Ekermawi v Commissioner of Police, NSW Police Service and the Premier of New South Wales

[2001] NSWADT 27

CITATION:	Ekermawi -v- Commissioner of Police, NSW Police Service and The Premier of New South Wales [2001] NSWADT 27
DIVISION:	General Division
PARTIES:	APPLICANT Saeed Samir Ekermawi RESPONDENTS Commissioner of Police, New South Wales Police Service The Premier of New South Wales
FILE NUMBER:	003156
HEARING DATES:	28/11/2001
SUBMISSIONS CLOSED:	11/28/2000
DATE OF DECISION:	02/21/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	access to documents - law enforcement & public safety
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 Rittau v Commissioner of Police, New South Wales Police Service and Anor [2000] NSW ADT 186 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93
REPRESENTATION:	APPLICANT S Ekermawi, as agent for applicant RESPONDENT J Tunks, solicitor
ORDERS:	1. The decision under review is affirmed.; 2. Subject to any further order of the Tribunal, confidential exhibit A, confidential documents filed on behalf of the respondent and respondent’s confidential submissions are not to be disclosed to any person and are to be returned pursuant to s 140 of the Administrative Decisions Tribunal Act 1997 (NSW) personally to the solicitor for the respondent, Mr Tunks after the expiration of 28 days from the date of this decision.

Introduction

1 This is an application by Mr Ekermawi under the Freedom of Information Act 1989 (FOI Act) for review of a decision by the Commissioner of Police (the Commissioner) refusing him access to certain documents.

2 Mr Ekermawi’s reason for requesting information from the Commissioner was that he was stopped by a police officer and his vehicle was searched. He was allegedly informed by the police officer that his car was being searched on the basis of a “warning” against his name in the Computerised Operational Policing System (COPS). Mr Ekermawi said in his application to the Tribunal:

I have done nothing to warrant the police COPS system to have information which allow member of the police force to harass me when and if I was stopped for speeding or for check up on drink driving. I wish to be treated like every other good non-criminal citizens of our country.

History

3 On 16 July 1999 Mr Ekermawi applied to the Commissioner under the FOI Act, for his records to be reviewed in his presence, and for information, by way of a warning against his name recorded in March 1999, to be removed. Although the Tribunal was not given a copy of Former Inspector Langburne’s response to this application, the Supplementary Statement of Reasons filed by Inspector Koopman on 31 October 2000, states that Inspector Langburne decided to release four documents which were COPS reports numbers H 7323626, E7551405, E4819508 and E2212165. Inspector Langburne also decided, pursuant to s 28(3) of the FOI Act, to neither confirm nor deny the existence of any other documents.

4 For reasons which are not apparent from any information I have, Mr Ekermawi also lodged an application under the FOI Act for his criminal record. The date of that application is not recorded. On 15 October 1999 Assistant Inspector Smollett responded to both FOI applications by providing Mr Ekermawi with a copy of his criminal record. In relation to warnings against Mr Ekermawi recorded on the police computer, Inspector Smollett stated that:
I have determined this date under sections 25(1)(a) and 28(3) of the Freedom of Information Act 1989 that to the extent that your application refers to the possible existence of intelligence material, I neither confirm or deny the existence of any documents or other material that you assert may exist.

5 Inspector Smollett also advised that if such documents did exist, they would be exempt documents in accordance with Clauses 4(1)(a), (b), (e) and Clauses 13(a) and (b) of Schedule 1 to the FOI Act.

6 When responding to Inspector Smollett’s letter on 21 October 1999, Mr Ekermawi wrote that he was not seeking access to his criminal record. His request was that “the material or information available to you which rendered me subject to be searched related to such information be deleted (removed) so my human right and integrity as a non-criminal member of the public in a free society be protected.”

7 Mr Ekermawi applied for an internal review of the original decision. The internal review, conducted by F Hutchison, affirmed that decision.

8 Mr Ekermawi lodged a complaint with the Ombudsman on 26 November 1999. The Ombudsman concluded that the determinations by the Commissioner were not unreasonable in the circumstances and decided not to take any further action in relation to the complaint.

9 In his application to the Tribunal dated 12 May 2000, Mr Ekermawi clarified that he was not seeking information under the FOI Act, but seeking that any information on the COPS system which gives rise to him being stopped or searched by police, be removed.

10 At the request of the Tribunal, Inspector Koopman provided a supplementary Statement of Reasons on 17 October 2000. In that statement a further determination was made to release two documents, namely Intelligence Report I 6812255 and Intelligence Report I 2820421. The latter document was released with the deletion of the names of two individuals in that report. The Statement of Reasons relied on s 28(3) of the FOI Act in neither confirming nor denying the existence of any other documents.

11 The Supplementary Statement of Reasons went on to say that if any material covered by Mr Ekermawi’s FOI application does exist, it would be exempt pursuant to Clause 4 of Schedule 1 to the FOI Act relating to documents affecting law enforcement and public safety.

12 Mr Ekermawi responded to the Supplementary Statement of Reasons in a letter dated 17 November 2000. Among other things, he requested that both I 6812255 and Intelligence Report I 2820421 be removed from the COPS system, but added that the reports did not meet the description of the documents in his FOI application.

Conduct of hearing

13 Mr Ekermawi was not present at the hearing but was represented by his father as his agent. Mr Tunks represented the Commissioner. At the hearing Mr Tunks advised the Tribunal that the Commissioner was no longer relying on s 28(3) of the FOI Act as a basis for not confirming or denying the existence of any other documents. He advised that there are two further documents which meet the description in Mr Ekermawi’s application under the FOI Act. Mr Tunks described these documents as follows:
· COPS Information Report I 6122375 and COPS Narrative I 6122375; and
· COPS Information/Intelligence Report I 3951539.

14 These documents were produced to the Tribunal confidentially, pursuant to s 55(b) of the FOI Act.

15 Mr Tunks’ submission was that the documents are “restricted documents” under Part 1, Schedule 1 to the FOI Act and that they come within the exemption in Clause 4(a), (b), (c) and (e) and Clause 13 of Schedule 1.

Identification of decision under review

16 Under s 53(1) of the FOI Act:
(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

17 The Tribunal must identify the decision that the Tribunal has the task of reviewing. That is not a straightforward task in this case because of several factors, namely:

• it appears that Mr E made two FOI applications;
• Inspector Koopman made a fresh determination of the application after the internal review had been carried out; and
• Mr Ekermawi insisted that he was applying for removal of documents, not access to them.

18 2 FOI applications. There was no explanation given by either party as to the reason that Mr Ekermawi lodged two applications under the FOI Act. Mr Ekermawi has made it clear that he is not interested in receiving documents which relate to his criminal record. Consequently, the only application in relation to which access was partially refused, is the application for information, by way of a warning against Mr Ekermawi’s name, recorded in March 1999.

19 Determination in Supplementary Reasons. The Tribunal requested an adequate Statement of Reasons, pursuant to s 52(2) of the ADT Act, after the application had been lodged. As well as setting out in more detail the administrator’s understanding of the applicable law and the reasoning processes that led the conclusions, Inspector R Koopman made a further determination. He stated that: “This is a fresh and independent determination of your application.” Two further documents were released and Inspector Koopman relied on s 28(3) in neither confirming nor denying the existence of any other material.

20 As far as I am aware, the Tribunal has never dealt with the question of whether an administrator has the power to change a decision after an internal review has been determined and an application lodged with the Tribunal. The Tribunal has power, under s 65 of the ADT Act to remit the decision to the administrator for reconsideration. In that case, the administrator may affirm, vary or set aside the decision and the applicant may either withdraw the application to the Tribunal or proceed with the application in relation to the new or varied decision. The Tribunal did not formally remit the matter under s 65 in this case. But as that part of the decision which was changed (namely the decision to release two further documents) is not challenged by Mr Ekermawi, I propose to consider the correctness of the decision, as varied.

21 Mr Ekermawi has consistently maintained that he is not seeking access to any documents, but rather the removal of certain documents from the COPS system. The only provision of the FOI Act which may give Mr Ekermawi the right to apply for removal of certain records is s 39. That section states that:
A person to whom access to an agency's document has been given may apply for the amendment of the agency's records:

(a) if the document contains information concerning the person's personal affairs, and
(b) if the information is available for use by the agency in connection with its administrative functions, and
(c) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading.
22 Leaving aside the question of whether an amendment includes removal of an entire record, s 39 only applies where a person has been given access to an agency’s document. Mr Ekermawi has been given access to certain documents while access to other documents has been denied. He can only make an application for amendment in relation to those documents to which he has been given access. In these circumstances, the Commissioner took a practical approach and treated Mr Ekermawi’s application as one for access. The Tribunal has a duty under s 73(3) of the ADT Act “to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” This section requires the Tribunal to treat Mr Ekermawi’s application as one for access, rather than removal, and to hear the matter on that basis.

23 In the light of all these considerations, I propose to treat Mr Ekermawi’s application to the Tribunal as an application to review the Commissioner’s decision provide access, or partial access, to COPS reports numbers H 7323626, E7551405, E4819508 and E2212165 and Intelligence Reports I 6812255 and I 2820421 and to deny access to documents I: 6122375, I: 6122375 (narrative) and I: 3951530.

Meaning of s 57

24 The Premier made a written submission to the Tribunal on the basis that he is a party to these proceedings pursuant to s 57(6) of the FOI Act. There has been some discussion and findings on the meaning of s 57 of the FOI Act by other Tribunal members in the matters of Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 (1 February 2000) and, more recently, Rittau v Commissioner of Police, New South Wales Police Service and Anor [2000] NSW ADT 186 (19 December 2000).

25 Section 57 states that:

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.
(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:
(a) the public, and
(b) the review applicant, and
(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.
(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.
(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.
(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.
(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.
26 Restricted documents are those listed in Part 1 to Schedule 1 of the FOI Act and include cabinet documents, executive council documents and documents affecting law enforcement and public safety.

27 Because of my conclusion in this case, that the documents in dispute are “restricted documents” and should not be released, I do not need to make a determination in relation to the issues raised by the Premier in his written submissions.

28 Similar submissions were made to the Tribunal in Rittau v Commissioner of Police, New South Wales Police Service and anor [2000] NSWADT 186. In that case Judicial Member Robinson summarised the issues as follows (at para 19):
In submissions put to me by the first and second respondents, it is contended that restricted documents under the FOI Act are in a special category of exemptions otherwise provided for under the FOI Act as a consequence of sections 55, 57 and 124 of the FOI Act. In short, it is contended that:

(a) by reason of section 57 of the FOI Act, the Tribunal is confined to an examination of whether there are reasonable grounds for the claim that the document is a restricted document;
(b) by reason of section 57 of the FOI Act, if a restricted document is held to be exempt under the Act, the Tribunal does not have the same power that the original decision maker has to determine access to the document as a matter of the discretion in section 25(1) of the FOI Act. The Tribunal has no power to grant access to a restricted document; and
(c) in any event, by reason of section 55 and 124 of the FOI Act the Tribunal does not have any power to give access to exempt documents in substitution for an agency's refusal to do so. It is said that the Tribunal has no "override discretion" as was held to exist in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93.
29 (By way of clarification, it should be noted that the Tribunal appears to have been referring to s 124 of the ADT Act, not s 124 of the FOI Act, in the passage quoted above.)

30 Each of these submissions was rejected by the Tribunal in Rittau. I also reject them for the same reasons. I agree with the Tribunal’s reasoning in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93.

Description of documents

31 The applicant submitted that the respondent was obliged to more fully describe the documents in dispute. The respondent’s submission was that there is no statutory duty to describe documents in any more detail than has already been provided.

32 Under s 17(d) of the FOI Act:
An application for access to an agency's document:

(d) shall contain such information as is reasonably necessary to enable the document to be identified.
33 Mr Ekermawi has described the documents as “a warning against my name . . . recorded in March 1999” and “my records”. The Commissioner has now responded to this application by revealing that there are two documents which meet that description, namely COPS Information Report I 6122375 and COPS Narrative I 6122375; and COPS Information/Intelligence Report I 3951539.

34 There is no provision in the FOI Act which requires an administrator to describe a document in a certain manner or to provide a certain level of detail in describing a document. In my view, the respondent has sufficiently identified the document for the purposes of the FOI Act.

Exemptions under Clause 4 and Clause 13

35 The clauses relied on by Mr Tunks on behalf of the Commissioner were Clause 4(1)(a), (b), (c) and (e) and Clause 13 of Schedule 1. These provisions are set out below:
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:

(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
(c) to endanger the life or physical safety of any person, 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
(2) A document is not an exempt document by virtue of subclause (1):
(a) if it merely consists of:
(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or
(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or
(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and
(b) if disclosure of the document would, on balance, be in the public interest.
36 Clause 13 states that:
A document is an exempt document:
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.
37 Clause 4(1)(a), (b), (c) and (e) were also relied on in the response of the Commissioner to Mr Ekermawi’s application (dated 15 October 1999) and the supplementary statement of reasons. These are the only reasons Mr Ekermawi has access to.

38 In support of his submissions, Mr Tunks filed confidential submissions and a confidential statement of Robert Koopman, Inspector of Police, dated 28 November 2000 was tendered. Part of the proceedings was held in the absence of the public, the applicant and his representative pursuant to s 57(2) of the FOI Act.

39 Having examined all of the evidence and submissions, I am satisfied that the documents in issue are exempt under the Cl 4(a) and/or (b) of Schedule 1 to the FOI Act. To be any more specific than that would risk disclosing exempt material in breach of s 55(a) of the FOI Act. While I do not accept every submission made in confidence by the Commissioner, I can indicate that paragraphs 12, 13, 14 and 18 of the confidential submissions and paragraphs 10(a), (b), (c), (d), (e) and (f) of Robert Koopman’s affidavit, canvassed issues and provided evidence which were directly relevant to the conclusions I reached.

40 In addition, I found that none of the exceptions in Cl 4(2) apply.

Override discretion

41 I have decided not to exercise my discretion to release the exempt documents. The nature of the Tribunal’s discretion was explored in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93. The Tribunal stated, at paragraph 85 of that decision, that:
. . . absent any special limitation on the Tribunal's review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act - indeed the duty - when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it.

42 At paragraph 90 of Mangoplah, the Tribunal went on to say that:
The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)).

43 I agree with this analysis. In the present case, the proper administration of Government, requires that the documents be withheld. Mr Ekermawi’s wants the documents removed from his file because he says he has never done anything to justify an adverse warning to be recorded against his name. He says that if he has done anything wrong, he should be charged. While I appreciate Mr Ekermawi’s point of view, his feelings of frustration and annoyance cannot be allowed to override the persuasive public policy considerations in keeping these documents secret. Again, it is not possible for me to identify these policies without risking disclosure of exempt material.

44 My finding is that all the information in the disputed documents is exempt. For that reason, there is no scope, under s 25(4) of the FOI Act, to give access to a copy of the document from which the exempt matter has been deleted.

45 While I can appreciate that Mr Ekermawi may be justifiably puzzled by the lack of reasoning in this decision, I hope he appreciates that I cannot disclose my conclusions or reasoning process in any more detail without being in breach of the FOI Act.