OFFICIAL
ANNEXURE A
STATEMENT OF REASONS RELATING TO AN FOI REQUEST BY
JAMES SMITH
I, Bel a, A/Team Leader, Freedom of Information, am an officer authorised under section 23 of the
Freedom of Information Act 1982 (Act) to make decisions in relation to the Australian Federal Police
(AFP). What fol ows is my decision and reasons for the decision in relation to your request.
A. BACKGROUND
1. On 1 May 2024, the AFP received your request in the following terms:
“I request documents relating to interagency information management and sharing frameworks,
policies, procedures, rules, guidelines, or processes insofar as they relate to investigations into
allegations of war crimes by Australian Defence Force personnel in Afghanistan.”
2. On 29 May 2024, you agreed to a 30 day extension of time pursuant to section 15AA of the Act.
3. On 1 July 2024, you revised the scope of your request to the following terms:
“Final versions of the frameworks, policies, procedures, rules, guidelines and processes the AFP
currently use that relate to interagency information management and sharing and the allegations of
war crimes by Australian Defence Force personnel in Afghanistan.”
4. You sought review of the deemed decision by the Office of the Australian Information
Commissioner (OAIC). On 1 November 2024, the OAIC issued a direction to the AFP to make any
revised decision under section 55G of the Act by 22 November 2024.
5. On 28 November 2024, the AFP sent you an email advising additional documents were located
in response to your request which required consultation with Commonwealth agencies. The AFP
sought your agreement for a staged release of documents. The AFP did not receive a response
to this correspondence.
6. As your matter with the OAIC remains in progress, the OAIC will be notified that a decision has
been issued to you. I will provide the OAIC with a copy of this revised decision.
7. I sincerely apologise for the delay in the processing of your request.
B. SEARCHES
1. Searches for documents were undertaken by the fol owing areas within the AFP:
•
Special Investigations;
•
General Counsel Operations; and
•
Commander of the Office of Special Investigator.
C. WAIVER OF CHARGES
1. Given the request has exceeded al 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.
D. EVIDENCE/MATERIAL ON WHICH MY FINDINGS WERE BASED
1. In reaching my decision, I have relied on the fol owing:
(a) the scope of your request;
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(b) the contents of the documents identified as relevant to the request;
(c) consultation with relevant Commonwealth agencies;
(d) advice from AFP officers with responsibility for matters contained in the documents;
(e) the Act; and
(f) the guidelines issued by the Office of the Australian Information Commissioner under
section 93A of the Act.
E. DECISION
1. I have identified six (6) documents relevant to your request.
2. I have decided to:
(a) release 5 documents in part with deletions pursuant to sections 22(1)(a)(i ), 37(2)(b), 47E(c)
and 47E(d);
(b) refuse access to 1 document pursuant to section 37(2)(b); and
(c) refuse access to further documents pursuant to section 25 of the Act.
3. My reasons for this decision are set out below.
REASONS FOR DECISION
Material to which section 22(1)(a)(i ) applies:
1. Section 22 of the Act al ows 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.
2. Parts of the document contain information that does not relate to the subject matter of your
request, specifical y information not related to interagency information management and
sharing.
3. 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 25 applies:
4. Section 25 of the Act al ows agencies to refuse access without confirming or denying the
existence of a document where a document, if existed, would be exempt under section 33
(documents affecting national security, defence or international relations) or section 37(1)
(documents affecting enforcement of law and protection of public safety).
5. On that basis, apart from:
(a) the file made up for your FOI request and identified documents; and
(b) documents which, if they existed, could affect national security, defence or international
relations or the enforcement of law and protection of public safety
6. I refuse access in relation to your request, on the basis I neither confirm nor deny the existence
further documents are held by the AFP.
Material to which section 37(2)(b) applies:
7. Section 37(2)(b) of the Act provides that:
“(2)
A document is an exempt document if its disclosure under this Act would, or could
reasonably be expected to:
…
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(a)
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;”
8. The documents or parts of documents identified as exempt under this section of the Act contain
information that would disclose methods and procedures used by the AFP and relevant
Commonwealth agencies on interagency information management and sharing.
9. Specifical y, the documents contain information about the lawful methods, procedures and
resources available to the AFP in the management of information that is not commonplace or
wel -known to the public. Some of the methods and procedures may be the subject of
speculation, but disclosure would confirm the methods and resources available to law
enforcement officers, and the methods upon which the AFP relies on in Operation Emerald
investigations.
10. In my view, the expectation that disclosure of the documents would result in prejudice is
reasonable because the methods and procedures used by the AFP and relevant agencies
col ectively would divulge information not general y known. If the information in the documents
were known it could give insight which may be used to obtain an advantage through the use of
unlawful behaviour to further criminal conduct.
11. Accordingly, I find that the documents or parts of the documents are exempt under section
37(2)(b) of the Act.
Material to which section 47E(c) applies:
12. Section 47E(c)
of the Act provides that:
“A document is conditional y exempt if its disclosure under this Act would, or could reasonably
be expected to, do any of the fol owing: …
(b)
have a substantial adverse effect on the management or assessment of personnel by
the Commonwealth, by Norfolk Island or by an agency.”
13. The FOI Guidelines at paragraph [6.103] state the fol owing in respect of section 47E(c):
“For this conditional exemption to apply, the document must relate to either:
•
the management of personnel – including broader human resources policies and
activities, recruitment, promotion, compensation, discipline, harassment and work
health and safety
•
the assessment of personnel – including the broader performance management
policies and activities concerning competency, in-house training requirements,
appraisals and underperformance, counsel ing, feedback, assessment for bonus or
eligibility for progression.” (footnotes omitted).”
Staff names
14. Parts of the document have been identified as being exempt under section 47E(c). This material
contains the names of public servants of other Commonwealth agencies and AFP appointees
below SES level. These names are not publicly known.
15. The information I have identified as conditional y exempt could publicly identify staff not only as
working for the agencies, but their work location and activities. The public disclosure of this
information could expose those appointees to unwelcome behaviour from hostile actors.
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16. Furthermore, I have identified signatures of Commonwealth personnel. Releasing the signatures
of Commonwealth personnel may place them at risk of forgery and impersonation. Releasing
this information could have a substantial adverse effect on the management of personnel within
the AFP on the basis that they present risks to the safety, wel being and morale of
Commonwealth appointees.
17. Law enforcement employees have been a target of planned and actual attacks in Australia. AFP
appointees have also been the target of attempts to obtain information. Publicly identifying a
person as an AFP appointee could also compromise the ability of some to work in operational
areas which require them to have no public profile.
18. These risks are not far-fetched, and need to be considered in the context that information
released under FOI can be easily published online, and made widely available. On the basis that
they present risks to the health and safety, wel being, morale and career development of AFP
appointees, I am satisfied that release this information could have a substantial adverse effect
on the management of personnel within the AFP.
19. However, I must give access to this information unless, in the circumstances, access at this
time would be contrary to the public interest.
20. I have considered the fol owing 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.
21. I have considered the fol owing factor against disclosure:
(c) prejudice to the safety, welfare and morale of AFP personnel;
(d) release may have a substantial adverse effect on the management of personnel in
future.
22. Ultimately, while there is a public interest in providing access to documents held by the AFP,
consequently, I have given greater weight to factors (c) and (d) above, and conclude that on
balance, disclosure is not in the public interest. I consider the need to ensure the safety of
Commonwealth personnel, and the AFP’s ability to support and manage Commonwealth
personnel weighs against disclosure.
23. Accordingly, I find those parts of the document identifying Commonwealth staff names and
signatures are exempt under section 47E(c) of the Act.
Material to which section 47E(d) applies:
24. Section 47E(d) of the Act provides that:
“A document is conditional y 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;…”
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 – specifical y, the AFP’s expected functions as a law enforcement agency.
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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, shared and actioned for the purposes of protecting the
public and investigating war crimes. 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.
27. Furthermore, the information redacted under this section of the Act reveals internal AFP and
Commonwealth agency email addresses and contact details. These contact details are not
widely known and to disclose this information would impact on the AFP and Commonwealth
agencies day to day operations by resulting in the diversion of AFP resources to responding to
unsolicited correspondence received through those points of contact. Public release of this
information would expose the agency to the diversion of external enquiries and possible
vexatious communication from the established communication channels, thereby adversely
impacting agency operations.
28. However, I must give access to this information unless, in the circumstances, access at this
time would be contrary to the public interest.
29. I have considered the fol owing 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.
30. I have considered the fol owing factors against disclosure:
(c) the need for the agency to maintain the efficiency of current procedures;
(d) that if information concerning internal contact details were revealed, it may have a
substantial adverse effect on the conduct of AFP operations in the future; and
(e) if such information was disclosed, it would divert AFP resources from the proper
conduct of their expected operations.
31. 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.
REVIEW RIGHTS
In accordance with section 55G(2)(b) of the Act, the Information Commissioner must deal with your IC
review application for review of the original decision as if it were an IC review application for the review
of this revised decision.
If you are dissatisfied with my revised decision, you may advise the OAIC that you do not wish to
withdraw your application for IC review. If you are satisfied with my revised decision, please advise the
OAIC that you withdraw your application for IC review.
COMPLAINT RIGHTS
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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 2675
RELEASE OF DOCUMENTS – James Smith
Document
Folio No
Author
Description
Decision
Exemption
No
1
1-19
Australian
Memorandum of
Release in Part
Section 22(1)(a)(ii)
Federal Police
Understanding
Section 47E(c)
(AFP) and Office
of the Special
Investigator
(OSI)
2
20-22
OSI
Letter to Mr James
Release in Part
Section 22(1)(a)(ii)
Gaynor from Chris
Section 47E(c)
Moraitis PSM dated 2
Section 47E(d)
September 2021
3
23-26
AFP
DFAT Sensitivity Review
Release in Part
Section 47E(d)
OSI
of Operation Emerald
Section 47E(c)
DFAT
Material
4
27-30
AFP
Information Sharing
Release in Part
Section 47E(d)
Protocol – DFAT Support
Section 47E(c)
OSI
to OSI and AFP joint
DFAT
investigative activities
5
31-79
AFP
Standard Operating
Exempt in full
Section 37(2)(b)
Procedure
6
80-171
AFP
Protocols for Referrals,
Release in Part
Section 22(1)(a)(ii)
Information Sharing and
Section 37(2)(b)
Defence
Communications in the
Section 47E(c)
OSI
Context of Operation
Section 47E(d)
Emerald.
Version 4.0.
SCHEDULE OF DECISION – LEX 2675
1
