A tribunal has found the Immigration Department was wrong in refusing to release 282 documents under FOI legislation, concerning Dr Mohamed Haneef. Only one document, about the Immigration Minister’s actions, was exempt, as it might be “misinterpreted by the public”.
The findings are by the Administrative Appeals Tribunal (AAT) under the Freedom of Information Act (FOI). The documents were from various government departments, and concerned the cancellation of the passport of Dr Haneef, a Gold Coast physician. Dr Haneef was wrongly accused of terrorism related offences, and his detention was the longest without charge in recent Australian history.
Dr Haneef’s supposed crime was that he gave his phone SIM card to his cousin in Britain, which was later allegedly used to detonate a bomb at Glasgow Airport. It is interesting to note that ASIO claim that Dr Haneef was never of any interest to them, nor any other agency anywhere in the world. Yet the Immigration Minister still made such a decision, apparently with no cause.
In an application lodged under the FOI Act, Dr Haneef had sought access to documents relating to the cancellation of his visa, the decision to detain him and his ongoing detention in 2007. In his application, Dr Haneef also sought documents relating to the issue of a Criminal Justice Stay certificate in respect of him and any documents recording or relating to communications between various Government Departments concerning him.
The Department’s decision-maker claimed exemptions under the FOI Act in respect of 282 documents. Subsequently, the claims for exemption were removed in relation to 141 documents and the Department stated that it would consider its position in relation to the others. Shortly before the hearing, the Department indicated that 73 documents were duplicates, and Dr Haneef did not pursue release of them. By the time the Tribunal hearing was completed, the claims for exemptions, based solely on section 36(1) of the FOI Act, applied to only six documents, described as Document 8, 38, 40, 46, 52 and 56.
Document 8 was described as an options paper with respect to how the Minister may deal with issues raised by Dr Haneef’s arrest. The Department argued that Document 8 disclosed the processes of an officer of the Department in relation to the way in which the functions of government agencies might operate in the circumstances that existed at the time that Dr Haneef was a person of interest to the Australian Government. The Department claimed that Document 8 was part of a preliminary process of eliciting views or brainstorming with the intention of formulating options which the Minister might employ with dealing with Dr Haneef’s case. The Department described the contents of Document 8 as “mere musings”.
The Tribunal found that Document 8 came within the scope of section 36(1)(a) as it disclosed matters in the nature of or relating to the giving of advice or opinions or recommendations for the purpose of the deliberative processes involved in the Minister’s ultimate decision to cancel Dr Haneef’s visa. The Tribunal found that Document 8 gathered information and expresses some very preliminary or nascent opinions about the import of that information for the purpose of formulating, at some later stage, recommendations and options to be presented to the Minister.
The Tribunal found also that the disclosure of Document 8 would be contrary to the public interest. The Tribunal found that the content of Document 8 would be misunderstood by the public and mischaracterised by those who are unacquainted with the full details of Dr Haneef’s case and the way in which various Australian government agencies and officers handled it. In particular, the Tribunal found that the characteristics of Document 8 such as the preliminary nature of the views expressed, the questions which are raised but not answered, the speculation as to how events may unfold in the future and the way in which the Department might respond, demonstrate that disclosure of the document would more readily lead to its misconstruction in the public arena.
Accordingly, the Tribunal concluded that Document 8 qualified for exemption under section 36 of the FOI Act.
Document 38, 40, 46, 52 and 56
The Tribunal noted that these documents were directed to the Minister or senior members of his staff. The Tribunal found that the documents differed from Document 8 in that the information contained in them was not in any way expressed to be tentative or requiring further investigation. The documents were options papers or a draft of the Statement of Reasons explaining the decision of the Minister
The Tribunal found that the documents were clearly an important part of the deliberative process which the Department and the Minister engaged in before selecting the final course of action in respect of the cancellation of Dr Haneef’s visa.
The Tribunal also found however that the disclosure of the documents would not be contrary to the public interest and that as such, the documents were not exempt under section 36 of the FOI Act. In coming to this conclusion, the Tribunal noted that no convincing evidence had been presented to it by the Department establishing any direct, significant or specific disadvantage that would be likely to flow from disclosure of the documents. In relation to the Department’s argument that disclosure of the documents would lead the Department’s officers to resort to a lack of candour if they were concerned that their draft opinions and the various options that they propose might later be subjected to public scrutiny, the Tribunal found that such arguments did not demonstrate that it would be contrary to the public interest for the documents to be disclosed.
The Tribunal held that the documents were not exempt from disclosure under the FOI Act pursuant to section 36(1).