B, S v South Australia Police - [2016] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
B, S v SOUTH AUSTRALIA POLICE
[2016] SADC 130
Judgment of Her Honour Judge Tracey
28 October 2016
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Appeal under the Freedom of Information Act 1991 from a determination by the Police Ombudsman refusing access to documents concerning SAPOL investigation into allegations by the appellant's child.
Held: Appeal dismissed.
Freedom of Information Act 1991 (SA) ss 3, 4, 20(1)(a), 40(2), Schedule 1 clauses 4, 6, 9, 16(1)(a)(iv), 16(1)(b); District Court Act 1991 (SA) s 42E, referred to.
Re Chandra and Minister for Immigration & Ethnic Affairs (1984) 6 ALN N257; Re Howard and Treasurer of Commonwealth of Australia [1984] AATA 100, considered.

B, S v SOUTH AUSTRALIA POLICE
[2016] SADC 130
Introduction

This is an appeal against the refusal by the South Australia Police (‘SAPOL’) to disclose to B, S documents relating to allegations his daughter (‘the child’) made to SAPOL in 1994. SAPOL investigated the allegations and interviewed B, S in February 1994 (‘the investigation’). The child was medically examined. Ultimately a decision was made not to prosecute B, S on the ground that there was insufficient evidence.
In reply to Mr B’s appeal, I have received two affidavits sworn on 30 June 2016, by Senior Sergeant Tracy Gentgall, the officer in charge of the Freedom of Information Unit and accredited as a Freedom of Information Officer. The first of those affidavits annexes copies of the various applications Mr B has made to obtain access to documents pursuant to the Freedom of Information Act 1991 (SA) (‘the Act’), SAPOL’s responses and copies of the documents released to Mr B.
The second affidavit, is marked ‘Confidential’ and annexes copies of all documents held by SAPOL in relation to the investigation.
A third affidavit, sworn by Senior Sergeant Gentgall, on 21 September 2016, is primarily concerned with matters with which she had regard when making her determinations and in particular, her reasons for not contacting the child in relation to Mr B’s applications.
Background
I set out below, details of the applications Mr B has made for access to the documents and the relevant responses.
·Application dated 4 September 2008. SAPOL determination dated 27 October 2008, identified three documents associated with the wording of Mr B’s application and gave ‘partial release’ of those documents.
·Application dated 30 December 2014, seeking full release of the documents previously identified which had been partially released under the 2008 determination. SAPOL determination dated 16 January 2015, informs Mr B that the documents had previously been considered in the determination letter dated 27 October 2008. Mr B was advised of his rights to review and appeal.
·Application dated 16 February 2015, seeking an internal review of the initial determination. In that application Mr B gave his reasons for requesting the review as follows:
As the father and falsely accused for 25 years I am wanting a complete copy of investigation – as to not live this lie anymore – (or see it). I have enclosed a letter/plea stating my concerns. The most important thing in life is truth, without which there is no love – my accusers need to see the ‘evidence’, to make a final judgment.
·SAPOL determination dated 2 March 2015, wherein Mr B was informed by Mr Fabio Principe, who conducted the internal review, that he confirmed the original determination but that since the original request, further information had become available. The additional documents that had been located were currently being reviewed and the application had been reverted to Ms Gentgall for a further determination.
·SAPOL by letter dated 13 April 2015, (‘the addendum determination’) detailed the 20 documents which had been located. Mr B was refused access to eight of those documents while one was fully released and the remainder were partially released.
·Application dated 24 April 2015, seeking a further internal review of the initial determination and addendum determination. SAPOL, determination dated 11 May 2015. Mr B was informed that the review by Mr Principe of the original determination was confirmed and he was advised that in the event he remained aggrieved in relation to the conduct of the investigation or police officers involved, he may wish to lodge a written complaint against police.
·Application dated 10 June 2015, seeking an external review of the determination. Police Ombudsman determination dated 18 January 2016, varying SAPOL’s addendum determination. Documents numbered 1, 6, 8, 12, 13, 14 and 16 were partially released. Documents 9, 10, 11 and 15 were released in full, and documents 2, 3, 4, 5, 7, 17, 18, 19 and 20 were refused.
·Notice of Appeal filed by Mr B against the Police Ombudsman’s determination on 23 February 2016. Mr B sought full access to documents numbered 8, 12, 13, 14 and 16 and in his summary of argument filed on 16 September 2016, also sought access to document number 3.
It was evident from the written submissions Mr B has filed at various times and the submissions he made at trial that his concerns relate primarily to the following issues namely:
·the child’s mother had had access to the material and as the father he should also have had access; and
·he wanted the documents to try to salvage his relationship with his other children as ‘proof of innocence’.
The objects of the Act
The objects of the Act and how those objects are to be achieved, are set out in s 3 as follows:
3—Objects
(1)The objects of this Act are, consistently with the principle of the Executive Government's responsibility to Parliament—
(a)    to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and
(b)    to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.
(2)The means by which it is intended to achieve these objects are as follows:
(a)    ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and
(b)    conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and
(c)    enabling each member of the public to apply for the amendment of such government records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading.
(3)Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law.
An agency[1] may refuse access to a document if the document is an exempt document.[2] The classes of exempt documents are identified in Schedule 1 to the Act and clauses 4, 6, and 9 are relevant to this appeal, that is, documents affecting law enforcement and public safety; personal affairs; and internal working documents.
[1] Defined in the Act to mean South Australia Police.
[2] Pursuant to s 20(1)(a) of the Act.
Mr B’s appeal is made pursuant to s 40(2) of the Act, and pursuant to s 42E (3) of the District Court Act 1991 (SA), I must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons. SAPOL bears a specific burden pursuant to s 48 of the Act, of establishing that the decisions made are justified.
Determination by the Police Ombudsman
By way of summary, the Police Ombudsman’s determination was that:
·SAPOL was unable to claim exemption pursuant to clause 4(2)(a)(iii) and (b) of the Act over any of the documents in that the matter was historic with no active or potential investigation or prosecution anticipated by SAPOL.
·SAPOL was correct in claiming clause 6(3)(a) of the Act applied to the redacted wording in documents 3, 12 and 13.
·SAPOL was correct in claiming clause 6(1) of the Act applied to documents 3, 12, 13 and 14.
·Clause 16 of the Act, that is documents concerning the operations of agencies, did not apply to any documents and should not have been claimed over documents 14 and 16.
The documents
Given the narrow scope of Mr B’s appeal, I have confined my discussion of both the addendum determination and the determination of the Police Ombudsman to documents 3, 8, 12, 13, 14 and 16.
Document 3
Women’s and Children’s Hospital – medical report dated 29 December 1993
The Police Ombudsman agreed that SAPOL was correct in determining that this document was exempt under clause 6(1).
Clause 6 states:
6—Documents affecting personal affairs
(1)A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
(2)A document is an exempt document if it contains allegations or suggestions of criminal or other improper conduct on the part of a person (living or dead) the truth of which has not been established by judicial process and the disclosure of which would be unreasonable.
(3)A document is not an exempt document by virtue of subclause (1) or (2) merely because it contains information concerning the person by or on whose behalf an application for access to the document is made.
(3a)A document is an exempt document if it contains matter—
(a)consisting of information concerning a person who is presently under the age of 18 years or suffering from mental illness, impairment or infirmity or concerning such a person's family or circumstances, or information of any kind furnished by a person who was under that age or suffering from mental illness, impairment or infirmity when the information was furnished; and
(b)the disclosure of which would be unreasonable having regard to the need to protect that person's welfare.
Personal affairs is defined in s 4 as:
Personal affairs of a person includes that person's—
(a)     financial affairs;
(b)     criminal records;
(c)     marital or other personal relationships;
(d)     employment records;
(e)     personal qualities or attributes,
but does not include the personal affairs of a body corporate;
The document is a report of the medical examination carried out on the child at the Women’s and Children’s Hospital following her allegations. The document clearly contains matter that is personal to the child. Information concerning the personal affairs of any person will only be exempt if disclosure would be unreasonable.
In Re Chandra and Minister for Immigration & Ethnic Affairs[3] Deputy President Hall discussed what was meant by ‘unreasonable’ in the context of documents held relating to a deportation order, in the following terms:
Whether a disclosure is "unreasonable" requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s.41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
[3] (1984) 6 ALN N257 at [51].
In my view Document 3 is properly characterised as an exempt document, in that it satisfies the requirements of both Clauses 6(1) and 6(2). Having regard to the circumstances identified in Chandra, disclosure of the matters contained in the document would be unreasonable given the sensitive nature of the subject matter, the circumstances in which the document was created, the very real likelihood that the child would not want it disclosed and that disclosure to Mr B would be without attached conditions and ‘to the world at large’.
Furthermore, I note the provisions of clause 6(3a) which provides that a document is an exempt document if it contains information furnished by a person under the age of 18 and disclosure would be unreasonable, having regard to the need to protect that person's welfare.
Given the nature of the allegations and the potential for adverse consequences to the child it would also be unreasonable to disclose the material in the interests of protecting her welfare.
Document 8
PD 128 forwarding minute dated 31 May 1994
In the internal review, part release of this document was authorised. The basis upon which certain content of the document was exempt was said to be concerned with clauses 4(2)(a)(iii), 4(2)(b), that is, documents affecting law enforcement and public safety, together with clauses 6(1), 9(1)(a)(i) and 9(1)(b).
The Police Ombudsman confirmed the addendum determination insofar as the determination related to clause 6(1), finding that clauses 4(2)(a)(iii) and 4(2)(b) did not apply in that the case was historic with no active or potential investigation or prosecution anticipated.
The Police Ombudsman’s determination did not deal with SAPOL’s reliance on clauses 9(1)(a) (i) and 9(1)(b).
Clause 9 states:
9—Internal working documents
(1)     A document is an exempt document if it contains matter—
(a)     that relates to—
(i)any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii)any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and
(b)the disclosure of which would, on balance, be contrary to the public interest.
(2)     A document is not an exempt document by virtue of this clause if it merely consists of—
(a)     matter that appears in an agency's policy document; or
(b)     factual or statistical material.
In my view the matters exempted in the document do not properly fall within an exemption under clause 6. While it could be said that the document contains matter personal to the alleged victim, it is certainly not information that is unknown to Mr B. In my view, disclosure would not be unreasonable.
It is however the case that the exempt material can properly be described as an internal working document showing opinion, advice or recommendation prepared in the course of the decision making function of SAPOL.
In Re Howard and Treasurer of Commonwealth of Australia[4] the following factors were cited as supporting the public interest against disclosure:
[4] [1985] AATA 100.
(i)the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;
(ii)disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;
(iii) disclosure which will inhibit frankness and candour in future pre-decisional
communications is likely to be contrary to the public interest;
(iv)disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;
(v) disclosure of documents which do not fairly disclose the reasons for a decision
subsequently taken may be unfair to a decision-maker and may prejudice the
integrity of the decision-making process.
In my view, the disclosure of the exempt material would be contrary to the public interest in that disclosure would potentially inhibit police in candidly communicating relevant opinion or advice, prejudicing the integrity of their pre-decisional processes. The document is properly described as exempt pursuant to clauses 9(1)(a)(i) and 9(1)(b).
Documents 12 and 13
PD 128 forwarding minute 28/4/95 and PD 128 forwarding minute 24/3/94
In the addendum determination, Senior Sergeant Gentgall determined that these documents could be disclosed in part, with the masked material said to be exempt pursuant to clauses 6(1) and 6(3a)(a) and (b). Further reliance was placed on clauses 4(2)(a)(iii) and 4(2)(b) together with clauses 9(1)(a)(i) and 9(1)(b).
While the Police Ombudsman confirmed the addendum determination in so far as the application of clauses 6(1) and 6(3a) were concerned, he determined that clauses 4(2)(a)(iii) and 4(2)(b) did not apply.
Again, the Police Ombudsman’s determination did not deal with SAPOL’s reliance on clauses 9(1)(a)(i) and 9(1)(b).
I note that Document 12 was not released to Mr B at all while Document 13 was provided in part.
In my view, Document 12 can properly be described as containing personal affairs of the alleged victim within clauses 6(1) and 6(3a)(a) and (b), the disclosure of which would be unreasonable. It also contains material that can properly be described as an internal working document showing opinion, prepared in the course of the decision making function of SAPOL. In my view, the disclosure of such material would be contrary to a public interest and is also properly described as exempt pursuant to clauses 9(1)(a)(i) and 9(1)(b).
In relation to Document 13, I agree that the material which has been masked and determined as exempt can properly be characterised as falling within clauses 6(1) and 6(3a)(a) and (b). It can also be said to properly fall within the exemptions provided for by clauses 9(1)(a)(i) and 9(1)(b).
Document 14
Disposal notification form appendix C dated 17 June 1994
The Police Ombudsman rejected the addendum determination in so far as clauses 4(2)(a)(iii), 4(2)(b), 16(1(a)(iv) or 16(1)(b)[5] applied. As a consequence, Mr B was provided with a copy of document 14 with the previously redacted information other than an entry apparently written against the words ‘victim’s name’. Reliance on clauses 6(1) and 6(2), to exclude the name of the child was appropriate.
Document 16
[5] Documents concerning the operation of Agencies.
Advice of decision not to prosecute or to discontinue prosecution
In the addendum determination this document was authorised to be disclosed to Mr B apart from information which came within clause 6(1). Further reliance was placed on clauses 16(1)(a)(iv) and 16(1)(b).
The Police Ombudsman varied this part of the addendum determination, finding that clauses 6(1), 16(1)(a)(iv) and 16(1)(b) did not apply.
Notwithstanding, the Police Ombudsman determined that the redacted material was to remain exempt pursuant to clauses 9(1)(a)(i) and (b). At the hearing of the Appeal however, an unmasked copy of the document was provided to Mr B.
Conclusion
I have been informed by Counsel for the Respondent that SAPOL has no record of the child’s mother ever being shown or provided with a copy of Document 3. Disclosure of such reports even to parents is said to be something that would not be usual. I am told the mother was certainly advised of the result of the examination, namely there was no evidence of penetration having occurred. That information was also conveyed to the appellant in 1994 during the conversation he had with a Detective who was investigating the child’s allegations. Mr B has now accepted that he was given that information, but had in the meantime failed to recall the details. There is no basis for Mr B to claim that his rights to information concerning the investigation were less than those afforded to the mother of the child.

The overall tone of Mr B’s appeal concerned his perception of the injustices he was subjected to by SAPOL both during and after the investigation, which have caused a disconnect with his family. These are not matters relevant to an appeal under the Act. Rather, they are matters that ought to have been taken up with SAPOL through its complaint process. In this regard, I note that in the letter to him dated 3 June 2016, the Crown Solicitor helpfully sought to clarify with Mr B the processes involved in a police investigation and how a referral to a prosecutorial authority for determination as to whether a prosecution is commenced, is made. Information was provided to Mr B on the following basis:
Whilst I cannot disclose the content of the redacted material in the documents disclosed to you, I can confirm that there is no positive finding of innocence or written statement of yourself being ‘not guilty’ as you have indicated you believe the documents contain. Your innocence is a common law presumption, it is a starting point from which the evidence gathered during the investigation needed to establish the commission of a crime.
I have no doubt that Mr B’s concerns regarding the manner in which SAPOL conducted the investigation have been heightened by their refusal to provide unqualified access to the documents. The Crown has confirmed what Mr B was told back in 1994, in open court, that is, that the examination of the child revealed no evidence of penetration. None of the documents will however provide Mr B the statement of innocence he is looking for.
In any event, there are no cogent reasons to depart from the reasons of the Police Ombudsman.
For the reasons outlined I dismiss the appeal.
Finally, I do note Mr B correctly observed that it was recorded in one of the documents provided to him, that charges had in fact been laid against him and therefore a particular expiry period existed which had not yet expired. Clearly that is an error and Mr B has been informed of his right to make an application to have that document amended, pursuant to s 30 of the Act.