the first two sentences of para 41 on folio 106 is about Dr Ali, and not about the applicant. In terms of s 41(1) it incorporates personal information about Dr Ali and a named individual that it would be unreasonable to disclose.
104. On folio 111, the third paragraph contains personal information about certain individuals, who are capable of being identified from the description given in that paragraph. Except to the extent that this entry on folio 111 has already been disclosed to the applicant, that paragraph is entitled to exemption under s 41(1) and should not be further disclosed.
105. Folios 126, beginning with the last two subparas of 5.19 on folio 126 and ending with 5.20 on folio 127, is another version of or extract from the police interview with Dr Ali in Queensland. Subparas (a) and (b) on folio 126 are personal information about Dr Ali that is not to be disclosed; but I think that the first two lines on folio 127 should be disclosed beginning “and resided with ...” although omitting or concealing the reference to Dr Ali. Paragraph 5.20 on folio 127 contains personal information about the six individuals identified there and ought not to be released. The same applies to the information in subpara (c) near the top of folio 127, which is exempt under s 41(1). On the other hand, I consider that the remaining subparas (d. through to h. but not subpara i.) on folio 127 contain information about the applicant and should be disclosed. On folio 128, the contents of para 5.26 are about the applicant and ought to be disclosed to him, as also should the first sentence (only) of para 5.32 on folio 128, the first sentence (only) of para 5.33 on folio 128 (concealing the name that appears in the first line), and the last sentence of that paragraph. The remaining parts of subparas 5.26 to 5.33 on folio 128 consist of personal information about Dr Ali that it would be unreasonable to disclose.
106. Folio 131 at paras 5.52, 5.53 and 5.54 contains personal information about another individual that is exempt under s 41(1). On folio 142, I consider that the undisclosed portion of para 27, in which the informant is not identified, and the whole of paragraphs 28 and 29 should be released as they concern the applicant and not the narrator of that information. It may be added that this information has already been disclosed on three or four previous occasions in the Documents in Issue.

SECRECY PROVISIONS (s38) AND COMMONWEALTH SECURITY: s33(1)(a)(i)

107. There are two specific provisions outside, but recognised in, the Freedom of Information Act that enjoin secrecy in respect of information contained in documents that are the subject of these proceedings. Section 38 of that Act declares a document exempt if disclosing it or the information it contains is prohibited under a provision of an enactment and that provision is specified in Schedule 3 of the Freedom of Information Act. There are two enactments that lead to that result in this instance. One is s 92 of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act); the other is the Telecommunications (Interceptions and Access) Act 1979 (the TIA Act).

(a) ASIO Act. Sections 92(1) and 92(1A) of the ASIO Act are specified in Schedule 3 of the Freedom of Information Act. Their effect is to prohibit publication of the identity of an ASIO officer. Mr Appleby gave evidence that the name of someone who is an ASIO officer appears (twice) in the portion of folio 57 that extends over on to folio 58. It follows that publication of that name is prohibited. As it happens, the applicant does not seek access to the name in the entry in question, so that its non-disclosure is conceded.

(b) TIA Act. The other relevant secrecy provision, contained in the TIA Act, prohibits communication of “lawfully intercepted information” and “interception warrant information”. These expressions are described or expanded upon respectively in s 6E and s 6EA of the TIA Act. Section 63(1) of the TIA Act then proceeds to prohibit communication of such information. Once again, the section (s 63) is one that is specified in Schedule 3 of the Freedom of Information Act.

108. [Paragraph deleted by order of 4 February 2009 pursuant to s35 of Administrative Appeals Tribunal Act 1975].
109. Commonwealth security. The entry (1457) beginning at the foot of folio 57 and continuing on to folio 58 raises a claim to exemption under s 33(1)(a)(i) of the Act. It is an exemption that applies where disclosure of the document could reasonably be expected to cause damage to the security of the Commonwealth. The expression “security of the Commonwealth” is widely defined in s 4(5)(a) of the Act. There is an acronym or abbreviation (the second and third last letters and words in line 1 on folio 58, which is repeated on line 2) in the part entry at the top of folio 58. It is conceded by the applicant. That being so, and the identity of the ASIO officer being conceded and concealed there is nothing in entry 1457 either on folios 57 or 58 that would attract exemption under s 33(1)(a)(i). The passages in the transcript (at p 213) that deal with this item do not explain how or why disclosure of the remainder of this entry would reasonably be expected to damage the security of the Commonwealth. The warrant referred to in entry 1457 is clearly not a telecommunication warrant within the meaning of the TIA Act. With the name of the ASIO agent and the acronym concealed, I consider this entry on folios 57 and 58 should be disclosed to the applicant. Bereft of the identifying detail, it can cause no damage to the security of the Commonwealth.
110. Finally, there is on folio 233 the name of an organisation that is thought to recruit members from among terrorist suspects. Exemption of this entry is sought under s 33(1)(a)(i). If not exempt under that provision, it would in my opinion qualify for exemption under s 37(1)(a), and ought not to be disclosed.

CODE WORDS; KEY WORDS; AND ACRONYMS

111. Acronyms litter the pages of the Documents in Issue. It is only when they are used as a cover for something confidential that it becomes necessary to ensure that they are not disclosed. Were it not that non-disclosure of the acronym used on folio 58 is conceded by the applicant, I would have been prepared to regard it as exempt from disclosure by s 33(1)(a)(i) of the Act. Removing the cover provided by that acronym to the agency in question could reasonably be expected to cause damage to the security of the Commonwealth. But, given that the anonymity of the named agent and of the acronym is protected from exposure by the applicant’s concessions, there is nothing else in entry 1457 at folios 57 or 58 to attract the exemption in s 33(1)(a)(i) or to justify refusal to disclose the remainder of that entry. It should be disclosed subject to ensuring that the matters conceded by the applicant are concealed.
     
112. There is a series of other expressions that are used as code words or key words in the Documents in Issue. They are words that have been applied by the AFP to disguise its own activities from penetration; or that have been identified by the AFP or MPS as key words or code words believed to be used by terrorist suspects to conceal their actions or intentions. Code words or key words of this kind appear first of all, in the sixth (0250) and the tenth entry (0420) on folio 42; as well as in the second (0645) and fifth (0915) entries on folio 43. Secondly, a code word or expression appears in the sixth entry (1000) on folio 43; in the last entry on folio 148; also in the last entry on folio 157, and in entry 1336 on folio 178 (which is conceded by the applicant). Then there is, thirdly, another word believed to have been identified by analysis of communications between suspects, which is referred to twice on folio 87 in the last of the open dot points and in the last sentence of the paragraph immediately below it; also in the last two dot points on folio 88; in the first, second and fifth dot points on folio 89; in the last sentence of paragraph 21 of folio 101; in first 10 lines of folio 102; and in paragraph 27 on folio 103.
113. In my view, if not exempt from disclosure on other grounds, the foregoing key words or code words are immune from disclosure under s 37(2)(b) of the Act and ought not to be disclosed to the applicant. I understood Mr Rangiah to disavow any interest in accessing these key words, code words or acronyms.
114. The Tribunal sets aside and remits for reconsideration in accordance with these reasons the decision of the respondent’s delegate on 13 June 2008 in relation to each of the following Documents in Issue or parts of Documents:-

(1) On each entry forming part of the respondent’s running log, the numbers (if any) indicating the recording time at the beginning of the text of that entry.

(2) The entry on each of the following folios:-

Folio Number	Description or location of entry
222	The first entry (1013) on folio 222.
234 - 235	Last paragraph of entry (1113) on folio 234 continuing on folio 235 to end of last line of 1st complete entry (1125) on folio 235.
303	Sentence beginning “An analysis ...” in 3rd line on folio 303 to end of 7th line “... management” on folio 303.
167	The 4th entry (1215) on folio 167, but concealing: the last five words on the 3rd line; and the 1st word on the 4th line; and the 2nd last word and the 3rd last word on the 5th line.
167	The 6th entry (1308) on folio 167, but concealing: all the words on the 2nd line after “... telephone call from ...”; and the 1st word in the 3rd line; and the 4th to 9th words on the 3rd line; and the last two words in the 1st sentence of the 7th line; the 4th and 5th words in the 2nd sentence of the 7th line.
177	The 5th entry (1110) on folio 177.
168 - 169	The whole of the entry (1819) beneath the heading LEGAL IN CONFIDENCE on folio 168 extending on to folio 169.
55	The 8th entry (1036) on folio 55 down to the abbreviation BNE on the 2nd line.
111	The whole of the text at the 3rd arrowpoint on folio 111.
153	The 1st paragraph under International Inquiries.
163	The paragraph numbered 2. under Future Directions.
182	The 1st sentence of the 4th entry (1703) on folio 182.
271	The 4th sentence of the 6th entry (1627) on folio 271.
272	The 6th entry (1803) on folio 272.
10	The 3rd dot point on folio 10.
10	The 6th dot point on folio 10.
10	The 7th dot point to the 14th dot point on folio 10.
11	The 1st 6 dot points on folio 11.
98	From “S Ahmed arrived ...” to “ ... address” at end of paragraph 10 on folio 98.
99	The first 2 sentences of paragraph 12 on folio 99.
106	The last sentence of paragraph 37 on folio 106.
126	Last five words “Dr Sabeel Ahmed arrived in ...” on folio 126 continuing on to end of 1st two lines on folio 127.
127	Subparagraphs d. to k. of paragraph 5.19 on folio 127.
128	Paragraph 5.33 on folio 128, but concealing the name in the 1st line of that paragraph.
142	On folio 142: paragraph 27; paragraph 28; paragraph 29;
57 - 58	The 7th entry on folio 57 continuing on to folio 58 but concealing the name (x2) and the acronym (x2) on folio 58.

(3) Otherwise affirms the decision on 13 June 2008 of the respondent’s delegate.

(4) The date on which this decision will take effect is 23 January 2009.

I certify that the 114 preceding paragraphs are a true copy of the reasons for the decision herein of The Honourable Dr B H McPherson CBE Deputy President

Signed: ...........................[Sgd]..........................................................

Melissa Hamblin, Associate

Date/s of Hearing 7, 8, 9 and 30 October 2008

Date of Decision 23 January 2009

Counsel for the Applicant Mr Darryl Rangiah and Ms Nitra Kidson

Solicitor for the Applicant Mr Alex McKean

Counsel for the Respondent Ms D. Mortimer SC and Mr Hill

Solicitor for the Respondent Mr Justin Hyland