DQ v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 215

CITATION:	DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215
DIVISION:	General Division
PARTIES:	APPLICANT DQ RESPONDENT Commissioner of Police,New South Wales Police Service
FILE NUMBER:	013228
HEARING DATES:	03/05/2002
SUBMISSIONS CLOSED:	10/29/2002
DATE OF DECISION:	11/01/2002
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - adequacy of search - access to documents - law enforcement & public safety - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Cth)
CASES CITED:	Beesley v Commissioner of Police [2000] NSWADT 52 Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994) (1994) 1 QAR 464; Ainsworth and Criminal Justice Commission; A and B (third parties) [1999] QICmr 10 (17 December 1999) B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Chief Constable of the Greater Manchester Police v McNally (2002) EWCA Civ 14 (25 January 2002) Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 at 371 Mauger v Wingecarribee Shire Council [1999] NSWADT 35 McCann v Queensland Police Service (1997) QICmr (10 July 1997) Godwin and Queensland Police Service (1997) QICmr (11 July 1997) Re Anderson (1986) 11 ALD 355 BW v Registrar, New South Wales Medical Board [2002] NSWADT 76 Young v Wicks [1986] 13 FCR 85 Re Colakovski [1991] 29 FCR 429
REPRESENTATION:	APPLICANT In person RESPONDENT J Waters, barrister
ORDERS:	1. Decision under review affirmed.

1 This applicant has applied for review of a determination made by the respondent under the Freedom of Information Act 1989 (FOIA). The original request for access dated 5 February 2001 asked for ‘a copy of all correspondence, memos, reports and directives between the Victims Compensation Tribunal (VCT) and the NSW Police Service that bear my name.’ The letter containing the request then specified several items or categories of material sought. There were two letters sent containing the same request, but one only had seven categories (items 1-7), while the other had ten categories (items 1-10).

2 The review application was lodged in the Tribunal on 2 October 2001, and was the subject of a number of planning meetings before coming on for hearing on 3 May 2002.

3 At that point, the issues between the parties had narrowed to two matters:

(i) the question of whether the agency had undertaken adequate searches in relation to that part of the applicant’s FOI request referred to in the proceedings as items 8, 9 and 10; and
(ii) the non-disclosure of documents relating to items 2 and 3 of the original application on the grounds that they are protected by the exemptions contained in cl 4(1)(b) (informer protection) and cl 4(1)(e) (prejudice effectiveness of lawful methods of investigation) and cl 6 (unreasonable disclosure of other persons’ personal affairs).

4 The applicant was given permission at the close of the hearing to file further submissions by way of reply to the agency’s written submissions which had been filed at the hearing. Directions were made. They were not complied with, but ultimately the applicant filed his submissions on 16 August 2002. The agency’s submissions in reply were lodged on 29 October 2002.

5 There are some procedural oddities affecting the handling of the request by the agency. Because, it would seem of the confusion over the scope of the initial request, two original determinations were issued, one on 12 July 2001 (in relation to items 1 to 7), the other on 14 November 2001 (relating to items 8 to 10). After the first determination, the applicant asked for an internal review. That appears to have been overlooked. The Tribunal and the parties have proceeded on the basis that the decision on internal review would have been to the same effect as the original determinations.

6 As the background circumstances to the FOI application involve matters that are sensitive to the applicant, they will not be canvassed in these reasons.

(i) Adequacy of Search

7 The Tribunal is entitled to examine the question of whether an adequate search for records sought by way of an FOI request has been undertaken: see generally Beesley v Commissioner of Police [2000] NSWADT 52; a position which accords with the interpretation adopted in relation to the similar provisions found in the legislation in the Australian Capital Territory, see Beesley at [14] to [20].

8 The approach to be taken by the Tribunal in addressing that issue is dealt with in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464; applied in Ainsworth and Criminal Justice Commission; A and B (third parties) [1999] QICmr 10 (17 December 1999) and B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168.

9 In Shepherd, the Queensland Information Commissioner said at [19] the questions for consideration were:

‘(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.’

10 The original determination (12 July 2001) omitted to deal with items 8, 9 and 10. As noted earlier, this may be explained by the fact that initially the applicant presented two letters of request to the agency, one covering items 1 to 7 only, the second including in addition items 8-10.

11 Items 8, 9 and 10 of the request sought the following documents:

‘8. A copy of all correspondence, memos, reports and directives between the Victims Compensation Tribunal and the NSW Police Service that mention my name.
9. a copy of all correspondence, memos, reports and directives between the Office of the DPP and the NSW Police Service that mention my name.
10. a copy of the incidence [sic] report arising from complaints made against me for which I was charged [date, place, officer laying charge named].’

12 The agency responded to the applicant’s request to deal with items 8-10 by a further notice of determination dated 14 November 2001.

13 The agency advised:

‘I have been informed that the following inquiries have been made in relation to points 8-10 of your original application: complete search of RMS (Record Management System), complete search of TRIM (Tower Records Management System) (in relation to points 8 and 9), [suburb] Local Area Command (in relation to point 10).

The above further searches failed to locate any documentation in relation to points 8 and 9 of your application. The searches conducted of RMS and TRIM were done with a range of name variations, in excess of thirty searches were conducted of these operational computer databases.

The [suburb] Local Area Command has indicated that the request for information has been met on a previous occasion, however, occurrence pad entries are kept for a maximum period of six years, hence that an occurrence pad entry in relation to an incident in [date] would no longer be held by that Local Area Command, but may be held in Corporate Archives. A further inquiry will now be made with corporate archives on your behalf. This office will notify you in due course as to the outcome of this further inquiry.’

14 Accordingly the agency formally advised, as required by s 28(1)(b), FOIA, that, as in its opinion the application related to documents not held by the agency, that the agency did not hold the documents.

15 In his affidavit, Inspector Koopman, senior manager, Legal Compliance Unit described the steps that had been undertaken by his office in seeking to locate the documents sought by the applicant, including tracer file searches addressed to the Local Area Command, to Corporate Archives and a review of the records produced by the Records Management System and the TRIM system.

16 That notice gave rise to a response dated 7 December 2001 from the applicant.

17 He stated that in relation to item 8, he was aware (from another FOI application) that five documents were in existence. He listed them and requested ‘that you locate these documents and make a determination re access’. Four of the documents were described as letters bearing a date, which was given, from the Victims Compensation Tribunal to various addressees. The fifth was a response to a subpoena issued by the Tribunal in relation to a criminal record.

18 He also expressed surprise (as to item 9) that the NSW Police Service do not have any documents ‘initiated between itself and the office of Director of Public Prosecutions in relation to [a particular matter] between [dates].’

19 The agency followed up this communication with a memorandum, dated 20 February 2002, to the Local Area Commanders (at two locations) referring to the five documents said to be in existence, using the descriptions supplied by the applicant. One LAC advised that it had already furnished all documents it possessed, and it had no others. There was a similar reply from the other LAC with the additional information that the applicant had lodged two complaints about police conduct and that those files are available through the Special Crime and Internal Affairs Command.

20 These events are also recorded in Mr Koopman’s affidavit.

21 Mr Koopman stated that he did not know of any further location that might reasonably be searched to locate the documents sought.

Submissions

22 The applicant has made FOI applications to other agencies seeking documents connected with the events that are the subject of the present application. Those other agencies’ determinations have themselves been the subject of review applications to the Tribunal, not usually in respect of adequacy of search but rather in relation to the exemptions invoked.

23 He has asked the Tribunal to assess the cogency of the present agency’s contention that it has been unable to documents falling under headings 8, 9 and 10 by reference to the documents that have been produced in connection with one of the applications, made to the department administering the VCT, the Attorney General’s Department, in respect of documents held by the VCT. The suggestion is that this material will include documents that will tend to corroborate his opinion that there are other documents in the possession of the present agency which it should have been able to locate. The applicant states that the Tribunal has in its possession via that case all the requested documents.

24 The applicant refers in particular to the following passage from Beesley’s case:

‘19 To some people, it may appear awkward for the Tribunal to be required to determine whether an agency is correctly asserting that it does not hold a document or additional documents. Certainly, the Tribunal is not equipped in the manner of the Ombudsman with staff able physically to access and search document registries and filing systems and to interrogate the custodians of agency documents. All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW).’

25 The Queensland Information Commissioner has stated that it is incumbent on an applicant who claims that he has the relevant documents to provide them to the agency who is now asking to release them to him under FOI: Ainsworth Nominees Pty Ltd v Criminal Justice Commission (17 December 1999).

26 The applicant contends that as the VCT documents held by the Attorney General’s Department include the documents that he is trying to obtain via the Police through the present request, that shows that the documents exist, were once police documents and points towards the conclusion that the present agency’s search has been inadequate.

27 The applicant says that at the first planning meeting in this matter he gave the agency the schedule of documents produced by the Attorney General’s Department in the other case, to demonstrate the existence of the documents covered by the present application. He says that the information in the Schedule shows that the documents he now seeks were sent to the Police Service. He contends that if there is evidence of the supply of the documents to another agency, as here, then the sending agency should have its own records of the transaction, and that is required by the State Records Act 1998.

28 Further, the applicant requested the Tribunal to direct the Police to write to the Director of Victims Services, the chief executive officer in respect of the operations of the VCT, and obtain a copy of the documents. The object, as I understood it, was to have the agency make further searches based on the internal references or other indicators contained in that material; and on the assumption that those documents did relate to the applicant.

29 I am not satisfied that in this case I should go so far as to direct that inquiries of this kind be made. In particular, I agree with the agency that no regard should be had to documents held by the Attorney General’s Department and produced in other proceedings.

30 The Tribunal’s functions under the FOIA do not extend to being an investigative agency in relation to adequacy of search issues. This is a role more appropriately undertaken by the Ombudsman.

Conclusion

31 The agency has offered an account of the efforts to which it has gone to locate material relevant to the applicant’s request. In my view the searches described were reasonable and adequate. The application involved a request for documents that may have existed once. It related to documents generated in relation to events that occurred several years earlier.

32 I am satisfied that there has been a sufficient search in the circumstances.

Non-disclosure of documents relating to items 2 and 3 of the original application

33 The original request as it related to these items was expressed as follows:

‘2. COPS event number [number given] to include the name of the informer. I note that police proved the information provided by this informer false. The supply of such information could constitute a breach of s 314 of the Crimes Act 1900. In the event that you form the view that you cannot supply the name of the informer, I request a copy of the information without the name of the informer. Please provide reasons for not supplying the name and address of the informer.

3. A copy of [number given] page 100 issued to Senior Constable [name given] attached to [unit stated] and dated [date given] as noted on [number given] with the name and address of the informer. In the event that you form the view that you cannot supply the name and address of the informer, I request a copy of the document without the name and address of the informer. Please provide reasons for not supplying the name and address of the informer.’

34 The agency in response obtained the two documents as numbered and disclosed them with deletions. The agency in its original determination (12 July 2001) stated that it had deleted the name, address, telephone number and occupation of the individual named in these documents as the particulars related to a person other than the applicant. The relevant exemption is found in cl 6 of Schedule 1 to FOIA, and provides:

‘ 6 Documents affecting personal affairs
(1) A document is an exempt 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).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.’

35 The agency stated that it was prohibited by the consultative provisions of FOIA from releasing information relating to the personal affairs of the individual concerned without first seeking their views, unless the undertaking of such consultation would be unreasonable. It then expressed the view that to do so would be unnecessary having regard to the context in which the information was supplied. The agency’s statement arguably does not strictly correspond to the position as it is expressed in s 28(2), which provides:

‘ (2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.’

36 The agency appears to have adopted the view that because of the sensitive nature of the circumstances in which the information was furnished, it was not ‘reasonably practicable’ to obtain the views of the person. I doubt whether that is a proper interpretation. My provisional view is that ‘practicability’ relates to administrative practicability (e.g. lack of current address or other present knowledge of whereabouts). On the other hand where the agency is minded not to contemplate release, it may be that it need not undertake any consultation exercise. The purpose of consultation, as I see it, is to ensure that the subject is protected against an unwanted release of their information.

37 In addition the agency stated that non-release of the identity information was justified as otherwise a lawful method of conducting investigations would be prejudiced by virtue of people fearing that the fact that they were the source of information might be released. Clause 4(1)(e) of Schedule 1 to FOIA provides:

‘ 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: ...
(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law) ... .’

38 In its submissions for the hearing, the agency also relied on cl 4(1)(b) which provides:

‘ 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 ... .’

39 The agency provided detailed submissions (filed 10 May 2002) in support of its reliance on the above three exemptions. The submissions mainly concentrated on the claims in respect of the impact on law enforcement if the identifying particulars were to be released.

40 I am satisfied that the information contained in the two documents was provided in the context of a police operation designed to obtain information about possible criminal offences where confidentiality would have been expected on the part of those who contacted the police. The operation sought to enlist the community. This is not a case of the type commonly depicted in popular culture where the informer is in a regular secret relationship with detectives, is an underworld figure and is paid in cash or in other ways for services.

41 The Tribunal has been asked to draw its conclusion as to whether the information was given subject to an express or implied pledge of confidentiality from the agency’s evidence and submissions as to the circumstances that gave rise to the collection of the information. There has been no evidence from the person who gave the information, nor did the agency in the course of reaching its conclusions contact that person.

42 The person made allegations of great seriousness. The documents (as released with deletions) have been produced to the Tribunal. I am satisfied that the communications are of a kind that would have been made in confidence.

43 I am satisfied that it is reasonable to conclude that the person who supplied information in this case, having regard to the nature of the police operation, would have done so in the context of an operation which carried with it a pledge of confidentiality. The central importance of the protection of confidentiality to the operation of the criminal justice system has been discussed in such well known cases as D v National Society for the Prevention of Cruelty to Children [1978] AC 171, see per Lord Denning at 191; per Lord Diplock at 218; per Lord Hailsham at 229; and more recently, in Australia, Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-675; and in the United Kingdom, taking account of European Human Rights law, in Chief Constable of the Greater Manchester Police v McNally (2002) EWCA Civ 14 (25 January 2002).

44 In the Australian FOI context, see especially Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 at 371. After referring to McEneiry, in Mauger v Wingecarribee Shire Council [1999] NSWADT 35 at [45] I noted:

‘It is critical that investigations be conducted in a confidential way until any charges are laid and any evidence in support produced publicly. Up to that point those who give information to law enforcement authorities are entitled to assume the confidentiality of the process. Strict confidentiality during the investigative process offers protection both to witnesses and to persons adversely implicated by allegations.’

45 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 McKenzieand Department of Social Security (1986) 65 ALR 645 (Muirhead J.). See also Re Goldand Australian Federal Police (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.

46 The applicant in this case contends that the present situation is one of malicious communication. He seeks to do this by an examination of the allegations contained in the documents. (The allegations have been revealed; only the identifying particulars of the person making the allegations have been withheld.) He then gives his version of the events that are the subject of the allegations.

47 The difficulty with which the Tribunal is confronted by this approach is that it is being asked to engage in an inquiry within an inquiry in circumstances where it only has a partial account of the relevant events, that of the applicant. I alluded to this difficulty in Mauger. In that case the local government agency that had provided a copy of the complaint against the applicant to the applicant with the informants details deleted had expressed the view that it believed the complaint to be genuine and not malicious. In Mauger I said:

‘47 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 the agency's assessment here that it does not regard this situation as involving a false complaint, in the sense of a complaint being made knowing it to be false.’

48 I remain of this view. The agency in this case does not consider the information it received to have been provided maliciously. In its original submissions (see esp para 30.2) it points to factors which support the view that the allegations were genuine, in the sense that they were genuinely held concerns about the conduct of the applicant and genuinely conveyed. I also agree with the agency’s further submissions in reply. The applicant contends that if matters conveyed to police are proven to be false, then that is evidence that they are malicious. These two propositions do not follow.

49 The applicant addresses a number of submissions to the question of whether these communications can be said to be confidential at all. The applicant refers to caveats that have placed on drawing the conclusion that information has been communicated in confidence in such cases as McCann v Queensland Police Service (1997) QICmr (10 July 1997) and Godwin and Queensland Police Service (1997) QICmr (11 July 1997). I did not find these cases of assistance in resolving the present issue, which, in my view, involves a clear-cut example of a set of circumstances where confidentiality would apply.

Removing Anonymity

50 The applicant contends that the anonymity that has been accorded to the person who made the statement should be lifted for the following reasons:

1. The applicant will never be charged with the offences described by the informant ‘as such offences did not occur’.

2. The investigation process is now long over. One, he says, ended in [year], the other in [year].

3. There is no evidence that the information was provided under an express or implied pledge of confidentiality.

4. The suggestion by the agency that the informer would, if need be, be willing to go to court with the information is an indication that he would be willing to publicly identify himself.

5. The mere fact that the informant was prepared to provide information to the police and give that information in a public courtroom suggests that he accepted at the time when he gave the information that it was not on a confidential basis.

6. Any possible confidential basis has been eroded with the passage of time.

7. There is no evidence that the informer would be subject to detriment if his/her name were disclosed to the applicant.

51 Two of the applicant’s points refer to the distance in time between the matters complained about, their investigation and the time of the FOI request. I do not see that as a consideration of any great significance in the context of allegations made to police. Allegations may not be able to be substantiated (either at all or by evidence sufficient to meet the high onus of proof of the criminal law). Yet they may have continuing value for police work. They may retain an intelligence value, and on occasions later cases may produce evidence that will cause the earlier allegations to be reopened. These aspects of police use of information are well known.

52 The applicant also speculates in effect as to who is the source of the communications (see point 5 above). This is not a point that can be properly taken into account, as I see it. To co-operate with this submission would led an agency (and ultimately the Tribunal) into the trap of seeking to confirm the accuracy of the submission thereby possibly defeating the purpose of the exemption.

Prejudice Methods of Investigation

53 In its original determination the agency relied on cl 4(1)(e) (prejudice methods of investigation). There were only brief submissions addressed to the point in the written submissions presented at hearing. It is plain on the face of the document as to the police operation within which the information was received. The contention seems to be that to disclose the identity of a source of information would ‘prejudice the effectiveness of [a] lawful method of investigation’ such as the one here.

54 In my view the categories of exemption set down in cl 4(1) should be read, ordinarily at least, as covering different aspects of policing and law enforcement functions. The exemption relevant to the protection of sources of information, therefore, is cl 4(1)(b) - that is clearly its subject matter. On the other hand cl 4(1)(f) is addressed to ‘methods’ or ‘procedures’ for preventing, detecting, investigating or dealing with crime or other possible contraventions of the law. Here the subject matter is in my view a different one – to do with protecting from exposure methods of investigation which if known to their targets would impede their usefulness. A typical instance is the use of covert surveillance. See generally Re Anderson (1986) 11 ALD 355.

55 In my view this exemption is not relevant to the present circumstances. The method of investigation employed in this case is a well known one that depends on wide publicity for its effectiveness.

Unreasonable Disclosure of Personal Affairs

56 The other exemption relied on is cl 6(1) protecting information relating to a person’s personal affairs from disclosure where that is unreasonable. The applicant contends that the documents only contain personal information that could be said to be about him. It is plain that the documents contain information about alleged interactions between the applicant and other persons. The fact of the giving of the information, in my view, clearly forms part of the personal affairs of the provider of the information. Whether a name can be said to belong to the personal affairs of an individual has been the subject of some comment in the authorities, usually in circumstances where the individual has been acting in an official capacity (for example suppression of author’s name from a public service report that has been released in whole or in part). See for example BW v Registrar, New South Wales Medical Board [2002] NSWADT 76.

57 The argument in these cases relates to whether a name can be said to form part of an individual’s personal affairs in the particular context. That kind of issue does not arise in this case.

58 There is nothing in the material to suggest that the report was other than one given by an individual in their capacity as an ordinary citizen. See generally Young v Wicks [1986] 13 FCR 85 at 89 per Beaumont J; and Re Colakovski [1991] 29 FCR 429 at 431 per Lockhart J. The information of significance is not the name itself but that disclosure of the name would thereby reveal that the identified person was the source of the information contained in the record.

59 Given that the information is found to belong to the ‘personal affairs’ of the source of information, the applicant argues that disclosure in the present case would not be unreasonable. He repeats in support several of the points made earlier in favour of relaxation of the cl 4(1)(b) exemption. For similar reasons they are rejected as they relate to cl 6(1). His final point in this regard is that there ‘is a strong public interest to release the name of persons who peddle false and malicious information to government authorities.’ I have also dealt with that point in the context of cl 4(1)(b), and for similar reasons reject it here.

60 I am satisfied that it would be unreasonable to disclose the applicant’s identity for the same reasons as were given in connection with the applicability of cl 4(1)(b).

Order

Decision under review affirmed.