DF v Director General, Attorney General's Department

[2002] NSWADT 164

CITATION:	DF -v- Director General, Attorney General's Department [2002] NSWADT 164
DIVISION:	General Division
PARTIES:	APPLICANT DF RESPONDENT Director General, Attorney General's Department
FILE NUMBER:	013089
HEARING DATES:	17/04/02
SUBMISSIONS CLOSED:	04/17/2002
DATE OF DECISION:	09/10/2002
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - internal working documents - access to documents - judicial function - access to documents - legal professional privilege - access to documents - operation of agencies - access to documents - secrecy provisions - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - judicial function - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - operation of agencies - Freedom of Information Act - access to documents - secrecy provisions
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Touchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 45 Eyes v Wyong Shire Council [1999] NSWADT 139 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Re Just and Department of Justice (1996) 10 VAR 126
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, barrister
ORDERS:	1. By consent, that the respondent disclose the whole of Document 29; and the whole of Document 17 except for the three paragraphs marked on page 2.; 2. That the respondent disclose the fourth paragraph of Document 2. ; 3. The determination under review is affirmed in respect of the material for which exempt status has otherwise been claimed in respect of Documents 1, 2, 9, 17, 18, 27, 34 and 35.

1 This applicant has applied for review of a determination made by the respondent to refuse the applicant access to certain documents requested under the Freedom of Information Act 1989 (FOIA). The determination was made in 1998 and related to a broader request than that now in issue. The determination has been the subject of consideration by the Ombudsman as permitted by FOIA. The application for review was lodged in the Tribunal on 17 April 2001. Since that time there have been planning meetings and consent orders which have led to further reduction in the number of documents in dispute. The part of the original request that remains in issue sought access to documents relating to all files held by the agency in the name of the applicant.

2 Documents that Remain in Issue: By the time the matter came on for hearing on 17 April 2002, part or all of 9 documents remained in issue. They are known as Documents 1, 2, 9, 17, 18, 27, 29, 34 and 35.

3 At hearing the respondent advised that it was now prepared to release the whole of Document 29 and the whole of Document 17 except for three paragraphs. Orders were made by consent for the disclosure of that material.

4 Background: The applicant has presented detailed written submissions and given an account of the circumstances, as he sees them, that provide the background to his application. He has referred to three events in his life: an assault in 1985; an assault and other crimes of which he was a victim in 1992; and, in 1996-97, his trial and re-trial for certain offences, leading to one conviction, of which he was acquitted on appeal.

5 As to the 1985 events, he said that in November 1985 he was attacked by four persons, and complained to the police. As it transpired, one of his assailants was charged with common assault and the applicant was charged with malicious wounding. That assailant was convicted, and the applicant acquitted. The police then charged a second assailant with common assault, and he was convicted. The applicant believed that the remaining two should also face trial, and commenced a private prosecution of them. The prosecution was taken over by the Crown. These persons were acquitted by direction due, it is said, to an absence of satisfactory identification evidence.

6 The applicant is dissatisfied with this outcome, because of what he sees as the failure of police to adequately investigate his complaint at the time of the offences, including failure to adopt standard methods for obtaining identification evidence. He said that Document 1 bore on this matter. He said that he only sought the document for his own examination, not on the basis that it could be given to anyone else.

7 The other documents in issue relate to the events of 1992 and 1996-97. The applicant says that in 1992 he was set upon by two persons; and assaulted and kidnapped. The two persons were charged. After being charged, they and a third person made allegations of criminal offences against the applicant, giving rise to two trials ultimately resulting in the applicant being convicted in respect of one offence. He was given a gaol sentence. After some months in gaol, his conviction was set aside by the Court of Appeal. There was a direction that there be no further trial.

8 The applicant has made criminal injury compensation claims to the Victims Compensation Tribunal in respect of the events of 1985 and 1992. Similar claims have been made by the people involved in the 1992 incident in relation to the crimes that they say the applicant committed against them.

Agency Justifications for Refusing to Release Documents

9 The agency relies on various heads of exemption to protect these documents from release either in whole or in part. The applicant, as is usual in these cases, is faced with the difficulty that he can only make general submissions as to the applicability of the heads of exemption claimed for the documents. The documents have been supplied to the Tribunal as a confidential exhibit. The Tribunal has inspected the documents in light of the exemptions relied upon.

10 At this point it is helpful to refer to the heads of exemption invoked.

11 Operations of Director of Public Prosecutions: The Act exempts from the operation of FOIA some agencies in their entirety, and some agencies in respect of specified functions. Section 9 provides:

‘Any body or office specified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this Act.’
12 The relevant exemptions in Schedule 2 on which the agency relies are:
‘The office of Director of Public Prosecutions---prosecuting functions.’
13 Judicial Functions : Schedule 1, cl 11 seeks to protect from disclosure material relating to the judicial functions of courts. Clause 11 provides:
‘A document is an exempt document if it contains matter the disclosure of which would disclose:
(a) matter relating to the judicial functions of a court or tribunal, or

(b) matter prepared for the purposes of proceedings (including any transcript of the proceedings) that are being heard or are to be heard before a court or tribunal, or

(c) matter prepared by or on behalf of a court or tribunal (including any order or judgment made or given by the court or tribunal) in relation to proceedings that are being heard or have been heard before the court or tribunal.’

This exemption has not been the subject of close examination by the Tribunal to date.

14 The agency wishes to protect documents or extracts which it says would disclose the deliberations of jurors.

15 Internal Working Documents: An agency document may be protected on the basis that it contains advice that should remain confidential. Clause 9 provides:

‘(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place,

in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and

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

(2) A document is not an exempt document by virtue of this clause if it merely consists of:

(a) matter that appears in an agency's policy document, or

(b) factual or statistical material.’

On the application of this exemption, see generally Touchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73.

16 Legal Professional Privilege: Clause 10 is also invoked in respect of certain passages in the documents. Clause 10 exempts material governed by legal professional privilege, and provides:

‘(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.’

On the application of this exemption, see generally Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12.

17 Privacy: In relation to references in the documents to persons other than the applicant, the agency relies on the exemption set out in Schedule 1, cl 6 of FOIA permitting the agency to withhold a document ‘if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).’ See generally Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 45.

18 The agency has invoked this exemption in relation to several identified people, including jurors.

19 Secrecy Provisions: In regard to disclosure of jurors’ identities, the agency also relies on cl 12(1), the exemption which provides that a document ‘is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions.’ In this instance the agency says that it is an offence to publish the name and address of a juror (Juries Act 1977, s 68). See generally on the secrecy provisions exemption, Eyes v Wyong Shire Council [1999] NSWADT 139.

ASSESSMENT

20 The onus rests on the agency to justify its determination: FOIA, s 61.

21 Document 1 Advice to the Director of Public Prosecutions (DPP) from the relevant Crown Prosecutor (being a different Crown Prosecutor to the one referred to in relation to Document 35) in relation to the conduct of the last of the trials at which the applicant was the principal witness arising out of the events of 1985.

22 The Tribunal held a short confidential session (from which the applicant was excluded) to hear submissions from counsel for the agency as to the context in which this document was generated.

23 The Tribunal is satisfied that it was a document of a routine kind prepared for the DPP in accordance with office practice where a particular type of outcome occurs in a criminal trial (here acquittal by direction). I am satisfied that the entire advice is reasonably connected with the conduct of the ‘prosecuting functions’ of the DPP, and is exempt from FOIA by virtue of s 9, Schedule 2, item (ii). 24 It is not necessary, in my view, in this case to attempt an exhaustive definition of the meaning of ‘prosecuting functions’ in order to reach that conclusion. This is not a document which might be said to lie at the boundary between the ‘prosecution functions’ and the FOIA-covered ‘non-prosecution’ functions of the Office. In the practice of criminal law, the term ‘prosecution’ refers to the conduct of criminal proceedings (see, for example, Osborn’s Concise Law Dictionary, def. of ‘prosecution’; Mozley and Whiteley’s, Law Dictionary, def. of ‘prosecution’.) ‘Prosecution’ in the context of Schedule 2, item (ii) refers at least to the conduct of criminal proceedings by the Director, his officers and other persons (such as private practitioners) engaged by him.

25 The ‘functions’ connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal). (The document contains references to individuals the release of which would, I am satisfied, involve the unreasonable disclosure of information concerning their personal affairs: cl 6(1). If this were the only ground relied upon, the document could be disclosed with appropriate deletions.)

26 Document 2 This document is a letter from the Director General to a private individual who was a juror at the first trial of the applicant in 1996-97. The addressee’s name and address has not been disclosed, along with the first four paragraphs.

27 The applicant seeks access to the document because he believes that it contains information which might bear upon the question of why after the jury failed to reach a verdict in the first trial of him, the Crown chose to proceed with a second trial. Counsel for the respondent submitted that this concern could be met by the applicant consulting the publicly-available prosecution guidelines, which set out the way in which the DPP exercises his discretion in such a situation. He said that it was relatively standard procedure for a second trial to occur when a jury had been unable to reach a verdict.

28 The applicant said that he was quite familiar with these guidelines, and he had complained to relevant authorities that he does not believe they were adhered to in this case.

29 The applicant’s belief is that the only reason he was not acquitted at the first trial was due to misconduct on the part of the jury foreperson. He believes that if he was given access to this document he would be able to obtain confirmation of that understanding. It is also the applicant’s belief that the witnesses at the second trial had been coached before giving evidence, and that contributed to him being convicted on one charge, leading to him being imprisoned.

30 I agree with the respondent’s submission to the effect that any disclosure of the deliberations of a jury would involve the disclosure of ‘matter relating to the judicial functions of a court’ within the meaning of cl 11(a) of Schedule 1. A court’s ‘judicial functions’ include both its deliberative and fact-finding processes; and include in turn the deliberations and findings of the jury in a trial for an indictable offence. I am satisfied that the first three paragraphs might give rise to the disclosure of such material, though the position in relation to the third paragraph is somewhat tenuous. I am not satisfied that the fourth paragraph involves the risk of disclosure of jury deliberations. It contains a statement by the author as to the practice of the DPP in a particular situation.

31 I am satisfied that the name and address of the juror is protected by cl 6(1); and may also be protected by the Juries Act 1977, s 68, a provision which may in turn be covered by cl 12 (secrecy provisions), but I do not to decide the latter question on this occasion.

32 I will order release of the fourth paragraph of the letter comprising Document 2.

33 Document 9 This document is the juror’s letter to which Document 2 is a reply. The respondent submits that the letter contains information about the deliberations of a jury and therefore the document is an exempt by virtue of cl 11(a). I agree. The exemption is made out as to the whole of the document. It is not necessary to consider the other exemptions relied upon, i.e. cl 6 (privacy) and cl 12 (secrecy provisions).

34 Document 17 Most of this document is now the subject of a consent order (see transcript, esp 44). There are three sentences which remain in issue being the sentences on page 2 of the document following the words, ‘The VCT has claimed that this section of the Act excludes that body from the provisions of the Act.’

35 As the part of the document that is to be released now discloses, the author is the FOI officer in the respondent agency, and the document is a memorandum of advice to the head of agency. The exemptions relied upon by the agency in relation to the three sentences not disclosed are the internal working documents exemption (cl 9 of Sched 1) and the legal professional privilege exemption (cl 10). The respondent states that this document was prepared for the purpose of providing advice in relation to the agency’s internal review determination (now under review in these proceedings). The passage, it is said, contains confidential advice.

36 I am satisfied that it is advice within the meaning of para (a) of cl 9(1) and it would, on balance, be contrary to the public interest for material of this kind to be revealed. There is a public interest in agencies being able to receive and consider confidential advice on the exercise of decision-making authority, including in relation to FOI requests; and in, for example, not having agencies and officers exposed to criticism and public scrutiny in relation to whether the officer’s advice was accepted or not accepted. The FOI legislative scheme makes it clear that the decision that counts is the published decision of the relevant decision-maker.

37 In light of this conclusion it is not necessary to consider the other exemption relied upon (legal professional privilege, cl 10). This exemption was given some attention at hearing. I note that the author was not a legal officer, but rather the FOI officer of the agency. That may affect the application of cl 10; but I do need to pursue this point on this occasion.

38 Document 18 This document is a report from the FOI officer who wrote Document 17, headed ‘briefing note’ in relation to advice rendered by the Crown Solicitor concerning the VCT and its obligations under FOIA. In this instance the briefing note contains a summary of the advice plus a recommendation to the Director General as to a letter to be written to the Director, Victims Services, and a progress report in relation to a complaint made by the applicant to the Ombudsman. The respondent relies on the same exemptions as for Document 17. I am satisfied that cl 9(1) is applicable. In this case the main part of the document is, in my view, also protected by the legal professional privilege exemption, cl 10 as it is a summary of legal advice.

39 Document 27 This is the Director General’s letter to the Director, Victims Services, the subject of the recommendation contained in Document 10. Three sentences are not disclosed, on the ground of legal professional privilege (cl 10). The respondent’s submission is that disclosure of the last sentence of paragraph one would reveal the nature of a request for legal advice made by the Department. A similar submission is made in respect of the two sentences comprising the second paragraph. The sentences involve summary references to the instructions given to the Crown Solicitor and summary references to the advice received. I am satisfied that the exemption is applicable.

40 Document 34 This is a letter from the DPP to the Director General, Attorney General’s Department. The applicant says that his interest in seeing this document, and the next document (Document 35) is to support a claim for ex gratia compensation in relation to what he sees as his unjust treatment by the criminal justice system. It renders advice in relation to aspects of a prosecution. I am satisfied that it is exempt from the operation of FOIA by virtue of s 9, Schedule 2.

41 Document 35 This is the report prepared by the relevant Crown Prosecutor to the Director of Public Prosecutions providing the foundation for the advice contained in Document 34. There are extensive annexures A-Q. I am satisfied that the document and the annexures are also exempt from the operation of FOIA by virtue of s 9, Schedule 2. It is unnecessary to consider the further submission that Annexures A-K and M-Q are protected by cl 11(a) because they relate to the judicial functions of a court.

42 Public Interest Override: The applicant submits that in relation to those documents or parts of documents where the claims for exemption are found to be justified, that the Tribunal not exercise the general discretion given to agencies under s 25. Section 25 reads:

‘(1) An agency may refuse access to a document: (a) if it is an exempt document.’
Agencies, in keeping with the objectives of FOI legislation, are (with limited exceptions) always at liberty to release exempt matter.

43 The applicant’s submission relies on an early, and a since much discussed decision of the Tribunal, Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93. There it was held that the Tribunal, charged with making the ‘correct and preferable decision’ (Administrative Decisions Tribunal Act 1997, s 63), may to that end exercise the agency’s discretion not to withhold an exempt document; and do so having regard to public interest considerations. A power of this kind is expressly conferred by Victorian law on the relevant tribunal in that State: see Freedom of Information Act 1982 (Vic), s 50(4); and generally Kyrou & Pizer, Victorian Administrative Law [2497/3] and following. I propose to address the correctness of the ruling in Mangoplah in a forthcoming decision.

44 The applicant refers to the injustices to which he considers he has been subjected by the criminal justice system, outlined earlier in these reasons.

45 If the override discretion is open to be exercised, I would not exercise it in this case. There is no scandalous matter or systemic issue of wide public importance that might warrant the exercise of any override discretion in the way canvassed in the Victorian case-law: see, for example, Re Just and Department of Justice (1996) 10 VAR 126 at 129.

46 The concerns raised by the applicant are essentially personal to him. In saying that I do not seek to diminish in any way their significance for him. There are several direct avenues open to him for testing his concerns; and I note that he has used a number of them, including complaints to the Ombudsman; and complaints to the Legal Services Commissioner and to the Director of Public Prosecutions in relation to the conduct of prosecuting counsel. The documents subject to exemption under FOIA are not thereby protected from scrutiny by those authorities.

ORDERS


1. By consent, that the respondent disclose the whole of Document 29; and the whole of Document 17 except for the three paragraphs marked on page 2.

2. That the respondent disclose the fourth paragraph of Document 2.

3. The determination under review is affirmed in respect of the material for which exempt status has otherwise been claimed in respect of Documents 1, 2, 9, 17, 18, 27, 34 and 35.