Edlund v Commissioner of Police, New South Wales Police

[2003] NSWADT 195

CITATION:	Edlund v Commissioner of Police, New South Wales Police [2003] NSWADT 195
DIVISION:	General Division
PARTIES:	APPLICANT John Edlund RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	033011
HEARING DATES:	12/05/2003
SUBMISSIONS CLOSED:	05/12/2003
DATE OF DECISION:	08/22/2003
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - internal working documents - access to documents - legal professional privilege - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Director of Public Prosecutions Act 1986 Freedom of Information Act 1989 Police Act 1990
CASES CITED:	Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 Grant v Downs (1976) 135 CLR 674 Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1995) AAT Re Easdown and Director of Public Prosecutions (1987) 2 VAR 102 Re Howard and the Treasurer of the Commonwealth (1985) 3 AAR 169 Tunchon v Commissioner of Police [2000] NSWADT 73
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, solicitor
ORDERS:	Determination under review affirmed

REASONS FOR DECISION

1 The applicant is a retired senior police officer of the New South Wales Police Service (the police service).

2 The account of the background to this application given at paras [3]-[7] is expressed circumspectly.

3 On 22 May 1997 the day after having a meeting with a superior officer [‘A’], who has since held a position of greater seniority in the police service, he was suspended from duty. He has not worked as a police officer since. His career to that point had been a highly distinguished one, which included a number of commendations for outstanding investigation work, and the Commissioner’s Valour Medal.

4 The meeting on 21 May 1997 had been for the purpose of discussing an internal investigation then underway into the applicant’s conduct. The applicant made certain complaints to his superior officer, A, during that meeting.

5 The basis for his suspension the next day was that allegedly in the course of the meeting he, the applicant, had threatened A.

6 The applicant proceeded to make an internal complaint over the actions taken against him. He produced a tape recording (he was covertly wired for sound at the meeting) that showed conclusively that A was wrong about what he, the applicant, had said during that meeting. The complaint was referred to another senior officer, B, for advice and investigation. B was known to have had an acrimonious relationship with the applicant. He took no action against A and instead initiated an investigation of the applicant for a criminal offence in relation to the use of the listening device. The applicant’s action was clearly not unlawful under New South Wales law.

7 Eventually, in the year 2000, after the applicant had made a number of representations, the Commissioner of Police sought advice as to the inaction that had occurred. A thorough investigation was undertaken under the direction of Detective Inspector Douglass (Mr Douglass), investigator, Investigation Unit, Special Crime and Internal Affairs Command (SCIA). The applicant supplied a substantial amount of material to the investigation and provided leads as to relevant people to interview.

8 Mr Douglass reported in June 2002 and considered the complaints substantiated. Subsequently Mr Douglass sought advice from independent counsel, Mr Bodor QC, as to any criminal charges that might be laid against A and B. After receiving that advice he then referred his investigation reports into A and B to the Office of the Director of Public Prosecutions (ODPP). It gave certain advice. As at the time of hearing, there were proceedings on foot before the Commissioner on Police with the recommendation that he exercise his summary powers of removal against A. B has left the police service and is not amenable to disciplinary action of that kind. There have been no criminal charges laid to date against either A or B. A has been on sick leave for some time.

9 The applicant applied under the Freedom of Information Act 1989 (FOIA) for release of the investigation reports into A and B (referred to in the proceedings as Folios 1 and 2) and for the advices (an advice from Bodor QC; and two letters from the ODPP) (referred to in the proceedings as Folios 3 and 4). The police service has refused to release them on the basis that they are exempt documents, citing the internal working documents exemption (cl 9 of Sched 1) as to Folios 1 and 2; both the legal professional privilege exemption (cl 10) and the internal working documents exemption as to Folio 3; and the internal working documents exemption as to Folio 4. Ultimately the applicant did not press for access to Folio 3.

10 Mr Douglass gave evidence at hearing; as did Superintendent Gallagher (Mr Gallagher), the officer in charge of the NSW Police Employee Management Branch, who has ultimate responsibility for the proceedings now on foot before the Commissioner against A. Mr Gallagher advised that even if these proceedings gave rise to a decision to remove A from the police service, that would probably not be the end of the matter as the affected officer had rights of appeal to the Industrial Relations Commission.

11 The applicant has, not surprisingly, a deep sense of injustice over the long time it has taken to for him to be vindicated, and he continues to have concerns over the lack of action - as he sees it - taken against A and B. Having supplied much of the material that forms the basis of the two investigation reports, he wants to see how the material was analysed and he wants to see what advice was given, especially by the DPP’s office, as to the action that should have followed the reports. The position of the police service, in essence, is that it would be premature to release the report while proceedings are still on foot against A. While that point does not apply in relation to B (at least for the time being), the police service opposes release of the report on B as the allegations against A and B involve intertwined conduct. Release, it submits, could be detrimental to the resolution of the case against A if the report in relation to B were to be released at this time.

12 The applicant sees the last five years of his life as having been ruined by the treatment to which he was subjected, put in these words by him in closing submissions:

‘And here I sit still five years later - getting close to the day in fact, 20 May 1997 - a very important date in my life - I haven’t been a career police officer. No account was taken of any embarrassment to me or to my family or to anyone else associated with me when I was suspended and then later investigated for illegally using a listening device … . And it’s ludicrous that I was investigated and I think that that portfolio or that folio [Folios 1 to 4, the documents in dispute] will tell that story.’

‘I was ordered off the premises after 27 years’ service. My handcuffs and gun were taken from me. I was escorted to my office where I was allowed only take my personal goods. I was escorted to my car. I was given a document that told me that I would not handle dogs …. That if I had any inquiries with any officer I had to contact a specific officer to make contact with him.

I was treated as though I was a criminal and [A] went on his merry way …’.

‘Question: Would you agree that you harbour a considerable degree of bitterness in relation to [A], [B] and the way this entire investigation has unfolded. I appreciate what you said about the investigator [which was positive], but there’s a bit of bitterness - well, there’s more than a bit of bitterness - - -

Applicant: Bucket loads.’

13 Mr Douglass made his two reports on 26 June 2002. The Bodor advice is dated 15 July 2002. The ODPP letters are dated 15 August 2002 and 10 September 2002. As we understand the evidence, the applicant has been kept generally informed of the progress of his complaint, the investigation and the outcomes. His request for access was received on 2 October 2002. It was refused on 23 October 2002. He sought internal review. The determination, confirming the refusal, was made on 11 November 2002. He applied for external review by the Tribunal on 14 January 2003. After a planning meeting on 12 March 2002, the matter was heard on 12 May 2003.
Evidence
14 The agency produced to the Tribunal in confidence the documents in issue. The agency filed written submissions and gave oral submissions. The applicant filed written submissions and made oral submissions. The agency’s evidence comprised two affidavits with both deponents, Mr Douglass and Mr Gallagher being called. They were cross examined. The entire hearing was conducted with the applicant present.

15 As the applicant did not press for access to Folio 3, these reasons deal only with the submissions as they relate to Folios 1, 2 and 4.

16 I will turn first to Folio 4.

Folio 4
17 This folio comprised the two items of correspondence from the ODPP. The police service relied on the ground of exemption given by cl 10:
‘ 10 Documents subject 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.’

18 Mr Douglass explained that once an internal investigation report was finalised, then if it contained recommendations for criminal charges to be considered, it was sent to the ODPP for consideration. He said both documents constituted legal advice given in response to the recommendations contained in the report. They documents had not been disseminated outside the legal section of the agency, other than possibly to employment management branch headed by Mr Gallagher.

19 The Tribunal has dealt in several cases with the interpretation to be given to cl 10. This material will not be repeated at length here. In summary, the position is that it is necessary for the agency to demonstrate that the document in issue is one which was produced or brought into existence for the dominant purpose of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation then in reasonable prospect (per Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677 approved by the High Court in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67). See generally Charteris -v- General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39.

20 The applicant contended that there is no lawyer/client relationship between the ODPP and the police service in matters relating to the decision whether or not to conduct a prosecution; therefore the legal professional privilege claim is not available. The principal functions of the DPP are set out in s 7 of the Director of Public Prosecutions Act 1986 which provides:

‘ 7. Principal functions

(1) The principal functions and responsibilities of the Director are:

(a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court,

(b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and

(c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution.

(2) The Director has the same functions as the Attorney General in relation to:

(a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial,

(b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and

(c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial.’

21 Because of the nature of the DPP’s functions in respect of the Crown’s prosecution function, the police service must conduct its prosecutions, at least in the District Court and the Supreme Court, through the DPP. The DPP has the power to make certain critical decisions as to the further conduct of a prosecution, as is reflected in s 9(2).

22 In my view the essential question raised by the test for legal professional privilege in the context of this case is whether the documents are in the nature of legal advice, or have that as their dominant purpose. It may be, because of the constitutional and statutory constraints that apply to the office of DPP within the system of prosecutions in this State, that the police service is bound by advice and decisions of that office to an extent that would not be true for the typical client. Nonetheless the relationship depicted in this case remains one of an agency – the police service – going to the DPP for legal advice, and the DPP giving such an opinion. See further Re Easdown and Director of Public Prosecutions (1987) 2 VAR 102. The police service has a client relationship with the DPP, until such time as there is a positive decision to prosecute; then carriage of the matter is shifted to the DPP. It is clear that the carriage of the present cases against A and B has remained with the police service; and has not shifted to the DPP.

23 The applicant said he regarded himself as a ‘client’ of the DPP as he had been advised by letter of its conclusions in relation to whether any matters raised against A and B by the report were capable of being prosecuted. This is not a basis for finding that the applicant is a client of the office. The more likely possibility is that the DPP saw him as appropriate to be kept informed as to the progress of a matter, as a person with a clear interest.

24 I have scrutinised the document and I am satisfied that cl 10 applies.

25 This exemption is not expressed in terms which allow for discretionary application, in comparison to exemptions such as cl 6 (the personal affairs exemption) where the issue of whether disclosure is ‘unreasonable’ is required to be addressed, or the several exemptions where questions of ‘reasonableness’ and the ‘public interest’ are required to be considered.

26 Once the document is found to be one protected by legal professional privilege, the exemption attaches, and the exercise of any discretion to release then lies with the agency pursuant to s 25(1)(a).

Folios 1 and 2
27 The case raises the issues of the degree to which, and time at which, a ‘whistleblower’ or internal complainant about misconduct should be given access to the report of an internal investigation, especially in circumstances where the complaint has been found substantiated.

28 It is more usual for the internal working documents to be relied upon in order to prevent disclosure of documents that form part of the deliberative, policy making environment of government agencies. This perspective tends to be reflected in the terms of the relevant exemption:

‘ 9 Internal working documents

(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.’

29 The difference here as compared to the usual case is that the documents in issue had as their purpose the formal investigation of serious complaints of misconduct, the assessment of those complaints and if sustained the making of recommendations for further action, such action including disciplinary action or criminal charges.

30 It is clear, I consider, that the test in paragraph (a) of cl 9(1) is met. The decision-making function to which the report is presently directed is the disciplinary power vested in the Commissioner of Police by s 181D of the Police Act 1991 which provides:

‘ 181D. Commissioner may remove police officers

(1) The Commissioner may, by order in writing, remove a police officer from NSW Police if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.

(2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister.

(3) Before making an order under this section, the Commissioner:

(a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and

(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and

(c) must take into consideration any written submissions received from the police officer during that period.

(4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from NSW Police.

(5) The removal takes effect when the order is made.

(6) (Repealed)’

31 The real dispute in this case is over whether paragraph (b) of cl 9(1) is satisfied. The burden lies on the agency (see FOIA s 61) to demonstrate that disclosure of the two reports ‘would be, on balance, contrary to the public interest’. The governmental interests favouring non-disclosure must be weighed against the community interest in open government and the desirability of the community being able to scrutinise the basis of government action (and inaction).

32 It was clear in the proceedings that the two officers who gave evidence, in particular Mr Douglass, had some sympathy for the position that the applicant found himself in. Nonetheless they advanced a range of operational considerations for non-disclosure.

33 Mr Gallagher stated that a notice to show cause was served on A on 10 January 2003.

34 Mr Gallagher gave a number of reasons in his evidence as to why disclosure would be contrary to the public interest:

(a) the reports are under consideration by the Commissioner’s Advisory Panel, a panel that may be established by the Commissioner to provide advice in relation to the exercise of the s 181D power, of which he is the convener;

(b) the reports are only part of a wider range of material to be considered by the Panel;

(c) if released under FOIA, there is no capacity to place restrictions on the way in which they might be used by the recipient or disseminated;

(d) there are considerations of procedural fairness to be taken into account especially as to A but also as to B;

(e) if, as might occur, the applicant was to become a witness in proceedings, as could occur if the matter finds its way to the Industrial Relations Commission, his evidence might be challenged, discounted or seen as tainted because it had been influenced by any access that he had been given to the investigative reports and its conclusions;

(f) release at this time might give rise to uninformed debate and public commentary that might be seen as affecting the right of A, and possibly B, to a fair hearing. The reports would, he considered, inevitably attract attention as A was a very senior officer who had been in charge of a high profile command. (The applicant acknowledged in cross examination that he had been active in approaching the media to highlight the injustice of his case.);

(g) delay is desirable so that any case negative to the view formed by Mr Douglass could be made;

(h) disclosure would be akin to releasing the prosecution brief in a criminal trial being made public before the trial, and witnesses could be challenged for tailoring their evidence as a result of their knowledge of what other witnesses might say;

(i) while B can not be made subject to disciplinary action, it remains desirable to withhold that report as it is directly relevant to the conduct of A. The allegation is that the two acted in concert as to some matters, and that B was affected by a conflict of interest in the way the complaint by the applicant was managed because of close prior association with A including in the conduct of police operations that had been the subject of public controversy as to their propriety (and criticism by the applicant to the same effect).

35 The applicant referred to the following factors as supporting disclosure of the reports:
(a) the gravity of the findings of the report and the great seniority of the officers the subject of those findings – it was in the public interest that these matters be known;

(b) the length of time it had taken to action the reports, it was at the time of hearing 10 months since the reports had been completed;

(c) the need to afford fairness to ‘victims’, which he saw as people like himself who had made complaints, had them delayed a long time, and had suffered unfair retribution for making complaints;

(d) the failure to suspend A once the decision was taken to ask him to show cause why he should not be dismissed (taken July 2002), and the failure (as he saw it) of the Commissioner to respond to his calls for that to occur made in late 2001 and the grant of an extension of time (to 17 April 2003) for A’s answer to the show cause notice.

36 As to the suspension issue, Mr Gallagher acknowledged that since new procedures had come into play, including the advisory panels, as from January 2003, it would be usual to consider suspension as a first option in this context.

37 The Tribunal said in Tunchon v Commissioner of Police [2000] NSWADT 73 at [15] referring to s 9(1)(b):

‘The inevitable construction is that the Act intends [is] that choosing between these outcomes [as to release or non-release] must depend upon an assessment of the effects of a present disclosure of the document in the particular circumstances in which the document was or will be used in its particular "decision-making" context.’
38 In that case the report subject to exemption bore on administrative reforms being considered by the Commissioner. The Tribunal observed at [27 ]:
‘…[T]here is, in my opinion, a clear public interest in continuing the secrecy surrounding some of the contents of the Report, at least until after the time when the Commissioner is able to make such further decisions as would be prejudiced by its premature release. I consider that on the evidence before me this time has not yet been reached.’
39 I acknowledge that care must be shown in not giving undue weight to generalised claims for protection of deliberative discussions in the senior echelons of government. Undue weight, perhaps, occurred in the list of factors frequently quoted from Re Howard and the Treasurer of the Commonwealth (1985) 3 AAR 169 at 178 per Davies P (‘the Howard factors’), though there may be some misinterpretation of the degree of protection those factors sought to confer (see further Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1995) AAT at [25]-[29] per McDonald DP).

40 The applicant referred to there being a public interest in him being informed of the contents of the report. The difficulty in attaching great weight to this claim - though I am of the view that it should receive some weight - lies in the fact that release under FOIA is unrestricted release to a citizen qua citizen. The citizen is then free to do as he or she sees fit. (They run the risk of say defamation proceedings if any further publication involves the circulation of untrue or otherwise defamatory matter.) But there is nothing that the agency having released under FOI can do to curtail that possibility. The agency, therefore, can not give any great weight to the special claim that an applicant might have.

41 I am satisfied from the considerations put forward by Mr Gallagher, viewed as a whole, that it would be contrary to the public interest to release the two reports at this stage.

42 The process currently under way in relation to A is one of the utmost gravity for A, and one of great importance to the maintenance of community confidence in the police service. The applicant has clearly suffered enormous frustrations. But his pain, though great, must not be allowed, as I see it, to lead (through disclosure of the reports at this point) to the process now underway being placed at risk or compromised.

43 In his submissions Mr Tunks for the police service acknowledged that once the proceedings currently in train against A were over it might be appropriate to release the reports.

Order

Determination under review affirmed.