LEX 3418 Decision.pdf

OFFICIAL
ANNEXURE A

STATEMENT OF REASONS RELATING TO AN FOI REQUEST BY
BEN FAIRLESS

I, Casey Auld, Team Leader, Freedom of Information, am an officer authorised under section 23 of the
Freedom of Information Act 1982 (Cth) (Act) to make decisions in relation to the Australian Federal
Police (AFP). What follows is my decision and reasons for the decision in relation to your request.

A.  BACKGROUND

1.  On 4 December 2024, the AFP received your request in the following terms:

“I request documents created from 1 August 2024 until the date of this request that are connected
to the protest actions around the country.

These documents include, but are not limited to:

- Correspondence between the AFP and the airport corporation

- Correspondence between the AFP and the platform referred to as “Uber” or “DiDi”

- Correspondence internally within the AFP

- Correspondence with any passenger transport drivers referred to above

- Records created in the AFP Computer Aided Dispatch systems and Investigations Management
Solution systems.”

2.  I refer to a previous request submitted by you on 5 September 2024, reference LEX 3120. On 17
December 2024, you agreed to withdraw LEX 3120 and submit the present request in the same
terms.

3.  On 17 December 2024, you agreed to a 30 day extension of time pursuant to section 15AA of the
Act.

4.  On 3 February 2025, the statutory time period in which to provide a decision expired and your
request was therefore deemed refused by the agency. However, the AFP has continued to
process your request and therefore provides the subsequent revised decision.

B.  SEARCHES

5.  Searches for documents were undertaken by the Aviation Strategic Centre within Specialist
Protective Command and included but were not limited to:

a.  a search of the AFP’s email system (Outlook);
b.  a search of the AFP’s investigation case management system “Police Real-time Online
Management Information System” (PROMIS); and
c.  a search of the official holdings of individual AFP members with involvement in the
events outlined in your request, including notebook and diary entries.

C.  WAIVER OF CHARGES

6.  Given the request has exceeded all statutory timeframes as outlined at section 15 of the Act, the
AFP is not able to impose any fees or charges as outlined at Regulation 5(2) & (3) of the Freedom
of Information (Charges) Regulations 1982.

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D.  EVIDENCE/MATERIAL ON WHICH MY FINDINGS WERE BASED

7.  In reaching my decision, I have relied on the following:

(a)  the scope of your request;
(b)  the contents of the documents identified as relevant to the request;
(c)  consultation with relevant State agencies;
(d)  consultation with third parties;
(e)  advice from AFP officers with responsibility for matters contained in the documents;
(f)  the Act; and
(g)  the guidelines issued by the Office of the Australian Information Commissioner under section
93A of the Act.

E.  DECISION

8.  I have identified twenty-five (25) documents relevant to your request. Documents have been
found in relation to points 1-3 and 5 of your request. No documents were found in relation to point
4 of your request.

9.  I have decided to:

(a)  release fourteen (14) documents in part with deletions pursuant to sections 22(1)(a)(ii), 47B,
47E(d), 47F(1) and 47G(1)(a) of the Act; and
(b)  refuse access to eleven (11) documents pursuant to sections 22(1)(a)(ii), 47B, 47E(d), 47F(1) and
47G(1)(a) of the Act.

10.  A schedule of each of document and details of my decision in relation to each document is at
Annexure B.

11.  My reasons for this decision are set out below.

Material to which section 22(1)(a)(ii) applies:

12.  Section 22 of the Act allows the AFP to grant access to an edited copy of a document that has
been modified by deletions to remove material that is either exempt or irrelevant to the request.

13.  On 5 September 2024, as part of your previous request LEX 3120, you agreed to exclude the
fol owing information from the scope of your request:

•  names of AFP members, other than the Senior Executive; and
•  direct telephone numbers, middle names of AFP members, signatures and mobile
telephone numbers of AFP members.

14.  Further, parts of the documents contain information that does not relate to the subject matter of
your request. Specifical y, the official dairies of AFP members contain irrelevant information that
does not relate to the protest actions outlined in your request.

15.  Accordingly, I find parts of the document would be reasonably regarded as irrelevant to the
request under section 22(1)(a)(i ) of the Act.

Material to which section 47B applies:

16.  Section 47B of the Act provides that:

“A document is conditionally exempt if disclosure of the document under this Act:

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(a)
would, or could reasonably be expected to, cause damage to relations between
the Commonwealth and a State; or
(b)
would divulge information or matter communicated in
confidence by or on behalf of the Government of a State or an authority of a State, to
the Government of the Commonwealth, to an authority of the Commonwealth
or to a person receiving the communication on behalf of the Commonwealth or
of an authority of the Commonwealth.”

17.  The documents or parts of documents identified as exempt under this section of the Act disclose
information sharing processes between the AFP and State Government agencies, the disclosure
of which could reasonably be expected to damage the AFP’s relations with those State agencies.
In addition, the information was communicated in confidence to the AFP and to divulge this
information would not only breach the confidence in which the information was communicated
but damage the relationship between the AFP and the State, and would be likely to inhibit the
future supply of information to the AFP.

18.  Consultations were undertaken with the relevant State agencies which reinforced the need to
protect confidential communications between Commonwealth and State agencies. Specifically,
parts of the documents divulge strictly operational methods by which the agencies respond to
reports related to protest actions. Disclosure of this information could be reasonably expected to
damage Commonwealth-State relations, thereby hindering cooperation efforts between agencies
in the future.

19.  I have considered the public interest factors both in favour and against disclosure of the
information in these folios to determine whether disclosure would, on balance, be in the public
interest.

20.  In relation to the factors favouring disclosure, I consider the following are relevant:

(a)
the general public interest in access to documents as expressed in sections 3 and 11B of
the Act; and
(b)
the public interest in people being able to scrutinise the operations of a government
agency and in promoting governmental accountability and transparency.

21.  In relation to the factors against disclosure, I consider that the following are relevant:

(c)
if such information was disclosed, it may inhibit the future supply of information from a
State agency to the AFP, which would prejudice the conduct of future investigations of
this kind; and
(d)
prejudice the AFP’s ability to obtain confidential information; and
(e)
prejudice the AFP’s ability to obtain similar information in the future.

22.  I have considered the public interest factors both in favour and against disclosure and in my view,
in relation to these documents, the factors at (c) to (e) against disclosure outweigh the factors in
favour of disclosure. If the documents were released, it would only make a slight contribution to
governmental accountability, but the risk of damage to relations between the AFP and State
agencies is very high and therefore it would be contrary to the public interest to release this
information.

23.  Accordingly, I find that the documents or parts of the documents are exempt under section 47B of
the Act.

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Material to which section 47E(d) applies:

24.  Section 47E(d) of the Act provides that:

“A document is conditionally exempt if its disclosure under this Act would, or could reasonably
be expected to, do any of the following:
…
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency;…”

25.  The documents or parts of documents identified as exempt under this section of the Act contain
information, the release of which, would have a substantial adverse effect on the conduct of AFP
operations – specifically, the AFP’s expected functions as a law enforcement agency.

26.  The AFP performs statutory functions relating to public safety, and the protection of the public
(and property) from criminal acts or otherwise. The information identified as exempt under this
section of the Act provides details relevant to the AFP’s processes in ensuring public safety,
revealing how information is obtained and actioned for the purposes of protecting the public.

27.  Parts of the documents identified as exempt under this section of the Act reveal how the AFP
works with Government agencies and private organisations to preserve public safety in protest
situations, ensuring a balance between the right to peaceful protest and the wellbeing of people in
the area. I am of the view that disclosure of the information could reasonably be expected to have
a substantial adverse effect on the proper and efficient execution of those functions.

28.  Furthermore, the AFP also performs statutory functions relating to services by way of the
prevention and investigation of offences. The information identified as exempt under this section
of the Act provides details relevant to the AFP’s processes in detecting, investigating, preventing
and prosecuting criminal offending. Parts of the documents identified as exempt under this
section of the Act contain information relating to the operational capabilities of the AFP, which
are not publicly known. Disclosure of this information could be reasonably expected to allow
future offenders to subvert the course of police work, particularly the management of protest
actions.

29.  Information identified as exempt under this section of the Act divulges confidential
communications between police and a Commonwealth agency, in addition to confidential
communications with independent third parties for the purposes of police work. Disclosure of this
information would breach the strong obligation of confidentiality that police owe to third parties
and would therefore hinder the flow of information to police in the future. I am of the view that
disclosure of the information could reasonably be expected to have a substantial adverse effect
on the proper and efficient performance of those functions.

30.  However, I must give access to this information unless, in the circumstances, access at this time
would be contrary to the public interest.

31.  I have considered the following factors favouring disclosure:

(a)
the general public interest in access to documents as expressed in sections 3 and 11B of
the Act; and
(b)
the public interest in people being able to scrutinise the operations of a government
agency and in promoting governmental accountability and transparency.

32.  While it may be argued the release of this information would promote the objects of the Act,
scrutinise the operations of a government agency and promote government accountability and
transparency, I consider release would make only a minimal (if any) contribution to those public
interest factors.

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33.  On the other hand, I consider the prejudice to the agency operations and should be given greater
weight. I have considered the following factors against disclosure:

(c)
the need for the agency to maintain the confidentiality with regard to the subject matter
of information relating to the AFP’s procedures during an investigation;
(d)
the need to ensure public safety during police operations; and
(e)
the need for the agency to maintain the efficiency of current procedures.

34.  While there is a public interest in providing access to documents held by the AFP, I have given
greater weight to factors (c) to (e) above and conclude that on balance, disclosure is not in the
public interest, given the need to ensure public safety during police operations and the
effectiveness of current procedures. Accordingly, I find that the documents or parts of the
documents are exempt under section 47E(d) of the Act.

Material to which section 47F applies:

35.  Section 47F of the Act provides that:

“(1)
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a
deceased person).”

36.  The documents or parts of documents identified as exempt under this section of the Act contain
personal information of individuals other than you.  Personal information is information or an
opinion about an individual whose identity is known or easily ascertainable. I find that these
documents or parts of the documents contain details including the name and contact details of
third parties.

37.  In considering whether release of this information is unreasonable, I have taken into account
factors at section 47F(2), including:

(a)
the extent to which the information is well known;
(b)
whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the documents;
(c)
the availability of the information from publicly accessible sources;
(d)
the current relevance of the information; and
(e)
the circumstances in which the information was obtained and any expectation of
confidentiality.

38.  I find release of this personal information to be unreasonable. The information is not well known
nor available from publicly available sources. The information was obtained by the AFP for the
purpose, and in the context of, managing and responding to protest actions with the expectation
that the information remains confidential. This section is applied to the names, contact details,
and any other identifying information of a State employee or third party individual. Furthermore,
consent by individuals has not been granted on the release of their personal information.

39.  However, I must give access to the folios unless, in the circumstances, access at this time would
on balance be contrary to the public interest.

40.  I have considered the general public interest in access to documents as expressed in sections 3
and 11B of the Act as the factor favouring disclosure.

41.  I have considered the following factors against disclosure:

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(a)
prejudice to the protection of an individual’s right to privacy (including in consideration of
whether their consent was provided);
(b)
the risk that if people are aware their personal information could be disclosed, that this
would impede the flow of information to the police;
(c)
the need for the agency to maintain the confidentiality with regard to the subject matter
and the circumstances in which the information was obtained;
(d)
if such information was disclosed, it may discourage public cooperation in AFP
investigations;
(e)
the fact that the information is not on the public record or available from publicly
accessible sources;
(f)
the need for the agency to maintain the confidentiality with regard to the subject matter
and the effect that disclosure of the information may have on third parties.

42.  While there is a public interest in providing access to documents held by the AFP, I have given
greater weight to the factors against disclosure above and conclude that on balance, disclosure is
not in the public interest.

43.  Accordingly, I find the documents or parts of documents are exempt under section 47F of the Act.

Material to which section 47G applies:

44.  Section 47G of the Act provides that:

“(1)
A document is conditionally exempt if its disclosure under this Act would disclose
information concerning a person in respect of his or her business or professional
affairs or concerning the business, commercial or financial affairs of an organisation or
undertaking, in a case in which the disclosure of the information:
(a)
would, or could reasonably be expected to, unreasonably affect that person
adversely in respect of his or her lawful business or professional affairs or that
organisation or undertaking in respect of its lawful business, commercial or
financial affairs; or
(b)
could reasonably be expected to prejudice the future supply of information to
the Commonwealth or an agency for the purpose of the administration of a law
of the Commonwealth or of a Territory or the administration of matters
administered by an agency.”

45.  The documents or parts of documents identified as exempt under this section of the Act contain
information which relates to the business affairs of private organisations. The information was
obtained by the AFP directly from the private organisation for the purposes of requesting police
attendance and working with police to mitigate disturbances. It is considered that this private
organisation would be unreasonably affected by the disclosure of the information as it directly
relates to their business and commercial affairs. It is also considered that the AFP would be
unreasonably affected by the disclosure of the information as it would jeopardise the future
supply of information and assistance from that private organisation in fulfilling the statutory
functions of the AFP.

46.  Consultations were undertaken with the relevant private organisations mentioned in the
documents. The organisations emphasised the need to protect their business affairs and
relationship with the AFP. Parts of the documents identified as exempt under this section of the
Act contain information that is commercially valuable to these organisations, including
confidential communications between an organisation and third party individuals.

47.  Further, disclosure of the information could reasonably be expected to prejudice the future supply
of information to the AFP by these organisations. If released, the organisations may reconsider
how and what information is shared with the AFP, which in turn adversely affects the AFP’s role in
performing its statutory functions and ensuring public safety on a wider scale.

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48.  In relation to the factors favouring disclosure, I consider the following are relevant:

(a)
the general public interest in access to documents as expressed in sections 3 and 11B of
the Act; and
(b)
the public interest in people being able to scrutinise the operations of a government
agency and in promoting governmental accountability and transparency.

49.  In relation to the factors against disclosure, I believe that the following are relevant:

(c)
disclosure would adversely affect the commercial value of the private organisation as it
would reveal the methods in which they manage their business, commercial affairs and
private clientele. These processes may be private to them and disclosure would be
unreasonable;
(d)
disclosure would prejudice the future supply of information to the AFP for the purposes of
the administration of a law. Disclosure of the information would compromise the
relationship between the AFP and that private organisation which in turn would prejudice
the AFP’s ability to effectively carry out its operations as a policing agency; and
(e)
disclosure would also deter the private organisation from assisting the AFP in any future
investigations as the expectation of providing that information confidentially would be
compromised.

50.  I have considered the public interest factors both in favour and against disclosure and in my view,
in relation to these documents, the factors at (c) to (e) against disclosure outweigh the factors in
favour of disclosure. Accordingly, I find the documents or parts of the documents are exempt
under section 47G of the Act.

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***YOU SHOULD READ THIS GENERAL ADVICE IN CONJUNCTION WITH THE LEGISLATIVE
REQUIREMENTS IN THE FREEDOM OF INFORMATION ACT 1982 (Cth)***

If you are dissatisfied with a Freedom of Information decision made by the AFP, you can apply for a
review of the decision by the Information Commissioner (IC). As this decision has been made outside the
statutory time period, the option of internal review by the AFP is not available as per Section 54E of the
FOI Act.

For complaints about the AFP’s actions in processing your request, you do not need to seek review by the
IC in making your complaint.

REVIEW RIGHTS under Part VII of the Act

Review by the Information Commissioner

Section 54L of the FOI Act gives you the right to apply directly to the IC for review of this decision. In
making your application you wil  need to provide an address for notices to be sent (this can be an email
address) and a copy of the AFP decision.

Section 54S of the FOI Act provides the timeframes for an IC review submission. For an access refusal
decision covered by section 54L(2), the application must be made within 60 days. For an access grant
decision covered by section 54M(2), the application must be made within 30 days.

Applications for IC review may be lodged by email (xxxxx@xxxx.xxx.xx), using the OAIC’s online
application form (available at www.oaic.gov.au) or addressed to:

   Office of the Australian Information Commissioner
   GPO Box 5128
   Sydney NSW 2001

The IC encourages parties to an IC review to resolve their dispute informal y, and to consider possible
compromises or alternative solutions to the dispute in this matter. The AFP would be pleased to assist
you in this regard.

Complaint

If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. We may be able to rectify the problem. If you are not satisfied with our response, you
can make a complaint to the IC. A complaint may be lodged using the same methods identified above. It
would assist if you set out the action you consider should be investigation and your reasons or grounds.

More information about IC reviews and complaints is available on the OAIC’s website at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/.

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ANNEXURE B
SCHEDULE OF DECISION – LEX 3418
RELEASE OF DOCUMENTS – BEN FAIRLESS

Document
Folio No
Author
Document Name
Decision
Exemption
Number
1.
1-3
Australian Federal   Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47B, 47E(d), 47F(1) and 47G(1)(a)
Police (AFP)

2.
4-5
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47E(d) and 47G(1)(a)

3.
6-9
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47B, 47E(d), 47F(1) and 47G(1)(a)

4.
10
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47E(d) and 47G(1)(a)

5.
11-12
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47E(d), 47F(1) and 47G(1)(a)

6.
13
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47B, 47E(d) and 47F(1)

7.
14-18
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47B, 47E(d), 47F(1) and 47G(1)(a)

8.
19-21
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47E(d), 47F(1) and 47G(1)(a)

9.
22-24
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47B, 47E(d), 47F(1) and 47G(1)(a)

10.
25-26
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47E(d) and 47G(1)(a)

11.
27-28
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii) and 47F(1)

SCHEDULE OF DECISION – LEX 3418
1

ANNEXURE B
12.
29-30
AFP
Email correspondence
Release in Part
Sections 22(1)(a)(ii), 47B, 47E(d), 47F(1) and 47G(1)(a)

13.
31-34
AFP
Police Report 7834063
Refuse Access
Sections 22(1)(a)(ii), 47E(d), 47F(1) and 47G(1)(a)

14.
35-37
AFP
Police Report 7835050
Refuse Access
Sections 22(1)(a)(ii), 47E(d) and 47G(1)(a)

15.
38-40
AFP
Police Report 7835128
Refuse Access
Sections 22(1)(a)(ii), 47B, 47E(d) and 47F(1)

16.
41-44
AFP
Police Report 7835946
Refuse Access
Sections 22(1)(a)(ii), 47E(d), 47F(1) and 47G(1)(a)

17.
45-47
AFP
Police Report 7836858
Refuse Access
Sections 22(1)(a)(ii), 47E(d) and 47G(1)(a)

18.
48-50
AFP
Police Report 7837769
Refuse Access
Sections 22(1)(a)(ii), 47E(d) and 47G(1)(a)

19.
51-54
AFP
Police Report 7838252
Refuse Access
Sections 22(1)(a)(ii) and 47E(d)

20.
55-56
AFP
Police Report 7840546
Refuse Access
Sections 22(1)(a)(ii), 47E(d), 47F(1) and 47G(1)(a)

21.
57-58
AFP
Police Report 7840570
Refuse Access
Sections 22(1)(a)(ii), 47E(d) and 47G(1)(a)

22.
59-61
AFP
Police Report 7841511
Refuse Access
Sections 22(1)(a)(ii), 47E(d), 47F(1) and 47G(1)(a)

23.
62-64
AFP
Police Report 7841513
Refuse Access
Sections 22(1)(a)(ii), 47E(d), 47F(1) and 47G(1)(a)

24.
65-73
AFP
AFP Official Diary
Release in Part
Sections 22(1)(a)(ii), 47E(d), 47F(1) and 47G(1)(a)

25.
74
AFP
AFP Official Diary
Release in Part
Sections 22(1)(a)(ii) and 47F(1)

SCHEDULE OF DECISION – LEX 3418
2