Crowther-Wilkinson v NSW Police Force

[2009] NSWADTAP 49

Appeal Panel - Internal

CITATION:

Crowther-Wilkinson v NSW Police Force [2009] NSWADTAP 49

PARTIES:

APPELLANT
Simon Crowther-Wilkinson

RESPONDENT
NSW Police Force

FILE NUMBER:

099011

HEARING DATES:

13 July 2009

SUBMISSIONS CLOSED:

13 July 2009

 
DATE OF DECISION: 

17 August 2009

BEFORE:

Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Fitzgerald R - Non-Judicial Member

CATCHWORDS:

Freedom of Information - exempt document - law enforcement and public safety – ‘confidential source of information’ - relevance of truth or falsity of information - public interest immunity - override discretion - Freedom of Information Act 1989, cl 4(1)(b)

DECISION UNDER APPEAL:

Crowther-Wilkinson v Commissioner of Police, NSW Police [2009] NSWADT 31

FILE NUMBER UNDER APPEAL:

083152

DATE OF DECISION UNDER APPEAL:

02/12/2009

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989

CASES CITED:

Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 480
Beven and Centrelink [2008] AATA 144
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Department of Health v Jephcott (1985) 8 FCR 85; 62 ALR 421; 9 ALD 35
DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215
Howell v Macquarie University [2008] NSWCA 26
IPART v Services Sydney [2008] NSWADTAP 79
Maskell v Centrelink (2004) 80 ALD 228; [2004] AATA 522
Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35
McKenzie v Department of Social Security (1986) 65 ALR 645
Power and Secretary to the Department of Family and Community Services [2002] AATA 1302
R v Abdullah & Ors [1999] NSWCCA 188
Re Gold and Australian Federal Police [1994] AATA 382; (1994) 37 ALD 168
Re McEneiry and Medical Board of Queensland [1994] QICmr 2; [1994] 1 QAR 349
Re Richardson and Commissioner for Corporate Affairs (1987) 2 VAR 51
Simring v Commissioner of Police, NSW Police [2009] NSWSC 270
University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362
WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502
XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2

REPRESENTATION:

APPELLANT
In person (by phone)

RESPONDENT
J Mattson, solicitor

ORDERS:

1. Leave to extend the appeal to the merits of the Tribunal’s decision is refused
2. The decision of the Tribunal that “The Respondent’s decision to refuse access to the uncensored statement is affirmed” is affirmed.

Introduction

1 In 2003 the Supreme Court sentenced Mr Crowther-Wilkinson to 20 years imprisonment with a non-parole period of 15 years for the murder of Mr Graeme Adams. Mr Crowther-Wilkinson appealed against that conviction to the Court of Criminal Appeal. The Court dismissed the appeal and confirmed the conviction and sentence. In June 2007 Mr Crowther-Wilkinson applied to the Tribunal under the Freedom of Information Act 1989 (FOI Act) for a document that he says may demonstrate that he is innocent. The document is a file note written by Detective Sergeant Morgan recording a conversation he had with a “community source”, that is an informant who wished to remain anonymous. The file note was produced following a meeting with the informant after the receipt of several emails from that person in 2000. During his trial, Mr Crowther-Wilkinson was given a copy of the file note but information that might have identified the informant had been deleted. Mr Crowther-Wilkinson is now seeking a full copy of the file note. We refer to that document in these reasons as the “uncensored statement”.

2 One object of the FOI Act is to extend, as far as possible, the rights of the public to obtain access to information held by the Government: FOI Act, s 5. A person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act: FOI Act, s 16. An agency may refuse access to a document if it is an exempt document: s 25(1). Section 25(4)(a) provides, in part, that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted. Clause 4(1)(b) of Schedule 1 of the Act provides as follows:

4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

…

(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained

3 In making the decision to refuse to give Mr Crowther-Wilkinson a copy of the uncensored statement, the Commissioner relied on this and other exemptions. The exceptions to cl 4(1) are set out in cl 4(2).

4 The Tribunal agreed with the Commissioner that the uncensored statement came within that exemption and affirmed the Commissioner’s decision. That made it unnecessary for the Tribunal to consider the Commissioner’s alternative submission that the deleted portions of the document came within another exemption, namely cl 13 of Schedule 1 to the FOI Act. The Tribunal then considered whether it should give access to the document even though it was exempt: University of New South Wales v McGuirk [2006] NSWSC 1362. The Tribunal concluded at [74] that there were “no strong grounds justifying the exercise of the residual discretion to grant access to the uncensored statement.” The Tribunal agreed with the Commissioner “that the public interest favours the protection of confidential informants and ensuring the law enforcement functions are not prejudiced or injured and that confidential sources of information are protected.”

Nature of the appeal

5 Mr Crowther-Wilkinson has appealed against the Tribunal’s decision on questions of law and has also applied for leave for the appeal to be extended to a review of the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2). However, the appeal was lodged on 3 April 2009, more than 28 days after the Tribunal gave Mr Crowther-Wilkinson written reasons for the decision. An appeal must be lodged within the 28 day time period unless the Appeal Panel allows further time: ADT Act, s 113(3).

6 The decision was handed down on 12 February 2009. Mr Crowther-Wilkinson is in Lithgow Correctional Centre and told the Appeal Panel that he received it on 25 February 2009. He says he attempted to file his appeal on 28 February but received a letter from the Tribunal on 20 March stating that he needed to provide four copies of the Notice of Appeal. He requested that allowances be made for the fact that it is difficult for him to receive mail and make photocopies in a timely fashion. Given the fact that the length of the delay was short and that Mr Crowther-Wilkinson had a reasonable explanation, we extended the period for him to lodge the appeal out of time, in an ex tempore decision on 5 May 2009.

Tribunal’s decision

7 The Tribunal stated the issue to be determined at [60] as “whether or not the correct and preferable decision is to release the information contained in the uncensored statement”: ADT Act, s 63. The Tribunal also noted that the burden of establishing that the determination is justified lies on the agency: FOI Act, s 61. The three elements of clause 4(1)(b) are:

1. the existence of a confidential source of information;

2. the information in the document must relate to the enforcement or administration of the law; and

3. disclosure of the information could reasonably be expected to

(a) enable the existence of a confidential source of information to be ascertained or

(b) enable the identity of the confidential source of information to be ascertained.

8 Existence of a confidential source of information. A source of information is confidential if it is provided under an express or implied pledge of confidentiality: Department of Health v Jephcott [1985] FCA 370; (1985) 8 FCR 85 per Forster J at 89. In order to determine whether that is the case all the relevant circumstances need to be taken into account: Re McEneiry and Medical Board of Queensland [1994] QICmr 2; [1994] 1 QAR 349 at 371. The Tribunal pointed out that the question of whether the source of the information is confidential must be ascertained at the time of the hearing. The Tribunal’s conclusion was based on the evidence it had received including a confidential affidavit from Detective Sergeant Morgan dated 17 July 2008.

9 Enforcement or administration of the law. The second element of the exemption in cl 4(1)(b) is that the information relates to the enforcement or administration of the law. The Tribunal concluded, at [68], that it did:

There is no dispute that the information was supplied to the police as part of the investigation of the murder of Mr Adams. I am satisfied that the information that the confidential source supplied relates to the enforcement or administration of the law and therefore the second element of clause 4(1)(b) has been satisfied.

10 Effect of disclosure. The third element concerns whether or not the disclosure of the uncensored statement could reasonably be expected to enable the existence or identity of a confidential source of information to be ascertained. By relying on the exemption in cl 4(1)(b) the Commissioner has effectively disclosed that a confidential source of information exists. The Tribunal’s focus was on whether the identity of that source could reasonably be expected to be disclosed if the document is released. The exemption operates to prevent disclosure of the identity of a confidential source of information, rather than the confidential information itself unless its disclosure would reveal the identity of the informant. The Tribunal set out its conclusion at [69]:

A copy of the uncensored statement was filed and I have examined the document. I have no doubt that the disclosure of the information that has been withheld from the Applicant would reveal the identity of a confidential source of information or enable the identity of the confidential source of information to be ascertained. That being the case, the third element of clause 4(1)(b) has been satisfied.

11 Having decided that each of the elements of cl 4(1)(b) had been met, the Tribunal nevertheless went on to deal with two other submissions made by Mr Crowther-Wilkinson. The first was that the exemption does not apply if the content of the document is false and the second was that it does not apply if the identity of the informer is required to establish the innocence of an accused person.

First ground of appeal – relevance of statement being ‘false’

12 Tribunal’s decision. The Tribunal responded to Mr Crowther-Wilkinson’s submission on this point in the following terms, at [70]:

With respect to the Applicant’s contention that the uncensored statement contains false information, I agree with the views expressed by the President in Mauger that a tribunal should ordinarily accept the judgment of the law enforcement agency as to the question of whether a complaint was made knowing it to be false, or maliciously, unless there is significant independent evidence to challenge its judgment. I accept Detective Sergeant Morgan’s assessment of the circumstances in which the information was provided. In my view, the evidence given by Detective Brown at the Applicant’s trial does not assist the Applicant’s contention. Detective Brown’s evidence addressed his initial reaction to the emails he had received. It does not address the issue of whether or not there was corroboration or supporting material at a later stage. I do not consider that there is any basis on which I could form the view that this situation involved an informant providing information, knowing it to be false. (Emphasis added.)

13 Mr Crowther-Wilkinson’s submissions. Mr Crowther-Wilkinson said that the Tribunal failed to properly apply the decision in Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35. He said that Detective Brown’s evidence did not refer exclusively to his ‘initial reaction’ and for the Member to suggest the possibility that corroborating or supporting material may have come to light at a later stage is without supporting evidence. According to Mr Crowther-Wilkinson, the Judicial Member has effectively used an assumption in order to dismiss his application. Mr Crowther-Wilkinson added that if there was evidence of the proposed supporting material it would have been located in the trial transcript.

14 The Commissioner’s submissions. The Commissioner submitted that Mauger has been overruled by the decision of the Appeal Panel in XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2 at [27] and [28]. The decision in XZ was made about two weeks before the Tribunal handed down it’s decision and was not the subject of submissions to the Tribunal. Alternatively the Commissioner said that we should interpret Mauger as not definitively deciding that the truth or falsity of an allegation is relevant when determining whether the exception in cl 4(1)(b) has been made out. The Commissioner’s view was that the Tribunal merely surveyed the authorities and the academic commentary on this issue and decided that, in any case, the complaint was not made knowing that it was false. These submissions require us to examine the Tribunal’s decision in Mauger, as well as decisions of the Tribunal and other courts on the issue of whether the exemption in cl 4(1)(b) applies if the information is false or provided maliciously.

15 Decision in Mauger and its meaning. In Mauger, O’Connor J referred to the decision in McKenzie v Department of Social Security (1986) 65 ALR 645 at 648, where Muirhead J held that it does not matter whether the information is true or false, or whether it was provided in good faith or for some other motive in relation to the Commonwealth equivalent of cl 4(1)(b). O’Connor J then referred to the comments by Cossins in Annotated Freedom of Information Act New South Wales (1997) and the Ombudsman’s Guidelines and ultimately held at [47] that on the question of whether the information was motivated by malice, the Tribunal should be guided by the opinion of the agency, as it is in the best position to judge its legitimacy or otherwise. In DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 at [45] O’Connor J explained his reasoning in Mauger:

In Mauger I also noted that it may be that it is not appropriate to apply the protection in circumstances where it could be shown that the information given to the law enforcement agency was given maliciously. I noted that this view has not been adopted in relation to the Freedom of Information Act 1982 (Cth): see Re McKenzie and Department of Social Security (1986) 65 ALR 645 (Muirhead J.). See also Re Gold and Australian Federal Police [1994] AATA 382; (1994) 37 ALD 168 (Commonwealth AAT). On the other hand, the view I expressed is similar to the qualified position taken in relation to malicious communications by the New South Wales Ombudsman (Ombudsman’s Guidelines, para 7.1.8) and by Cossins, Annotated Freedom of Information Act New South Wales (1997) at 272-273.

16 NSW FOI Manual. We note that the Ombudsman’s Guidelines have now been replaced with the NSW FOI Manual, a joint publication of NSW Department of Premier and Cabinet and the NSW Ombudsman. At 11.5.40 the following comment appears in relation to this issue:

There is, however, some dispute as to whether the exemption will continue to apply if the agency is satisfied that the informant has acted maliciously in giving false information ( Odisho v Chief Executive, Roads and Traffic Authority [2001] NSWADT 49). Until that issue is authoritatively resolved, agencies should assume that the fact that an informant may have been motivated by malice is irrelevant, and the exemption still applies.[policy]

17 Conclusion. The decisions in Mauger and DQ are equivocal. O’Connor J said that it ‘may be’ that it is not appropriate to apply the protection in circumstances where it could be shown that the information given to the law enforcement agency was given maliciously. We consider that the view taken by the Appeal Panel to the contrary in XZ is the correct view both as a matter of statutory interpretation and because it accords with the weight of authority.

18 Statutory interpretation. In XZ the Appeal Panel pointed out that several exceptions to cl 4(1) are listed in cl 4(2). There is no mention in that provision of an exception for information provided falsely or maliciously, nor is there any public interest exception. In Mauger, O’Connor J referred to a comment by Cossins in Annotated Freedom of Information Act New South Wales (1997) at 272-273. Cossins’ point was that the exemption in cl 4(1)(b) must be interpreted on the basis that the FOI Act presumes disclosure unless there are public interest considerations which outweigh disclosure. That view has not been supported by the Supreme Court when hearing appeals from Tribunal decisions. In WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502, McColl JA (with whom Handley JA and Hodgson JA agreed) referred to the fact that the FOI Act enshrines a general policy of disclosure of official information. However, she went on at [150]–[151] to consider how that general policy applied when construing the exemptions in the FOI Act. After referring to the Full Federal Court’s decision in Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 480 at 482 McColl JA concluded at [151] that:

The Full Federal Court’s approach, in my view, accords with the s 5(3) obligation to interpret and apply the FOI Act so as to further its objects, bearing in mind that while the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters. Thus, as Beaumont J said, 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 (at 246).

19 In a later decision the Supreme Court made it clear that exemptions should be construed without any prior inclination towards a narrow or broad construction: Howell v Macquarie University [2008] NSWCA 26 at [48] per Campbell JA, Spigelman CJ and Bell JA agreeing.

20 Weight of authority. At both federal and state levels courts and tribunals have consistently decided that cl 4(1)(b) and its equivalents are not concerned with whether the confidential source of information supplies information which is false or malicious. In 1985 the Federal Court rejected the proposition that the equivalent provision in the Freedom of Information Act 1982 (Cth) imports an element of public interest such that there is a need to balance one public interest against another before the identity of a confidential source of information is entitled to protection: Department of Health v Jephcott (1985) 8 FCR 85; 62 ALR 421; 9 ALD 35. Forster J held that “if a source of information is properly to be regarded as a confidential source there is, in my view, no room for the concept of ‘a substantial risk that the administration of the law will be impaired’”. Davies J held that the exception was unequivocal in terms and no ground existed for implying any qualification.

21 A year later, a single judge of the Federal Court held in McKenzie v Department of Social Security (1986) 65 ALR 645 at 649 that deliberately false information which came into the hands of the Department, in circumstances where the Department did not know whether it was true or false, was at the time, fairly labelled as ‘information’ within the meaning of the section. It remained properly classified as ‘information’ after the Department had concluded that the information had no truth or validity.

22 The Victorian Administrative Appeals Tribunal followed this line of reasoning in Re Richardson and Commissioner for Corporate Affairs (1987) 2 VAR 51 at p 52-53. The Queensland Information Commissioner took the same approach in Re McEneiry and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349. The Commissioner said that the equivalent provision in the Queensland legislation admits of no exceptions for informants who knowingly or mistakenly supply false information. In 1994 the Administrative Appeals Tribunal said that some information provided by informers is unreliable, which may be the case regardless of the source of the information, but ‘[t]hat, however, is not an issue which the AAT need consider in deciding whether an exemption should be granted under section 37(1)(b)’: Re Gold and Australian Federal Police [1994] AATA 382; (1994) 37 ALD 168 at [15]. Other cases where the AAT has agreed with this approach include Power and Secretary to the Department of Family and Community Services [2002] AATA 1302, Maskell v Centrelink (2004) 80 ALD 228; [2004] AATA 522 and Beven and Centrelink [2008] AATA 144.

23 Conclusion. Both the principles of statutory construction and the weight of authority favour the view that there is no exception for false or malicious information in cl 4(1)(b) and no basis on which such an exemption can be read into that provision. That conclusion makes it unnecessary to deal with Mr Crowther-Wilkinson’s ground of appeal that the Tribunal failed to properly apply the decision in Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35 or that the Tribunal used erroneous assumptions as a basis for concluding that the information was not false.

Second ground of appeal – public interest immunity

24 Tribunal’s decision. Mr Crowther-Wilkinson submitted to the Tribunal that the common law exception to public interest immunity should apply to his case. That exception is that the document can be disclosed when it is required to establish the innocence of an accused person. Mr Crowther-Wilkinson’s second ground of appeal concerns the statement the Tribunal made at [71], that:

I note the Applicant’s submission that he seeks the disclosure of the identity of the community source to assist him to establish his innocence. I am unable to determine whether or not the Supreme Court held that the uncensored statement was subject to public interest immunity to protect the identity of the community source. As the authorities noted above make plain, the identity of an informer will only be revealed where it may assist a person to establish their innocence. In the present case it is my view that there was nothing to suggest that it would assist the Applicant’s cause if he knew the identity of the community source.

25 Mr Crowther-Wilkinson’s submission. Mr Crowther-Wilkinson says that it is unreasonable to suggest that a person who knows a crime has occurred days prior to anyone else knowing and who actively avoids their identity being discovered by the Police would be of no assistance in helping to prove the innocence of an accused person. On this basis, Mr Crowther-Wilkinson submits that the exception to the common law principle of public interest immunity regarding police informers, should be applied. Mr Crowther-Wilkinson also said that the Supreme Court did not make a decision as to whether the uncensored statement was covered by public interest immunity.

26 The Commissioner’s submission. The Commissioner contends that the doctrine of public interest immunity (and any exception to it) does not apply to cl 4(1)(b). The only opportunity Mr Crowther-Wilkinson had to rely on that doctrine was in the course of the criminal proceedings.

27 Public interest immunity. At common law, in criminal proceedings, a witness cannot be asked to name the identity of an informer except in circumstances where the identity of the informer could assist in showing that the defendant was innocent of the offence charged: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218 and R v Abdullah & Ors [1999] NSWCCA 188 (per Barr J, with whom Spigelman CJ and Grove J agreed, [22] –[23]).

28 Conclusion. Clause 4(1)(b) does not contain an exception if disclosure is required to establish the innocence of an accused person. The fact that there is such an exception to the doctrine of public interest immunity does not mean that the Tribunal is able to read in that exception to cl 4(1)(b). That conclusion makes it unnecessary to deal with Mr Crowther-Wilkinson’s ground of appeal that the Tribunal erred by failing to find that the uncensored statement would have established his innocence.

Third ground of appeal – release of exempt documents

29 Tribunal’s decision. In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 at Nicholas J stated that s 63 of the ADT Act gives the Tribunal a discretion to order access to be given to exempt documents if it is the correct and preferable decision to do so. The Tribunal came to the following conclusion in relation to this issue at [74] and [75]:

In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the Tribunal’s President noted that there should be strong grounds justifying the exercise of this residual discretion to grant access to a document that is found to be exempt. At paragraph [27] the President set out some of the factors relevant to the exercise of the discretion. He stated:

Practical circumstances that might influence the Tribunal to exercise the discretion include:

- whether the exempt matter was, by other means, in the public domain

- whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant

- the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity

- the public interest in an informed debate on issues of significance to the community

- whether there were adverse consequences for the proper administration of government, and their extent

- whether any adverse consequence is remote or innocuous.

74 In my view, there are no strong grounds justifying the exercise of the residual discretion to grant access to the uncensored statement. I agree with the Respondent that the public interest favours the protection of confidential informants and ensuring the law enforcement functions are not prejudiced or injured and that confidential sources of information are protected. The disclosure of the uncensored statement would be counterproductive of the public benefits that flow from protecting the identity of confidential informants.

30 Mr Crowther-Wilkinson’s submissions. Mr Crowther-Wilkinson submitted that the Tribunal erred by not disclosing the uncensored statement to him given that he alleges that the information in the uncensored statement is false and the release of the statement would establish his innocence.

31 Commissioner’s submissions. The Commissioner’s submissions were put in the alternative. His primary submission was that the so-called ‘override discretion’ does not apply to restricted documents such as those covered by cl 4(1)(b). Alternatively, the Commissioner said that there were no strong grounds for exercising that discretion in this case.

32 Release of restricted documents. In IPART v Services Sydney [2008] NSWADTAP 79 the Appeal Panel held that once the Tribunal finds that an agency has ‘reasonable grounds’ for claiming a restricted document is exempt, its jurisdiction is exhausted: FOI Act, s 57. At first instance, the Tribunal had gone on to weigh the discretionary factors for and against release of the matter which it had found to be exempt. On appeal, the Appeal Panel held at [46] that there was no scope for the residual discretion in relation to ‘restricted documents’ that is, documents referred to in Part 1 of Schedule 1 to the FOI Act. Although the Commissioner in this case did not ask the Tribunal to engage in a ‘reasonable grounds’ inquiry under s 57, we agree with the Appeal Panel’s conclusion in IPART that once material in a document is found to come within any of the exemptions in cl 1 to 4A of the FOI Act, the Tribunal is unable to disclose that document. This conclusion makes it unnecessary to deal with Mr Crowther-Wilkinson’s ground of appeal that the Tribunal erred by not disclosing the uncensored statement even though it was exempt under cl 4(1)(b).

33 Alternative submission. In case our conclusion is not correct and the Tribunal did have power to release a document which it found to be a restricted document, we turn to consider whether the Tribunal erred when deciding not to release the uncensored statement. As Mr Crowther-Wilkinson submitted, if the falsity of the statement or the fact that its release would establish his innocence are not relevant when considering whether cl 4(1)(b) applies, those matters should be relevant when considering whether or not the document should nevertheless be disclosed. In Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 Smart AJ was considering an appeal against a decision of the Tribunal involving the personal affairs exemption: FOI Act, Schedule 1, cl 6. That exemption only applies if releasing the document would involve unreasonable disclosure of information concerning a person’s personal affairs. Smart AJ held that when considering unreasonableness the public interest in the administration of justice is relevant. His Honour said at [79] that:

If the plaintiff wishes to rely on the ground stated (setting aside an unsafe conviction) and the public interest in the administration of justice including challenges to unsafe convictions it is not sufficient for him to state that he wants to access allegedly exempt documents as an aid to challenging and setting aside his convictions. If it appeared that the documents could arguably assist in showing that the convictions were unsafe that would be a powerful reason for granting access.

34 Mr Crowther-Wilkinson conceded in argument before the Appeal Panel that disclosure of the community source’s identity would not exonerate him. However, he said that it would assist him to develop a lead in seeking to prove his innocence and that that is sufficient for the override discretion to be exercised. The Tribunal held at [71] that “there was nothing to suggest that it would assist the Applicant’s cause if he knew the identity of the community source.” Having reviewed all the evidence, including the confidential evidence, we are of the view that the Tribunal’s factual finding was open to it.

35 In relation to the truth of falsity of the material in the uncensored statement, the Tribunal said at [70], that:

I do not consider that there is any basis on which I could form the view that this situation involved an informant providing information knowing it to be false.

36 As the Tribunal did not agree with the factual basis for Mr Crowther-Wilkinson’s submissions, it cannot be said to have erred in failing to take them into account when deciding whether to release the uncensored statement even though it was an exempt document.

Extension to merits

37 Mr Crowther-Wilkinson sought leave to appeal against the merits of the Tribunal’s decision: ADT Act, s 113(2)(b). The Tribunal’s key factual findings were open to it to make. Nothing Mr Crowther-Wilkinson has pointed to justifies leave being granted.

Conclusion

38 The Tribunal correctly identified and applied the elements of cl 4(1)(b) to the facts of this case. However, contrary to the Tribunal’s decision, neither the question of whether the confidential information was false nor whether disclosure would prove the innocence of an accused is relevant when determining whether the elements of cl 4(1)(b) have been made out. Those errors did not affect the ultimate decision. In addition, the Tribunal erred by considering whether to release the uncensored statement even though it had found that it was a restricted document. In relation to restricted documents, the Tribunal’s jurisdiction is exhausted if it finds ‘reasonable grounds’ for the claim in accordance with s 57. Again, this error did not affect the correctness of the ultimate decision.

Orders

1. Leave to extend the appeal to the merits of the Tribunal’s decision is refused.

2. The decision of the Tribunal that “The Respondent’s decision to refuse access to the uncensored statement is affirmed” is affirmed.