Immigration case shows process can take the news out of FOI requests

By MARK PEARSON Follow @Journlaw

A recent decision by the Australian Information Commissioner has demonstrated that persistence with a Freedom of Information application can pay off – if you are willing to wait the year or more for the appeal process to take its course. 

Farrell and Department of Immigration and Border Protection [2013] AICmr 81  (21 November 2013) was decided recently and may well be subject to further appeal.

FOI data used in The Global Mail multimedia coverage

On November 15, 2012, he applied to the Department of Immigration and Border Protection for access to a series of incident reports about five self-harming events logged on the department’s FI disclosure log.

On January 14, 2013, the Department provided Mr Farrell with edited copies of five documents totalling 23 pages related to his request, citing its ‘operations of agency’ and ‘personal privacy’ exemptions under sections 47E and 47F of the Commonwealth FOI Act as its reasons for the deletion of material. On February 14, 2013, Mr Farrell applied to the Information Commissioner for review of the information exempted by the Department under s 47E.

The Privacy Commissioner ruled on November 21, 2013 that the Department’s decision should be set aside and the exempted information should be released to Mr Farrell. The exemption under  Section 47E(d) provides: ‘[a] document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to…(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’.

The Department had argued its operations would have been adversely affected if details had been released about an incident of self-harm while an individual was about to be deported from Australia on a scheduled commercial flight. It argued the information might help others avoid deportation by adopting the same behaviours. The Privacy Commissioner ruled (at paras 12 and 13):

“Much of the information exempted by the Department in document 1 is already in the public domain in the form of media articles relating to similar instances where disruptive behaviour had led to individuals being unable to be deported on commercial flights and charter flights having to be subsequently arranged. I have examined an unedited copy of document 1. Given that information of this nature is already publicly available, I do not consider that its disclosure would, or could reasonably be expected to have, a substantial adverse effect on the proper and efficient conduct of the Department’s operations or would result in the Department being required to alter its processes for deporting individuals.”

Lessons for journalists

The case holds important lessons about the workings of FOI and the exemptions that are available.

On the one hand, Farrell and his colleagues were able to publish a substantial body of material on their detentionlogs.com.au site as a result of numerous FOI requests – information later published as stories, searchable databases and graphics on other news sites including The Guardian, The Global Mail and New Matilda.

However, the case also provides an insight into the bureaucratic, technical and time-consuming side of the FOI application process. A request had taken a full year to be filed, rejected and reviewed, and the Department still had 28 days to appeal to have the Privacy Commissioner’s decision reviewed by the Administrative Appeals Tribunal. That would then open the way to a series of court appeals over the decision if either party chose to pursue them.

Theoretically, it could take years before the release of the information which might then be only of historical value rather than of news value.

© Mark Pearson 2013

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.