Our ref: LEX 1086
15 March 2023
XD 1022-2021
Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear XD 1022-2021
Freedom of Information request
I refer to your request dated 24 October 2022 made under the
Freedom of Information Act
1982 (the Act).
Attached at Annexure A to this letter is my decision and statement of reasons for that
decision.
Yours sincerely
Matt Baillie
Principal Lawyer
Freedom of Information and Privacy
Chief Counsel Portfolio
FREEDOM OF INFORMATION
Australian Federal Police
ABN 17 864 931 143
GPO Box 401 Canberra City ACT 2601 |
afp.gov.au
| Email: xxx@xxx.xxx.xx
ANNEXURE A
STATEMENT OF REASONS RELATING TO AN FOI REQUEST BY
XD 1022-2021
I, Matt Baillie, Principal Lawyer, Freedom of Information and Privacy, am an officer authorised
under section 23 of the 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.
BACKGROUND
On 24 October 2022, the AFP received your two requests in the following terms:
Request One
For the address 175-179 City Walk Canberra ACT 2601 (Traditional Chinese Massage)
,
please provide:
(1) a copy of any search warrants executed at that address between 1 July 2017 and
30 June 2022
(2) the case summary or equivalent for any investigations commenced after 1 July
2015 where that address is mentioned (if the investigation is ongoing, then the most
recent summary document)
(3) a copy of any documents attached to this address in PROMIS (and relevant
variations such as ‘175 City Walk’ etc.)
Request Two
Please provide any documents held in PROMIS attached to the entity ‘Traditional
Chinese Massage’ operating in Civic (inclusive of the trading name, pty ltd company,
or what have you)
On 31 October 2022, you were advised your two requests were going to be combined into
one as the scope of the requests were of a similar nature.
EVIDENCE/MATERIAL ON WHICH MY FINDINGS WERE BASED
In reaching my decision, I have relied on the fol owing:
• the nature of records that may be captured by your request;
• the scope of your request;
• the Act; and
• the guidelines issued by the Office of the Australian Information Commissioner
under section 93A of the Act.
DECISION
In accordance with section 26(2) of the Act, the AFP has no documents to produce in response
to your request.
Given the scope of your request, if documents did exist, revealing the existence of such
documents would divulge police investigations as wel as police engagement with members of
the public, which in itself would be an unreasonable disclosure of personal information and
operations of the AFP. I am satisfied that any document held by the AFP in response to this
request would be exempt in full pursuant to sections 47E(d) and 47F of the Act.
My reasons for this decision are set out below.
REASONS FOR DECISION
Material to which section 47E(d) applies:
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 fol owing:
…
(d)
have a substantial adverse effect on the proper and efficient conduct
of the operations of an agency;…”
Releasing documents which reveal whether police conducted any investigations or executed
warrants in relation to a particular premises, which are not otherwise public, would have a
substantial adverse effect on the conduct of AFP operations – specifical y, the AFP’s expected
functions as a law enforcement agency.
The AFP 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. Further, the release of information provided to police in
confidence as part of an investigation will deter future cooperation and assistance with police
enquiries, and diminish the ability of the AFP to combat crime effectively.
I am therefore of the view that disclosure of the identified material could reasonably be
expected to have a substantial adverse effect on the proper and efficient performance of core
AFP functions.
However, I must give access to the information unless, in the circumstances, access at this
time would be contrary to the public interest.
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.
I have considered the following factors against disclosure:
(a)
the safety and protection of the Australian community;
(b)
the need for the AFP to maintain confidentiality over certain types of information
relating to the AFP’s procedures during an investigation;
(c)
the need for the AFP to maintain confidentiality over information communicated
in confidence in the course of an investigation;
(d)
the negative impact that the release of such information could have on the future
supply of information to the AFP;
(e)
the need for the agency to maintain the efficiency of current procedures; and
(f)
the strong public interest in the AFP being able to effectively prevent, investigate
and prosecute criminal activity.
I find that the factors weighing against disclosure outweigh the factors in favour of release,
and conclude that on balance, disclosure of the parts of the document containing this
information is contrary to the public interest.
Accordingly, I find the parts of the document containing this information are exempt under
section 47E(d) of the Act.
Material to which section 47F applies:
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).”
Documents responding to the scope of your request would contain the personal information
of the people who operated a business at those premises. The information already in your
possession about the name and location of the business would make these people reasonably
identifiable, given the existence of other information available on public business registers.
In considering whether release of the information would be 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.
I find release of personal information to be unreasonable. There is no publicly available
information about any police activity in relation to these premises. Disclosing such information
to a member of the public, in the absence of any criminal charges, would be a significant
intrusion into their personal lives.
However, I must give access to documents unless, in the circumstances, access at this time
would on balance be contrary to the public interest.
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, as wel as the public interest in people
being able to scrutinise the operations of a government agency. As you have made this
application anonymously, I am not able to determine whether there are any additional factors
specific to you which might weigh in favour of disclosure.
I have considered the fol owing factors against disclosure:
(a)
prejudice to the protection of an individual’s right to privacy;
(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 fact that there is no information on the public record or available from
publicly accessible sources;
(d)
the effect that disclosure of the information may have on third parties.
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. A person’s right to privacy must prevail over the
curiosity of strangers.
Accordingly, I find the documents or parts of documents are exempt under section 47F of the
Act.
Application of section 26(2) of the Act
Section 26(2) of the Act provides a decision notice such as this one “is not required to contain
any matter that is of such a nature that its inclusion in a document of an agency would cause
that document to be an exempt document.”
For the same reasons as those given above, I also find that confirming the existence of any
such documents would also involve have a substantial adverse effect on the AFP’s law
enforcement operations, or would involve an unreasonable disclosure of personal
information. I also find that disclosing whether there are any documents in existence would
be contrary to the public interest.
Therefore the documents would be exempt under section 47E(d) and 47F, and the AFP wil
not state whether there are any documents in relation to the scope of your request.
***YOU SHOULD READ THIS GENERAL ADVICE IN CONJUNCTION WITH THE LEGISLATIVE
REQUIREMENTS IN THE FREEDOM OF INFORMATION ACT 1982***
REVIEW AND COMPLAINT RIGHTS
If you are dissatisfied with a Freedom of Information decision made by the AFP, you can apply
either for a review by the Information Commissioner (IC).
For complaints about the AFP’s actions in processing your request, you do not need to seek
review by either the AFP or 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/.