Commissioner of Police, NSW Police Force v Camilleri (GD)

[2012] NSWADTAP 19

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Hearing dates:

24 May 2012

Decision date:

06 June 2012

Before:

Judge K P O'Connor, President
S Montgomery, Judicial Member
P Smith, Non-judicial Member

Decision:

1. Appeal allowed.

2. Order 2 (matter 113105) of the decision under appeal set aside.

3. Review application in matter 113105 is remitted to the Tribunal for reconsideration in light of these reasons.

4. The following directions are given:

(a) That this matter be remitted to the Tribunal, similarly constituted, and be joined to matter no. 113289, already listed for 29 June 2012, with both matters to be heard together.

(b) That the matter be listed before the Tribunal for further directions for filing any further evidence or submissions.

Catchwords:

GOVERNMENT INFORMATION (PUBLIC ACCESS) - Statutory Construction - Public Interest Considerations Against Disclosure - Systemic Approach - Prejudice Supply of Confidential Information - Prejudice Effective Exercise of Agency's Functions - Appeal allowed - Remitted. Government Information (Public Access) Act 2009, ss 12, 13, 14, 15, s 14 Table cl 1(d), cl 1(f)

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Government Information (Public Access) Act 2009

Cases Cited:

Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5
Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13
DZ v NSW Police [2002] NSWADT 274
FA v NSW Police [2003] NSWADT 196
Fisher v Commissioner of Police [2002] NSWADT 267
Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [150]; (2006) 65 NSWLR 502
Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35
Ryder v Booth [1985] VR 870
Taylor - v- Chief Inspector, RSPCA [1999] NSWADT 23

Category:

Principal judgment

Parties:

Commissioner of Police, NSW Police Force (Appellant)
Clement Camilleri (Respondent)

Representation:

Counsel
S Free (Appellant)
J Nathan (Respondent)

File Number(s):

129005

 Decision under appeal 

Jurisdiction:

9108

Citation:

Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5

Date of Decision:

2012-01-19 00:00:00

Before:

General Division

File Number(s):

113105

REASONS FOR DECISION

1. This appeal arises under the Government Information (Public Access) Act 2009 (GIPA or the Act). The Commissioner of Police (the agency) has appealed against a decision of the Tribunal setting aside its decision to refuse access to a record of call to the emergency services line, 000 (triple zero). See Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5, order no 2 (matter no 113105). (The access applicant, Mr Camilleri, does not appeal two other decisions that were negative to him.)

1. The notice of appeal raises questions of law and applies for leave to extend the appeal to the merits: see, generally, Administrative Decisions Tribunal Act 1997, ss 112, 113. If it is decided to extend the appeal to the merits, the agency foreshadowed an application for leave to file further evidence, an affidavit from a senior officer referring to the nature and purpose of the triple zero service.

1. Both parties were represented at the appeal, had filed written submissions, and made oral submissions. Mr Free appeared for the agency, and Mr Nathan for Mr Camilleri. It will be seen in the discussion which follows that we have concentrated on the agency's submissions. While Mr Nathan's submissions emphasised the overall merit of the decision, and what he saw as the fairness of the result for Mr Camilleri, they did not deal with the issues of interpretation that the agency's submissions raised.

1. At the close of oral argument, the Appeal Panel ruled that the error of law case had been made out, and remitted the case to the Tribunal for reconsideration, with reasons to be delivered later. These are our reasons.

1. The review application had as its background a history of conflict between neighbours. Mr Camilleri's neighbour, Mr Bartolo, called triple zero at about 3.08 am on 1 April 2008 alleging that Mr Camilleri had splashed paint on various parts of his property. The Tribunal's reasons give fuller details of this incident, and another incident that night reported by Mr Camilleri alleging that his car had been shot at. The complaint against Mr Camilleri led to a charge of malicious damage being laid, which was dismissed. The agency refused Mr Camilleri's access application for the transcript or recording of the telephone call.

Relevant Provisions of GIPA

1. GIPA replaced the Freedom of Information Act 1989, and commenced on 1 July 2010.

1. GIPA includes many provisions that are in similar terms to the previous legislation. GIPA in that sense is not a clean slate. Quite clearly a number of features have been carried over from the old Act, especially in relation to the formulation of the public interest considerations against disclosure, the language of which either directly replicates language used in the previous legislation or combines into a single clause matters that were distributed between clauses in the previous legislation.

1. In our view, as the agency's submissions reflected, the previous case-law has some ongoing usefulness though, of course, care must be taken to ensure that the new paradigm set by GIPA is not undercut or mistaken statutory construction of the new Act results.

1. GIPA is more supportive than the previous legislation of disclosure of government information, and it contains a range of facilities for achieving that purpose. In addition to its fundamental element of furnishing legal right to access to government information, the Act includes provisions encouraging agencies to engage in continuous public disclosure of certain classes of information, and allowing agencies to grant restricted or conditional access to a member of the public. GIPA also establishes a major oversight office, that of the Information Commissioner.

1. The legal right is given by s 9(1) which provides:

A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

1. 'Government information' means 'information contained in a record held by an agency' (s 4(1)).

1. Under the previous legislation there were differences of view as to whether the interpretation of the statute should adopt a 'leaning position' in favour of disclosure (rejected in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [150]; (2006) 65 NSWLR 502 at [150]). The new Act, s 12 provides:

12 Public interest considerations in favour of disclosure

(1) There is a general public interest in favour of the disclosure of government information.

(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

(3) The Information Agency can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

1. An overriding public interest in disclosure is demonstrated if section 13 of the Act is satisfied. Section 13 provides:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

1. Section 14 deals with the issue of what public interest considerations against disclosure are permissible to be relied upon. It is helpful to set out the whole of s 14:

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

1. This is not a case to which s 14(1) applies. There are no guidelines relevant to the matter under s 14(3). Section 14(4) is not relevant.

1. Section 14(2) mandates that an agency can only rely on considerations listed in the s 14 Table in justification of a refusal to allow access. The agency has the burden of establishing that the decision is justified: s 97(1).

1. Section 15 provides:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

1. No s 15 issue was raised by the agency's case.

1. The agency sought to rely on two of the considerations that appear under clause 1 of the s 14 Table, i.e.

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): ...

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, ...

(f) prejudice the effective exercise by an agency of the agency's functions.

The Question of Law Grounds

1. The notice of appeal framed the questions of law as:

1. Whether in circumstances where a person contacts police using the 000 emergency phone service seeking assistance, an obligation of confidentiality arises on the part of the police.

2. Whether, for the purposes of determining whether there is an expectation of confidentiality in respect of communications with the police, there is a relevant distinction between informers and callers seeking police assistance.

3. Whether, for the purposes of determining whether there is an expectation of confidentiality at the time a person contacts police using the 000 service, it is relevant to take into account subsequent events, including the laying of charges and the giving of evidence in criminal proceedings.

1. The Tribunal's reasons are at [19]-[35] of its decision. The conclusions of the Tribunal on the applicability or otherwise of cl 1(d) and cl 1(f) appear at [34] and [35]:

Section 14 Table 1(d) ...

34 I do not agree with the respondent's submission that a 000 is always confidential. Confidentiality is to be inferred from all of the circumstances and I find that in circumstances where a complainant has an expectation of Police intervention that leads to criminal charges the disclosure of this type of information would not reasonably be expected to prejudice the supply of information to the Police.

Section 14, Table 1(f)

35 A similar submission was that the disclosure of the 000 call could reasonably be expected to prejudice the effective exercise by Police of their law enforcement functions. I accept that Police rely on information from a range of sources, including 000 calls made by victims, witnesses and informers. I do not consider that it necessarily follows, having regard to my findings above , that it could reasonably be expected that such persons would refrain from providing information to the Police in future, for fear of the disclosure of that information to the alleged offender. Therefore this submission also fails.

1. The agency submitted that, read alongside earlier parts of its reasons, it is apparent that in reaching the conclusions at [34] and [35], the Tribunal was drawing on particular features of the present case. For example, at [25] and [27] the Tribunal said:

25 It was Constable Colman's evidence that the witness statements prepared by Mr and Ms Bartolo - the notebook statement of Mr Bartolo dated 1 April 2008, the typed version of that statement and the typed statement of Ms Bartolo dated 6 April 2008 - were served on Mr Camilleri in the course of the criminal proceedings. Mr Camilleri agreed in cross-examination that the witness statements had been provided to him. The respondent submitted that there is a difference between the disclosure of a witness statement formally prepared by an alleged victim for use in criminal proceedings, from other classes of information provided by that person to the Police in the course of the investigation, such as the 000 call reporting the alleged offence. Further, the respondent submitted that I should not draw any distinction between 'informants' and 'complainants'. ...

27 I do not agree with the respondent 's submission. In Fisher the Tribunal was concerned with information provided by an informant. In the present matter the call was known to have been made from the Bartolo residence and it gave rise to firstly, attendance by the Police there, the taking of statements, the interviewing and subsequent charging of Mr Camilleri. The call was not in the nature of a tip-off; the Bartolo family was, in using the 000 service, utilising a convenient means to contact Police to lodge a complaint which was acted upon and resulted in charges being laid and members of the family giving evidence against Mr Camilleri. I think it is an important to a distinction between anonymous tip-offs and calls made in circumstances where the caller actively seeks Police intervention on their behalf.

Nature of the Inquiry in relation to Grounds for Refusal

1. As the case developed at the appeal hearing, it became clear that the three questions of law had as their common theme a submission that the Tribunal had misunderstood the relationship between sections 12, 13 and 14 when analysing an agency case for non-disclosure. Each of the matters raised in the questions of law challenge particular steps in the reasoning that are illustrative of the broader criticism.

1. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

1. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

1. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.

1. The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'.

1. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:

58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

1. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words:

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:.

1. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.

1. In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, if not seen as 'confidential information', would nonetheless prejudice the effective exercise by an agency of the agency's functions (cl 1(f)). As to the different spheres of operation of cl 9(d) and cl 1(f) and their connection to the provisions of the previous legislation, see generally, Robinson, New South Wales Administrative Law (NSWAL service) [50.6890] and [50.6930].

1. The agency asserted that it ran the triple zero service as a confidential service. As we see it, the Tribunal approached the question - whether the information was confidential information for the purpose of cl 1(d) - primarily by drawing distinctions between various classes of communicator, and having regard to the particulars of the instant case. The danger of this approach is the subject of the observations of Young CJ in the early Victorian case, Ryder v Booth, referred to in Mullett.

1. In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service. In our view, the Tribunal did not adequately explain why it rejected the agency's case on this point.

1. We also agree with the agency that the Tribunal should not have introduced factors relating to the later history of the information or document. The enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.

1. The agency's case relying on cl 1(f) was a fall-back case. If the service was considered not to be one involving confidential information, then the agency argued that making available this record would prejudice the future effectiveness of the service. The NSWAL service has a useful catalogue of decisions made under the previous legislation made under similar provisions to cl 1(d) and cl 1(f).

The Questions of Law as Formulated

1. We now turn to the questions as formulated.

1. We refer first to Question 3. In our view, it was not relevant to the Tribunal's task at the section 14 stage of the enquiry to take account of events subsequent to the circumstances that gave rise to the document or information the subject of the refusal. As explained, the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged. As we have noted previously, the agency does not dispute that a wide array of considerations, including subsequent history, might be considered at the section 13 stage. But it is necessary as we see it for the Tribunal to approach the section 13 stage with a properly informed appreciation of the case made by the agency at the section 14 stage.

1. The first two questions go to the role and operating conditions of the triple zero service as a facet of modern policing. Question 1 seeks an answer that as a matter of law in circumstances where a person contacts police using the triple zero emergency service seeking assistance, an obligation of confidentiality arises on the part of the police force. The agency's case is that is how the police force sees that as the position. Question 2 invites the answer that in addressing the question of whether an expectation of confidentiality exists there is no relevant distinction to be drawn in the way the Tribunal did between informers and callers seeking police assistance.

1. We do not, we consider, need to give a definitive answer to Question 1 at this point in this case. We accept the agency's submissions that the Tribunal did not deal satisfactorily with this area of the agency's case.

1. In its written submissions to the Tribunal below, reiterated on appeal, the agency submitted that there is an expectation, if not an express undertaking, that information reported to Police will be kept confidential and will only be used and disclosed by the Police in the conduct of law enforcement activities. In support of this view, the submissions drew on the observations of Smart AJ in Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270, and also similar observations in a number of Tribunal decisions, for example, Fisher v Commissioner of Police [2002] NSWADT 267, DZ v NSW Police [2002] NSWADT 274 and FA v NSW Police [2003] NSWADT 196. There has been a long history of cases in the Tribunal that have recognised the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies: see, for example, the early cases of Taylor - v- Chief Inspector, RSPCA [1999] NSWADT 23; Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35; as well as the cases already mentioned. While the cases involved exemptions in the previous legislation cast in different terms, they reflect a recognition of the basic point made by the agency in this case.

1. The triple zero service is a well known facility. While callers will often identify themselves, the facility allows for anonymous calls. The agency's case was that the police force, like other law enforcement agencies, routinely affords confidentiality to reports received from witnesses, complainants and informants. If the information warrants investigation, the investigation is itself conducted confidentially until such time as a decision in relation to any further action is taken. The case law to which we have referred has noted that it is not unusual for material received confidentially at the initial stage of the law enforcement process to lose that confidentiality as the investigation develops. It may need to be placed before persons of interest for their response. It may need to form the basis of evidence to be given in open court in support of any charges that may be laid. Mr Camilleri was the subject of criminal proceedings. He has therefore been exposed to evidence that may have originated in the triple zero call. Understandably he now wants to see the underlying material.

1. It will be seen in our observations that we have referred to certain matters as 'well known'. While matters of common knowledge can be taken into account by a review tribunal without independent evidence having to be tendered, it would have assisted, we think, the disposal of this case had there been more information provided to the Tribunal as to the protocols and practices that surround the triple zero service and in relation to such matters as the instructions given to operators in relation to confidentiality. We note that the agency's foreshadowed evidence goes to that area.

1. Question of law no 2 refers to a distinction drawn by the Tribunal as between informers' communications and communications made by members of the public who do not have an established 'informer' relationship with the police. The submissions noted no limitation of this kind had been drawn in the Tribunal's earlier case law under the previous legislation and referred to various cases illustrating the point. For example, in Fisher, the Tribunal declined to grant access to a tape of a triple zero call. The Tribunal noted, at [22], that counsel for the applicant had conceded that 'where contact is made with the police about the breach or suspected breach of the law, it is reasonable to infer that the information was provided on a confidential basis'.

1. The submissions also referred to the observations of Smart AJ in Simring at [26] and authorities cited there. There the key issue was whether the disclosure of the information constituted an unreasonable disclosure of personal information of people who had given information to the police. Smart AJ said:

69 When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police. This was not a point raised in the reasons of the Tribunal or the Appeal Panel. It is a point for the future. On the other hand there is a strong public interest in access to information held by a government agency.

1. We agree with the agency's submission. In our view, the approach taken by the Tribunal in the past did not draw a clinical distinction between 'informants' and other people when dealing with the issue of the expectation of confidentiality. Essentially the conditions as to confidentiality are set by the organisation responsible for the phone-in facility, whether it is a help line for people seeking counselling or an emergency services number. In our view, it is of little, and perhaps no, consequence that the caller does not care whether confidentiality is afforded to their communication.

1. In the case of emergency services-type contact it will be the wish of many callers that there be some immediate action taken by the relevant service (police, fire brigade, ambulance, as it may be). They would, we think, expect their information to be used to address the concern to which it relates. It does not follow from that confidentiality is thereby not expected, or not guaranteed, in respect of extraneous uses of the information.

1. The concentration on whether a person was an 'informer' seen in some of the previous case-law is a function of the particular exemption that was being relied upon in those cases, an exemption that focussed on the protection of informers. It does not follow that the expectation of confidentiality that the agency claims subsists in the operation of the triple zero service is confined to informers in the strict sense.

1. We gave a summary account of our conclusions at the end of the hearing. After a brief discussion with the parties, they agreed that it was desirable for the matter to be remitted to be reconsidered in light of these reasons.

Order

1. Appeal allowed.

2. Order 2 (matter 113105) of the decision under appeal set aside.

3. Review application in matter 113105 is remitted to the Tribunal for reconsideration in light of these reasons.

4. The following directions are given:

(a) That this matter be remitted to the Tribunal, similarly constituted, and be joined to matter no. 113289, already listed for 29 June 2012, with both matters to be heard together.

(b) That the matter be listed before the Tribunal for further directions for filing any further evidence or submissions.

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Decision last updated: 06 June 2012