Novak and Australian Federal Police [2010] AATA 219 (29 March 2010)

Last Updated: 12 May 2010

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0957

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RICHARD NOVAK

Applicant

And

AUSTRALIAN FEDERAL POLICE

Respondent

CORRIGENDUM

Tribunal Mr S. Webb, Member

Date 23 April 2010

Place Canberra

The Tribunal directed the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision published on 29 March 2010:

On page 24 of the decision in reference to document 23 of the first request, the word ‘sentences’ should be replaced with the word ‘lines’ so that the paragraph reads:

folio 69 – the second and third lines of the first substantive paragraph of the 30 November 2007 email are not exempt on personal privacy grounds, whereas the names in the first sentence of the second paragraph of that email are exempt from disclosure on those grounds.

On page 30 of the decision in reference to document 23 of the first request, the word ‘sentences’ should be replaced with the word ‘lines’ so that the exemption reads:

Document 23

folio 69 – the second and third lines of the first substantive paragraph of the 30 November 2007 email.

On page 30 of the decision in reference to document 7 of the first request, the words ‘first sentence’ should be replaced with the words ‘second, third and fourth sentences’ so that the exemption reads:

Document 7

the entire document with the following exceptions in folio 30: ... – the second, third and fourth sentences of the first substantive paragraph.

On page 31 of the decision in reference to document 7 of the second request, the text in the box should be deleted and the following text should be inserted:

Document 7

folio 36 – the name following “Full Name”; folio 36 – the first sentence of the first substantive paragraph; and folio 36 – the first sentence of the second substantive paragraph.

...................[sgd].................

Mr S. Webb, Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 219

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0957

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RICHARD NOVAK

Applicant

And

AUSTRALIAN FEDERAL POLICE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date 29 March 2010

Place Canberra

Decision

The decisions under review are varied to the extent that access is granted to the documents and parts of documents specified in the table at paragraph 65 of these reasons. The decisions are otherwise affirmed. The matter is remitted to the Respondent to implement the decision in terms.

....................[sgd]...................
Mr S. Webb, Member

CATCHWORDS

FREEDOM OF INFORMATION - criminal investigation and prosecution - scope of requests - relevance - adequacy of searches - heads of exemption from release claimed - decision varied

Freedom of Information Act 1982 (Cth) ss 3, 4, 22, 24A, 27A, 36, 37, 41, 42, 54, 55, 59A, 61

Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138

Re Russell Island Development Association Inc and Department of Primary Industries & Energy [1994] AATA 2; (1994) 33 ALD 683

Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429

Re Haneef and Australian Federal Police (2009) 49 AAR 395

Re Williamson and Registrar of the Federal Court of Australia [1985] AATA 226; (1985) 8 ALD 219

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Esso Australia Resources Limited v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49

Commonwealth v Dutton [2000] FCA 1466; (2000) 102 FCR 168

Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

REASONS FOR DECISION

29 March 2010

Mr S. Webb, Member

1. Richard Novak made two requests for information held by the Australian Federal Police (‘AFP’).[1] The first relates to the investigation and prosecution of an alleged assault and the second relates to the investigation and prosecution of alleged criminal damage. Both requests have been dealt with by primary and internal review decisions.[2] Certain documents were identified, some of which were released to Mr Novak, in whole or in part with deletions;[3] the balance were subject to claimed exemptions under various provisions of the Freedom of Information Act 1982 (Cth) (‘the Act’). Mr Novak is unhappy with the manner in which the AFP dealt with his requests. He complained about this.[4] He is not satisfied that adequate searches were conducted to identify all the documents within the scope of his requests and he does not accept that all exemptions claimed and deletions made are well founded.
2. During the course of proceedings additional searches were conducted and further documents were released in whole or in part to Mr Novak, the balance being subject to claimed exemptions.
3. In sum, a number of documents or parts of documents remain in dispute. The unexpurgated documents were handed up during the hearing and I ordered that access to them be restricted to members and relevant staff of the Tribunal and relevant officers and representatives of the Respondent.[5]
4. The issues for determination, therefore, are whether adequate searches have been conducted for documents within the scope of Mr Novak’s requests, whether the documents or parts thereof that are said to be irrelevant are outside the scope of Mr Novak’s requests and whether the exemptions claimed in respect of the remaining documents are made out. At the close of the hearing Mr Novak raised a supplementary issue concerning costs. Additional time was allowed for written submissions to be filed by both parties on this point. Those submissions having been received, I will address that issue below.

SEARCHES

5. Mr Novak complained that the searches conducted by the AFP were not properly directed; they were not rigorous or sufficient. In his submission the AFP has not taken all reasonable steps to identify relevant documents. Mr Novak asserts that many documents that should have been identified or found are ‘missing’. On a number of occasions during the proceedings he provided lists of such documents.[6] He asserts that various photographs, written and email communications, and AFP attendance records, at his parents house for example, are ‘missing’. In support of his submissions on this point, Mr Novak provided redacted information about particular documents obtained by him under the Act from the ACT Director of Public Prosecutions (‘DPP’) that, he says, originated from or were held by the AFP but which had not been identified or found in response to his requests.
6. Mr Novak is concerned that information about documents or the documents themselves may have been withheld by responsible officers. He is also concerned that the AFP decision makers in relation to both his requests relied on information provided to them by the investigating officer; in his submission that was not appropriate. Furthermore, Mr Novak asserts that the documents he obtained from the DPP suggest that emails, diary notes and entries in the Police Realtime Online Management Information System (‘PROMIS’) were generated by AFP case officers in relation to the matters about which he has requested access to information, but some of those emails, diary notes and PROMIS entries have not appeared in the documents thus far. In his submission, the information has been deliberately withheld, or proper procedures have not been followed by the officers concerned. Mr Novak alleged that Senior Constable Maxim Mokrij, the responsible case officer, deliberately misled the AFP officers dealing with his requests for access to information – Ms Matan, Ms Linabury and Ms Mildner. He tended a bundle of documents in support of this allegation.[7] In sum, Mr Novak submits that further searches should be ordered.
7. I do not agree.
8. Under subsection 24A(1) of the Act, a request for access to a document may be refused if all reasonable steps have been taken to find the document and either it does not exist or it cannot be found in the agency’s holdings. The phrase ‘all reasonable steps’ imposes a test of reasonableness to the search requirements for the purposes of section 24A: what is required is moderate and not extravagant, being appropriate and suitable for the particular purpose.[8] The nature and scope of the particular searches must be considered; so, too, must the manner in which the searches were conducted.
9. Evidence was given about the searches conducted by Ms Linabury and Ms Mildner in response to Mr Novak’s requests and on review.[9] I accept the evidence of Ms Linabury and Ms Mildner on this point and note the searches conducted by Ms Matan, at first instance.[10] As can be seen the searches conducted included searches of electronic and physical holdings for documents within the terms of Mr Novak’s requests. The AFP’s core investigation case management database, PROMIS, was interrogated, with searches addressing person and text criteria relevant to Mr Novak’s requests. The case officer, Senior Constable Mokrij, was requested to provide all relevant documents, including hard copy documents, diary entries and notebooks. Third parties were also consulted.
10. Mr Novak’s assertions concerning ‘missing’ documents were addressed in detail during the hearing. A number of those documents have been identified and are not missing; some have been released to Mr Novak and others are said to be either outside the scope of Mr Novak’s requests or are the subject of claimed exemptions. These will be dealt with below under the relevant heads of exemption claimed.
11. One document identified by Mr Novak has not been found – a letter from the DPP to Mr Novak’s counsel with a number of photographs attached. There is no firm basis, however, on which to conclude that the AFP has a copy of this document in its holdings – the document was not copied to the AFP. Mr Novak asserts that the AFP retained a copy of the brief of evidence containing the photographs that were attached to the letter. That appears to be correct and those documents will be dealt with under the claimed heads of exemption. I am satisfied that the covering letter to which Mr Novak drew attention is unlikely to be within the AFP’s holdings.
12. Mr Novak’s submissions and allegations concerning the conduct of Senior Constable Mokrij are not made out on the present evidence. The documents in Exhibit 5 do not provide a sound basis for the allegations made by Mr Novak against Senior Constable Mokrij. The documents are open to interpretation. They do not establish, to the reasonable satisfaction standard, that Senior Constable Mokrij deliberately misled authorised decision makers or withheld relevant information, as alleged by Mr Novak. It is not my role to investigate allegations of illegal activity or misconduct, nor have I done so. My role, presently, is confined to the consideration of issues concerning the identified documents and the adequacy of searches conducted in relation to Mr Novak’s requests. Thus I am not able to make robust findings concerning the veracity of the allegations against Senior Constable Mokrij, nor would it be proper to do so without an adequate investigation; all that I can say is that the documents on which Mr Novak relies are not sufficient for that purpose.
13. With that in mind and in consideration of the evidence, it appears to me that the internal review procedures followed by the AFP when addressing Mr Novak’s requests were not as thorough as they could have been, and to that extent he has raised a legitimate concern. It appears that Ms Linabury considered a schedule of searches conducted by members of the AFP Freedom of Information Team, at first instance, but did not take that matter any further. She ‘did not make enquiries about the nature of the searches conducted by the FOI Team to identify relevant documents’ on internal review;[11] she gave oral evidence that this was not her role. Ms Mildner gave evidence concerning aspects of searches conducted. It is tolerably clear that much reliance was placed on the information provided by Senior Constable Mokrij, although I note the Respondent’s submissions concerning allegedly ‘missing’ documents and searches conducted.[12] It is also clear that Mr Novak raised concerns about the interpretation of his requests and made allegations concerning Senior Constable Mokrij in the context of internal review. In those circumstances, one might expect that the internal review procedure would include a thorough examination of the scope, manner and adequacy of searches conducted for relevant documents.
14. I accept that Ms Linabury considered the issues and allegations raised by Mr Novak. She referred Mr Novak’s allegations concerning Senior Constable Mokrij to the AFP Professional Standards area for assessment.[13] Ms Linabury stated that she was satisfied that searches had been conducted thoroughly: ‘the AFP Freedom of Information Team conducted a thorough and proper search for documents relating to your original application’;[14] and ‘the AFP Freedom of Information Team conducted a thorough search for documents relating to all six parts of your original application’.[15] Nevertheless, by her own account she did not examine or review those searches, or the manner in which they were conducted. I accept that Ms Linabury did not see this as her role when conducting internal reviews of the primary decisions made by Ms Matan in response to Mr Novak’s requests. But it was. Just as I, too, must determine whether all reasonable steps have been taken to find relevant documents within the terms of Mr Novak’s requests.
15. It should be noted that an application for review of ‘a decision refusing to grant access to a document in accordance with a request’ under section 54 or section 55 of the Act includes a decision to refuse access to a document under section 22 and section 24A. There is an onus on the agency to establish that the decision given in respect to a request is justified.[16] The onus is not confined to particular heads of exemption; it applies to a decision under subsection 22(1), in relation to irrelevant material, and to a decision under section 24A, in relation to a document that cannot be found or does not exist. It applies at the primary decision-making level and on internal review, as well as in proceedings before the Tribunal. Thus, with regard to section 24A, it is for the responding agency to establish that ‘all reasonable steps’ have been taken to find the document and the document cannot be found or does not exist.
16. If adequate searches had been conducted, it may not have been necessary to order further searches during these proceedings. That said, there are two relevant factors to note. Mr Novak provided additional information in the course of proceedings concerning documents he considered to be ‘missing’ from those identified by the AFP; this assisted the focussing of further searches. Had he done so earlier, the additional searches could have been completed sooner. Additionally, there was disputation over a long period concerning the scope and interpretation of Mr Novak’s requests. Issues of this kind inform and guide the scope of searches conducted and, as presently, may not be amenable to early resolution in the absence of agreement. Nevertheless, issues of scope are clearly matters that should be considered on internal review. The general principle to be applied is that discretion is to be exercised under the Act ‘as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information’.[17]
17. I accept that Ms Linabury considered these matters and that the interpretation of the terms of Mr Novak’s requests was the subject of continuing disputation. During the hearing on 29 October 2009 I was asked to give a ruling on this point. The terms of the ruling were given orally and in writing to assist the parties.[18] It is not necessary to repeat those terms here. In consequence further searches were conducted and additional documents were brought forward for determination, to which I will return below.
18. Those additional searches having been completed, I am reasonably satisfied that all reasonable steps have now been taken to identify relevant documents within the scope of Mr Novak’s requests. I am reasonably satisfied that the documents identified by Mr Novak as ‘missing documents’ that have not been found are not within the AFP’s holdings or they simply cannot be found or they do not exist.

IRRELEVANT DOCUMENTS

19. A large number of the documents that were identified in searches, or parts of those documents, are said to be outside the scope of Mr Novak’s requests. There are two points to consider; the first goes to the scope of the requests, in terms, and the second goes to particular documents or parts of documents that are said to be outside the terms of the requests, and therefore exempt from release.
20. Mr Novak’s requests are at T3 and T43. As can be seen, the first request is ‘in respect of an alleged assault of Jade Mellissa Herbert by Richard Novak’ and specifies certain classes and kinds of documents. The second request ‘relates to alleged criminal damage incidents, that led to two criminal damage charges being laid on myself, Richard Joseph Novak, which were ultimately withdrawn’ and specifies certain classes and kinds of documents.
21. Mr Novak is concerned that, initially, the AFP interpreted his requests too broadly and released documents to him that were outside the terms of his request. I note that Mr Novak made a number of requests for access to information in addition to those that are presently the subject of these proceedings. He asserts, however, that subsequently the AFP interpreted his requests too narrowly and excluded many relevant documents on the ground that they are outside the terms of his requests. Mr Novak asserts that documents relating to alleged perjury have been improperly excluded from release on grounds of relevance. In his submission any such documents are within the scope of his requests as the alleged perjury arose in the course of the investigation and prosecution of the alleged offences to which his requests relate.
22. Mr Novak’s requests are confined by their terms. The terms, however, must not be construed strictly, in the sense of pleadings or legislation for example, or in a manner that is unreasonably narrow.[19] Each request must be considered in the context in which it is made, with an eye to the policy of openness that underlies the Act. The issue, in essence, is whether disclosure of the information ‘might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request’.[20] If the information is found to be irrelevant to the request, the agency is not required to disclose it.[21]
23. As I have said, I ruled on the interpretation of Mr Novak’s requests during the first day of the hearing in this matter, and ordered that further searches were to be conducted. Additional documents were identified, some of which were released to Mr Novak and others are the subject of claimed exemptions. It is not necessary, therefore, to go further on the first point concerning the scope of the requests in general terms.
24. With regard to the second point concerning particular documents, the AFP asserts in the Amended Schedule of Documents dated 26 November 2009 (‘the Schedule’) that the following documents, in whole or in part, are exempt from release on the basis of relevance:

First request: Documents 1, 4, 6, 8, 13, 22, 26;

Second request: Documents 1, 2, 6, 8, 9, 10, 11, 12;

Additional documents: Table 2, Documents 1 to 43 inclusive; and

Table 3, Documents 1 to 12 inclusive.

25. As can be seen, the terms of Mr Novak’s requests are directed to the particular assault and criminal damage allegations and related processes. Mr Novak was the subject of other allegations and charges that do not form part of these requests. I understand that Mr Novak has made other requests under the Act in relation to these and related matters, and he has refused to consolidate these requests. Even though this approach may increase the difficulty and cost of processing Mr Novak’s requests, it is beside the point. The Act provides a mechanism to address such issues and each request must be addressed in its terms. It follows that certain documents that are outside the terms of one request may be found to lie within the scope of another request; documents that are exempt from release in relation to one request may be released in relation to a different request. This may give rise a perception of artificiality or may lead to confusion. Mr Novak has raised concerns about such matters, in relation to the release of documents to him by the DPP when the same documents have not been released by the AFP, for example. He has refused, however, to indicate the precise terms of the request or requests he made to the DPP. Thus, it is not possible to determine with any certainty that the AFP is adopting a more restrictive approach than the DPP, although that possibility cannot be ruled out. As I have said, each request must be dealt with in its terms.
26. At this point it is relevant to note that a number of documents have been released to Mr Novak. Having reviewed these documents, it is apparent that certain parts of the released documents are not relevant to either of Mr Novak’s requests, for example information about charges 1 and 8 in document 2 of the bundle of documents dealt with in relation to the second request. As such material has been released and no exemption is pressed in relation to material that has been released in error, I will say nothing further about it. The focus of my review concerns the documents or parts thereof that are claimed to be exempt from release.

FIRST REQUEST

27. I am reasonably satisfied that the parts of documents 4 and 8 that have been deleted on relevance grounds and identified in the Schedule are irrelevant and are excluded from release. The deleted material concerns matters that are plainly outside the terms of Mr Novak’s first request and are irrelevant to it.
28. The following deleted material is relevant to Mr Novak’s first request and cannot be excluded from release pursuant to subsection 22(1)(a)(ii) of the Act, although other claimed heads of exemption may apply:

Document 1: folio 2 – lines 6 to 7 inclusive, commencing with the “CAY026.01” on line 6 and ending with “SUMMONS” on line 7 – this material is not exempt from disclosure;

folio 4 – the words between “Jade” and “HERBERT” in the first line of the last paragraph – this material is not exempt from disclosure;

folio 4 – the last two sentences of the last paragraph – parts of this material are relevant but are exempt for other reasons; and

folio 5 – the first five lines – parts of the this material are relevant but are exempt for other reasons;

Document 6: folio 28 – the words between “Jade” and “HERBERT” in line 6 – this material is not exempt from disclosure; and

folio 28 – line 8 – this material is not exempt from disclosure;

Document 13: folio 42 – the last three sentences of the second last paragraph of the 13 April 2005 email – this material is relevant but it is exempt from release for other reasons;

Document 22: folio 67 – the deleted parts of this document are relevant to Mr Novak’s first request but this information is exempt from release for other reasons; and

Document 26: folio 78 – the fourth paragraph of the 12 April 2005 email – this information is relevant but it is exempt from release for other reasons.

29. With these exceptions, I am satisfied that the information deleted from documents within Mr Novak’s first request pursuant to subsection 22(1) were properly made as the deleted information is irrelevant to that request.
30. Additionally, I am satisfied that the first substantive paragraph and the first sentence of the second paragraph of the 3 December 2007 email at folio 69 in Document 23 are not relevant to Mr Novak’s first request. This information solely concerns investigations relating to alleged perjury and is outside the scope and terms of Mr Novak’s first request and cannot reasonably be considered relevant to that request. Mr Novak asserted that any documents relating to alleged perjury by a third party are within the scope of his first request as those allegations arose out of and in relation to those proceedings.[22] I do not agree. Information concerning the investigation of alleged perjury involving a third party is not within the terms of Mr Novak’s first request; the information is not relevant to that request insofar as information about the investigation of that matter does not relate to the allegations and investigations that were brought against Mr Novak and the terms of his requests. The same cannot be said, however, in relation to information concerning and arising from the third party, in the form of a witness statement for example, that relates to the subject allegations against Mr Novak, which lie at the heart of his first request. Information of that kind is within the scope of his first request.

SECOND REQUEST

31. With regard to Mr Novak’s second request, I am reasonably satisfied that the parts of documents 2, 8, 9 and 11 said to be deleted on relevance grounds and identified in the Schedule are irrelevant and are exempt from release. The deleted material concerns matters that are plainly outside the terms of Mr Novak’s second request and are irrelevant to it.
32. The following deleted material is relevant to Mr Novak’s second request and cannot be excluded from release pursuant to subsection 22(1)(a)(ii) of the Act, although other heads of exemption may apply:

Document 1: folio 3 – all of the second paragraph with the exception of the last seven words – this material is not exempt from release;

Document 6: folio 33 – with the exception of the last six words of the second sentence of the third substantive paragraph immediately following the word ”images” and the last three words on the second last line immediately following the word “disk” – this material is not exempt from release on relevance grounds;

Document 7: the following information is relevant to Mr Novak’s second request, although parts of this information are exempt from release for other reasons:

folio 36 – information above and including the first sentence of the second paragraph;

folio 37 – all of the last two paragraphs; and

folio 38 – all of the first two paragraphs;

Document 10: folio 78 – second paragraph is relevant to Mr Novak’s second request, but it is exempt from release for other reasons;

Document 12: folio 82 – parts of the emails of 9.52am and 10.25am are relevant to Mr Novak’s second request, but this information is exempt from release for other reasons.

33. With these exceptions, I am satisfied that the information deleted from documents within Mr Novak’s second request pursuant to subsection 22(1) were properly made as the deleted information is irrelevant to that request.

ADDITIONAL DOCUMENTS

34. With regard to the additional documents, I am reasonably satisfied that documents 1 to 16 and 18 to 42 inclusive identified in Table 2 and documents 1, 10, 11 and 12 identified in Table 3 of the Schedule are outside the terms of Mr Novak’s requests. These documents in their entirety are irrelevant to those requests and are excluded from release. Document 1 is a communication from Mr Novak’s lawyer to the DPP in relation to allegations concerning Mr Novak; this letter is not within the terms of Mr Novak’s requests.[23] Documents 10, 11 and 12 relate to alleged perjury offences and related investigations, particularly concerning legal advice and a taped record of conversation with the third party. I note the written submissions of the parties in relation to this point.[24] I am satisfied, however, that these documents do not contain information that is within the scope of Mr Novak’s requests on any reasonable reading, and they may reasonably be regarded as irrelevant to the two requests for access to information that are presently in issue. Even if that were not so, the documents would be exempt from release for other reasons concerning legal professional privilege and personal privacy grounds.
35. Documents 17 and 43 of Table 2 and documents 2, 3, 4, 5, 6, 7, 8 and 9 of Table 3 are within the terms and are relevant, in whole or in part, to one or both of Mr Novak’s requests.
36. Document 17 in Table 2 is a brief of evidence in relation to charges brought against Mr Novak, including charge “CC2004/9345” being the charge of common assault that is the subject of Mr Novak’s first request. Document 43 in Table 2 is a prosecution report concerning that charge, file reference “SCC109/05”. Documents 2, 3, 4, 5, 6, 7, 8 and 9 in Table 3 are email and other communications of a legal nature concerning court procedures referring to SCC109/05 and, inter alia, charge CC2004/9345.
37. Certain information was deleted from Document 17 prior to release to Mr Novak. With regard to information that was said to be excluded on grounds of relevance, I am satisfied that the following material is relevant to Mr Novak’s requests and cannot be excluded from release pursuant to section 22(1)(a)(ii) of the Act, although other heads of exemption may apply:

TABLE 2:

Document 17: (a copy of this document with deletions was released to Mr Novak by the AFP during the hearing)

page 2 – lines 1 to 16 inclusive in the “NAME” column – this material is relevant, but parts of it are exempt from disclosure for other reasons;

page 2 – paragraphs 2, 3 and 4 in the “EVIDENCE” column – this material is not exempt;

page 2 – lines 1, 5, 6 and 7 in the “TO PRODUCE” column – this material is not exempt;

page 3 – lines 1 to 4 inclusive in the “NAME” column – this material is not exempt;

page 3 – lines 2 to 8 inclusive in the “EVIDENCE” column – this material is not exempt;

page 3 – lines 1, 5, 6 and 7 in the “TO PRODUCE” column – this material is not exempt;

page 5 – lines 9 and 10 – this material is not exempt;

page 6 – line 1 in the “Name” column of table 2 and lines 1 to 7 in the “Nature of Evidence” column of table 2 – this material is not exempt from release.

Document 43: the entire document – with the following exception the document is not exempt: the name and initials in the two lines immediately above “for Director” on page 2 are exempt for other reasons.

TABLE 3:

Documents 2, 3, 4, 5, 6, 7, 8 and 9 are relevant to Mr Novak’s first request but not to his second request. Even so documents 3, 4, 5, 6, 7, 8 and 9 in their entirety are exempt from release for other reasons. Document 2 contains information that is not relevant in the “Subject” line of the table: the two reference numbers immediately following the reference “CC2004/9345” are not relevant and are excluded from release.

EXEMPTIONS

INTERNAL WORKING DOCUMENTS

38. The last three paragraphs of document 4 at folio 12 in relation to Mr Novak’s first request are claimed to be exempt under section 36 of the Act. I have found that this material is not relevant and is outside the scope of that request. For that reason it is excluded from release pursuant to section 22 of the Act.

DOCUMENTS AFFECTING ENFORCEMENT OF LAW

39. Parts of documents 6 at folio 28, 13 at folio 42, and 23 at folio 69 of the first request documents and document 6 at folio 35 of the second request documents are claimed to be exempt under subsection 37(2)(b) of the Act. I have found, however, that each of those specified parts of those parts of the documents are outside the scope of Mr Novak’s requests and are irrelevant to them; they are excluded from release pursuant to section 22 of the Act.

DOCUMENTS AFFECTING PERSONAL PRIVACY

40. The following documents are claimed to be exempt, in whole or in part, under section 41(1) of the Act:

First request: Documents 1, 2, 3, 5, 6, 7, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 29A;

Second request: Documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11;

Additional documents: Table 2, Document 17; and

Table 3, Documents 10, 11, 12.

41. The term ‘personal information’ is given meaning at subsection 4(1) of the Act. As can be seen ‘personal information’ is information about an individual, where the identity of the individual is apparent or may reasonably be ascertained. Having regard to the information contained in these documents, I am satisfied that they contain personal information; the information concerning identifiable persons is of a personal nature.
42. Where the section 41 exemptions claimed concern information that I have found to be not relevant to Mr Novak’s requests; there is no requirement to disclose this information, additional documents 10, 11 and 12 of Table 3 for example. For that reason it is not necessary to determine whether those same documents or parts of documents are also exempt under section 41 of the Act.
43. The section 41 exemption protects against the unreasonable disclosure of personal information of any individual. The test of reasonableness requires the public interest in disclosure to be weighed against the individual’s right to privacy.[25] The nature of the information, the circumstances in which it was obtained, the likelihood of the person objecting to disclosure of the information, the current relevance of the information and whether it is publicly available must all be considered.[26]
44. Presently, the information concerning the personal information of third parties is in the nature of statements, addresses, telephone numbers and related references. It was obtained in the course of AFP investigations into alleged assault and property damage offences. To varying degrees the information combines information about third parties and information about Mr Novak. In such circumstances Mr Novak’s request cannot simply be answered with reference to subsection 41(2) of the Act.
45. I note Ms Linabury’s evidence and Ms Mildner’s evidence that the third parties the ’AFP were able to locate and contact’ ‘said, in emails and telephone calls to me, words to the effect that “I object to the release of the documents”’.[27] Precisely which third parties were contacted and precisely what they said remains opaque; it is equally unclear which of the third parties were not able to be located or contacted. Furthermore, it is not clear whether any or all of those third parties were informed of proceedings in the Tribunal pursuant to subsection 59A(3) of the Act. Certainly no submissions have been filed by any such parties in these proceedings. The purported objections by the particular third parties are matters to be weighed in the balance of reasonableness for the purposes of subsection 27A(1AA) and
    subsection 41(1). As will appear, I am satisfied that section 27A and specifically the preclusion in subsection 27A(1) does not apply as the reasonableness test in subsection 27A(1AA) is not satisfied in respect of the third parties with personal information in any of the documents to be released in whole or in part. When determining whether a person might reasonably wish to contend that a document containing personal information should be exempt the current relevance and sensitivity of the information, and whether the information is a matter of public knowledge, are relevant matters to take into account.
46. At this point it is relevant to note what appear to be inconsistencies between some of the exemptions claimed and information that has already been released to Mr Novak by the AFP. For example, the statement of Rhiannon Herbert has been released to Mr Novak with only an address being deleted,[28] whereas references to the same material in other documents are said to be exempt under section 41. It may be that I have missed something in relation to this and other similar discrepancies, and there may be a simple explanation. But that is not presently clear to me. In the example I have cited, if information has been released, it is difficult to understand why disclosure of a reference to all or part of that material would constitute an unreasonable disclosure of personal information. It appears that certain information containing personal information of third parties was released to Mr Novak by the AFP after Ms Linabury’s internal review decisions.
47. Furthermore, it appears that a number of the documents containing personal information of third parties that are presently in dispute were released to Mr Novak by the DPP after Ms Linabury made her internal review decisions. The AFP asserts that any such release does not mean that the same material should be released by the AFP in relation to Mr Novak’s requests. Nevertheless, prior release by another agency under the Act is a matter of relevance when determining whether or not a person might reasonably wish to contend that a document containing personal information about them is exempt; it is necessary to have regard to the matters set out in subsection 27A(1A) of the Act. Release of information under the Act, in relation to the question of reasonableness at least, is taken to be release to the world at large.[29] It appears that the AFP does not cavil with this approach.[30] Nevertheless, if section 27A applies, it is necessary to determine whether it is reasonably practicable in all of the circumstances to give such persons the opportunity of making submissions. No evidence on this point has been adduced and the point has not been addressed by either party. Nevertheless, I accept the evidence of Ms Mildner that reasonable efforts were made to contact third parties in relation to personal information about them.
48. As it appears to me much of the information over which section 41 exemptions are claimed has been released to Mr Novak by the AFP or by the DPP in some form, in the form of a statement of facts for example.[31] This information is detailed and particular; it sets out personal information of identified persons. Nevertheless the AFP presses exemptions in relation to statements by third parties including the same or very similar information. Information concerning the existence of such statements is set out in the aforementioned statement of facts and in other documents that have been released publicly under the Act. Where the existence of a statement by a person is known publicly and the subject information or the particular content of the statement by that person is in the public domain, having been released under the Act, even though the statement itself may not have been dealt with in open court, these are matters that must be taken into account when considering the views of third parties and whether a third party may reasonably wish to contend that a document is exempt from release on personal privacy grounds. As it appears to me these matters bear heavily on the current relevance and sensitivity of the information and the seriousness of any consequence that may flow from its release.
49. On that point, the subject allegations and proceedings that lie at the heart of Mr Novak’s requests have been dealt with and were finalised a number of years ago. It can be accepted that the investigation and prosecution of allegations concerning domestic violence may give rise to sensitivities that may endure over time, and that the relevance of related information, which is not bland or commonplace, may have subjective currency over an extended period. Nevertheless, in the present case there is no evidence before me that any serious consequences could reasonably be expected to flow from release of much of the contentious information; particularly that information already existing in the public domain.
50. It was not put to me, and there is no present evidence, that Mr Novak poses any threat to any of the third parties concerned. It is plain enough from what Mr Novak said during the hearing that his attention is squarely focussed on the conduct of investigations and related proceedings against him by the AFP, and in particular the professionalism and integrity of certain officers involved in his case. The proper and efficient conduct of such investigations by the AFP is a matter of substantial public interest and any documents that bear on this point should be open to public scrutiny.
51. For these reasons many of the claimed exemptions on personal privacy grounds are not made out, despite the apparent views of some of the third parties to the contrary. Subject to the following comments and findings, I am reasonably satisfied that disclosure of much of the personal information over which exemptions are claimed is not unreasonable in all of the circumstances. The significant exception, however, concerns personal contact information, in the form of addresses, email addresses and telephone numbers of third parties, where the balance of interests tips strongly in favour of personal privacy.
52. I accept the AFP’s submission that information identifying officers of the DPP, including names, email addresses and telephone numbers, is not publicly available and there is a strong public interest in precluding disclosure of such information. Furthermore, I accept that there is a strong public interest in a person’s right to privacy and in that regard I am satisfied that disclosure of the addresses and telephone numbers of third parties in a case such as this is not in the public interest.
53. I will proceed to deal with the claimed exemptions in relation to the documents or parts thereof as they appear. There are two categories of material to be considered under this head of exemption: personal information of persons who were directly or indirectly involved with the alleged incidents to which Mr Novak’s requests relate, and personal information of DPP personnel. Having carefully considered the specific nature of the particular information I make the following findings in relation to exemptions claimed under section 41 of the Act.

FIRST REQUEST

Document 1: folio 4 – the words between “Jade” and “HERBERT” in the first line of the last paragraph – this material is not exempt from release;

folio 4 – the last two sentences of the last paragraph – the information in these sentences can be disclosed and is not exempt with the exception of the words following the word “at” in the second last sentence and the words in the last line on folio 4, which are exempt from disclosure as this information is personal information of the individual that it is not reasonable to disclose; and

folio 5 – the first line is exempt from release, lines 2 to 5 inclusive are not exempt from release;

Document 6: folio 28 – the deleted material in lines 6, 7, 8, 9 and 10 is not exempt from disclosure on personal privacy grounds;

Document 7: with the following exceptions the document is not exempt from disclosure as it contains personal information that has been disclosed in other documents released to Mr Novak:

folio 30 – the address immediately following “Home Address” and the numbers following “Phone Home” and “Mobile” are exempt from release; and

folio 30 – with the exception of the first sentence, the first substantive paragraph is exempt from release as it contains personal information that it is unreasonable to disclose;

Document 13: folio 42 – the last three sentences of the second last paragraph of the 13 April 2005 email are not exempt on personal privacy grounds, but are exempt for other reasons;

Document 22: folio 67 – the first sentence of the first paragraph of the 27 November 2007 email is not exempt on privacy grounds as no personal information is disclosed;

Document 23: folio 69 – the second and third sentences of the first substantive paragraph of the 30 November 2007 email are not exempt on personal privacy grounds, whereas the names in the first sentence of the second paragraph of that email are exempt from disclosure on those grounds;

Document 24: folio 74 – the first sentence of the first substantive paragraph of the 27 November 2007 email does not disclose personal information and is not exempt from release on privacy grounds;

Document 25: folio 76 – with the exception of the addressee’s name in the first line, the body of the 5 December 2007 email does not disclose personal information and is not exempt from release on privacy grounds;

Document 27: folio 81 – the name in the body of the 9 May 2005 email is not exempt on grounds of personal privacy;

Document 29A: with the following exceptions, the contents of this document are not exempt from release on privacy grounds as much of the information is contained in other documents that have been released previously or to be released under the terms of this decision:

folio 85 – the name of the addressee in the 30 November 2007 6:17pm email following “To:” and in the first line of the email; the first sentence of the fourth substantive paragraph of that email; the name and address of the sender of the 30 November 2007 9:11am email, following “From:” and below the word “PROMIS” in the body of the email; the name of the addressee of the 29 November 2007 email following “To:” and ”Hi”;

folio 86 – the third sentence of the first paragraph; the name and address of the sender of the 27 November 2007 email, following “From:”; and the name and telephone extensions of the sender of that email.

SECOND REQUEST

Document 1: folio 3 – all of the second paragraph with the exception of the last seven words – this material is not exempt from release on personal privacy grounds;

Document 2: folio 8 – the deleted information in paragraphs 11 and 12 is not exempt from release of personal privacy grounds as it has been released in other documents, but this information is not relevant to Mr Novak’s second request;

Document 6: folio 33 – with the exception of irrelevant material, being the last six words of the second sentence of the third substantive paragraph immediately following the word ”images” and the last three words on the second last line immediately following the word “disk”, this folio is not exempt from release on personal privacy grounds;

Document 7: with the following exceptions the document is not exempt from disclosure as it contains personal information that has been disclosed in other documents released to Mr Novak:

folio 36 – the address immediately following “Home Address:“, the numbers following “Phone Home:“ and “Mobile:” and the words following “Occupation:” and “Employer:” are exempt from release as this information is personal information that it is unreasonable to disclose;

folio 36 – with the exception of the first sentence, the first substantive paragraph is exempt from release as it contains personal information that it is unreasonable to disclose;

folio 37 – the last two paragraphs; and

folio 38 – all of the first two paragraphs;

Document 9: deleted parts of this document are not exempt from release on privacy grounds, but they are not relevant to Mr Novak’s second request.

ADDITIONAL DOCUMENTS

TABLE 2:

Document 17: page 2 – lines 2, 3, 4, 6, 7, 8, 10, 11, 12, 14, 15 and 16 in the “NAME” column – this information is personal information in the form of addresses and telephone numbers that it is unreasonable to disclose on personal privacy grounds.

54. With these exceptions, I am satisfied that the information deleted from documents within Mr Novak’s first and second requests pursuant to section 41 were properly made. Thus, I am reasonably satisfied that the following exemptions claimed in relation to personal privacy are upheld:

First request: Documents 2, 3, 5, 10, 11, 12,[32] 15, 16, 17, 18, 19, 20, 21, 26, 28, 29; and

Second request: Documents 3, 4, 5, 8, 10, 11.

55. The deleted personal information in these documents, includes information in the form of personal addresses, telephone numbers and personal information relating to matters that are outside the scope of Mr Novak’s first request that it would be unreasonable to disclose. The public interest in disclosure of this information is outweighed by the third parties’ right to privacy.

DOCUMENTS SUBJECT TO LEGAL PROFESSIONAL PRIVILEGE

56. The following documents in whole or in part are claimed to be exempt from release on grounds of legal professional privilege:

First request: Documents 12, 13, 25, 26;

Second request: Documents 11, 12; and

Additional documents: Table 3, Documents 3, 4, 5, 6, 7, 8, 9.

57. Legal professional privilege attaches to confidential communications between a lawyer and his or her client and attaches to material that was brought into existence for the dominant purpose of obtaining or providing legal advice or services, or for use in litigation.[33] It matters not that the material is a collection or a collation of documents, including copies of documents, as long as the material was collected or collated, or copied, for the dominant purpose of legal advice or use in pending litigation.[34]
58. I accept the AFP’s submission that the DPP is the AFP’s legal adviser and that the AFP obtained legal advice concerning the investigation and prosecution of allegations involving Mr Novak. Subject to any waiver, such legal advice is protected by legal professional privilege.
59. I note that the privilege belongs to the client and not to the legal adviser; waiver of privilege is not in the hands of the adviser, but remains with the client.[35] There is no evidence before me that the AFP, the ‘client’ for present purposes, authorised any waiver of privilege by the DPP. Thus, any release of privileged information by the DPP does not necessarily imply any waiver of the privilege retained by the AFP.
60. Having carefully considered each of the documents that are subject to claims of exemption from release on grounds of privilege, I am satisfied that each of those documents are communications between AFP and DPP officers for the dominant purpose of obtaining and providing legal advice relating to the prosecution of allegations against Mr Novak. I note that document 2 appears to contain information that may attract protection from release on grounds of privilege, but no such exemption is claimed; so I will proceed on the basis that the relevant parts of that document are not exempt. Some parts of documents 12, 13, 25, 26 of the first request documents and document 11 of the second request documents have been released, but this does not constitute an implied waiver of privilege over the remaining parts of those documents that have not been disclosed. I am satisfied that the remaining parts of those documents contain legal advice that is not compromised or revealed by the disclosures that have been made and those parts are exempt from release under subsection 42(1).
61. I am satisfied that document 12 of the second request documents and additional documents 3, 4, 5, 6, 7, 8 and 9 in Table 3 are exempt from disclosure in their entirety on grounds of privilege pursuant to subsection 42(1).

COSTS

62. At the conclusion of the hearing Mr Novak asked me to make an order in relation to costs. Subsequently written submissions on this point were filed by both parties.[36]
63. In the Respondent’s submission it would be premature to make an order for costs without the parties having the benefit of considering the terms of my decision in this application. I agree.
64. For that reason, the parties will have a further 14 days in which to file any further submissions in relation to the question of costs.

CONCLUSION

65. The decisions under review are varied to the extent that access is granted to the documents specified in the following table. The decisions are otherwise affirmed.

FIRST REQUEST:

Document 1

folio 2 – lines 6 to 7 inclusive, commencing with the “CAY026.01” on line 6 and ending with “SUMMONS” on line 7;

	folio 4 – the words between “Jade” and “HERBERT” in the first line of the last paragraph;
	folio 4 – the last two sentences of the last paragraph with the exception of the words following the word ‘at’ in the second last sentence and the words in the last line on folio 4; and
	folio 5 – lines 2 to 5 inclusive.
Document 6	folio 28 – the deleted material in lines 6, 7, 8, 9 and 10.
Document 7	the entire document with the following exceptions in folio 30: – the address immediately following “Home Address“ and the numbers following “Phone Home“ and “Mobile“ are exempt from release; and – the first sentence of the first substantive paragraph.
Document 22	folio 67 – the first sentence of the first paragraph of the 27 November 2007 email.
Document 23	folio 69 – the second and third sentences of the first substantive paragraph of the 30 November 2007 email.
Document 24	folio 74 – the first sentence of the first substantive paragraph of the 27 November 2007 email.
Document 25	folio 76 – the body of the 5 December 2007 email.
Document 27	folio 81 – the name in the body of the 9 May 2005 email.
Document 29A	the entire document with the following exceptions: folio 85 – the name of the addressee in the 30 November 2007 6:17pm email at lines 7 and 9; the first sentence of the fourth substantive paragraph of that email; the name and address of the sender of the 30 November 2007 9:11am email, following “From:”; the name of the addressee of the 29 November 2007 email following “To:” and “Hi”; folio 86 – the third sentence of the first paragraph; the name and address of the sender of the 27 November 2007 email, following “From:”; and the name and telephone extensions of the sender of that email.

SECOND REQUEST:

Document 1	folio 3 – all of the second paragraph with the exception of the last seven words.
Document 6	folio 33 – with the exception of the last six words of the second sentence of the third substantive paragraph immediately following the word “images” and the last three words on the second last line immediately following the word “disk”.
Document 7	the entire document with the following exceptions: folio 36 – the address immediately following “Home Address:”, the numbers following “Phone Home:” and “Mobile:” and the words following “Occupation:” and “Employer:”; and folio 36 – the first sentence of the first substantive paragraph; folio 37 – the last two paragraphs; and folio 38 – all of the first two paragraphs.

ADDITIONAL DOCUMENTS:

Document 17, Table 2	page 2 – lines 1, 9 and 13 in the “NAME” column;
	page 2 – paragraphs 3 and 4 in the “EVIDENCE” column;
	page 2 – lines 1, 6 and 7 in the “TO PRODUCE” column;
	page 3 – lines 1, 3 and 4 inclusive in the “NAME” column;
	page 3 – lines 3 to 8 inclusive in the “EVIDENCE” column;
	page 3 – lines 1, 6 and 7 in the “TO PRODUCE” column;
	page 5 – lines 9 and 10;
	page 6 – line 1 in the “Name” column of table 2 and lines 1 to 7 in the “Nature of Evidence” column of table 2.
Document 43, Table 2	The entire document with the exception of the name and initials in the two lines immediately above “for Director” on page 2.
Document 2, Table 3	The entire document with the exception of the two reference numbers in the “Subject” line immediately following the reference “CC2004/9345”.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed: ....................[sgd]......................................................................

J. Lakin, Associate

Date of Hearing 29 October, 10 & 14 December 2009

Date of Decision 29 March 2010

Applicant self-represented

Solicitors for the Respondent DLA Phillips Fox Lawyers

ATTACHMENT 1

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0957

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RICHARD NOVAK

Applicant

And

AUSTRALIAN FEDERAL POLICE

Respondent

RULING

Tribunal

Mr S. Webb, Member

Date 29 October 2009

Place Canberra

1. Richard Novak made two requests for access to information held by the Australian Federal Police (‘AFP’). Primary and internal review decisions have been made in relation to both requests. Those decisions are presently before the Tribunal for review.
2. Issues have arisen in the course of proceedings concerning the scope and interpretation of Mr Novak’s requests. I have been asked to assist the parties by ruling on these issues.
3. The relevant test to be applied is set out in section 22(1)(a)(ii) of the Freedom of Information Act 1982 (Cth) (‘the Act’).
4. Mr Novak’s two requests are at T3 and T43. The requests are confined by their terms. The terms, however, must not be construed strictly, in the sense of pleadings or legislation for example, or in a manner that is unreasonably narrow.[37] Furthermore, the request must be considered in the context in which it is made, with an eye to the policy of openness that underlies the Act. The issue, in essence, is whether disclosure of the information “might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request”.[38] If the information is found to be irrelevant to the request, the AFP is not required to disclose it.[39]
5. Mr Novak is not a lawyer. The terms he has used to frame his requests are those of a lay person, albeit attempting to use a legal approach; they are essentially broad in character. Nevertheless, each particular term or criterion in each of his requests must be given meaning.
6. It is clear enough that Mr Novak’s requests relate to and have at their centre an alleged assault by him on Jade Herbert in October 2003 and allegations of criminal damage perpetrated by him at 28 Cowan Street Downer in 2003 and 2004. They arise in the context of AFP investigations and related prosecutions concerning those alleged incidents. The requests are framed using relative phrases including ‘in relation to’ and ‘in respect of’. These phrases are to be given a broad and liberal meaning when interpreting the scope of Mr Novak’s requests.
7. Furthermore, terms such as ‘incident reports’, ‘computer entries’, ‘statements’, ‘email correspondence’ and ’notebook entries, diary entries, running sheet, briefing notes, VLO statements’ must be interpreted according to their meaning in common usage – a strict technical or narrow legal interpretation is not appropriate.
8. Thus, as it appears to me, an incident report in the context of Mr Novak’s requests would encompass a report concerning the particular alleged incident, whether in the particular form of an ‘incident report’, if that term has a particular or technical meaning in the AFP, or in the form of a ‘case note’ or other form of report concerning the particular or alleged incident. A computer entry in respect of an alleged incident would encompass all entries on any AFP computer system in any format concerning or arising out of the particular alleged incident. A ‘statement’ in respect of an alleged incident would include a formal statement or affidavit but is not limited to such formal documents. As it appears to me a ‘statement’ in the context of an investigation, in common parlance, may include information conveyed by a person stating, alleging or enunciating information in the context of that investigation.[40] The term ‘email correspondence’ connotes simply correspondence conveyed by the use of an electronic ‘email’ system. In both requests Mr Novak has referred to briefing notes and other kinds of documents; these descriptors should interpreted by applying their meaning in common usage. As it appears to me the term ‘an investigation’ must also be given a common usage meaning; the meaning of that term is not confined to a technical or narrow interpretation. Thus, an investigation can be understood to mean the action of investigating or the making of a search or inquiry into the particular subject.[41]
9. In sum, a ruling such as this at this point in proceedings, where parties have not yet made submissions concerning specific documents that are said to be outside the scope of Mr Novak’s requests or are not relevant to those requests, is necessarily cast in broad terms; and those terms are open to further interpretation. Nevertheless, as it appears to me, this ruling may adopt a broader approach to Mr Novak’s requests than that adopted by the AFP decision-makers.
10. Parties will need to consider their respective positions and, if necessary, to provide further instructions concerning documents that have been the subject of a decision-making process and have been found to be outside the scope of Mr Novak’s requests or irrelevant to those requests. I note that many of those documents have not been identified in schedules of documents produced by AFP decision-makers and have not been filed in the Tribunal in these proceedings.
11. In the circumstances, having heard the parties, it is appropriate to adjourn the proceedings and to make the following orders.

DIRECTION

On or before 26 November 2009 the Respondent is to:

1. file in the Tribunal and serve on Mr Novak a revised schedule of documents:
   • (a) identifying all documents that:
     • (i) have been the subject of a decision making process consequent upon Mr Novak’s requests at T3 and T43, and
     • (ii) may reasonably be considered to be within the terms of those requests, excluding only those documents that are clearly, objectively and unequivocally outside the terms of those requests; and
   • (b) in relation to the documents identified in 1(a):
     • (i) specifying all documents or parts of documents that are claimed to be outside the terms of Mr Novak’s requests; and
     • (ii) specifying all documents and parts of documents that are claimed to be exempt from release; and
2. serve on Mr Novak copies of the scheduled documents in 1(a) with deletions made to exclude material that is claimed to be exempt or outside the terms of his requests; and
3. file in the Tribunal unexpurgated copies of the scheduled documents in 1(a) with claimed exemptions or irrelevant material clearly identified.

A resumed hearing is to be set down for one day on the earliest convenient date after 2 December 2009.

______[sgd]_______

Mr S. Webb, Member

---

[1] T3 and T43.
[2] T9, T13, T48 and T52.
[3] T14 to T42; T54 to T65.
[4] T46 and T49, for example; written submissions filed on 18 December 2009.
[5] Exhibit 1.
[6] Documents filed by the Applicant on 9 June 2009, 21 July 2009 and 7 October 2009; documents handed up during the hearing on 29 October 2009 and 10 December 2009; Exhibit 5.
[7] Exhibit 5.
[8] Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 at 145.
[9] Exhibits 2 and 3, respectively.
[10] T9 folio 37 and T48 folio 172.
[11] Exhibit 2, paragraph 14.
[12] Written submissions dated 15 June 2009, 30 June 2009, 6 August 2009, 10 December 2009 and 18 December 2009.
[13] Exhibit 2, Annexure VL-2, p1.
[14] T13 folio 71.
[15] T52 folio 184.
[16] Subsection 61(1), Freedom of Information Act 1982 (Cth).
[17] Section 3, Freedom of Information Act 1982 (Cth).
[18] Attachment 1.
[19] Re Russell Island Development Association Inc and Department of Primary Industries & Energy [1994] AATA 2; (1994) 33 ALD 683 at 692.
[20] Ibid at 691.
[21] Section 22, Freedom of Information Act 1982 (Cth).
[22] Applicant written submissions filed on 30 December 2009.
[23] T3 and T43.
[24] Respondent written submissions filed on 18 December 2009 and Applicant written submissions filed on 30 December 2009.
[25] Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429 at 438.
[26] Re Haneef and Australian Federal Police (2009) 49 AAR 395 at [95] to [98].
[27] Exhibit 3, paragraphs 22 and 23; see also Exhibit 2, paragraphs 25 to 30 inclusive.
[28] Document 2 in relation to Mr Novak’s first request and Document 3 in relation to his second request.
[29] Re Williamson and Registrar of the Federal Court of Australia [1985] AATA 226; (1985) 8 ALD 219 at 224.
[30] Respondent‘s Outline of Oral Submissions, 10 December 2009, at paragraph 56.
[31] See Document 9 of the first request documents and Document 2 of the second request documents.
[32] It should be noted that the schedule of claimed exemptions in Document 12 does not include the name and telephone extensions of the sender of the email at folio 41; this material has not been disclosed and is exempt under section 41 of the Act.
[33] See Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 552; Esso Australia Resources Limited v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 at 54; Commonwealth v Dutton [2000] FCA 1466; (2000) 102 FCR 168 at 178-179.
[34] Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 at 553.
[35] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 13.
[36] Applicant’s written submissions filed on 18 December 2009; Respondent’s written submissions filed on 21 December 2009.
[37] Re Russell Island Development Association Inc and Department of Primary Industries & Energy [1994] AATA 2; (1994) 33 ALD 683 at 692.
[38] Ibid at 691.
[39] Section 22, Freedom of Information Act 1982 (Cth).
[40] Oxford English Dictionary, 2nd Online Edition, 1989
[41] Oxford English Dictionary, 2nd Online Edition, 1989