20130729 - Decision - SIEV 221 vFINAL - BPC Final Version · 2019-07-23 · 5 I have also...
Transcript of 20130729 - Decision - SIEV 221 vFINAL - BPC Final Version · 2019-07-23 · 5 I have also...
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(e) information passed between Customs and Border Protection and the Department of Defence in relation to the vessel now known as SIEV 221 for the period 12 to 18 December; and
(f) information passed between Customs and Border Protection and the Department of the Prime Minister and Cabinet in relation to the vessel now known as SIEV 221 for the period 12 to 18 December.
On 10 May 2012, ACBPS issued a Practical Refusal Notice under section 24AA of the FOI Act.
Following negotiations with you, on 17 July 2012 you agreed to revise the scope of your request to the five documents identified below:
Ministerial Submission for SIEV 220
Ministerial Submission for SIEV 221 (Draft)
Ministerial Submission for SIEV 222
Border Protection Command Intelligence Centre SIEV 221 Intelligence Narrative
Summary Chronology for period 12 December – 19 December 2010
Decision on access
In relation to the five documents that fall within the scope of your request, these documents were in the possession of ACBPS on 22 April 2013 when your FOI request was received.
I make the following decision in relation to the documents in the possession of ACBPS which come within the scope of your request:
Release five documents in part with deletions
A schedule of these documents is at Attachment A for your reference.
I have provided detailed reasons for my decision below.
Reasons for Decision
The schedule of 5 documents that fall within the scope of your request at Attachment A sets out the decision on access and, where appropriate, refers to various sections of the FOI Act. My reasoning in relation to the application of each section to particular documents is set out below.
3
1 Section 33 of the FOI Act – Documents affecting National Security, Defence or International Relations
I consider that the release of parts of the document numbered 4 would, or could reasonably be expected to cause damage to the security of the Commonwealth.
I have found that some information contained in the document may provide an adversary insight into the specific tactics, techniques and procedures for assessing the likelihood of Suspected Irregular Entry Vessel movements. I am of the view that disclosure of this information may alert people smugglers to these procedures and thus assist them to avoid detection.
I am of the view that release of this information will affect the protection of Australia and its population from activities that are hostile to, or subversive of, the Commonwealth’s interests and is therefore exempt from disclosure under subsection 33(a)(i) of the FOI Act.
2 Section 37 of the FOI Act ‐ Documents Affecting Enforcement of Law and Protection of Public Safety
I also consider that parts of the document numbered 4 would, or could reasonably be expected to disclose lawful methods or procedures for preventing, detecting, investigation, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would reasonably likely to, prejudice the effectiveness of those methods or procedures.
I am of the view that disclosure of these law enforcement methods and procedures would assist those involved in illegal maritime activities to evade them. The disclosure of this information would prejudice the effectiveness of ACBPS’s law enforcement methods and procedures by disclosing sensitive operational strategies and tactics along with areas of operation. This information is therefore exempt from disclosure under subsection 37(2)(b) of the FOI Act.
3 Section 47F of the FOI Act – Personal Privacy
The disclosure of parts of documents numbered 1, 2, 3, & 5 would disclose personal information relating to third parties. The documents contain information which would reasonably identify a person, either through names, positions or descriptions of their role or employment circumstance.
I have decided that the disclosure of the information within these documents would involve an unreasonable disclosure of personal information about a number of individuals. Accordingly, parts of these documents are conditionally exempt under section 47F of the FOI Act.
As I have decided that parts of documents 1, 2, 3 & 5 are conditionally exempt, I am now required to consider whether access to those documents would be contrary to the public interest (section 11A of the FOI Act). I have discussed the relevant public interest considerations in section 5 of this letter.
4
4 Section 47E of the FOI Act – Operations of Agencies
I have decided that the disclosure of parts of document 5 would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of ACBPS.
I am of the view that release of this information would affect the ability of ACBPS to continue to manage the security and integrity of Australia’s border effectively. Any prejudice to the effectiveness of the law enforcement methods and procedures used in undertaking this role at the border would result in a substantial adverse effect on the conduct of operations for ACBPS.
This information is not well known to the public at large and is not general information and disclosure may result in the need for ACBPS to undergo significant modification to avoid jeopardizing the future effectiveness of its operations.
Accordingly, these documents are conditionally exempt under section 47E(d) of the FOI Act.
As I have decided that parts of document 5 are conditionally exempt, I am now required to consider whether access to those documents would be contrary to the public interest (section 11A of the FOI Act). I have discussed the relevant public interest considerations below.
5 The public interest – section 11A of the FOI Act
A part of a document which is conditionally exempt must also meet the public interest test in section 11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt part of the document would be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other factors listed in subsection 11B(3) of the FOI Act, being whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Having regard to the above the following factors favour disclosure:
I am satisfied that access to the documents would promote the objects of the FOI Act.
I consider that the subject matter of the documents does have the character of public importance and that there may be broad public interest in the documents.
5
I have also considered the factors that weigh against the release of the documents:
The disclosure of the personal information of individuals contained in documents numbered 1, 2, 3 & 5 could reasonably be expected to prejudice the protection of those individuals' right to privacy. It is my view that it is firmly in the public interest to uphold the rights of individuals to their own privacy. I consider that this factor weighs heavily against disclosure.
I consider that the disclosure of the parts of the documents that are conditionally exempt under section 47E(d) of the FOI Act could reasonably be expected to prejudice law enforcement functions and, as a result, the ability of ACBPS to protect Australia's borders. I consider that this factor weighs heavily against disclosure.
I have also had regard to subsection 11B(4) which sets out the factors which are irrelevant to my decision, which are:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that the disclosure of the conditionally exempt documents is not in the public interest and therefore exempt from disclosure under the FOI Act.
Acknowledged Errors
Please note that imagery referred in document 3, Ministerial Submission to Minister for Home Affairs advising of the boarding of SIEV 222, was incorrectly labeled as SIEV 220. Imagery is of SIEV 222.
Legislation
I have attached an extract of the exemption provisions of the FOI Act and the public interest test for your information at Attachment B.
Your Review Rights
The FOI Act grants you rights to have my decision reviewed.
Information regarding your review rights is available in the Office of the Australian Information Commissioner's FOI Fact Sheet 12 at Attachment C for your reference.
Making a Complaint
At Attachment D is FOI fact sheet 13 from the OAIC. This sets out how you may complain to the Australian Information Commissioner if you have concerns about how ACBPS has handled your
request for documents under the FOI Act.
Contact
Should you wish to discuss my decision, please do not hesitate to contact Ms Emily Winch, FOI Coordinator on 02 j 75 5621 or via email at [email protected] .
Chris Wall
Deputy Commander, Strategic Engagement and Governance Border Protection Command Australian Customs and Border Protection Service
6
A1
SCHEDULE OF DOCUMENTS
REQUEST UNDER FREEDOM OF INFORMATION ACT 1982
Date of document
No. of pages
Description
Decision on release
1. 15 Dec 2010 5 Ministerial Submission to Minister for Home Affairs advising of the boarding of SIEV 220
Release in part 47F
2. 15 Dec 2010 4 Ministerial Submission to Minister for Home Affairs advising of the initial details surrounding the search and rescue and recovery of people from SIEV 221 (Draft)
Release in part 47F
3. 17 Dec 2010 5 Ministerial Submission to Minister for Home Affairs advising of the boarding of SIEV 222
Release in part 47F
4. Dec 2010 3 Border Protection Command Intelligence Centre SIEV 221 Narrative Release in part 33(a)(i)
37(2)(b)
5. 10 Jan 2011 65 Summary Chronology for period 12 December – 19 December 2010 Release in part 47F
47E (d)
B1
ATTACHMENT B
Relevant Legislation
Section 33 ‐ Documents affecting national security, defence or international relations
A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
(i) the security of the Commonwealth;
(ii) the defence of the Commonwealth; or
(iii) the international relations of the Commonwealth; or
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization 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.
Section 37 ‐ Documents affecting enforcement of law and protection of public safety
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non‐existence of a confidential source of information, in relation to the enforcement or administration of the law; or
(c) endanger the life or physical safety of any person.
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the fair trial of a person or the impartial adjudication of a particular case;
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or
(c) prejudice the maintenance or enforcement of lawful methods for the protection of public safety.
(2A) For the purposes of paragraph (1)(b), a person is taken to be a confidential source of information in relation to the enforcement or administration of the law if the person is receiving, or has received, protection under a program conducted under the auspices of the Australian Federal Police, or the police force of a State or Territory, for the protection of:
(a) witnesses; or
(b) people who, because of their relationship to, or association with, a witness need, or may need, such protection; or
(c) any other people who, for any other reason, need or may need, such protection.
(3) In this section, law means law of the Commonwealth or of a State or Territory.
B2
Section 47E ‐ Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Section 47F ‐ Public interest conditional exemptions—personal privacy
(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).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(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 document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
Access given to qualified person instead
(4) Subsection (5) applies if:
(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant’s physical or mental health, or well‐being.
(5) The principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:
(a) carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (7), as the first‐mentioned qualified person; and
(b) is to be nominated by the applicant.
B3
(6) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.
(7) In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well‐being, and, without limiting the generality of the foregoing, includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a counsellor;
(e) a social worker.
11B ‐ Public interest exemptions—factors
(1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(aa) access to the document could result in embarrassment to the Government of Norfolk Island or cause a loss of confidence in the Government of Norfolk Island;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
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