Allen v Rural Fire Service

[2005] NSWADT 222

CITATION:	Allen & Anor v Rural Fire Service [2005] NSWADT 222
DIVISION:	General Division
PARTIES:	APPLICANTS James Craig Allen and Julia Frances Trainor RESPONDENT Rural Fire Service
FILE NUMBER:	043342
HEARING DATES:	17/05/2005
SUBMISSIONS CLOSED:	07/01/2005
DATE OF DECISION:	09/30/2005
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - confidential material - access to documents - operations of agencies - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operations of agencies
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Rural Fires Act 1997
CASES CITED:	Harris v ABC (1983) 50 ALR 551 Re Eccleston (1993) 1 QAR 60 Saleam v Director General, Department of Community Services [2003] NSWADT 41 Wiseman v The Commonwealth (unreported, Full Federal Court, 24 October 1989)
REPRESENTATION:	APPLICANTS In person RESPONDENT G Gemmell, Barrister
ORDERS:	The decision of the respondent to refuse the applicants’ access to the documents the subject of this application is affirmed

Introduction

1 This is an application by Craig Allen and Julia Trainor (“the applicants”) seeking review of a decision of the NSW Rural Fire Service (“the respondent”) to refuse them access to documents that they had requested pursuant to the Freedom of Information Act 1989 (“the FOI Act”) and which were held by the respondent.

2 The applicants made their FOI request on 23 February 2004 and in that request they sought access to documents “concerning the fires at Ingebyra (Snowy River Shire) in January/February 2003”. In particular they sought documents relating to the following:

(a) Fires from ‘Carlisle’ to ‘Spring Creek’;

(b) The FRS containment lines constructed from ‘Spring Creek” to Carlisle; and

(c) The RFS back burns lit from these containment lines, including, but not limited to:

(i) the purpose of the back burns;

(ii) the planning of the back burns including property protection plans;

(iii) the execution of the back burns including property protection measures;

(iv) the de-briefing after the back burns;

(v) any retrospective analysis, reports or summaries of the back burns; and

(vi) the lessons learnt from the back burns.

3 The applicants are the owners of “Spring Creek” property in the Ingebyra region of the Snowy Mountains. During the January-February 2003 about 500 acres of their property was burnt and for which the applicants have sought compensation. At the time, Craig Allen, was a voluntary member and President of the local Ingebyra rural fire brigade. Julia Trainor was and continues to be a voluntary member of this brigade.

4 On 3 March 2004, T.J. Anderson, the Executive Director Corporate Services of the respondent wrote to the applicants advising them of the following:

“All of the information sought by you is not available from this office, but you may approach the Fire Control Officer, Snowy River with a view to having access by inspection, of maps etc. covering this particular fire.

I have already contacted Superintendent Ian Stewart and asked that he provide whatever assistance possible to you. …”

5 On 20 May 2004, Ian Stewart, the Team Manager of the respondent’s office located at Berridale wrote to the applicants and advised them as follows:

“In relation to records held by the Rural Fire Service in the Berridale Office, you are welcome to make an appointment with me at any time, to pursue the phone record and radio logs.

You are advised that all other documentation relating to the fires is held in the records sections of the NPWS at Jindabyne. Access to that information would be subject to approval from the National Parks and Wildlife Service, through their Head Office in Sydney.

Thank you for your attention in this matter, I await your further advice in relation to attending this Office, for purposes of perusal of the phone and radio logs.”

6 On 7 June 2004, the applicants replied to Mr Stewart’s letter stating that they were willing to attend the office of the National Parks and Wildlife Service as suggested, however they went on to say that “… it seems most unusual that the RFS does not maintain its own records.” The applicants also sought clarification as to whether the respondent was saying that it did not or did have documents that came within the specific paragraphs of their FOI request. Ian Stewart replied to the applicants’ letter on 21 June 2004 and said:

“… copies of all pertinent documentation relating to your Application including, but not restricted to correspondence between yourself and Trevor Anderson’s Office, subsequent correspondence between Trevor Anderson’s Office and this office, as well as records of meetings between ourselves and the Ingebyra Brigade and other related information, have been sent to Head Office for further direction. It is expected you will receive notification of which documents will be made available to you in due course.”

7 On or about 30 July 2004, Trevor Anderson wrote to the applicants advising them that the phone records and radio logs, which had previously been offered for their perusal, could be accessed at the Berridale Fire Control Centre. He went on to say that it had been determined not to release several other documents, which came within the terms of the FOI request and were held by the respondent. The respondent did not identify the number or nature of documents for which access had been refused, however, the basis of the refusal was stated to be the exemption contained under cl.13(a) & (b) of Schedule 1 of the FOI Act. Cl.13(a) provides that a document is exempt if “it contains matter the disclosure of which would found an action for breach of confidence.”

8 Clause 13(b) provides that a document is exempt”

“if it contains matter the disclosure of which :
(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.”

9 On 11 August 2004, the applicants requested an internal review of the respondent’s determination to refuse it access to certain documents. The internal review was determined on 21 September 2004 by the Commissioner of the respondent. The Commissioner confirmed the original decision that the documents for which access had been refused were exempt under cl.13(a) and (b) of Schedule 1 of the FOI Act. The Commissioner also said that the documents were exempt under cl.11 of Schedule 1 of the FOI Act. This exemption concerns documents relating to judicial functions, however, the respondent did not press this exemption after the applicants lodged their application with the Tribunal.

10 The matter came before the Tribunal at several planning meetings where the parties sought to clarify the issues in dispute in an endeavour to settle the matter. During this time the respondent filed a list of documents that it held and which came within the terms of the applicants’ FOI request. That list also identified those documents for which access was to be given and those for which access was refused and the grounds of refusal. There were 11 documents on the list and of these access was refused for 7 (i.e. Document no 5 to 11). Access to these were refused on the grounds that they were exempt under cl.13(a) and (b) and cl.16 of Schedule 1 of the FOI Act.

11 At the hearing, the respondent’s determination in respect of each of the 7 documents for which access had been refused was the subject of review and the respondent contended that they were exempt under cl.13(b) and 16(a)(iv) and (b) of Schedule 1 of the FOI Act. Subsequent to the hearing, on obtaining further evidence as to the author of Document no 5, the respondent determined to release that document to the applicants.

12 Cl.16(a)(iv) and (b) of Schedule 1 of the FOI Act provides as follows:

“16 A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency’s functions; and
(b) would, on balance, be contrary to the public interests.”

13 The facts surrounding the creation of the documents for which exemption is claimed do not appear to be disputed. However, it is necessary to provide a brief summary of these so as to provide the context in which the disputed documents came into existence and into the possession of the respondent.

14 Following the January/February 2003 fires, the Captain of the Ingebyra rural fire brigade prepared a 6 page report entitled “Facts relating to the Spring Creek Fire”. In the report the Captain set out his recollection of events that had occurred between 30 January and 7 February 2003 to combat the fires in the Ingebyra area. Included in the report were events that occurred at “Spring Creek”.

15 The report is document no. 5 for which an exemption had been claimed. However, as explained in the introduction, following the hearing the respondent advised the Tribunal and the applicants that it no longer claimed this report to be exempt. At the same time as advising the Tribunal that there was no longer a claim that the report was exempt, the respondent filed two additional affidavits in confidence. These affidavits were very short and sought to explain why the exemption had been claimed.

16 Notwithstanding the explanation that is to be inferred from the affidavits it is difficult to see how the exemption could have been claimed as a copy of the report was in fact sent to Craig Allen by Barry Aitchison of the Snowy River Rural Fire Service on 28 March 2003.

17 On 17 May 2003, Craig Allen wrote to Barry Aitchison. In that letter he said that the Captain’s report contained a large number of errors and false allegations. He also provided a 7 page response to the report and requested “In the interest of fairness I request that my report receive the same exposure as [Senior Deputy Captain’s] report.”

18 The respondent provided, on a confidential basis, the Tribunal with a copy of the four documents for which access was refused. The respondent has identified each of these documents as a “statement”, written at specified dates in July 2003 (with one exception which is undated but clearly written at about this time), by a “RFS Member” and that the statement concerned the fire and “Mr Allen’s complaint.” The respondent did not provide any detail about the alleged complaint, however from the material provided to the Tribunal it would appear to relate to a complaint Craig Allen made to Barry Aitchison and to which he responded on 28 March 2003.

19 The applicants have stated that they wish to have access to the documents in dispute so that they can correct any factual errors that are contained therein. I understood that the applicants were not interested in obtaining access to the identity of the authors of the documents. Their only interest was in obtaining access to the content of the documents to the extent they give an account of events between January/February 2003. They explained that they lived in a very small rural community in which everyone knew each other and in their opinion the adverse report of the Captain had had a dramatic effect on how they were now perceived within that community. Their main interest in obtaining access to the documents was so that they could correct any factual errors that were contained therein and endeavour to rebuild their reputation within the community.

20 The respondent, on whom the onus rests to satisfy the Tribunal that the documents for which exemption is claimed are in fact exempt (s.61 FOI Act), tendered into evidence a statement from Ian Stewart, Team Manager of the Monaro Team of the NSW Rural Fire Service, dated 20 April 2005. In that statement Ian Stewart said:

(a) the exempt documents were each drawn up by the authors on their own volition “in support of events which happened during 2002/03 fires in the Ingebyra area”;

(b) the information was provided to the respondent in the utmost confidence “only to be divulged to active members of their brigade and the management of the RFS”;

(c) the authors of the documents live in a small community and disclosure of the documents beyond the active members of the brigade could cause tension in the community;

(d) in his opinion, the disclosure of the contents of the documents would prejudice future supply of information to the Rural Fire Service as “word would spread among members of the RFS that information provided in confidence would be divulged …” This he went on to say “may have deleterious effects on public safety”; and

(e) he was concerned that if the documents were not held to be exempt this would affect morale of the relevant RFS brigade and neighbouring brigades and that the authors would leave the brigade and others would be discouraged from joining.

21 In addition to this statement, the respondent provided the Tribunal, in confidence, with statements from the relevant authors, each of whom states that the document they wrote and provided to the respondent were provided in confidence and that they wished to have that confidence retained.

Consideration

22 As each of the documents for which exemption is claimed are similar in nature and content it is convenient to consider these as a group under each of the exemptions that have been claimed.

Clause 13(b)

23 The rationale for the exemption in cl.13 of Schedule 1 of the FOI Act is to preserve and protect the flow of confidential information to Government and its agencies. In this application the respondent only relies on the exemption contained in cl.13(b) which applies where information was obtained in confidence but a disclosure would not amount to a breach of confidence. To satisfy this particular exemption, the respondent must establish that the information contained in the document was in fact obtained in confidence:

a) that disclosure of the information could reasonably be expected to prejudice future supply of such information to the respondent; and

b) on balance, it would be contrary to the public interest to disclose the information .

24 It is well established that in determining whether information in a document was “obtained in confidence” it is not necessary for the agency to establish that there was an express understanding or stipulation of confidentiality between the supplier and recipient at the time the information was communicated (see Wiseman v the Commonwealth (unreported, Full Federal Court, 24 October 1989)). This confidentiality may be inferred from the circumstances in which the information was obtained.

25 In this application, on the basis of the evidence of the authors of the documents that was filed in confidence, I find that the contents were provided to the respondent in confidence. That is, there was an expectation by the authors that their account of events would remain confidential and only be used by the respondent for its own internal purposes in assessing what had happened during this time.

26 Accordingly, the next issue for determination is whether disclosure of the information in these documents could reasonably be expected to prejudice future supply of such information. This is a question of fact to be assessed objectively having regard to all the relevant circumstances. Accordingly, the question is not whether the authors of the information in question would in future refuse to supply such information to the agency. It is question as to whether disclosure of the information could reasonably prejudice future supply of this type of information from those sources that are available or likely to be available to the agency (see Re B (1994) 1QAR 279 at 341).

27 In my opinion, this requires an examination of the role and function of the agency in question and the nature and content of the documents for which exemption is claimed.

28 In this case, the respondent agency has been established pursuant to s.8 of the Rural Fires Act 1997. Sub-s.8(2) of that Act provides that the NSW Fire Service (“the Service”) is made up of the Commissioner and other staff of the Service as well as “volunteer rural fire fighters”. The term “volunteer rural fire fighters” is defined in sub-s.8(3) to include officers and other members of rural fire brigades. The functions of the Service are set out in s.9 of the Act and includes the provision of “rural fire services” for New South Wales.

29 The term “rural fire services” is defined in sub-s.9(4) of the Act to include the following:

(a) services for the prevention, mitigation and suppression of fires in rural fire districts;

(b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts, …”.

30 Responsibility for managing and controlling the Service rests with the Commissioner (s.12 of the Act). However, it a highly decentralised organization. The Act provides for the division of New South Wales into numerous rural fire districts and giving the local authority responsibility for each district (s.6 and 7). Then in each rural fire district there is provision for the establishment of local rural fire brigades (Division 3 of Part 2). It is the Tribunal’s understanding that these local rural fire brigades are each made up of volunteers and who are primarily responsible for the day-to- day prevention, mitigation and suppression of bush fires in their local area.

31 Each local fire brigade operates pursuant to standard operating procedures as approved by the Commissioner. The applicants’ in their submission provided the Tribunal with a copy of part of the Fireground Standard Operating Procedure, in particular the procedures relating to debriefings after a fire incident. It is my understanding that it is the applicants’ contention that the documents in dispute were part of that process. However, this is not supported by the respondent’s evidence and the contents of the documents in dispute. But the question remains as to the nature of the documents and how these relate to the functions of the respondent.

32 As explained above, the authors are all members of the Ingebyra rural fire brigade and the documents contain their response to complaints made by Craig Allen. In my opinion the documents can only be described as “statements” in an informal sense. That is, it cannot be inferred from these documents that they were prepared as part of a formal investigation of what occurred at the relevant time. The respondent has put on very limited evidence about the circumstances in which the authors voluntarily provided their accounts or for what purpose (if any) the respondent used these accounts. The statement of Ian Stewart does not address this other than to suggest that the documents were in fact made available to other active members of the brigade. Accordingly, the Tribunal must draw the relevant inferences from the material that is before it.

33 The respondent’s contention is that disclosure of the documents would not only be detrimental to the relationship between the authors of the documents and the applicants but would also affect morale amongst members of the Ingebyra rural fire brigade and other rural fire brigades as it would become known that information provided in confidence will be disclosed under the FOI Act. In my opinion apart from mere assertion the respondent has put no evidence before the Tribunal that supports either contention. While there is evidence to support an assertion that if the documents are disclosed the authors would consider leaving the local rural fire brigade, I have placed very little weight on that evidence as it has been given in a standard format, which I do not believe truly reflects the position of the deponents.

34 However, in my opinion, having regard to all the material before the Tribunal, I am satisfied from the material before the Tribunal, that disclosure of the information in the documents for which access has been refused could reasonably prejudice the future supply of such information to the respondent. As this case demonstrates, when voluntary members of any local rural fire brigade are required to respond to fire threats within their locality this is often done in circumstances of urgency often involving a considerable threat of danger to life and property. Where a particular response becomes the subject of criticism or complaint, which undoubtedly occurs occasionally, this is clearly a matter that relates to the functions of the local rural fire brigade or the Service as a whole. The criticism or complaint must be assessed and assessed quickly so as not to hamper future responses. In assessing the criticism or complaint it may require ascertaining from those involved their recollection of what happened, when it happened and why it happened. As the respondent has no coercive power in this regard, it must rely on the voluntary co-operation of those involved. I also accept that co-operation in circumstances where the issues raised are of a sensitive nature then co-operation is likely to be given in confidence and if there was disclosure of that confidence it may prejudice the respondent from performing its functions efficiently and effectively. In my opinion, this is such a case, particularly where no further action has been taken.

35 The final matter for determination is whether, on balance, disclosure of the content of the documents would be contrary to the public interest. This is also a question of fact and will depend on the “nature and relative weight of the conflicting [public] interests” between the publics’ right to know and the public interest of maintaining confidentiality (see Re Eccleston (1993) 1 QAR 60 at 80).

36 In considering whether or not disclosure would be contrary to the public interest, s 59A of the FOI Act specifically provides that it is irrelevant that the disclosure may cause embarrassment or loss of confidence in the respondent agency, or that the FOI applicant may misinterpret or misunderstand the information in the document to which access is sought.

37 The interest of the access applicant in being given access to the information in question is seldom relevant to determining where the public interest lies. The following comments by the President in Saleam v Director General, Department of Community Services [2003] NSWADT 41 at [48], while made in the context of a cl.6 exemption, in my opinion is equally applicable to the public interest test in cl.13(b):

“48 The FOI Act sets a standard which is to apply as between citizens and government. Decisions to grant access under FOI should, to use an American expression, ordinarily be facially neutral. The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. But some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9; and generally Cossins, Annotated Freedom of Information Act New South Wales (1997), 313”

38 That is, generally the motives or purpose of the FOI applicant are rarely of any relevance in determining whether a document is exempt under cl.13 and any exemption involving a public interest test.

39 In this application there can be no doubt that the applicants’ motives and purpose for seeking access to the documents in question are genuine and I accept that their intentions are purely to “set the record straight”. They do not seek any reprisals and merely wish to contribute to the lessons learnt without casting blame. However, in my opinion this is not sufficient, in this case, to displace the public interest in the nondisclosure of the documents, which contain information received in confidence by the respondent from its members as a result of a complaint made by the applicant Craig Allen and which the Tribunal understands has not been actioned further.

Clause 16(a)(iv) and (b)

40 In order for the exemption in cl.16(a)(iv) and (b) of Schedule 1 to apply, the respondent must first establish that disclosure could reasonably be expected to have a “substantial” adverse effect on the effective performance by the respondent of its functions. The relevant functions of the respondent are already set out above. The term “substantial” has been interpreted to involve a “degree of gravity” associated with the adverse effect before the exemption applies (see Harris v ABC (1983) 50 ALR 551 at 564).

41 In this case, as mentioned above, the respondent asserts that disclosure of the documents in issue will affect morale amongst members of the local rural fire brigades. In my opinion, the evidence does not support such a conclusion. Even if it did there is no evidence that this in turn will have a “substantial” adverse effect on the respondent performing its functions effectively. The only material before the Tribunal is that of mere assertions. In particular the assertions contained in the statement of Ian Stewart of a disclosure being detrimental to public safety and that persons would be discouraged from joining as voluntary members of the respondent, which are not supported by any direct evidence.

42 Accordingly, the respondent has failed to satisfy the Tribunal that the documents are exempt on this particular ground.

Conclusion

43 For the reasons set out above, in my opinion the decision of the respondent is the correct and preferred decision.

Additional Matters

44 Prior to the hearing of this application, in addition to providing the applicants with a list of documents that came within the applicants’ FOI request, on 5 April 2005 the respondent provided the applicants with a list of documents that it held and to which the applicants could have access. That list contained 56 documents and included therein were the following documents:

1-Aug-03 Memorandum of Ian Stewart, RFS to Trevor Anderson, RFS

27-June-03 Notes taken from Informal Meeting between Julia Trainer/Craig Allen and Andrew Harrigan, NPWS and Ian Stewart, RFS

Undated Report from Team Manager, South East Team to Executive Director of Corporate Services, RFS

45 After the hearing of the matter the applicants advised the Tribunal that contrary to what had been said in the respondent’s letter of 5 April 2005, immediately after the hearing of this application, the respondent informed them that the decision to grant them access to the abovementioned documents had been reviewed and that they would be given access. The applicants went on to assert that the documents in question in fact came within the terms of their FOI request. As the decision concerning these documents was not before the Tribunal in this application, in my opinion, the Tribunal has no jurisdiction in regard to that decision. This does not prevent the applicants from making a further FOI request in respect of these particular documents and if the respondent determines that access is refused it will need to set out the grounds on which access is refused. If dissatisfied with that determination and subject to an internal review, the applicants are entitled to seek review by the Tribunal. The issue of whether the documents did or did not come within the terms of the applicants’ FOI request of 23 February 2004 can be dealt with at that time. In this regard I note that in a letter, dated 7 March 2005, from the applicants to the respondent’s solicitor, the applicants referred to 7 documents that in their opinion should have been included in the respondent’s list of documents that it held and which came within the terms of the applicants’ FOI request and were not included. This appears to include document 44 above, which the respondent, in reply to the applicants’ letter said did not come within the terms of their FOI request (see letter dated 21 March 2005).

46 Notwithstanding the respondents position, if the applicants are correct that the documents they have identified do in fact fall within the terms of the applicants’ FOI request that is the subject of this application then it is arguable that the respondent has failed to comply with its duties under the FOI Act. Having regard to the manner in which the respondent replied to the applicants’ FOI request it is clear that it lacked understanding as to the requirements placed on it under the FOI Act when an FOI request is made and the provisions of the Administrative Decisions Tribunal Act 1997. Although the original decision stated that the respondent held no documents, it would appear to have been made in the context of the head office of the respondent not holding such documents. What the respondent was required to do was to ascertain whether relevant documents were held in any of its offices or with a local rural fire brigade. In this case, had that inquiry been made the respondent would have identified the relevant documents at the time the FOI request was made and before any decision was made. Furthermore, the original decision and the internal review decision failed to inform the applicants of their right to seek review by the Tribunal as required by the s.48(1)(b) and 53(6)(c) Administrative Decisions Tribunal Act 1997. There is no evidence to suggest that these failures were deliberate so as to frustrate the applicants of their rights. As I have already mentioned, it would appear, in respect of this application, that this was through a lack of understanding of the requirements placed on them.

Orders

47 The Tribunal orders that the decision of the respondent to refuse the applicants’ access to the documents the subject of this application is affirmed.