Commissioner of Police New South Wales v "N"

[2003] NSWSC 943

Reported Decision: 58 NSWLR 458

Supreme Court

CITATION:	Commissioner of Police New South Wales v "N" [2003] NSWSC 943
HEARING DATE(S):	09/10/03
JUDGMENT DATE:	23 October 2003
JUDGMENT OF:	Cripps AJ
DECISION:	see para 27
CATCHWORDS:	Freedon of Information Act 1989, s 39(b) - meaning and application of "administrative functions"
LEGISLATION CITED:	Freedom of Information Act 1989, s 39(b), s 9 Administrative Decisions Tribunal Act 1997, s 118(2)
PARTIES :	Commissioner of Police New South Wales - Appellant "N" - Respondent
FILE NUMBER(S):	SC 30015/03
COUNSEL:	D Yates SC with M Tzannes - Appellant T Molomby SC - Respondent
SOLICITORS:	Michael North Holmes - Appellant G J Gooden - Respondent

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Cripps A J

30015/03 - Commissioner of Police New South Wales v “N”

JUDGMENT

1 HIS HONOUR: The issue for determination is whether the words “administrative functions” where appearing in s 39 of the Freedom of Information Act 1989 (the FOI Act) applies to all functions discharged by the Police Service established under the Police Service Act 1990 or whether they are intended to refer to what have been described as an “internal” function as opposed to an “operational” function of the Police Service.

2 S 39 of the FOI Act relevantly provides:

“A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:
(a) if the document contains information concerning the person’s personal affairs; and
(b) if the information is available for use by the agency in connection with its administrative functions; and
(c) if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading”.

3 “Agency” is defined to mean:

“A Government Department, public authority, local authority or public office, but does not include a body or office that is, by virtue of section 9 exempt from the operation of this Act in relation to all of its functions”. (s 6(1) of the FOI Act .)

The Police Service is relevantly an agency subject to the provisions of the FOI Act.

4 s 9 of the FOI Act relevantly provides:

“Any body or office specified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this Act”.

5 Schedule 2 exempts certain discreet identifiable functions of certain agencies. For example the “corruption prevention, complaint handing, investigative and report functions” of the Independent Commission Against Corruption are exempt functions. A similarly provision is found with the Police Integrity Commission. Schedule 2 makes no reference to the functions of the Police Service.

6 In 2001 the New South Wales Police Service gave “N” access to twelve documents requested by him pursuant to the provisions of the FOI Act. “N” then applied for amendment of the documents pursuant to s 39 of the Act referred to above.

7 The Police Service denied his entitlement to make application for the amendment of nine of the twelve documents produced on the grounds that although they contained information concerning his personal affairs the information in them, and to which “N” had been given access, was not relevantly “information available for use by the Agency in connection with its administrative function”. It was alleged by the Police Service that the term “administrative functions” did not embrace what was said to be its “ law enforcement functions” and that the subject documents were relevantly related to that latter function.

8 The matter came on for hearing before the President of the Tribunal, his Honour K P O’Connor. An objection to jurisdiction was made in accordance with the submission of the Police Service referred to above. The objection to jurisdiction was dismissed on 8 March 2002 and His Honour ordered that the matter be re-listed for “further planning meeting”. The Police Service appealed the decision to the Appeal Panel which on 15 November 2002 and without entering into a hearing of the matter referred a question of law to the Supreme Court pursuant to s 118(2) of the Administrative Decisions Tribunal Act 1997.

9 S 118 provides:

“118(1) An Appeal Panel determining an appeal under this Part may, of its own motion or at the request of a party, refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court”.

10 The question of law referred was:

“Is the information in any of the nine documents available for use by the New South Wales Service in “connection with its administrative functions” within the meaning of that phrase in s 39(b) of the Freedom of Information Act 1989.”
Documents 1 & 2: COPS entry created following an alleged complaint to the Police by the manager of a club venue in Darlinghurst relating to “N’s” conduct on the evening of 5 August 1999.
Document 6: Intelligence material disseminated by the Police Service from the Wood Royal Commission relating to the alleged conduct of “N”.
Document 7: Record of an allegation of a “cover-up” regarding an investigation of which “N” was the subject.
Document 8: Description of an encounter between “N” and the Police on 23 & 24 December 1995.
Document 9: Document created as a result of anonymous letters received by Police in 1994-1995 alleging that “N” has been involved in the commission of certain offences.
Document 10: Entry created following the receipt of a complaint from a member of the public as to the possible commission of an offence.
Document 11: Information received by the Police in relation to a number of allegations against “N.
Document 12: Information recorded by police officer following information received by a member of the public involving allegations against “N”.

11 The Police Service did not deny that documents 3, 4 and 5 were amenable to an application for amendment concerning complains by “N” against the conduct of police officers connected with the events of 5 August 1999 and the report issued by the officer who investigated the complaint. That is to say the Police Service accepted that these three documents related to its “internal” function and hence related to its “administrative” function of ensuring that complaints of misconduct were properly examined.

12 Relevant to the issue for determination is a finding by the learned President that the “personal records in issue have been created in connection with the execution by the agency of its key responsibility, the enforcement of the criminal law”.

13 However that finding does not necessarily preclude a finding that the information is also available for use by the Police Service in connection with its “internal” function.

14 The effect of the decision of his Honour Judge K P O’Connor is that the words “administrative functions” where appearing in s 39(b) refer to all functions discharged by the Police Service in accordance with its legal responsibilities - however those functions be characterised.

15 If that is the correct meaning and application of the word “administrative functions” the question of law asked can be answered.

16 If, however, the words “administrative functions” (or perhaps the word “administrative”) serves to separate one function from another then, in my opinion, the question as asked cannot be answered by this Court. This Court can only determine a question of law and the answer to the question posed would be a question of mixed fact and law. The circumstance that both parties before the Appeal Tribunal accepted that the nine disputed documents relate to what was described as the “operational aspect” of the Police Service would not necessarily deny to “N” an entitlement to amendment pursuant to s 39 because, although used for “operational purposes” they may also be “available for use by the agency in connection with its administrative function” (giving those words the restricted interpretation contended for by the Police Service). And I do not understand it to have been conceded by Mr Malomby QC on behalf of “N” that if, contrary to his submission, the word “administrative” is given a restrictive meaning it nevertheless follows that his client could not bring himself within s 39(b) of the Act.

17 As a matter of statutory construction in my opinion the learned President was correct in his determination that the words “administrative functions” were not intended to be a description of one set of functions among many but rather that they were used in a generic sense and that, as his Honour said:

“…the term “administrative functions” is used in s 39 to refer to all those functions performed by the Agency which relate to the management and execution of its responsibilities as derived from common law, statute or government arrangement”.

18 The object of the FOI Act are as follows:

S 5(1) that the object of this Act are to extend, as far as possible, the rights of the public:
(a) …
(b) to ensure that records held by government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(2). The means by which it is intended that these objects are to be achieved are…


(a) …

(b) …

(c) By enabling each member of the public to apply for amendment of such of the government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading
(3) It is the intention of the Parliament
(a) that this Act shall be interpreted and applied so as to further the object of the Act.”

19 S 39 is in Part 4 of the legislation – “Amendment of Records”. It operates only when a person has been given an agency’s documents and seeks to apply for an amendment. As I have said the Police Service is not an “exempt body” listed in Schedule 2.

20 Moreover Schedule 1 clause 4 identifies documents which are “exempt” documents referred to in s 6 of the FOI Act. I do not list all the documents referred to in Clause 3 to Schedule 1. It is sufficient to note that Clause 4 is wide enough to catch a number of documents which would be held by the Police Service in the course of it discharging its function. It was stated in the proceedings before me that the present case is unusual in that ordinarily documents of the nature described above are not ordinarily found in the hands of applicants. That may be so but it cannot effect the legal operation of s 39(b). Indeed the circumstance that certain “operational” documents of the Police Service may be exempt operates to suggest a liberal as opposed to a restricted interpretation of the word “administrative” where it appears in s 39.

21 Moreover I agree with his Honour Judge O’Connor that it would be an odd result if s 39(b) related only to personal records generated and held in connection with the “internal” administration of an agency such that employees would have the right to see and amend their personal records but members of the public who are the subject of records held about them would not.

22 Although Mr Yates SC submitted that the question could not be answered as asked he suggested the following questions which were:

1. Do the words “administrative function” in s 39(b) refer to all the functions carried on or performed by the agency and:

2. If the answer to 1 is No what are the particular functions or set of functions caught up in the section and

3. If particular functions were identified is the information within the document “available for use in connection with administrative function”- giving those words a restricted interpretation?

23 Mr Yates has submitted that if the interpretation contended for by “N” is accepted it would deny any meaning to the word “administrative” where appearing in s 39(b). Why, he asks rhetorically is the word “administrative” included in s 39(b) at all? I do not know enough of the operation of the Police Service agency (or any other agency for that matter) to express with confidence a reason for the inclusion of the word “administrative” but it is not unreasonable, I think, to assume that there may be in possession of agencies documents that are not available for use by that agency in connection with any of its functions – in the case of the Police Service, for example, it may refer to documents seized pursuant to a search warrant.

24 But however that may be I have come to the conclusion that the answer to question 1 submitted by Mr Yates should be “Yes” and, accordingly, I have come to the conclusion that the learned President was correct in his interpretation of the words “administrative function” and that, conformably with that finding, he was not required to determine as a question of fact a matter which could have arisen had he answered the question in accordance with the submission advanced by the Police Service.

25 As I have said had I concluded that the words “administrative function” were intended to refer to a particular function to the exclusion of others I could not have answered posed by the Appeal Panel. But because I have come to the conclusion that the learned President was correct it is unnecessary for me to pursue this matter further.

26 (I should also note that there were statements in files labelled “confidential” in the material before me. These appear to have been reviewed by the learned President but the file was sealed in the Supreme Court. Apparently the files were not made available to “N” when he appeared in person before the President and I was informed by Mr Yates SC for the Police Service and Mr Malomby QC for “N” that it was unnecessary for me to inspect these documents for the purpose of determining the question now before the Court. Accordingly I record I did not have access to those documents).

27 Conformably with the way the matter was presented by the parties the question posed “Do the words ‘administrative function’ in s 39(b) of the Freedom of Information Act 1989 refer to all the functions carried on or performed by the agency according to law” should be answered “Yes”.

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Last Modified: 11/06/2003