AFP elie INFORMATION ACCESS (FREEDOM OF INFORMATION) GPO Box 401 Canberra Cty ACT 2601 Tel hone 02 8131 6131 Facsimie 02 6132 6082 Emal fol@afp.gov.au Our ref: CRM 2013/216 15 May 2013 Mr Nick McKenzie Via Email to: nmckenzie@fairfaxmedia.com.au Dear Mr McKenzie, refer to the revised scope of your application dated 8 April 2013, under the Freedom of Information Act 1982 (the Act) seeking the following: “Executive Briefs dealing with allegations that BHP Billiton engaged in bribery and corruption. I am happy for the documents to be redacted to ensure no privacy breaches involving third parties and for individual countries’ names to be removed in to avoid triggering the exemption around foreign relations.” Attached at Annexure A to this letter is my decision and statement of reasons for that decision, A “Schedule of Documents” identified as falling into the scope of your request is at Annexure 8. Information Publication Scheme (IPS) In accordance with section 11C of the Act, it has been decided to publish the documents, in part with respect to your request. Publication of the documents and any relevant documents will be made on the La website at http: //www.afp.gov.au) if lication- scheme/routinely-requested-information.aspx between 5 and 10 days after notification of this decision. Yours sincerely, Lew G8 Leonie Amos Acting Coordinator Information Access (Freedom of Information) Government RelationsSTATEMENT OF REASONS RELATING TO AN FOI REQUEST BY Mr Nick McKenzie I, Leonie Amos, Acting Coordinator, Information Access (FOI) Government Relations, am an officer authorised under section 23 of the Act to make decisions in relation to the Australian Federal Police. What follows is my decision and reasons for the decision in relation to your application. BACKGROUND On 8 April 2013, this office received your updated scope in which you requested: “Executive Briefs dealing with allegations that BHP Billiton engaged in bribery and corruption. I am happy for the documents to be redacted to ensure no privacy breaches involving third parties and for individual countries' names to be removed in to avoid triggering the exemption around foreign relations.” SEARCHES In relation to this request, the following searches for documents have been undertaken: a) a search of the AFP’s investigation case management system PROMIS for records relating to “Executive Briefs, BHP, foreign bribery and corruption”; b) a “text” search of the AFP's investigation case management system PROMIS for records relating to “Executive Briefs, BHP, foreign bribery and corruption”; c) a search of all records held by AFP case officers with responsibility for matters relating to the documents to which you sought access including, but not limited to “Executive Briefs, BHP, foreign bribery and corruption”; d) a search of all records held by the relevant line areas within the AFP; and e) a search of the AFP’s "Correspondence Management System (CMS)" for records relating to "Executive Briefs, BHP, foreign bribery and corruption”. DECISION Ihave identified nine documents relevant to your request. A schedule of each document and details of my decision in relation to each document is at Annexure B.T have decided all of the documents itemised at Annexure B are released to you with deletions pursuant to subsections 33(a)(iii), 37(1)(a), 37(2)(b), 42(1), 45 and 47F of the Act. My reasons for this decision are set out below. WAIVER OF CHARGES Further, given that the request has exceeded all 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. REASONS FOR DECISION I find that all of the documents relevant to your request are either exempt or Partially exempt under the provisions of the Act, as set out in the Schedule, for the reasons outlined below Folios to which subsection 33(a)(iii) apply: Subsection 33(a)(iii) of the Act provides that: “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: (iii) the international relations of the Commonwealth... The documents or parts of documents identified in the Schedule as exempt under this section of the Act relates to information provided by an agency of a foreign government. The information was provided to the AFP by a foreign government for investigative purposes on the understanding that it would only be used for that purpose and not be disseminated further. I am satisfied that to grant access to the documents would, or could reasonably be expected to cause damage to the international relations of the Commonwealth as this information was communicated with the expectation that it would remain confidential and therefore, to disclose this material would damage the Commonwealth's relations with a foreign country. If these documents were to be released, it would be likely to inhibit the exchange of information to the AFP. 1 find that release of the documents or parts of the documents would be an unreasonable disclosure under subsection 33(a)(iii) of the Act. Folios to which subsection 37(1)(a) appl) Subsection 37(1)(a) of the Act provides that: “(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;”The documents or parts of documents identified in the schedule as exempt under this section of the Act contain information which if disclosed would or could reasonably be expected to prejudice the conduct of a current investigation. I find that release of the documents or parts of the documents would be an unreasonable disclosure under subsection 37(1)(a) of the Act. Folios to which subsection 37(2)(b) apply: Subsection 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: (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;” The documents or parts of documents identified in the Schedule as exempt under this section of the Act contain information that would disclose methods and procedures used by the AFP in investigations of breaches of the law. Disclosure of this information would be reasonably likely to prejudice the effectiveness of those methods and procedures as these methods and procedures are not generally known to the public. I find that release of the documents or parts of the documents would be an unreasonable disclosure under subsection 37(2)(b) of the Act. Folios to which subsection 42(1) apply: Subsection 42(1) of the Act provides that: "(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.” The documents or parts of documents identified in the Schedule as exempt contain information brought into existence for the purpose of obtaining legal advice and for use in litigation. I am satisfied that these documents would be privileged from production in legal proceedings on the grounds of legal professional privilege. The AFP has not waived its right to hold privilege over these folios. I find that release of the documents or parts of the documents would be an unreasonable disclosure under subsection 42(1) of the Act. Folios to which subsection 45 (1) apply: Subsection 45(1) of the Act provides that: “(1) Adocument is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency, the Commonwealth or Norfolk Island), for breach of confidence.”The documents or parts of documents identified in the Schedule as exempt under this section of the Act contain information provided by an organisation or agency on an understanding of confidentiality and on the condition that they are not to be released outside of the AFP. The information was provided on a confidential basis for investigative purposes only and disclosure would be a breach of that confidence and could potentially harm the future supply of information to the AFP. Lam satisfied that to grant access to the documents would divulge information communicated in confidence to the AFP by an organisation or agency. Folios to which section 47F apply: ‘Section 47F of the Act provides that: “(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).” The documents or parts of documents identified in the Schedule as exempt under this section of the Act contain personal information of third parties. Personal information is information or an opinion about an individual whose identity is known or easily ascertainable. I find that these documents contain personal information. I have considered the public interest factors both in favour and against disclosure of the information in these folios. In relation to the factors favouring disclosure, I believe the following are relevant: (a) _ the general public interest in access to documents as expressed in sections 3 and 11 of the FOI Act; (b) the extent to which the information is well known; (c) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the documents; (d) _ the availability of the information from publicly accessible sources; (e) _ the current relevance of the information; and (f) the circumstances in which the information was obtained and any expectation of confidentiality. In relation to the factors against disclosure, I believe that the following are relevant: (g) prejudice the protection of an individual's right to privacy; (h) impede the fiow of information to the police; (i) the need for the agency to maintain the confidentiality with regard to the subject matter and the circumstances in which the information was obtained; and (3) if such information was disclosed, it may discourage public cooperation in AFP investigations.While there is a public interest in providing access to documents held by the AFP, I have given greater weight to factors (g) to (j) above and conclude that on balance, disclosure is not in the public interest. The AFP has not received consent regarding the release of some personal information regarding this request, disclosure of that information would be contrary to an individuals’ right to the protection of their personal privacy. I find that the release of these documents or parts of documents would be an unreasonable disclosure of Personal information and are therefore exempt under section 47F of the Act. EVIDENCE ON WHICH MY FINDINGS WERE BASED In reaching my decision, I have relied on the following documentary evidence: % the scope of your application; ° the contents of the documents listed in the attached schedule; % advice from AFP officers with responsibility for matters relating to the documents to which you sought access; ‘ Freedom of Information Act 1982; ‘ Guidelines issued by the Department of Prime Minister and Cabinet; and ‘ Guidelines issued by the Office of the Australian Information Commissioner. REVIEW RIGHTS If you are dissatisfied with this decision you can apply for internal or Information Commissioner (IC) Review. You do not have to apply for Internal Review before seeking IC review, Internal Review by the AFP Section 53A of the Act gives you the right to apply for an internal review in writing to this Department within 30 days of being notified of this decision. No particular form is required but it would assist the decision-maker were you to set out in the application, the grounds on which you consider that the decision should be reviewed. Applications for a review of the decision should be addressed to: Government Relations Information Access (FOI) Australian Federal Police GPO Box 401 Canberra ACT 2601Review by the Information Commissioner (IC) Alternatively, Section 54L of the Act gives you the right to apply directly to the IC or following an internal review with this Agency. In making your application you need to provide: ~ an address for notices to be sent (this can be an email address) ~ A copy of this decision. It would also help if you set out the reasons for review in your application. Applications for a review of the decision should be addressed to: Office of the Australian Information Commissioner GPO Box 2999 Canberra ACT 2601 Right to Complain Section 70 of the Act provides that a person may complain to the IC about action taken by this Department in relation to your application A complaint to the IC may be made in writing and identify the agency against which the complaint is made. The IC may be contacted on 1300 363 992. There is no particular form required to make a complaint, but the complaint should set out the grounds on which you consider the action should be investigated.912/102 Wud ~ NOISIO30 40 3INGIHOS “dvs 9 (e)(T)des ‘(uy(edees ST-ET SOH1OS :Suonejap YIM paseaiay geld @ANNDaxg div Oreriz ST-€t ‘Adys 8 (0)(T)cEs ' Me)ees CE-OT SONOS :suopaap YIM paseajay gelug @Annoex3 dav Oren zt-01 Acs 8 (2)(t)Zes “(u)(e)EEs 6-£ SONOS :suonalap yrim paseajay Jalig @Annoexg dav _oree apuapyuor Jo ypeaig e aq pinom jeyayeu! uj Jo aunsojasip yey spunoIb aul uo apew aie suolajaq Sps Bscps “(e)(t)ces (ui)(e)eEs :Suonajap YUM paseaiay J9l4g BARNDEx3 dav or'e'b 3sasa1u) i}qnd ayy 0} A1esu09 aq pinom 3) ssajun uanl6 8g asnui ssazdy “queriidde TO4 342 ey} J2yjo ajdoad jo syieiap jeuosied 30 woISiAoud aiqeuoseauun ayy »AlOAUI PINOM aunsopPsip ey spuno4B ‘ay UO apeW aue SUONDIEG 4Zbs “20ueySU) JejnoNAed e Ul Me] Bt JO jonensiujupe Jadoud 40 quawE210jU uy} aaipnfeid 40 ‘me] aur Jo ‘yeauq ‘aiq'ssod 40 “yaeaig e Jo uoeBI3sanu! ue Jo yonpuod aun saipnfasd 01 payradxe aq Aiqeuoseai pinom heuy 4zew as0}951p pinom quauind0p siui Jo uojsinoud (e)(T)Zes “yyeamuowwioD ayy Jo suORe|eA Jeuonjeusaqu! 43 0} aBewep asneo 01 paaadxe aq Aiqeuoseas pinoo 10 ‘pinom aunsojasip 3e4) Spunos6 342 uo apew ave suonaiea (m)(e)EEs €-T Solo !SuONa|ap YUM paseaiay galug aayndax3 (dav) 22110¢ levapag uelensny orez 1ZUBHSW PIN JW - SLNAWNDOG 4O ASVI1SY 9TZ/ETOZ WUD - NOISIDAd 40 FING3IHOS‘912/¢102 WHO ~ NOISiO3q 40 31NG3HOS e107 Aew ST aotiod jes8pe4 uerjensny Suone|aY IUBUILEAOD (uogewuoyur Jo wopaai4) ss202y UOReUOJUT 4J0}eUIp1009 Buy sowy a1uda, ruoisivag Jo 2120, nayeW UoIsag pasuoWNy ALbs 95-€5 SorOg 3 (T)sps ‘(e)(t)zes “Wud(e)ees 9/aP YIM paseajay | J@l4g eANINIEXZ, dav | €T'Z'pT | 9S-ES 6 aie 75-05 SOHO 73 (tsps ‘(e)(t)zes “(ui)(e)ges | :suonejep yIM pasealey | _Jel4g OANNDEXa div | tre't | 25-05 8 Gb Lb SOIO5 ] "Alps 8 (2)(T)ces “(my(e)ges | :suonaiap yum paseaiay | _JaLig aAnNnDax3 div| 1198 | 6b-Lb £ “ales 9-97 SONOS 8 (T)sps “(e)(T)ces “(mn(e)ees | :suonaiap ym paseajay | _sal4a aARNDEXa dav| reve _| 9b-9F oey AFP Minute Addressee Commander Justine Saunders Title Manager Crime Operations Action required: For information Deadlin No deadline Reasons for proposed actions: Background The AFP have recently received referrals and accompanying media articles from “ae the Attorney Generals Department (AGD's) alleging that BHP Billiton Pty Ltd have bribed Foreign Officials during the course of a ay, 370140) in say) Baten 3710y@) BHP have acknowledged in its quarterly reports for January to March 2010 that they have provided evidence of possible violations of anti-corruption laws involving interactions with government officials, at the request of ssi), 37(1X2) Following receipt of the matter, the referral documents were reviewed by T/L OMC & CCO Burnage. Given the limited information contained therein, and the reliance upon media articles to corroborate the allegations, it was decided to adopt a course of action to utilise ‘33¢aptin), 37(1)(a) in order obtain details of members from the respective agencies conducting inquiries in this matter. It is anticipated the members will be contacted with a view to obtaining information to assist in the evaluation process. 23/0, 37000 are conducting inquiries in relation to this matter, and BHP have cooperated and provided evidence to Investigators. The respective Posts have been informed as to the Political and Media interest in this matter and requested to address the matter as a priority. FOI -1Resource implications: Matter to remain in evaluation pending further AFP contact with 3%9)'») 27(1(8) Consultation: At 0800hrs on 01/07/10, a teleconference took place between F/A Neil Burnage, Kevin Taylor ~ AFP MO, 39(ayn, 37(1(@),47F ‘3a, 37011), a7F 34a), 97(14a). «7 During the course of the telecom, the following matters were addressed or raised; F/A Burnage provided a brief background of the referral of the matter to the AFP by AG's & are and legislation relevant to bribery of Foreign Official - CCA 1995. 33(ayiy, 71M), a7 ssiayti, sv@dvised a letter was forwarded by them to BHP in August 2009 regarding allegations made by two NGO's of bribery having occurred in s(ayin@7(@) Asa result BHP are cooperating withs.ajw, s71yand have engaged —s3(a\i, 27a) Lawyers to conduct an internal Investigation and report toa), 27(1,BHP have also entered into a acai a7itya) 31a), 37(1Ka) 34a), 37112). 45 38(ayti. 87(1\—), 4211), 47F (aya, 3700) Matters discussed included; Exchange/Sharing of information between the AFP say), 9711) Police to Police and MAR processiayii),s7enter into written 34am), 3711K@) explore information sharing with AFP, directly or via 33(a\), 3712) 8340), 70140) FOI -2Expected Reaction: None Recommendation: Matter to remain in evaluation pending further anticipated contact with °9(a\).97(1\) Kevin Taylor Federal Agent 11949 02 July 2010 FOI -3AFP Minute Addressee Commander Chris McDevitt Title Manager Crime Operations Action required: For information Deadline: No deadline Reasons for proposed actions: Background The AFP have received referrals and accompanying media articles from ar a7 the Attorney Generals Department (AGD's) alleging that BHP Billiton Pty Ltd have bribed Foreign Officials during the course of a 33(eyi) 37140) 34a), 37/14) Bianwyca7ity) BHP have acknowledged in its quarterly reports for January to March 2010 that they have provided evidence of possible violations of anti-corruption laws involving interactions with government officials, at the request of 3) 27/8) Following receipt of the matter, the referral documents were reviewed by T/L OMC & CCO Burnage. Given the limited information contained therein, and the reliance upon media articles to corroborate the allegations, it was decided to adopt a course of action to utilise 33(ayti. 371K8) in order obtain details of members from the respective agencies conducting inquiries in this matter. It is anticipated the members will be contacted with a view to obtaining information to assist in the evaluation process. 34a), 9701K@) are conducting inquiries in relation to this matter, and BHP have cooperated and provided evidence to Investigators. The respective Posts have been informed as to the Political and Media interest in this matter and requested to address the matter as a priority. AFP Web site: rw afp.gov.a FOI-4Resource implications: Matter to remain in evaluation pending further AFP contact with 33jayii), 37/1) Consultatio: At 0830hrs on 03/08/10, a teleconference took place between F/A Neil Burnage, Kevin Taylor - AFPMO and = 34a, 37(1\@),47F During the course of the telecom, the following matters were addressed or raised; sa(exw, s7x@et with representatives of 33/2). s7111@) Lawyers in Mid July and the following information was provided 334@ytW, 3711) 45 47 further advised documentary material may be provided to the AFP on submission of a 234ayn, 314—y 47E will provide an electronic copy of the template of this document to the AFP. Further matters discussed during the course of the Teleconference included; 89¢a}, 3711), 37C2ND) Information/Intelligence sharing between the AFP22\=)i).27(1\cand the MAR process involving Attorney Generals Department anda 37(1}0) 41 detailed the process by which 331ay). 371) Conduetyayiy, s7~iavestigations, and the range of sanctions available toa), 37(1yif the company is convicted 33a), 37(1(@). 37@N0), 47F Arrangements were made for a further teleconference to take place on 17th August. 47° will provide contact details of the 2:a)ii) representative with whom BHP have been in contact. AFP Web site: moa FOI-5Expected Reaction: None Recommendation: Matter to remain in evaluation pending further anticipated contact with the22(a\i) 3711) Kevin Taylor Federal Agent 11949 04 August 2010 AFP Weo site " FOI -6Q AFP jute Addressee Commander Chris McDevitt Title Manager Special References Action required: For information Deadline: No deadline Reasons for proposed actions: Background The AFP have received refertals and accompanying media articles from arr are the Attorney Generals Department (AGD's) alleging that BHP Billiton Pty Ltd have bribed Foreign Officials during the course of a 31a) 97012) 38a, 701K) Balan, 370K) BHP have acknowledged in its quarterly reports for January to March 2010 that they have provided evidence of possible violations of anti-corruption laws involving interactions with government officials, at the request of 3(0)i, 37/18) Following receipt of the matter, the referral documents were reviewed by T/L OMC & CCO Burnage, Given the limited information contained therein, and the reliance upon media articles to corroborate the allegations, it was decided to adopt a course of action to utilise 33(9,H),37(140) in order obtain details of members from the respective agencies conducting inquiries in this matter. It is anticipated the members will be contacted with a view to obtaining information to assist in the evaluation process. 34a}, 37110) are conducting inquiries in relation to this matter, and BHP have cooperated and provided evidence to Investigators. The respective Posts have been informed as to the Political and Media interest in this matter and requested to address the matter as a priority AFP Web site FOL-7Resource implications: Matter to remain in evaluation pending further AFP contact with 33a) 37(1\@) Consultation: A telecom scheduled for 17/08/10 was cancelled due to the unavailability of 47° At 1300hrs 24/08/10, F/A Burnage & Taylor met with are are During the course of the meeting «7r_ provided the following information; 8340) 3701 a) Further contact will occur between the AFP anda). s7;on)an ad hoc basis. At O80Ohrs on 31/08/10, a teleconference took place between F/A Neil Burnage, Kevin Taylor - AFP MO, 4a, 97014) During the course of the telecon, the following matters were addressed or raised; AFP Wed site FO! -833406), 971K) Expected Reaction: None Recommendation: Matter to remain in evaluation pending further anticipated contact with the23) 27/1) Kevin Taylor Federal Agent 11949 07 September 2010 AFP web site: a FOI-9re) AFP Minute Addressee Commander Chi McDevitt Title Manager Special References Action required: For information Deadline: No deadline Reasons for proposed actions: Background The AFP have received referrals and accompanying media articles from arr are the Attorney Generals Department (AGD's) alleging that BHP Billiton Pty Ltd have bribed Foreign Officials during the course of a 3taxtiy 37014@) s3ani, 37¢1K) 33(ayaiy, 97004) BHP have acknowledged in its quarterly reports for January to March 2010 that they have provided evidence of possible violations of anti-corruption laws involving interactions with government officials, at the request of | ss(ayi), 3718) Following receipt of the matter, the referral documents were reviewed by T/L OMC & CCO Burnage. Given the limited information contained therein, and the reliance upon media articles to corroborate the allegations, it was decided to adopt a course of action to utilise 33(a)i, 970140) in order obtain details of members from the respective agencies conducting inquiries in this matter. It is anticipated the members will be contacted with a view to obtaining information to assist in the evaluation process. 33(en), 37(1K@) are conducting inquiries in relation to this matter, and BHP have cooperated and provided evidence to Investigators. ‘The respective Posts have been informed as to the Political and Media interest in this matter and requested to address the matter as a priority. AFP Web site: FOI-10