Coote v Commissioner of Police, NSW Police Force

[2009] NSWADT 180

CITATION:	Coote v Commissioner of Police, NSW Police Force [2009] NSWADT 180
DIVISION:	General Division
PARTIES:	APPLICANT Peter Coote RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	093023
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	26 May 2009
DATE OF DECISION:	10 July 2009
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Access to documents – confidential material
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 Coote v NSW Police Force [2008] NSWADT 200 Coote v NSW Police Force (GD) [2008] NSWADTAP 86 Stiller v Commissioner of Police, NSW Police [2004] NSWADT 173 University of New South Wales v McGuirk [2006] NSWSC 1362 Van der Wall v University of Sydney [2008] NSWADT 213 WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
REPRESENTATION:	APPLICANT In person REPSONDENT A Duvall, solicitor
ORDERS:	Decision under review affirmed.

1 The applicant is seeking access to documents held by the respondent relating to his application to re-join the NSW Police Service. In an earlier application for review of a determination made by the respondent under the Freedom of Information Act (the FOI Act) I determined that the Tribunal had no jurisdiction to determine the matter: Coote v NSW Police Force [2008] NSWADT 200. The applicant appealed to the Appeal Panel. While the Appeal Panel dismissed the appeal (Coote v NSW Police Force (GD) [2008] NSWADTAP 86), it noted:

26 In an effort to bring this matter to a resolution, at the close of the hearing the Appeal Panel recommended to the appellant that file a new FOI request. It recommended that the new FOI request specifically request the documents referred to in Mr Sheather’s letter of 26 May 2008, in particular the recruitment File as it relates to both recruitment events [the original recruitment and the failed application to re-join]; and secondly, the Equal Opportunity proceedings file [held by eh agency] in connection with the Administrative Decisions tribunal matter 071043.

2 The applicant applied to the respondent on 5 December 2008 for access to documents which he identified by reference to a letter from Mr Sheather dated 26 May 2008 which referred to a document tracking EDMS number, requesting access to “all documents referenced by EDMS number contained in Legal services file referred to in letter from Steven Sheather on page 2 paragraph 6 last sentence.” The respondent did not make a determination within the prescribed time and the applicant requested internal review by letter dated 2 January 2009. On 19 January 2009 the respondent notified the applicant of a determination of a request for access to documents. The request was interpreted as being for the following:

A EDMS file number 2006/3644

B Legal Services File LSF/2006/02698 – Ant Discrimination complaint by Peter Coote

C original recruitment file for Peter Coote

D Rejoinee recruitment file for Peter Coote

3 The determination then stated:

I am of the opinion that you are trying to obtain information about complaints or reports that may have been written about you during your time as a serving officer and/or a copy of your personnel file. Complaints or reports are usually held by an officer’s former Local Area Command, the Goulburn Academy or the Professional Standards Command. It is not held in recruitment files. Former officers’ personnel files are held with Internal Customer Service.

Should you wish to put in a new application for information about yourself please do so. Please withdraw your current application in writing and I will make arrangements to refund you your application fee.

Alternatively, should you wish to proceed with this application, please inform me in writing and I will make a determination.

4 The applicant responded by email on 21 January 2009, stating:

At paragraph 4 you make an opinion that all I am after is information about complaints or reports that may have been written about me during my time as a serving officer and/or a copy of my personnel file.

Answer: yes this is the main focus of my applications to the Police FOI unit, being I want the right of reply to what has been printed written or inferred about myself whether it was prior, post or during my service with the NSW Police. If I have access to all document from any person members of the public or serving or past member of the NSW Police (names blacked out) that may have made comment or opinion about my character or performance in any way. I see no reason to continue with application FOI number 82286/2009.

I would ask if you can in your own way tell me if there is anything written within A) EDMS file number 2006/3644 (note this is part of my personnel file from Quakers Hill LAC), B) Legal Services File LSF/2006/022698 – Anti Discrimination Complaint by Peter Coote, C) Original recruitment file for Peter Coote, D) Rejoinee recruitment file for Peter Coote. Within the scope of these documents there is anything written that might be in the smallest note one a letter or email that I do not already have knowledge of, example letters or emails I have sent with no notations from other persons written upon.

5 The applicant subsequently clarified that he was not withdrawing his application and might consider this on receiving a reply to his questions. On 23 January 2009 the Manager Freedom of Information Unit acknowledged receipt of the email and advised that an internal review would be undertaken.

6 On 3 February 2009 the applicant applied to the Tribunal for review.

7 At the first planning meeting I made an order pursuant to s56(2) of the FOI allowing the respondent further time to make its determination by 30 January 2009. The determination dated 30 January 2009 was made by the Manager Freedom of Information Unit. The determination was to provide access in full to 561 documents from the applicant’s medical records from his original recruitment file, his rejoinee recruitment file, EDMS file number 2006/3644, Legal services File LSF2006/02698, and his original recruitment file. Partial deletions were made from 16 documents in relation to matter exempt under cl6 of Schedule 1 to the FOI Act. Documents numbered 538 and 552 from the original recruitment file, described as “Employment Check”, were exempt in full pursuant to clauses 16(a)(iii) and 13(b) of Schedule 1.

8 At a subsequent planning meeting the applicant stated that he accepted the deletions under cl6, and was only pressing for access to documents 538 and 552. Directions were made for filing and serving of submissions, on the basis that the matter would be determined on the papers.

Respondent’s case

9 The respondent provided an affidavit sworn by Inspector Anthony Malone. Inspector Malone has been a police officer for 30 years, and is Commander/General Manager of the Recruitment Branch of the NSW Police Force. Inspector Malone states, having seen the two documents in issue:

6. The purpose of conducting “employment checks” is to obtain information about potential applicants or rejoinees to the NSW Police Force. The information contains opinions and views about the applicant in relation to their previous employment. The NSW Police Force relies on the receipt of confidential information in order to make fair and reasonable decisions about the suitability of candidates.

7. The information provided in the employment checks is information obtained in confidence. The NSW Police Force provides informants with an undertaking that the information will remain confidential and will not be disclosed without their express consent.

8. If the NSW Police Force discloses information obtained in confidence, there is a real risk that informants will be reluctant to provide accurate information. There is also a risk that they will not wish to provide any information to the NSW Police Force. Release of this information will compromise the integrity of the recruitment and selection process and may lead to the selection of unsuitable candidates as sworn police officers.

9. The suitability of candidates to the NSW Police Force is of utmost importance. The community has a reasonable expectation that those entrusted with law enforcement duties and the maintenance of public safety are persons of the highest integrity and calibre. All documentation and information received in relation to candidates must be considered in order for the recruitment process to be effective.

10. If the documents containing confidential disclosures were to be released, there is significant risk that future candidates may manipulate the results of the testing procedures by virtue of the fact that they have notification of the processes and procedures involved in the recruitment processes. I am of the view that release of the documents would seriously jeopardise the integrity of the recruitment and selection process.

10 In written submissions the respondent submits that unless information received by the Recruitment Branch is treated in a confidential manner there is a real prospect that the flow of such information would be adversely affected resulting in a significant impediment to the proper administration decision-making capacity of the NSW Police Force; that release of the documents could prejudice the future supply of information to the NSW Police Force; and that it is in the public interest to ensure that the NSW Police Force carry out background checks on applicants. The respondent submits that disclosure of the documents would have a substantial adverse effect on the performance of rigorous management and assessment of personnel in the NSW Police Force; disclosure would not be in the public interest as it would have the real potential to jeopardise the effectiveness of the recruitment processes and potentially increase the risk of unsuitable recruits entering the NSW Police Force.

Applicant’s case

11 The applicant’s case is that he wants to see what is written about him. The documents relate to him personally. The applicant submits that he has no objection to the deletion of the names of the authors of the documents so long as the date and content of the documents is clear, so he can fairly put his side of what has been inferred about him.

Consideration

12 Under section 16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency’s documents. This right is subject to other provisions of the FOI Act, in particular section 25(1)(a), under which an agency can refuse access to a document if it is an exempt document. Section 25(1) is qualified by section 25(4) of the FOI Act, which provides:

(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):

(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and

(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

13 Section 25(1) confers a discretion, and an agency may decide to provide access to a document notwithstanding that the document is an exempt document. In University of New South Wales v McGuirk [2006] NSWSC 1362 Nicholas J held that section 63 of the Administrative Decisions Tribunal Act 1997 provides the Tribunal with the discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it.

14 Under section 61 of the FOI Act, the respondent bears the onus of establishing that its determination of the applicant’s request was justified.

15 In its written submissions the respondent claims that clauses 13 and 16 of Schedule 1 to the FOI Act apply. Clause 13 provides:

13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(b) 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.

16 Clause 16 provides:

16 Documents concerning operations of agencies

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

(a) could reasonably be expected:

(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or

(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel, or

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency’s functions, or

(v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and

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

17 I have examined the documents provided on a confidential basis by the respondent, and agree that they can be conveniently described as “employment checks”, being requests for information concerning the applicant in an employment context. Considering first whether cl 13 applies, I accept the evidence of Inspector Malone that the NSW Police Force provides those from whom it requests information about potential applicants or rejoinees with an undertaking that the information they provide will remain confidential, and thus cl13(b)(i) applies. I accept his evidence that if such information is disclosed, informants may be reluctant to provide accurate information, or any information, to the NSW Police. In Van der Wall v University of Sydney [2008] NSWADT 213 Deputy President Handley noted, in the context of provision of references as part of a University’s recruitment and selection processes:

45 I am satisfied that the University’s recruitment and selection processes would be compromised if confidentiality did not attach to these processes. Those considering applying for a position or the conferral of an honorary title might be more reluctant to do so if the disclosure of documents might result in the fact of a person having made an application becoming known outside those involved in the selection process. Prospective referees could also reasonably be expected to be less willing to act as referees and, when agreeing to act as referees, to be circumspect in their expressions of opinion – to be less frank and candid – if the confidentiality of their reports could not be assured. This would be contrary to the public interest in appointing the most suitable persons to particular positions.

18 Similar reasoning applies to the recruitment processes of the NSW Police. I am satisfied that disclosure of the information contained in the documents could reasonably be expected to prejudice the future supply of accurate and comprehensive information to the NSW Police and that cl13(b)(ii) applies.

19 Clause 13(b)(iii) requires consideration of whether or not disclosure would, on balance, be contrary to the public interest. Inspector Malone’s evidence is that selection of suitable candidates for the NSW Police Force is of utmost importance, and that the community has an expectation that those entrusted with law enforcement duties are persons of the highest integrity and calibre. In Stiller v Commissioner of Police, NSW Police [2004] NSWADT 173, Judicial Member Robinson concluded:

23 The rationale for the clause 13 exemption applied to the present case must be to protect the flow of confidential information to the NSW Police Service Recruitment Branch so that it may, unimpeded, recruit and retain officers of acceptable “professional suitability” and so that the confidence of the Commissioner of Police in his or her officers can be established and maintained.

24The situation might be very different had it been established that the exempt documents were false or deliberately false and were provided to the agency out of spite or malice. None of that has been established in the present case. If it had been, it may be that the public interest would be found to be absent. This is not a case where an informer has knowingly “peddled falsehood to government” – Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 at [4] & [62].

20 In WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 (at paragraph 151) the NSW Court of Appeal, referring to the objects of the FOI Act set out in section 5(2)(a) and (b), recognised that the right to be given access to documents held by an agency is subject to such restrictions as are reasonably necessary for the proper administration of the Government:

“Determining whether documents should be disclosed involves balancing those two matters. Thus, ... testing whether disclosure of documents would be contrary to the public interest requires the decision-maker ‘to weigh the public interest in citizens being informed of the processes of their Government and its agencies on the one hand against the public interest in the proper working of Government and its agencies on the other’: Harris v Australian Broadcasting Corporation [(1983) 78 FLR 236] (at 246).”

21 From my reading of the documents, there is no indication that the situation referred to in Watkins applies to the two documents in dispute. As was the case in Stiller, the applicant’s interest in seeing the documents is very strong in that they concern him directly. However, on balance, I consider that the public interest in permitting the respondent to recruit only the most suitable people as police officers outweighs the applicant’s interest. Disclosure of these documents would, on balance, be contrary to the public interest and cl 13(b)(iii) applies.

22 I am satisfied that the two documents in dispute are exempt under cl13. Accordingly I have not considered the respondent’s claim that cl 16 also applies.

23 The applicant requested partial release of the two documents pursuant to s25(4)(a)of the FOI Act. Even if the names of the providers of information were deleted as suggested by the applicant, they would be identifiable from the content. I agree with the respondent’s submission that the documents as a whole are exempt in the context of the selection and suitability processes of the NSW Police Force.

24 It is necessary to consider whether or not access should be ordered on the basis that to do so is the correct and preferable decision. In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds to justify the exercise of this residual discretion, and set out at [27] some of the factors relevant to the exercise of the discretion. Bearing in mind the objects of the FOI Act, I am not satisfied that there are strong grounds justifying the overriding of the exemption. The competing public interests involved have already been considered in the course of determining that the documents are exempt under cl 13.

25 There is one final matter to note. While providing his written submissions in response to the submissions of the respondent the applicant included a request that the respondent add notations to certain of the documents released to him. While outside the scope of the application for review before the Tribunal, it appears from subsequent correspondence from the applicant that the respondent did accede to this request.

Order

The decision under review is affirmed.