Академический Документы
Профессиональный Документы
Культура Документы
Paul Farrell
Respondent:
Decision date:
17 July 2015
Application number:
MR14/00194
Catchwords:
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.
4.
5.
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) .
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].
7.
8.
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
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
See s 55T of the FOI Act, restricting access to exempt information during an IC review.
12.
13.
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.
3
4
Titled Appendix 5 to Annex O of the BPC OPORD 1/11 dated 28 Oct 13.
Submission dated 24 February 2015, paras [3] and [8]. The selected passages are bordered in red
on the copy provided to the OAIC.
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.
20.
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
23.
24.
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
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.
29.