Dezfouli v Justice Health & Forensic Mental Health Network

[2018] NSWCATAD 11

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11

Hearing dates:

06 November 2017

Date of orders:

15 January 2018

Decision date:

15 January 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

(1) The decision of the respondent to refuse access to the admiralty rating contained in the Australian Federal Police Information Report registered 23 December 2015 is set aside.

 

(2) The respondent is to release to the applicant the redacted admiralty rating.

 (3) The decision under review is otherwise affirmed.

Catchwords:

GOVERNMENT INFORMATION – access application – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure – redaction of officers names – whether risk of harm or serious harassment or serious intimidation if disclosed – admiralty rating in intelligence report – whether disclosure would prejudice effective exercise of agency’s functions – whether information is exempt matter under Commonwealth FOI Act.

  PRACTICE AND PROCEDURE – makers of statements not available for cross-examination – whether statements allowed in evidence – proposed cross-examination not go to the contents of the statements.

Legislation Cited:

Government Information (Public Access) Act 2009
Freedom of Information Act 1982 (Cth)

Cases Cited:

CJO v NSW Police Force [2016] NSWCATAD 262
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163
AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90
PE v MU [2010] NSWDC 2
Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21

Category:

Principal judgment

Parties:

Saeed S Dezfouli (Applicant)
Justice Health & Forensic Mental Health Network (Respondent)

Representation:

In Person (Applicant)
Legal Advisers, Justice Health & Forensic Mental Health Network (Respondent)

File Number(s):

2017/00143173

REASONS FOR DECISION

1. Mr Saeed Dezfouli is a patient at the Forensic Hospital at Malabar which is administered by the respondent, Justice Health & Forensic Mental Health Network (Justice Health). Mr Dezfouli made an application under the Government Information (Public Access) Act 2009 (the GIPA Act) seeking all documents containing communications between the Australian Federal Police (AFP), the NSW Police Force and Justice Health in which he was named or which pertained to him (without him being named).

2. In a decision dated 18 August 2016 Justice Health provided one document to Mr Dezfouli, an AFP Information Report. The name of the AFP officer and the admiralty rating contained in the document were redacted. On internal review, Justice Health identified four emails between Justice Health and the AFP and released them to Mr Dezfouli with the names of Justice Health and AFP officers redacted. The decision in relation to the AFP Information Report was affirmed.

3. Mr Dezfouli sought review of the Justice Health decision by the Information and Privacy Commission who recommended that a new decision be made and the redacted information released. Following review of the recommendations, on 29 March 2017, Justice Health affirmed its original decisions and did not release any further information to Mr Dezfouli.

4. Mr Dezfouli has now sought review of that decision by the Tribunal. When the matter first came before the Tribunal, the Tribunal ordered Justice Health to provide revised reasons for its decision to withhold the redacted information from Mr Dezfouli. Justice Health provided revised reasons on 1 August 2017.

Material before the Tribunal

5. The Tribunal has before it the decisions which have been made in this matter to date, including the recommendations of the Information and Privacy Commission and the revised reasons for decision issued by Justice Health on 1 August 2017.

6. Mr Dezfouli has provided a submission and attachments in support of his case and gave evidence at the hearing. Submissions have also been provided by Justice Health along with a copy of the redacted documents released to Mr Dezfouli.

7. Justice Health has also provided statements by Robert Jackson, Manager Security, AFP and Commander Fiona Drennan, Manager Intelligence Operations, AFP. Mr Jackson and Commander Drennan did not attend the Tribunal hearing to give evidence. Mr Dezfouli asked the Tribunal to disregard their statements as they were not available for him to cross examine on the contents of their statements.

8. It appears there has been no discussion between Mr Dezfouli and Justice Health about whether he required any witnesses for cross examination. In the normal course, it would be expected that the maker of a statement would be available to give evidence unless they were not required for cross examination. That is particularly the case where, as here, the statements are the primary evidence relied upon by Justice Health.

9. When asked by the Tribunal what questions he would have asked of the witnesses, in relation to Mr Jackson who has provided information relevant to the redaction of police officers’ names, Mr Dezfouli indicated that his questions would be directed towards the motives of the AFP in making reports and negative statements about him. Mr Dezfouli believes that these are fabricated and that there is a sinister motive behind this fabrication.

10. The purpose of the GIPA Act is to facilitate access to government information. The provisions of the Act are primarily concerned with the disclosure of government information and the circumstances in which there is a public interest against disclosure. The Tribunal’s role is to determine whether the correct or preferable decision has been made regarding the disclosure, or more particularly, non-disclosure of certain information to an applicant, in light of the provisions of the GIPA Act. It is not concerned with any underlying motive behind the creation of government records or other information. As Mr Dezfouli’s proposed questioning of Mr Jackson does not go to the content of Mr Jackson’s statement or other considerations under the GIPA Act, I have allowed the statement in.

11. In relation to the statement by Commander Drennan, Mr Dezfouli said he would have raised with her the relevance of the admiralty rating in circumstances where the AFP is required to act fairly and in the best interests of the community. Again, as Mr Dezfouli’s proposed questions do not go to the content of Commander Drennan’s statement or other considerations under the GIPA Act, I have allowed the statement in.

General principles

12. Under the GIPA Act there is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”: s 5 of the GIPA Act.

13. There is a general public interest in favour of disclosure of government information: s 12 GIPA Act. However, there can be an overriding public interest against disclosure. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:

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 interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure

14. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act, and, as relevant, are discussed below.

15. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows:

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.

16. In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account: s 55 of the GIPA Act. It is for the respondent agency to establish that its decision is justified: s 105 of the GIPA Act.

Redaction of officers’ names

17. Justice Health identified four emails between the AFP and Justice Health and an Information Report prepared by an AFP officer in December 2015 which come within the access request made by Mr Dezfouli. The emails and report were released to Mr Dezfouli in a redacted form. The redacted information in the emails is the names of Justice Health and AFP officers who were the senders and recipients of the emails. The emails were about the provision of the Information Report to Justice Health by the AFP and Mr Dezfouli’s wish to be provided with access to the report. The name of the AFP officer who prepared the Information Report has also been redacted from the Report.

18. Justice Health contends that the disclosure of the names of the officers could reasonably be expected to expose those persons to an immediate and serious risk of harm or of serious harassment or serious intimidation and that, on balance, there is an overriding public interest against the disclosure of that information pursuant to clause (3)(f) of the table to s 14 of the GIPA Act.

19. Mr Dezfouli has been a forensic patient for many years following a criminal incident which occurred in 2002. He suffers from a mental illness and was found not fit to be tried for that reason in relation to the incident. The information before the Tribunal is that before and after this incident Mr Dezfouli has been a prolific correspondent sending letters to high office holders in Australia and overseas. These letters are described by the AFP as “concerning or offensive”, although not all contain threats. Mr Dezfouli has also created a website which contains copies of correspondence, petitions created by him and complaints he has made. According to the AFP, Mr Dezfouli has also initiated vexatious complaints and legal suits. His behaviour is described as “fixated”.

20. The AFP has also received a number of complaints from office holders who have been the recipients of concerning or offensive letters from Mr Dezfouli. The AFP reports that in the past Mr Dezfouli has written correspondence in which he has threatened to rape the Queen and the wives of politicians.

21. Mr Jackson, whose expertise is in threat assessment and security, is of the view that were the name of the AFP officer who created the Information Report released to Mr Dezfouli, there is a high risk he would become fixated on that officer and send concerning or offensive correspondence to the officer. In this context Justice Health notes that the name of an AFP officer obtained by Mr Dezfouli through a Freedom of Information request in 2006 continues to be mentioned by Mr Dezfouli in his correspondence with office holders, including the Prime Minister.

22. Mr Dezfouli told me that the reason he is requesting the names of the officers is because he would like to pursue the matter further. He said he if has the names of the officers he can hire a lawyer and press charges against the AFP in relation to what he believes are the AFP’s sinister motives in making reports about him.

23. At issue is whether disclosure of the names of the AFP and Justice Health officers could reasonably be expected to expose them to a risk of harm or serious harassment or serious intimidation. The phrase “could reasonably be expected to” has been the subject of judicial consideration in relation to freedom of information legislation at the Commonwealth and State level.

24. In the recent case of CJO v NSW Police Force [2016] NSWCATAD 262 the Tribunal examined a line of authorities dealing with the phrase “could reasonably be expected to” and concluded that what was required was something more than a possibility, risk or chance that disclosure of the information would have the nominated effect. The expectation must be based on reason, that is to say, one for which real and substantial grounds exist when looked at objectively (Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 at 176).

25. Harm, harassment and intimidation are not terms that defined in the GIPA Act and must be given their ordinary meaning. These terms were considered by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 and adopted in CJO v NSW Police Force.

26. The Macquarie Dictionary defines “harm” to mean injury, damage, hurt, moral injury, evil, wrong. The Tribunal in AEZ considered that “harm” in the context of clause 3(f) means "a real and substantial detrimental effect on a person" which may have a detrimental effect on their "physical, psychological or emotional wellbeing".

27. The Macquarie Dictionary defines “harass” to mean to trouble by repeated attacks, or disturb persistently. “Intimidate” is defined to mean to make timid or inspire with fear. In AEZ the Tribunal stated that a person who is harassed would be offended, humiliated or intimidated by the conduct in the circumstances. Harassment requires a consideration of whether the person alleged to be harassed was offended, worried, tormented, distressed or harassed by the conduct.

28. Citing PE v MU [2010] NSWDC 2, the Tribunal in AEZ noted that harassment is ongoing behaviour that is found to be threatening or disturbing and intimidation is conduct such as would cause a person to fear for their safety.

29. The requirement that the intimidation or harassment be serious means that the decision maker must be satisfied that the release of the information could reasonably be expected to expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient" (AEZ at [94]).

30. The evidence before me is that Mr Dezfouli has a history of fixated behaviour in which he sends often offensive correspondence to office holders. He clearly has strong views about the police and justice systems and sees himself as being victimised by those systems. It was apparent at the hearing that his reason for wishing to obtain the names of the officers who either prepared the Information Report or were involved in the email exchanges between the AFP and Justice Health is so he can pursue action against what he describes as AFP’s sinister motives in making reports about him.

31. When looked at objectively, the evidence shows that here are sound reasons for believing that Mr Dezfouli’s fixated behaviour will continue. Were he to be provided with the names of the officer who wrote the Information Report or those officers who were involved in email exchanges about the Report, it is highly likely Mr Dezfouli would seek to communicate directly with those officers and/or name them in his correspondence with others and on his website. It is also highly likely he would make offensive comments about them and issue threats of violence towards them.

32. Mr Dezfouli’s past behaviour strongly indicates that he is likely to engage in harassing and intimidatory behaviour towards the officers named in the Information Report and emails if their identities were known to him. In my view that harassment or intimidation is likely to be at such a level that it amounts to serious harassment or serious intimidation.

33. I am therefore of the view that disclosure of the names of the officers could reasonably be expected to expose those persons to a risk of serious harassment or serious intimidation and that, on balance, there is an overriding public interest against the disclosure of that information pursuant to clause (3)(f) of the table to s 14 of the GIPA Act.

Admiralty rating

34. The Information Report in relation to Mr Dezfouli contained an admiralty rating. An admiralty rating consists of a letter and a number and indicates the reliability of the source and the credibility of the information contained in intelligence reports. The admiralty rating was redacted in the document provided to Mr Dezfouli.

35. Justice Health argues that disclosure of the admiralty rating could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions and that, on balance, there is an overriding public interest against the disclosure of that information pursuant to clause (1)(f) of the table to s 14 of the GIPA Act.

36. Commander Fiona Drennan, who is the Manager Intelligence Operations with the AFP, states that law enforcement relies on the cooperation and collaboration of the community to obtain information to assist it to fight crime. She states that the AFP uses the admiralty rating system to evaluate information it receives. She states that, while the existence of the system is not confidential, the AFP’s operations require that the rating applied to each information report is not publicly disclosed.

37. Commander Drennan states that, if the admiralty rating of any report were disclosed, individuals could use this, in combination with known information, to ascertain the identity of a source of information. This could undermine the effectiveness of the source or even put the source at risk of harm. Commander Drennan states that it is a matter of operational importance for the AFP that the admiralty ratings applied to its sources are not known publicly.

38. Commander Drennan states that those involved in organised criminal activities observe and react to methodologies employed by law enforcement agencies in their investigations, including the assessment of information given to police, in order to learn from their mistakes. She states that the disclosure of an admiralty rating in one case, and the possibility that the information could be obtained in other cases, can affect the success of future investigations and provide information that could assist those who seek to identify and cause harm to the AFP’s sources.

39. A reading of the Information Report shows clearly that the sources of the information contained within it are in fact named in the document and include the names of persons to whom Mr Dezfouli has written letters and the content of those letters, the Protective Liaison unit within the AFP and information sourced from Mr Dezfouli’s own website. It is therefore difficult to understand how disclosure of the admiralty rating could identify a source or cause harm to a source in this particular case.

40. Commander Drennan’s statement with respect to the ability of organised criminals to adversely affect AFP investigations if they were to obtain admiralty ratings and therefore be able to identify sources is a valid one. In this case, however, the identities of the sources of the information are not confidential – they are in fact spelt out in the document itself. In my view, disclosure of the rating in this case would not lead to the identification of or harm to any source of information used in the Report.

41. Justice Health submitted at the hearing that the release of the admiralty rating in this case would set a precedent and that would have the ultimate effect of endangering AFP sources in other cases. I understand that this may be the thrust of Commander Drennan’s statement that the disclosure of the rating in one case, and the possibility that the information could be obtained in other cases, could affect the success of future investigations.

34. The rating scale itself has been disclosed to Mr Dezfouli and is publicly known. In rating the reliability of a source the scale uses terms such as “completely reliable” through to “reliability cannot be judged” and in relation to credibility a scale of “confirmed” through to “truth cannot be judged”. These terms do not in and of themselves identify a source.

35. In the circumstances of this case where the sources are by and large named in the Report and are public figures or public institutions, disclosure of the admiralty rating would not reasonably be expected to prejudice the effective exercise by the AFP of its functions. There may well be cases where release of the admiralty rating would have the effect contended by the respondent and those matters would need to be determined on the basis of their individual factual circumstances. Disclosure of the admiralty rating in this case does not mean that it would appropriate to disclose that information in all cases.

36. On balance, therefore, I am not satisfied that there is an overriding public interest against disclosure on the basis that disclosure could reasonably be expected to prejudice the effective exercise by the AFP of its functions (clause 1(f) of the table to s 14 of the GIPA Act).

37. Justice Health also states that the document should not be disclosed on another basis. Clause 7 of the table to s 14 of the GIPA Act states that there is a public interest consideration against disclosure of information communicated to the Government of New South Wales by the Government of the Commonwealth or another State if notice has been received that the information is exempt matter within the meaning of the corresponding law of the Commonwealth or the other State.

38. The respondent has made no separate submissions directed towards clause 7 of the table. I accept that the Information Report is information that has been communicated to the Government of New South Wales by the Government of the Commonwealth (see Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 for a discussion of meaning of these terms).

39. Clause 7 requires that that a “notice” has been received from the Government of the Commonwealth by the Government of New South Wales that the information “is exempt matter” within the meaning of the corresponding law. In an email dated 17 August 2016 an AFP officer advised that, were the request for information to be received by the AFP, the AFP “would likely” redact the admiralty rating under s 47E(d) of the Commonwealth Freedom of Information Act 1982 (FOI Act).

40. I am very doubtful that the email of 17 August 2016 falls within the meaning of a “notice” that the information “is exempt matter”. The email certainly does not state that the information is exempt matter. It is much more equivocal and indicates that the AFP has simply formed a preliminary view without thorough examination.

41. Even if the email can be construed as being a notice that the information is exempt matter and therefore the public interest consideration against disclosure contained in clause 7 arises in this case, the Tribunal is still required to apply the public interest test under s 13 of the GIPA Act. I must be satisfied that the respondent has established that this public interest consideration against disclosure, on balance, outweighs the public interest considerations in favour of disclosure of the information in issue, that is, the admiralty rating.

42. Sub-section 47E(d) of the FOI Act provides that a document is conditionally exempt if its disclosure under the FOI Act would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. Section 11A of the FOI Act provides that access must be given to a conditionally exempt document unless it would be contrary to the public interest. Section 11B sets out the factors to be considered in assessing whether access to a conditionally exempt document would, on balance, be contrary to the public interest. These are very similar to those ion the GIPA Act.

43. The ground in s 47E(d) of the FOI Act is very similar to that in clause (1)(f) of the table to s 14 of the GIPA Act. I have found that in this case the disclosure of the admiralty rating would not reasonably be expected to prejudice the effective exercise by the AFP of its functions.

44. The fact that the AFP claims the admiralty rating would likely be exempt information under the Commonwealth FOI Act is a significant matter. However, I am not persuaded that, in the circumstances of this case and for the reasons outlined above in relation to clause 1(f) of the table to s 14 of the GIPA Act, that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

45. Accordingly, I find that the respondent has failed to establish that its decision to refuse Mr Dezfouli access to the admiralty rating contained in the Information Report is justified. I therefore find that this aspect of the decision is not the correct and preferable decision and should be set aside and Mr Dezfouli granted access to that information.

Orders

1. The decision of the respondent to refuse access to the admiralty rating contained in the Australian Federal Police Information Report registered 23 December 2015 is set aside.

2. The respondent is to release to the applicant the redacted admiralty rating.

3. The decision under review is otherwise affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 January 2018