Paul Farrell and Australian Customs and Border Protection Service [2015] AICmr 52 (17 July 2015) Decision and reasons for decision of Australian Information Commissioner, Professor John McMillan

Applicant: Paul Farrell

Respondent: Australian Customs and Border Protection Service

Decision date: 17 July 2015

Application number: MR14/00194

Catchwords: Freedom of Information Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency Whether reasonably practicable to prepare edited copy (CTH) Freedom of Information Act 1982 ss 33(a)(i), 47E(d), 22, 55ZB

Decision 1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I vary the

decision of the Australian Customs and Border Protection Service (the ACBPS) of 14 March 2014. I substitute my decision to refuse access under ss 47E(d) and 11A(5) to documents 1-14, and to the segments of document 15 referred to in [15]. Access to the remainder of document 15 is to be provided to the applicant.

2. This decision partially upholds an exemption claim under s 47E of the FOI Act on the basis of both the content and the nature and source of a document. The decision also discusses whether it is reasonably practicable to prepare an edited copy of a document in accordance with s 22 of the FOI Act.

Scope of IC review 3. The issue to be decided in this IC review is whether documents requested by

the applicant are exempt under s 47E(d) of the FOI Act (adverse effect on the proper and efficient conduct of agency operations).

4. The relevant stages in this matter are:

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17 January 2014: the applicant made two FOI requests to the Department of Defence. The Department transferred the requests to the ACBPS on the basis that the subject-matter was more closely related to its functions. The ACBPS combined the two requests on the basis that they related to substantially the same subject matter.

7 February 2014: in consultation with the ACBPS, the applicant revised his request to the following terms:

copies of: watch officer logs from any Customs vessels involved in turnback or towback operations; and requests for final confirmation, approval or orders to conduct all turnback operations since November 2013.

14 March 2014: the ACBPS advised the applicant that the documents

requested were exempt in full under s 47E(d) of the FOI Act. The ACBPS advised that parts of the documents were also exempt under ss 37(2)(b) (law enforcement exemption) and 47F (personal privacy exemption) .

15 May 2014: the applicant sought IC review of this decision under s 54L of the FOI Act. The applicant made submissions on 7 July 2014 and 29 August 2014 (in response to a later ACBPS submission).

8 August 2014: the ACBPS made a submission in support of an additional exemption claim for parts of many documents under s 33(a)(i) (national security, defence and international relations exemption).

24 February 2015: the ACBPS provided the documents to the Office of the Australian Information Commissioner (OAIC) for inspection, and made a supplementary submission on the exemption claims. The submission included a statement signed by the Deputy Commander of Border Protection Command.

5. In making my decision, I have had regard to the following:

the 15 documents identified by the ACBPS as falling within the scope of the applicants request

the submissions of the parties referred to in [4]

the FOI Act, in particular ss 22 and 47E(d)

the Guidelines I have issued under s 93A to which agencies must have regard in performing a function or exercising a power under the FOI Act, in particular paragraphs [6.86] [6.112].

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Certain operations of agencies (s 47E(d)) 6. There are two elements of s 47E(d) to be satisfied for a document to be

conditionally exempt:

disclosure of the document would, or could reasonably be expected to

have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

7. The documents in issue compromise 4 watch officer logs and 11 internal requests relating to confirmation, approval or orders regarding turnback operations. The watch officer logs are the records maintained by vessels involved in undertaking maritime border patrols on behalf of the Australian Government. The log is a contemporaneous handwritten entry of events occurring on or near the vessel, such as the time of the entry, GPS pinpoints, the vessels path and objectives, the vessels capabilities, weather and sea state observations, personnel activity on the vessel, on board incidents, other activity observable from the vessel, interaction with other vessels and potential hazards. The entries are continuous and detailed; many entries are made in the space of an hour and only minutes apart. The different handwriting styles indicate that many officers contributed to the watch officer log; their identity is not apparent from the text of the log to an untutored reader. Most of the entries are in abbreviated form. Some entries are superficially sensitive, for example, about the health and fears expressed by people taken on board from other vessels.

8. The other 11 documents1 comprise a mixture of briefing papers, cables and emails relating to turnback operations. Some documents provide specific approval to execute an instruction in respect of a particular vessel. The content of other documents ranges more broadly and provide general overarching instructions regarding the issues that may arise in turnback operations, the response that may be required, potential limitations in conducting an operation, and the approvals process for specific engagements. The ACBPS proposes to release some portions of these documents, though these portions comprise the minor portion of the contents.

9. The thrust of the ACBPS' submission is that disclosure of the documents could reasonably be expected to compromise operational functions by providing detailed information about the capabilities, tactics, procedures and posture of border protection vessels. This information provides an insight into the manner in which Australian Government vessels undertake counter-people smuggling activities. It is submitted that operational detail in the documents may enable a person motivated to circumvent Australian enforcement activity to frustrate or undermine the effectiveness of turnback operations. The ACBPS position is

1 Numbered 5-15 in the documents provided by ACBPS to the OAIC.

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stated in the statement prepared for this IC review by the Deputy Commander, Border Protection Command. After outlining her own experience including in Operation Sovereign Borders, the Deputy Commander comments:

People smugglers and other individuals seeking to engage in illegal activities within the Australian Maritime Domain are actively involved in research and information gathering about the nature, scope and capacity of Australian maritime security operations. They seek to gain insight into BPCs [Border Protection Commands] functions, capabilities, tactics, procedures and posture, to avoid detection or avoid adverse action if detected

If the information in the documents were released, it would provide a significant insight into how vessels involved in national security operations undertake their functions, especially in relation to turnback operations. Information in the documents is operationally significant as it reveals details relating to the capabilities of vessels, the tactical routines and operational priorities of those assets, the process that is undertaken when a suspected illegal entry vessel is identified in the Australian Maritime Domain, as well as the courses travelled by BPC assets.

The release of information revealing the location, capabilities, posture, patrol and tactical routines relevant to BPC assets would undermine the tactical advantage that these assigned assets have over people smuggling ventures, who may use this information to avoid, or alternatively trigger, their detection. People smugglers have shown a high level of sophistication when it comes to forward planning their activities including the use of entry corridors when initiating and conducting people smuggling as well as other serious criminal activities. The provision of information such as that contained in the documents will further enhance the knowledge of people smugglers.

10. The statement listed other concerns including that: releasing this information into the public domain could encourage people to engage in other and risky ventures that fell outside the parameters of these operations; the release could pose a risk to Australian personnel and vessels; the information could be used by people smugglers to reassure potential passengers that they can avoid being turned back; and that Australian agencies would have to revise current procedures and activities to maintain their operational advantage.

11. The ACBPS also provided, as part of its submission on 24 February 2015, a confidential annex that explained how the types of operational information in the documents could be used by a person to circumvent Australian border controls. Generally, the annex explained how a third party could use information about mattes such as radar surveillance, vessel speed, communication between vessels, the identity of vessels, the timing of operations, authorisations and turnback procedures. I decided it was appropriate to accept that information on a confidential basis and not invite a further submission from the applicant.2

2 See s 55T of the FOI Act, restricting access to exempt information during an IC review.

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12. There is necessarily a level of assumption and speculation in the claims the ACBPS has made about the consequences that could follow disclosure of the watch logs and other documents. Some claims may be more substantial than others. However, I am satisfied from my own inspection of the documents (particularly the watch logs) that the claims, taken together, are reasonably based and genuine. They support the ACBPS claim that disclosure could reasonably be expected to have a substantial adverse effect on its operations.

13. An additional consideration alluded to in the ACBPS submission is that the watch logs are an instantaneous record that is created in a dynamic and unpredictable environment. The record is created as an operational record, but one that can later be consulted or audited. In my view there is a distinct possibility that at least some of the multiple authors of the different entries would be hesitant about recording information in the same raw and instantaneous form if it was being created as a public record. The nature of a document and how and by whom it is created can, in addition to the content of the document, be relevant to deciding if disclosure would adversely impact on an agencys operations. To regard such a record as an internal record only need not provide the authors of the record with a licence to be careless in how information is recorded. There are other supervisory and regulatory constraints to ensure that a fair and accurate record is prepared.

14. Those considerations do not apply to the same extent to the other eleven documents, some of which were more carefully prepared. I am however satisfied that all but one of the documents (documents 5-14) contain sensitive operational detail that could if disclosed impact adversely on the conduct of a turnback operation.

15. The exception is document 15,3 which is a ten page document that contains a framework analysis of considerations that are relevant to enforced turnback operations, including the legal basis for operations, the operational objective, procedures to be followed, decision making, and managing the response and conduct of boat occupants. The content deals with issues that one would expect to find in a government procedural manual or document. Release of this discussion would add to public understanding of how a difficult and sensitive function is discharged within government. Indeed, at least some of the content matches information that already forms part of public discussion of border control issues.

16. The ACBPS made a claim for exemption of selected passages of document 15 under ss 33(a)(i) and 47E(d).4 There was a large degree of overlap in the explanation for both exemption claims. I accept that the selected passages contain the more sensitive operational detail, similar to that discussed above. I think the ACBPSs concern to safeguard the effectiveness of agency operations

3 Titled Appendix 5 to Annex O of the BPC OPORD 1/11 dated 28 Oct 13. 4 Submission dated 24 February 2015, paras [3] and [8]. The selected passages are bordered in red

on the copy provided to the OAIC.

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would be adequately satisfied by exempting those selected passages but not the remainder of the document.

17. The applicants submissions were made without knowledge of the contents of the documents and took issue with the generalised claims made in the ACBPS decision dated 14 March 2014. The applicant submitted that the ACBPS had made an overbroad exemption claim that provided little specific detail on why disclosure of the documents would adversely affect border control operations. The applicant stressed, by reference to OAIC guidelines and case law, that the agencys exemption claim should rise above assertion and provide particulars or an explanation of the predicted effect of disclosure. To reinforce this point the applicant pointed to information already released by the agency or in the public domain that is apparently similar to that covered by the exemption claim in this case. He noted that the information he sought was historical and did not relate to current operations.

18. The ACBPSs response to this submission has been to provide a more detailed explanation of its exemption claim in the later submission to the OAIC. As noted above, the ACBPS submission explains how a third party could use the detailed information in the watch logs and other documents to circumvent Australian border control operations. The submission included the expert commentary of a Deputy Commander who had been actively involved in those operations. The submission also explains that the operational procedures and strategies that are revealed by the documents are still in use and may have to be altered if the documents are released.

19. Another consideration that weighs against the applicants submission has to do with the nature of the watch logs. Disclosure of the watch logs poses a risk, as explained above in [12], that the vessel crew could be inhibited in providing an instantaneous and detailed handwritten record of events occurring on board if it was likely that the record would soon be released into the public domain. It is integral to the integrity and accountability of border control operations that such a record should be kept for later examination if the need arises. This consideration applies even though the watch logs relate to past incidents.

20. On balance, I am satisfied that

documents 11-14 are conditionally exempt under s 47E(d)

document 15 is not conditionally exempt under s 47E(d), except for the segments bordered in red for which a specific exemption claim is made as noted above in [15].

The public interest test (s 11A(5)) 21. The issue next arising is whether, in accordance with s 11A(5), providing access

to the document at this time would, on balance, be contrary to the public interest. I am required to consider relevant factors stipulated in s 11B(3) that favour disclosure, as well as any other relevant factors (including those

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stipulated in the Guidelines) that either favour disclosure or work against disclosure. The parties briefly addressed this issue in their submissions.

22. The applicant pointed to the significant public interest in the release of information surrounding the federal governments towing and return of asylum seeker vessels. The applicant pointed to public debate about Australias compliance with international law and about the scale and safety of turnback operations.

23. The ACBPS acknowledged that these are issues of significant public importance, and that releasing parts of some documents may contribute to that debate. However, the agency stressed the important connection between the operational effectiveness of border security activities and achieving government policy objectives on national sovereignty and security. The submission concluded that the value to public debate and accountability of the operational information contained in these particular documents is significantly outweighed by the potential for this material to be used to undermine national security and the effectiveness of border protection operations.

24. This public interest balancing process must be undertaken in a context which accepts that the elected government has implemented a border control program of which the ACBPS operations are a part. While there is strong public and political debate about that program, it is not part of the IC review function to join that debate. In that context, I give greater weight in this balancing process to the factors against disclosure. There are reasonable grounds for finding that disclosure of documents 1-14 and segments of document 15 could frustrate the enforced turnback operations. I therefore find that it would be contrary to the public interest at this time to disclose those documents.

Other exemptions and access to edited copies (s 22) 25. In light of my findings on the application of ss 47E(d) and 11A(5), it is

unnecessary for me to discuss other exemption issues in the same detail as addressed in the parties submissions. There are only two points that I need to address.

26. The first stems from my finding that parts of document 15 are not exempt and should be released to the applicant. The ACBPS submission noted that before I decide that a document is not an exempt document under s 33 I must invite the Inspector-General of Intelligence and Security to provide evidence on that issue (s 55ZB of the FOI Act). While the ACBPS submission commented generally on s 33(a)(i) applying to all the documents including document 15, the submission was specifically directed to particular segments of document 15 that were bordered in red on the copy provided to the OAIC. I have affirmed the ACBPSs exemption claim for those segments under s 47E(d). I accept that the reasoning that supports that exemption claim could equally apply to the s 33(a)(i) claim. In those circumstances my view is that I have affirmed the

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ACBPSs exemption claim and do not need to invite evidence from the Inspector-General.

27. Secondly, in providing documents 1-15 to the OAIC the ACBPS has gone to some length to identify words and phrases that may not be exempt under s 47E(d) (for example, weather and sea state observations). An alternative exemption claim is made for some of those words and phrases under ss 33, 37 and 47F (for example, the names of agency officials).

28. Having inspected a redacted version of each document, I am of the view that the material that may be non-exempt is so meagre and scattered that it is not reasonably practicable to prepare an edited copy of documents 1-14. The resulting documents would be devoid of substance and no longer answer the description of the applicants request, for watch officer logs and requests for final confirmation, approval or orders. As noted in Parnell &Dreyfus and Attorney-Generals Department [2014] AICmr 71 at [77], the FOI Act does not require agencies to apply s 22 in a way that achieves little more than providing access to a document that is merely a skeleton of the former document that conveys little of its content or substance.

29. I therefore find it unnecessary to consider separately each folio of documents 1-14 to decide if there are words that are not exempt under other exemption provisions and that could be released to the applicant in a document that is edited in accordance with s 22.

Professor John McMillan Australian Information Commissioner 17 July 2015

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. Further information is available on the AATs website (www.aat.gov.au) or by telephoning 1300 366 700.

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Paul Farrell and Australian Customs and Border Protection Service [2015] AICmr 52 (17 July 2015)DecisionScope of IC reviewCertain operations of agencies (s 47E(d))The public interest test (s 11A(5))

Other exemptions and access to edited copies (s 22)Professor John McMillan