DZ v NSW Police

[2002] NSWADT 274

CITATION:	DZ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 274
DIVISION:	General Division
PARTIES:	APPLICANT DZ RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013079
HEARING DATES:	23/08/2001, 24/08/2001, 11/10/2001, 22/08/2002, 20/09/2002
SUBMISSIONS CLOSED:	11/15/2002
DATE OF DECISION:	12/20/2002
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - adequacy of search - access to documents - confidential material - access to documents - internal working documents - access to documents - law enforcement & public safety - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs - Freedom of Information Act - access to documents - secrecy provisions - access to documents - secrecy provisions - Costs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Evidence Act 1995 Freedom of Information Act 1989 Police Integrity Commission Act 1996 Royal Commission (Police Service) Act 1994
CASES CITED:	Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Cerminara v Commissioner of Police [2001] NSWADT 95 Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 Odisho v Chief Executive, Roads and Traffic Authority [2001] NSW ADT 49 Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35 Re Briggs (No 2) and Australian Taxation Office (1986) 86 ATC 2.040 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 Grant v Downs (1976) 135 CLR 674 Charteris v. General Manager, Leichhardt Municipal Council (GD) [2001] NSWADTAP 12 Re Lianos and the Department of Social Security (1985) 7 ALD 475
REPRESENTATION:	APPLICANT In person RESPONDENT D Godwin, barrister
ORDERS:	1. The agency’s decision not to provide DZ with access to documents because they cannot be sufficiently identified or located is affirmed; 2. The agency’s decision not to release certain documents to the applicant because they are covered by an exemption is affirmed.

1 On 25 October 2000, DZ applied to the Commissioner for Police, NSW Police Service (the agency) for access to documents under the Freedom of Information Act 1989 (FOI Act). His request was for:

All COPS entries, all references to COPS entries, all records of access to all COPS entries, all documents referred to in COPS entries, all contents of files made or kept by (but not limited to) Special Branch, CPEA, internal affairs, ICPU and all original source document referral to those documents.

2 The background to this application is that DZ was the subject of investigation by the agency in relation to alleged paedophile activities for which he was later charged. Those charges were dismissed at the committal stage in June 2001. An alleged victim, X, applied to the Victims Compensation Tribunal (VCT) for compensation as a result of the alleged conduct of DZ. DZ’s main submission was that statements naming him which were taken by the agency, are on files held by the District Court and the Victims Compensation Tribunal. According to DZ either the statements themselves or references in those statements indicate that documents probably exist which come within the ambit of his FOI application but which the agency has not identified.

3 The agency made two determinations in relation to this application. The first determination, made by Robert Koopman, dated 12 December 2000, advised that:

Inquiries were directed to the Corporate Archives, Child Protection Enforcement Agency and Internal Affairs areas of the Police Service.

4 The determination released certain documents in part or in full to DZ and refused access to certain documents on the ground of the exemption in clause 4 to Schedule 1 of the FOI Act. DZ was also advised that no ‘Special Branch’ material relating to the application was found.

5 Mr Koopman made a second determination on 9 February 2001 following the identification of further documents falling within the scope of DZ’s application. The determination set out details of searches conducted within Special Crime and Internal Affairs Command, Corporate Archives and Child Protection Enforcement Agency (CPEA). Further documents were released to DZ.

6 In his response to the second determination, DZ requested an internal review and described documents which, in his view, should have been identified as a result of his FOI application. Mr Holmes conducted an internal review of the agency’s decision on 2 March 2001. In that decision, Mr Holmes noted that the agency had directed inquiries to each source nominated by DZ and provided details of those inquiries.

7 DZ lodged an application with the Tribunal for a review of the agency’s decision. The Tribunal has jurisdiction to review the decision by virtue s 38(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) and s 53(1) of the FOI Act. Under s 63 of the ADT Act the Tribunal may exercise all of the functions held by the administrator who made the decision and may affirm, vary or set aside the administrator's decision.

8 On 12 June 2001, the agency wrote to the Premier advising that since the agency was relying on exemptions in cl 4 of Schedule 1 to the FOI Act, and that those documents are restricted, s 57(5) of the FOI Act applies. That provision states that, where s 57 applies, the Tribunal must give the Minister administering the FOI Act (the Premier) a reasonable opportunity to appear and be heard. The Premier did not appear in response to this notice and is not a party to these proceedings.

Statutory framework

9 Under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. Following an application, the agency must determine whether access is to be given or refused (s 24). Under s 25(1) an agency may refuse access to a document:

(a) if it is an exempt document, or
(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions, or
(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or
(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices, or
(c) if it is a document that is usually available for purchase, or
(d) if it is a document that genuinely forms part of the library material held by the agency.

10 An exempt document is defined in s 6 to include "a document referred to in any one or more of the provisions of Schedule 1".

11 Section 25(4) of the FOI requires that an applicant must be given access to documents with the exempt material deleted if certain conditions are satisfied. These conditions are that it must be practicable to do so and it must appear to the agency that the applicant would wish to be given access to such a copy.

12 Section 61 of the FOI Act provides that the burden of establishing that a determination is justified lies on the agency.

13 Even if the Tribunal finds that a document is an exempt document, there is a line of authority beginning with Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93, suggesting that the Tribunal may nevertheless exercise the discretion given to agencies by s 25 of the FOI Act to disclose that document. At [91] of Mangoplah, the Tribunal defined the Tribunal's overriding discretion in the following terms:

Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption.

14 There are two parts to DZ’s application. Firstly, he submits that the agency has failed to undertake an adequate search for documents in response to his FOI application. Secondly, he submits that the agency has not established that its determination that certain documents are exempt is justified.

Conduct of the hearing

15 At the hearing on 23 and 24 August 2001, the agency provided a schedule of documents over which one or more exemptions was claimed. That schedule was updated during the course of the proceedings, as further documents came to light.

16 Most of the evidence was heard in confidential sessions pursuant to s 55 of FOI Act. Detective Sergeant Linkenbagh from the CPEA gave confidential evidence in relation to each document over which the agency claimed an exemption. DZ cross-examined him in relation to the issue of the adequacy of the search he had undertaken to locate the documents requested in the application.

17 Detective Sergeant Linkenbagh of the CPEA said that he was given a file by the FOI branch and asked to telephone if he had objections to the file being released Detective Sergeant Linkenbagh rang with objections without speaking to any other Crime Agencies officers. He understood his role was to obtain information held by CPEA, not everything held by the agency.

18 When questioned about the role of other officers in the CPEA in relation to the investigation into DZ, Detective Sergeant Linkenbagh said that Detective Harrison did the investigation, but resigned before the charges were brought. Detective Sergeant Linkenbagh then took over the matter. He did not ask any other officer whether they held documents relating to DZ because he said that all the documents would have been on the file. Detective Sergeant Linkenbagh said that he produced all the documents - the whole file relating to DZ. According to Detective Sergeant Linkenbagh there are no other documents relating to DZ within the CPEA.

19 When questioned about the existence of particular statements that named DZ, Detective Sergeant Linkenbagh said that he was not aware of any other statements coming within the scope of DZ’s request, when he produced the documents. In relation to an alleged statement taken by Detective Sergeant Tzinberg in which DZ is mentioned, Detective Sergeant Linkenbagh said that Detective Sergeant Tzinberg’s investigation was terminated straight away because the allegations were incorrect. Detective Sergeant Linkenbagh said that he cannot ring every police officer and ask them if they have ever interviewed DZ.

20 After further cross-examination, Detective Sergeant Linkenbagh agreed that despite his endeavours it is likely that there are documents outside the CPEA which name DZ but which were not able to be found. However, other areas of the agency also produced documents in response to DZ’s request. Following the hearing on 23 and 24 August 2001, the Tribunal adjourned the matter.

Further directions

21 On 31 October 2001, DZ wrote to the Tribunal requesting that this matter proceed in a certain manner. A copy of his submission was forwarded to the agency and a reply was received on 8 November 2001. On the basis of these submissions, the Tribunal made the following rulings and directions:

The Registry write to the Victims Compensation Tribunal and request them to provide their file in relation to a compensation claim made by X against DZ. On receipt of this file, first access will be given to the Police Service. The Tribunal will rule on access, on the papers, taking into account the views of the respondent and the applicant.
Following access being given (or denied) to the VCT file referred to in 1 above, Detective Sergeant Linkenbagh be recalled for the purpose of cross examination but only in relation to documents in the District Court file in X v VCT and any further relevant material on the VCT file in relation to X to which DZ has been granted access.
That no summonses be issued in relation to the 15 police officers referred to at page 4 of the annexure to DZ’s request for internal review dated 27/12/00 and that, apart from Detective Sergeant Linkenbagh, those officers not be required to be available for cross examination.
(The reason for this decision was that, in accordance with the agency’s submission dated 8 November 2001, DZ has had a reasonable opportunity to present his case.)
That the following documents be admitted into evidence:
All communications between the applicant and the respondent relating to the FOI application;
That the following documents not be admitted into evidence unless, at the next hearing date when Detective Sergeant Linkenbagh is cross-examined, DZ can identify the precise documents he seeks to tender and their relevance to a question in issue in these proceedings:
documents which refer to the applicant in the District Court criminal file relating to Y;
the District Court file in the matter of X v VCT;
the reasons for determination of the Victims Compensation Tribunal dated 2 June 1999; and
the transcript of evidence on 7 June 2001 in the Local Court relating to the applicant’s prosecution.
That the following documents not be admitted into evidence:
the DPP (Director of Public Prosecutions) file relating to the prosecution of the applicant; and
the documents obtained from the DPP to which the applicant was granted access relating to the Z matter.
The Tribunal does not take judicial notice of any of the documents referred to by DZ in his submission.
(The brief reasons for this determination are that the documents relate to the PIC Florida enquiry, statements of the Minister for Police in the media, the published findings and reports of the Royal Commission into the New South Wales Police Service conducted by Wood J, the judgment of Levine J in the Supreme Court of New South Wales in the matter of Marsden v Amalgamated Television Services Ltd , the judgment in Barr Association of NSW v DZ (NSW Court of Appeal). DZ has not specified any particular fact of which he is asking the Tribunal to take judicial notice. DZ may specify at the hearing the facts found in other proceedings that he says are relevant to these proceedings and the Tribunal will rule on those matters at that time.)
When the Tribunal has made a decision about access to the VCT’s X file, a date will be set down for the completion of cross examination of Detective Sergeant Linkenbagh and final submissions by the parties.

22 Pursuant to these directions, a summons was issued to the Registrar of the VCT to produce the file in relation to a compensation claim made by X in respect of the offender DZ. DZ had obtained a draft copy of X’s application from the District Court appeal file. He alleges that there is a sworn declaration by X on the District Court file which refers to a report to the VCT by the agency. These references are to allegations of paedophilia against DZ being reported to Detective Inspector Inkster at Sydney Police Station. Neither X’s sworn declaration nor any report by the agency to the VCT has been identified in response to DZ’s FOI request.

23 The VCT applied to set aside the summons. That matter was listed for hearing on 18 February 2002. The VCT filed written submissions at the hearing and DZ requested an adjournment because he said the submissions took him by surprise. The VCT applied for costs. I did not rule on that application at the time but sought to minimise any further costs by deciding to determine the issue on the papers. I directed DZ to file further evidence and submissions by 28 March 2002 and the VCT to file submissions in response by 15 April 2002.

VCT’s application for costs

24 On 12 June 2002, the Tribunal handed down a preliminary decision dismissing the VCT’s application to set aside the summons. My decision on the VCT’s application for costs is that costs are not awarded. Section 88(1) of the ADT Act provides that:

Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

25 DZ’s request for an adjournment was not granted and the only expense to which the VCT was put, was to file further written submissions. I do not consider that these circumstances constitute “special circumstances” pursuant to s 88 of the ADT Act.

District Court summons

26 DZ also summonsed material from the Registrar of the District Court, namely:

All files, documents, notes, records, exhibits, transcripts and other things relating to the prosecution of Y for the sexual assault of A.
All files, document, notes, records, exhibits, transcripts and other things relating to the prosecution of Z in about 1994 to 1996 for perverting the course of justice or accepting a bribe and similar offences.

27 The Tribunal made directions about access to that material. In particular, in relation to the file of Y, an alleged paedophile at the time, Mr Godwin identified six statements which contained DZ’s name. Mr Godwin conceded that these statements had not been disclosed as a result of DZ’s FOI application. These files are subject to suppression orders in relation to evidence of various witnesses.

28 When the hearing resumed on 11 October 2001, DZ was given access to two further documents. The agency tendered further confidential evidence at this hearing.

22 August hearing -further documents produced

29 At the hearing on 22 August 2002, the agency produced two further folders of documents that fall within the scope of DZ’s FOI request. Mr Godwin explained to the Tribunal in confidential session, the reason that those documents were not produced earlier and I accept that explanation. On the basis of the confidential evidence, I am satisfied that the inability or failure to produce those documents earlier does not mean that an adequate search was not conducted in relation to those documents.

30 Mr Godwin also advised that since the agency has been given access to certain material on the VCT file relating to X, they have identified an officer who is currently endeavouring to locate further material which may come within the scope of DZ’s request.

31 Detective Sergeant Linkenbagh gave further confidential evidence on 22 August 2002 in support of the agency’s submission that certain documents are exempt under cl 4 of Schedule 1 to the FOI Act.

20 September 2002 hearing

32 At the hearing on 20 September 2002, Detective Sergeant Linkenbagh gave further non-confidential evidence that he made inquiries in the police archives unit in relation to documents referring to X and DZ. None was located.

33 DZ then resumed his cross-examination of Detective Sergeant Linkenbagh. Detective Sergeant Linkenbagh stated that he made further inquiries in relation to DZ and X after he received a phone call from the FOI unit. Detective Sergeant Linkenbagh said that he knew Detective Sergeant Fileman had conducted an investigation in relation to X, but that investigation did not relate to DZ. Detective Sergeant Linkenbagh did not speak to Inspector Inkster about X. He did ask Detective Sergeant Fileman, an investigator at the CPEA, to make further inquiries.

34 A statement from Detective Sergeant Fileman indicates that he took a number of statements from X between December 1997 and May 2001, but he cannot be certain that he took a statement from X naming DZ as the alleged perpetrator. Detective Sergeant Fileman stated on 4 September 2002, that he went to the office of the CPEA and conducted a manual search of records. He was unable to locate any record in the name of X.

Admissibility of certain evidence

35 At the hearing of 20 September 2002, both parties needed to make final submissions on the admissibility of VCT and District Court documents produced under summons, following the further cross-examination of Detective Sergeant Linkenbagh. On 15 October 2002, DZ submitted that the following documents be admitted into evidence:

• the file of the DPP in relation to Y; (five documents or categories of documents particularised)
• the file of the DPP in relation to Z; (four statements particularised)
• the file of the DPP relating to the applicant; (two categories of documents particularised) and
• specified transcripts and statements produced by the agency.

36 According to DZ, none of the above documents was initially produced by the agency and they infer the existence of other documents not so far produced. DZ stated that “The fact that the documents themselves have now been produced does not derogate from their inferential effect in demonstrating the existence of other documents and the inadequacy of the agency response in their production which, in turn, gives rise to the inference that more documents remain undisclosed and not produced but fall within the application.”

37 Pursuant to s 73(2) of the ADT Act, “The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.” In relation to the DPP file relating to Y, Mr Godwin objected to the admission of the whole of the file. When cross examination of Detective Sergeant Linkenbagh resumed, DZ did not ask him any questions in relation to the contents of the Y file. Nevertheless, since the agency does not object to the tender of the statements identified by DZ, as long as they originated from the agency, I admit those documents into evidence on that basis.

38 In relation to the DPP files relating to Z and DZ, Mr Godwin objected to those files being admitted because nothing has changed since the Tribunal’s ruling that these documents not be admitted into evidence. It appears that DZ believes that these documents impugn the bona fides of certain police officers and tend to show that he has been unfairly targeted. DZ made no submissions which demonstrate that these documents are relevant to the question of whether an adequate search has been undertaken. The documents are not admitted.

39 In relation to documents already produced by the agency, Mr Godwin submitted that there is no need to tender any document already produced by the agency over which an exemption has been claimed. I agree that as these documents are already before the Tribunal, there is no need to formally admit them into evidence.

40 Mr Godwin on behalf of the agency, agreed that the three documents provided to DZ from the VCT file should be admitted into evidence. They are admitted as they are relevant to the issue of adequacy of search.

Applicant’s final submissions

41 DZ submitted that there are documents covered by his FOI application that do not relate to the CPEA investigation about him. According to DZ, those other investigations were carried out as a result of statements made by certain individuals following approaches made by police officers. DZ named five individuals whose statements allegedly come within that category. DZ submitted that it is a reasonable inference that police officers initially received information or statements as a result of which those approaches were made. According to DZ, no documents have been produced which would have initiated those inquiries.

42 DZ submitted that the documents relating to Y prompted an investigation relating to him. According to DZ statements were taken from several individuals which refer to him.

43 DZ maintains that the agency has not made an adequate search for documents outside the CPEA. According to DZ, Mr Koopman should have given evidence about the inquiries that he made because he is the officer responsible for responding to FOI applications. DZ submitted that there were sources of inquiry that were deliberately not followed.

44 In relation to the exemptions relied on, DZ submitted that they cannot be accepted because they “rely on a presumption of propriety and regularity by the agency.”

Agency’s final submissions

45 According to the agency, Detective Sergeant Linkenbagh at no stage asserted that he was responsible for all the areas of investigation regarding DZ. The reason he was chosen to give evidence in the proceedings on behalf of the agency was that he was the officer in charge of the recent criminal prosecution proceedings regarding DZ. Detective Sergeant Linkenbagh forwarded to the FOI unit the material held by the CPEA.

46 The agency’s view is that it can adequately inform the Tribunal of the matters it needs to be made aware of through the evidence of Detective Sergeant Linkenbagh as well as documentary evidence and that there was no need to call Inspector Koopman.

47 In relation to DZ’s submission that the Tribunal should infer that further documents exist, the agency stated that the fact that a person might have provided information to the police, which led the police to take a statement from another person, would not necessarily mean that the first person identified DZ. According to the agency, it should not be put to the expense and inconvenience of making further inquiries of all investigating officers to determine whether DZ’s hypothesis is correct. Such an exercise would, the agency submitted, involve a substantial amount of the agency’s time and resources.

48 While there are documents created by the agency on the VCT file, police officers have looked in all the logical places and those documents cannot be found. In addition, the person who interviewed X at the time was asked about documents and he said that they would have been archived. Detective Sergeant Linkenbagh gave evidence that despite his inquiries at the police archives unit no document referring to X and DZ was located. Detective Inspector Rudolph gave evidence that he examined the “Special Investigation” records in regard to documents relating to DZ and X which were referred to on the VCT file. He was unable to locate those documents.

49 The agency reiterated that it does not have a central index or filing system for statements taken by police officers in the course of their duties. To ensure that no further statement which refers to DZ exists, inquiries would need to be made of thousands of police officers. According to the agency, the fact that DZ has been able to identify statements originating from the agency on other agency’s files is not surprising as he is likely to be in a better position than the agency to know where to look.

50 The tracer files and the responses to them form confidential exhibit C. The agency relies on these files as evidence of the range of inquires made to satisfy DZ’s request. All the areas nominated by DZ in his request were contacted. The agency also relies on the quantity of material already released to DZ as evidence of the extent of the search that has been undertaken. Many of the documents released to DZ contain only a passing reference to him and some are quite old. According to the agency, these factors suggest that an adequate search has been undertaken.

51 The agency submitted that there is nothing to support DZ’s assertion that it has deliberately not followed all avenues of inquiry. The production of documents as recently as the last hearing date demonstrates that the agency is co-operating and following up on any new avenues of inquiry.

52 Finally, the agency submitted that the issue for the Tribunal is whether the search undertaken was a sufficient one in all the circumstances, not whether certain documents may exist. DZ has not suggested that the agency search in a particular place, rather that a general wide search should be undertaken. According to the agency, the Tribunal should bear in mind, pursuant to s 25(a1) of the FOI Act, the consequences to the proper operations of the agency if it was directed to perform such a search.

Reasons and decision on adequacy of search

53 The law about whether or not an agency has adequately searched for documents was set out by this Tribunal in the decision of Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52. Member Smith concluded at [8] that ". . .the power to make a determination that 'access to the document is ...to be refused', . . encompass(es) a refusal on the ground that a document or additional documents within the terms of the request cannot be identified or located . . ." Member Smith went on to say at [13] that:

When reviewing the determination, the Tribunal must consider on the evidence before it whether the correct or preferable exercise of the s 24 power would be to refuse the request or part of it on the ground that a document, or additional documents, falling within its terms are not "held" by the agency. As with other grounds for refusing access, the onus is on the agency to justify such a conclusion (see s 61).

54 I agree with this analysis. Member Smith also discussed the Tribunal's role in determining "adequacy of search" applications. He said, at [19], that:

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.

55 It is apparent on the basis of the evidence from the VCT file that documents generated by the agency may exist, or have existed, which the agency has not provided as a result of the FOI application. The agency’s response to this is that officers have looked in all the logical places and, in particular, that Detective Fileman has searched for the documents without success.

56 In relation to documents which DZ infers must exist because of the existence of other documents, there is insufficient evidence to make a finding that other documents do exist. Even if they do exist, the FOI Act does not require an agency to find documents which they have held in the past, or which they may currently hold. All that is required is that the agency has conducted an adequate search for the documents.

57 I understand DZ’s frustration with not being provided with documents which he believes are held by the agency. Nevertheless the evidence (including the confidential evidence) makes it abundantly clear that the agency has adequately searched for the documents in question. The agency was diligent in its efforts, both before and during the proceedings, to locate documents to which its attention was drawn. The agency does not have an index of every statement obtained by a police officer which mentions a certain person’s name, nor could it be expected to keep such a record. In addition, although the onus is on the agency, DZ was not able to suggest any area or avenue of inquiry which the agency has not undertaken. Consequently, the agency’s decision not to provide DZ with access to documents because they cannot be sufficiently identified or located, is affirmed.

Exemptions

58 The agency provided a schedule of documents over which an exemption is claimed. (Annexure A to Exhibit A) That schedule sets out the date of the document, its author and recipient and a list of the exemptions relied on. In many cases more than one exemption was relied on in relation to a single document. The agency did not provide a copy of this schedule to the applicant because the description of some of the documents includes exempt material. The agency provided DZ with a schedule which identifies each document and the exemption/s claimed but does not describe the documents. My reasoning in relation to the exemptions is brief given that much of the evidence on which the agency relied was confidential and cannot be disclosed in these reasons.

Law enforcement exemption: Cl 4

59 The agency relied on the exemptions in clauses 4(1)(a), (b) and (e) of Schedule 1 to the FOI Act. Those provisions state that:

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or
(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, or
(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), or

60 The Tribunal’s approach to these provisions has been set out in several previous cases. (See, for example, Cerminara v Commissioner of Police [2001] NSWADT 95, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11, and Odisho v Chief Executive, Roads and Traffic Authority [2001] NSW ADT 49.)

Prejudice investigation: Cl 4(1)(a)

61 Some of the evidence relied on by the agency in relation to this ground was given in confidence. The agency submitted that the fact that criminal charges are not pending in respect of certain people named in these documents is irrelevant. There is evidence that the material may well be relied on by the agency in a future prosecution. That material would be of no value if it were released under the FOI Act.

62 The fact that this exemption applies both “generally” and “in a particular case” means that it could apply to unspecified contraventions, which have occurred or may occur in the future. Once an investigation has been completed, and there is little chance that it will be revived, then it will be difficult for an agency to establish that this exemption applies. (See Anne Cossins, Annotated Freedom of Information Act, LBC Information Services 1997 at 265-266.)

63 Having reviewed all the evidence in relation to this ground, and the documents over which the exemption is claimed, I am satisfied that each of the documents concerned is covered in whole, or in part, by that exemption.

Confidential sources of information (s 4(1)(b)

64 In relation to Cl 4(1)(b) the Tribunal noted in Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35 at [34] that:

External review tribunals and commissioners in other jurisdictions have consistently supported an interpretation of the law enforcement exemption which protects the identity of informants. A convenient summary of the approach that has been adopted is provided by the Information Commissioner of Queensland in Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 at 371 -

The determination of whether the relevant information was supplied by the informant and received by the respondent on the implicit understanding that the informant's identity would remain confidential (and hence whether the informant qualifies as a confidential source of information ...) requires a careful evaluation of all the relevant circumstances including, inter alia, the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer ..., whether it could reasonably have been understood by the informant and the recipient that the appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential ... ."

65 DZ identified three people whom he knows have provided statements to the agency in relation to alleged paedophile activities. DZ submitted that if it is the agency’s submission that documents exist created by those three people, then they are not confidential because he knows about them. According to DZ, those three people are identified as informants in prosecution charges against DZ in 2001 and in relation to another matter.

66 The agency submitted that the purpose of cl 4(1)(b) is to maintain a public willingness to provide government agencies which have a law enforcement function, with relevant information. That information must be able to be provided confidentially, without making informants fearful that their identity will be disclosed or that they will suffer reprisals for supplying the information.

67 Some of the evidence in relation to this exemptions was provided confidentially by Detective Sergeant Linkenbagh. The non-confidential evidence was that the documents name confidential sources of information. According to Detective Sergeant Linkenbagh, the identity of the persons who supplied the information could be determined from an examination of the content of the material.

68 The agency made the point that the fact that DZ may know the identity of some informants is irrelevant given that publication to DZ under the FOI Act, is publication to the world.

69 I have examined each document in relation to which an exemption under cl 4(1)(b) is claimed. On the basis of the evidence and submissions, I am satisfied that each of the documents concerned is covered in whole or in part by that exemption.

Methods or procedures: Cl 4(1)(e)

70 The agency submitted that the exemption in cl 4(1)(e) applies where disclosure could reasonably be expected to prejudice the effectiveness of any method or procedure of investigation by alerting an applicant to possible means of frustrating such a method or procedure. (Re Briggs (No 2) and Australian Taxation Office (1986) 86 ATC 2.040.) The evidence in relation to this ground was given confidentially.

71 I have examined each document in relation to which an exemption under cl 4(1)(e) is claimed. On the basis of the confidential evidence and submissions provided I am satisfied that each of the documents concerned is covered by that exemption.

Legal professional privilege: Cl 10

72 Clause 10 of Schedule 1 to the FOI Act contains an exemption in relation to legal professional privilege:

(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.

73 In Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67, the High Court adopted the approach to legal professional privilege taken by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677:

[a] document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

74 Section 118 of the Evidence Act 1995 creates a privilege for confidential documents prepared for the dominant purpose of providing legal advice. As far as documents are concerned, it is the "contents of a confidential document (whether delivered or not) prepared by the client or a lawyer" which may be privileged. The Evidence Act defines a confidential document to be a document which, when it was prepared, was prepared in circumstances expressly or impliedly requiring either the person who prepared it or the recipient not to disclose its contents.

75 The Evidence Act largely overlaps with the common law position on legal professional privilege. In Charteris v. General Manager, Leichhardt Municipal Council (GD) [2001] NSWADTAP 12 the Appeal Panel considered which approach should prevail for the purpose of clause 10. The Panel stated, at [21] that it did not favour an unduly mechanical approach. It was not convinced at this stage that different outcomes would flow from applying the Evidence Act tests or the common law test to documents in dispute in an FOI case.

76 The agency identified documents E1, T05, H9, Q14 and W11 as the documents which come within the exemption. According to the agency, documents E1 and H9 are communications between the DPP and the CPEA as to the preferring of criminal charges against DZ and were created for the dominant purpose of providing and communicating legal advice.

77 Document Q14 is a letter from the DPP requesting the CPEA to obtain further information. The request was made for the purpose of providing the advice in documents EQ and H9. Document W11 are the notes of a legal officer within the agency recording his instructions as to how the agency was to respond to a subpoena issued by DZ. According to the agency, the notes were made for the dominant purpose of the litigation requiring the answer of the subpoena and contains the substance of advice given.

78 I have examined each document in relation to which an exemption under cl 10 is claimed. On the basis of an examination of the documents and the submissions provided I am satisfied that each of the documents identified is covered in whole, by that exemption.

Documents affecting personal affairs: Cl 6

79 Clause 6 to Schedule 1 provides that:

(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.

80 The evidence was that the personal information in these documents relates to allegations that persons are either paedophiles or the victims of paedophiles. According to the agency, this information is of an extremely sensitive nature and release to DZ would be unreasonable. Although none of these people has been consulted pursuant to s 31(2) of the FOI Act, the agency submitted that consultation should not be required given the nature of the information. Having examined the documents, I accept these submissions.

81 In relation to documents over which an exemption under cl 6 is claimed, I am satisfied that each of those documents concerned is covered by that exemption.

Statutory secrecy

82 The agency relied on Cl 12 in relation to several documents from the Police Royal Commission based on s 30(1)(5) of the Royal Commission (Police Service) Act 1994. (These documents were A3.1, A11, A11.1, A 12, A13, A13.3, A14, B2, C4, C42 and G9.) Section 30 states that:

(1) This section applies to:
(a) a person who is or was the Commissioner or an officer of the Commission, and
(b) a person who is or was a person who assists, or performs services for or on behalf of, a legal practitioner appointed by the Crown to assist the Commission in the exercise of the legal practitioner’s functions as counsel to the Commission.
(2) A person to whom this section applies must not, directly or indirectly, except for the purposes of this Act or the 1923 Act or the person’s Royal Commission functions or otherwise in connection with the exercise of the person’s Royal Commission functions:
(a) make a record of any information, or
(b) divulge or communicate to any person any information,
being information acquired by the person by reason of, or in the course of, the exercise of the person’s Royal Commission functions.[ ;Penalty: Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. ]
(3) A person to whom this section applies cannot be required:
(a) to produce in any court any document or other thing that has come into the person’s possession, custody or control by reason of, or in the course of, the exercise of the person’s Royal Commission functions, or
(b) to divulge or communicate to any court any matter or thing that has come to the person’s notice in the exercise of the person’s Royal Commission functions,
except for the purposes of a prosecution or disciplinary proceedings instituted as a result of the Commission’s inquiry.
(4) Despite this section, a person to whom this section applies may divulge any such information:
(a) for the purposes of the Commission’s inquiry and report or otherwise for the purposes of and in accordance with this Act or the 1923 Act, or
(b) for the purposes of a prosecution or disciplinary proceedings instituted as a result of the Commission’s inquiry, or
(c) in accordance with a direction of the Commissioner, if the Commissioner certifies that it is necessary to do so in the public interest, or
(d) to any prescribed authority or person.
(5) An authority or person to whom information is divulged under subsection (4), and any person or employee under the control of that authority or person, is subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) in respect of that information, as if he or she were a person to whom this section applies and had acquired the information in the exercise of the person’s Royal Commission functions.
(6) In this section:(6) "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions.(6) "produce" includes permit access to.(6) "Royal Commission functions" means functions arising under or in connection with this Act or the 1923 Act or any commission establishing or conferring functions on the Commission or conferring functions on the Commission or the Commissioner.

83 Similarly, the agency relied on clause 12 is relation to two documents (C41 and C42) from the Police Integrity Commission based on s 56(5) of the Police Integrity Commission Act 1996.

84 The agency identified the documents which originated in the Royal Commission or were prepared from information obtained by the Royal Commission. Detective Sergeant Linkenbagh gave evidence that the documents were released to the police by the Police Royal Commission under s 18(4) of the Police Integrity Act Commission Act 1996. That provision states that:

(4) If the Commission disseminates information to a person or body under this section on the understanding that the information is confidential, the person or body is subject to the secrecy provisions of section 56 in relation to the information.

85 The agency submitted that if it provided these documents to DZ they would contravene s 30(2) of the Royal Commission (Police Service) Act 1994. Consequently the documents are exempt under clause 12.

86 I have examined each document in relation to which an exemption under cl 16 is claimed. On the basis of the evidence and submissions provided I am satisfied that each of the documents concerned is covered by that exemption.

Internal working documents: Cl 9

87 Clause 9 states that:

(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,
(a) 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.

88 The agency submitted that certain identified documents come within this exemption and set out their reasons for that position. Document A2.1 records deliberations and conclusions of a meeting in the agency on 17 July 1997. Document A2.2 is a submission from an officer and records the decisions of the officer's superiors on that submission. Document 2.5 is a submission from an officer to a committee of the agency. Document 2.6 records the deliberations of an officer as to how to progress a matter. Document A3 is a submission of an officer to another agency recording the agency’s deliberations about a matter. Document A10.1 is a submission from an officer of the agency to a committee of the agency. Document A13.2 records the deliberations of officers of the agency as to how to deal with comments made by another agency. Document A17 is a submission from an officer and records the decisions of the officer’s superiors on that submission.

89 In relation to the public interest element of this exemption, the agency referred to Re Lianos and the Department of Social Security (1985) 7 ALD 475 at 495. The agency submitted that the efficient administration of the agency is likely to be retarded if operational discussions can later be released to alleged offenders once the investigation has concluded. According to the agency, there is a public interest in the police being able to frankly communicate as to the best method of conducting criminal investigations without having to be concerned that the alleged offender may be able to access that information. While there is a separate exemption in respect of ongoing investigations (Cl 4(1)(a)) and methodology (Cl 4(1)(b)) this does not mean that other operational communications outside these categories cannot be exempt.

90 Although the agency should not be able to hide incompetence or misconduct in the course of an investigation, bona fide operational communications in the course of an investigation should, in the public interest, be exempt.

91 I have examined each document in relation to which an exemption under cl 6 is claimed. On the basis of the confidential evidence and submissions provided I am satisfied that each of the documents concerned is covered by that exemption.

Override discretion

92 The final question is whether the Tribunal should exercise its overriding discretion to grant access to all or any of the documents. Neither the agency nor the applicant provided any submissions about the factors that the Tribunal should take into account in exercising the discretion. In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The Tribunal must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)).

93 In this case, there is nothing about the information itself or the surrounding circumstances which persuades me that the exemptions relied on should not be claimed.

Orders

The agency’s decision not to provide DZ with access to documents because they cannot be sufficiently identified or located is affirmed.

The agency’s decision not to release certain documents to the applicant because they are covered by an exemption is affirmed.