The Full Court of the Federal Court of Australia (the Court) has upheld the appeal of Australian journalist Michael Bachelard against a decision of the Administrative Appeals Tribunal (AAT) that denied him access to documents from Australian Federal Police (AFP) under the Freedom of Information Act 1982 (Cth) (FOI Act).
The Court determined that the AAT had erred at law in affirming the AFP’s decision that the documents sought by Bachelard were exempt from disclosure under the FOI Act. In particular, the Court provided guidance on when an agency can claim a document is exempt from disclosure where it includes information related to a confidential source, and reiterated the need for agencies to consider the provision of redacted or partial documents as an alternative to wholesale exemption of documents.
FACTS OF THE CASE
The applicant, Bachelard, sought access to documents under s 15 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). Bachelard was a journalist seeking documents relating to the conduct of former AFP Commissioner Mick Keelty regarding investigations of Ben Roberts-Smith, a ‘highly decorated soldier’ alleged to have committed war crimes in Afghanistan.1 Keelty had allegedly revealed confidential information relating to the investigation to Roberts-Smith.2
AFP’S REASONING FOR REFUSING ACCESS
The AFP relied on a number of provisions of the FOI Act in its determination that access to the sought documents ought to be refused, which were affirmed by the AAT. This included that the documents would disclose or enable a person to ascertain the existence or identity of a “confidential source of information … in relation to the enforcement or administration of the law”3 (confidential sources exemption).
REASONING AND STATEMENTS OF LAW
Confidential sources exemption
To establish a lawful exemption under the confidential source ground:
- the information supplied must be information provided in relation to the enforcement or administration of the law; and
- the person who supplied that information must have done so on the basis that the recipient of the information was obliged to keep the person’s identity confidential. 4
When determining whether a person is a ‘confidential source’, focus should be on the circumstances in which the information was provided
The Court held that when determining the meaning of ‘confidential source of information’, the focus should be on the position of the informant and the circumstances in which they provided information to police/the authorities. In particular, a court will consider whether the person claimed to be a confidential source provided information subject to, or as a consequence to, an assurance or undertaking given by police that their identity would not be revealed, or an understanding from the circumstances in which the information was provided that their identify would remain confidential.5 Importantly, the protection afforded to confidential sources is concerned with the protection of informers, and not ‘mere reluctant witnesses’ who would prefer to remain anonymous, until required to give evidence.6
There are two possible situations that should be considered when determining whether a person is a confidential source:
- An express assurance or undertaking by police that their identity would not be revealed (‘express assurance’)
- Circumstances creating an implied understanding between the source and police that the source’s identity would be confidential (‘implied assurance’)
Wigney J found that the AAT’s finding in support of non-disclosure was focused almost entirely on the fact that the AFP was the recipient of the information, and on the nature of the information itself. In particular, the AAT focused on broad secrecy provisions prohibiting AFP officers from divulging any information received in the course of their duties, except for purposes relating to execution of their duties.7
The mere fact that AFP officers are bound by broad secrecy obligations did not of itself render the relevant statements exempt from disclosure. If His Honour did find this, it would mean any person that provided information to the AFP during an AFP investigation would be a confidential source regardless of the circumstances in which they provided the information. While this factor is not irrelevant, it is not determinative in the absence of other factors.8
Relevant circumstances in this case:
- The information was supplied in the context of an AFP investigation.
- The statutory regime including the general secrecy provisions under s 60A of the AFP Act form a part of the context relevant to whether there was an implied obligation to maintain confidentiality.
- Practices of the AFP.9
General matters to be considered when determining if a person is a ‘confidential source’:
- whether the investigation is likely to have been prejudiced if the source was not kept confidential;
- whether the practices and procedures of the agency were to keep the source of information confidential;
- whether those practices and procedures were known to or (where relevant) were adopted by the person providing the information;
- the reasonably expected risks or consequences to the person should their identity as a source of information come to the knowledge of others.10
Information being given by a confidential source does not create an automatic exemption
The information that is exempt from disclosure is that which would reveal the identity of the confidential source, not necessarily the information provided by the confidential source.11 There is a distinction between:
- Information about the identity of the informer (confidential, if established the informer was a confidential source) AND
- The information that the informer gave (may not be confidential, dependent on the circumstances, even if established the informer was a confidential source)
There was no evidence before the AAT that those who provided the three witness statements sought by Bachelard did not consent to disclosure of the statements (even if there was evidence that they did not consent to their identities being revealed).12 Information about the informer must be distinguished from the information that the informer gave.
Redactions and responding to FOI requests generally
In relation to the application of redactions to documents sought by FOI, the Court confirmed that s 22(1) of the FOI Act has the effect of requiring an edited copy of a sought document to be provided, where there has been a decision to refuse access to the document but it is possible and reasonably practicable to provide an edited copy that would be required to be disclosed.
Agencies dealing with FOI requests generally should not assume an FOI applicant would not wish to receive an edited copy of a documents, even a ‘very heavily edited copy’, if they determine that access should not be granted to a document in its entirety.13
In this case, it was open to the AAT to find that it would be possible and reasonably practicable to prepare edited version of the sought documents which would not have been exempt from disclosure. Accordingly, the AAT had erred at law in failing to consider this possibility.
KEY TAKEAWAYS AND APPLICATION IN VICTORIA
Victoria’s corresponding FOI legislation includes an equivalent section to the Commonwealth confidential sources exemption at s 31(c) of the Freedom of Information Act 1982 (VIC), albeit in slightly narrower terms than the Commonwealth test (which exempts documents that would provide information about the ‘existence’ in addition to the identity of a confidential source). Accordingly, it is likely that the Courts findings in relation to the meaning of ‘confidential source’ would shape interpretations of the term in Victoria.
We are still awaiting the newly constituted ART’s decision in relation to Bachelard’s FOI request following the Court’s remission of the matter for redetermination. However, it is clear that agencies responding to FOI requests who wish to rely on the confidential sources exemption must closely consider the circumstances in which the requested information was obtained, the nature of the information given, and the ability of redactions to protect the identity of a confidential source, to appropriately respond to FOI requests consistent with their obligations under the FOI Act.
Authors: Jeremy King and Ella Hadley
1 Bachelard 56
2 Bachelard 58
3FOI Act s 37(1)(b).
4 See Bachelard 35 (Thawley J)
5Bachelard 11
6Bachelard 15
7Bachelard 16
8Bachelard 24
9 Bachelard 36 (Thawley J)
10 Bachelard 40
11 Bachelard 13
12 Bachelard 20
13 Bachelard 286
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jeremy joined Robinson Gill in 2006 after graduating from Monash University with degrees in Law and Arts. He has a Masters of Law at Utrecht University in the Netherlands specialising in human rights and criminal justice. He is an Accredited Specialist in Personal Injury and the head of the firm’s personal injury law team.
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