FA v Commissioner of Police, New South Wales Police (GD)

[2004] NSWADTAP 7

Appeal Panel - Internal

CITATION:	FA v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 7
PARTIES:	APPELLANT FA RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	039069
HEARING DATES:	5/12/2003
SUBMISSIONS CLOSED:	12/15/2003
DATE OF DECISION:	03/10/2004
DECISION UNDER APPEAL:	FA v Commissioner of Police, New South Wales Police Service [2003] NSWADT 196
BEFORE:	Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	relevant/irrelevant considerations - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023284
DATE OF DECISION UNDER APPEAL:	08/28/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Australian Securities Commissioner Act 1989 Freedom of Information Act 1982 (Commomwealth) Freedom of Information Act 1989 Interpretation Act 1987
CASES CITED:	BY v Director General, Attorney General’s Department [2002] NSWADT 79 C and Department for Community Development, Re [1994] WAICmr 18 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Department of Health v Jephcott (1985) 62 ALR 421 Hamilton and Queensland Police Service [1994] QICmr 21 (1994) 2 QAR 182 Ingram v General Manager, Sutherland Shire Council [2000] NSWADT 69 Johns v Australian Securities Commissioner (1993) 178 CLR 408 Latham v Director General, Department of Community Services [2000] NSWADT 58 McCann and Queensland Police Service [1997] QICmr 10 Mills v Meeking (1990) 91 ALR 16 Prisoners’ Legal Service Inc and Queensland Corrective Services Commission [1997] QICmr 4 Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd 23 ALD 714 R v Abdullah [1999] NSWCCA 188 Re Pochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33 Re Rees and Australian Federal Police 57 ALD 686 Re Scholes and Australian Federal Police (1997) 44 ALD 299 Saleam v Commissioner of Police, NSW Police Service [2002] NSWADT 40 Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 Woodside and anor v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8
REPRESENTATION:	APPELLANT In person RESPONDENT M Tzannes, barrister
ORDERS:	1.The Tribunal’s decision to affirm the agency’s determination to refuse access to the Issue 2 documents is set aside to the extent that the decision relies on the agency having made out an exemption pursuant to Clause 4(1)(b) to Schedule 1 of the Freedom of Information Act 1989. Because the Tribunal did not deal with the exemption under Clause 6, that issue is remitted to the Tribunal pursuant to s 114(2)(b) of the Administrative Decisions Tribunal Act 1997. We leave to the Tribunal the question of whether to hear further evidence on that issue. ; 2.In relation to the deleted portions of document D1 of the Issue 3 documents, the Appeal Panel affirms the Tribunal’s decision. ; 3. In relation to the deleted portions of document D3 of the Issue 3 documents, the Appeal Panel affirms the Tribunal’s decision.

1 This is an appeal on a question of law by FA against a decision of the Tribunal to affirm a determination by the Commissioner of Police (the agency) not to disclose certain documents, or parts of documents, to him. FA claims that a certain person, who we refer to in these reasons as Mr X, has been writing anonymous letters to police and others falsely accusing him of having engaged in paedophile activities. He also says that Mr X has accused him of writing anonymous letters and making slanderous allegations about Mr X. FA has obtained anonymous letters which he claims were written by Mr X, from the Australian Federal Police under the Freedom of Information Act 1982 (Cth) as well as from State agencies. He provided copies of those letters to the Tribunal. He maintains that some of the documents to which the agency is refusing him access are the same documents he has already been given by other agencies. In those circumstances, he submits that the documents are not exempt and that the agency should give him access to them. Apparently he wishes to obtain the documents from NSW Police in order to apply for them to be amended under the Freedom of Information Act 1989 (FOI Act).

2 The documents in dispute fall into two categories. The first category of documents (referred to in the Tribunal’s decision as “Issue 2” documents) comprises 11 folios. The Issue 2 documents are a summary document produced by the Australian Federal Police (Folios 1, 2 and 3) and three letters: two of one page (folios 4 and 11) and one of six pages (folios 5, 6, 7, 8, 9 and 10). These are the letters to which FA says the Australian Federal Police has already given him access. The second category of documents (referred to in the Tribunal’s decision as “Issue 3” documents) contains three records of entries on the agency’s Intelligence Information System. The three documents in this category (D1, D2 and D3) were disclosed to FA with certain passages deleted. At the hearing before the Tribunal, the agency gave FA access to the deleted material in D2 and advised FA that none of the deleted material in D3, apart from the second deletion of a single word, related to him. Consequently, we have assumed that the passages deleted from D1 and the single word deleted from D3 are the only deletions now in issue in relation to the Issue 3 documents.

Appeal Panel’s jurisdiction

3 The power of the Appeal Panel to hear this matter is found in s 113 of the ADT Act. Section 113 of the ADT Act states that:

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

(3) An appeal must be made:

(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or

(b) within such further time as the Appeal Panel may allow.

(4) An appeal is to be made in the manner prescribed by the rules of the Tribunal.

4 FA appealed on questions of law and did not apply for leave to extend the appeal to the merits of the decision.

5 These reasons do not provide detail of the content of the documents in dispute because under s 55(a) of the FOI Act the Tribunal “is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter.” In order to protect the agency’s right of appeal to the Supreme Court, we have not disclosed the substance of the material over which an exemption is claimed.

Key provisions of the FOI Act

6 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. The agency must determine whether access is to be given or refused (s 24). One ground on which an agency may refuse access to a document is if it is an exempt document (s 25(1)(a)). However, under s 25(4), an agency is not to refuse access to an exempt document

(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and

(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy

7 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". In this case, the agency relied on the exemptions in Cl 4(1)(b) (confidential source of information) and Cl 6(1) (personal affairs). Clause 4(1)(b) states that:

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained,

8 Exceptions to that provision are set out in Cl 4(2). In particular, Cl 4(2)(a)(v) and (b) state that:

(2) A document is not an exempt document by virtue of subclause (1):

(a) if it merely consists of:

...

(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.

9 Clause 6 states 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.

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

Tribunal’s decision

11 The Tribunal affirmed the agency’s decision in relation to both the Issue 2 and the Issue 3 documents on the basis that it had discharged its onus of establishing that the documents, or parts of the documents, were exempt from disclosure pursuant to Cl 4(1)(b) of Schedule 1 to the FOI Act. The agency did not address any of the exceptions in Cl 4(2). As the burden of establishing that the determination is justified lies on them, we have assumed that the agency did not regard any of the provisions in Cl 4(2) as applicable. The significance of that provision is addressed later in these reasons. Although the agency also relied on Clause 6 of Schedule 1 (documents affecting personal affairs) the Tribunal did not come to a final view on the applicability of that exemption because it decided that the disputed material was exempt by virtue of Cl 4(1)(b).

12 Documents that fall within an exemption in Part 1 of Schedule 1 (which includes Cl 4(1)(b)) are “restricted documents.” Section 57 of the FOI Act deals with the manner in which the Tribunal should review a decision that a document is a restricted document. The Tribunal rejected the agency’s submission that the Tribunal’s role in relation to restricted documents was merely to determine whether the claim for exemption was supportable by “reasonable grounds”. At [9] of its decision, the Tribunal adopted the reasoning in BY -v- Director General, Attorney General's Department [2002] NSWADT 79 in applying a two step process which it explained in the following terms. “If the Tribunal finds that there are reasonable grounds for the claim, its jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision.” This aspect of the Tribunal’s reasoning was not challenged on appeal.

Appeal Panel hearing

13 FA did not appear at the hearing of the appeal of 5 December 2004. He telephoned the registry on the morning of the hearing to say that he would be approximately one hour late because he had run out of paper for his printer. The Appeal Panel asked the registry to advise FA that he had notice of the date and time of the hearing and that it would commence at 10 am as scheduled. The hearing commenced at that time in the absence of FA. At the close of the hearing, the Tribunal made the following directions:

1. FA to file and serve any written submissions by 5 pm on 8 December 2003.

2. The agency to file any written submissions in reply by 22 December 2003.

3. Decision reserved.

14 On 8 December 2003 FA purported to file an Amended Notice of Appeal and further submissions. The Tribunal cannot take the Amended Notice of Appeal into account because the hearing concluded on 5 December 2003. Although each party was given an opportunity to file further written submissions, that opportunity did not extend to the filing of an Amended Notice of Appeal. In accordance with our obligations under s 73(4)(c) of the Administrative Decisions Tribunal Act 1997 (ADT Act) FA has been given “the fullest opportunity practicable to be heard or otherwise have (his) submissions considered in the proceedings.” We have taken into account the appellant’s submissions of 8 December 2003 only to the extent that they elaborate on his initial grounds of appeal.

Grounds of Appeal

15 The Notice of Appeal sets out four grounds of appeal:

(1) FA maintained that he had already lawfully obtained the Issues 2 documents from other sources including the Australian Federal Police under the Freedom of Information Act 1982 (Cth). In those circumstances FA submitted that it was contrary to law for the agency to refuse access to those documents because they had now entered the public domain.

(2) FA submitted that the Tribunal failed to consider or adequately consider each of the requirements of Cl 4(1)(b).

(3) FA submitted that the Tribunal failed to consider public interest factors in its interpretation of Cl 4(1)(b).

(4) FA submitted that the Tribunal erred by refusing to accept into evidence two letters provided by FA which are relevant to the identity of the author of letters referred to in document D1.

16 The issue concerning the admission of the letters relates to the Issue 3 documents and will be considered below under that heading.

Issue 2 documents: already in the public domain?

17 The first ground of appeal was that it was contrary to law for the agency to refuse to give FA access to the Issue 2 documents in circumstances where he had already lawfully obtained those documents from the Australian Federal Police. The Tribunal did not make any finding as to whether the documents to which FA had been granted access by the Australian Federal Police (AFP) under the Freedom of Information Act 1982 (Cth), or through other sources including the Attorney General’s Department (NSW) and the Director of Public Prosecutions (NSW), were the same as any of the documents in dispute in these proceedings. However the Tribunal stated at [12] that:

The agency did not necessarily dispute that the applicant may have received by other means the documents it is seeking to withhold, including via the FOI request to the AFP.

18 The Tribunal’s conclusion in relation to the possibility that FA may already have copies of some or all of the Issue 2 documents appears at [14]:

The agency is entitled to continue to assert the exemption in relation to its documents even though copies of them may now be held by the applicant. The Tribunal is aware that sometimes where the applicant has obtained the documents (lawfully) by other means the relevant agency chooses not to continue to press a claim for exemption. Refusals to release documents where an exemption applies are discretionary: s 25(1)(a) (see use of word 'may'). But if the agency chooses to continue to press an exemption it is entitled to have that decision assessed by reference to the terms of the relevant exemption clause in FOIA. Sometimes the application of the criteria found in the exemption to the circumstances may mean that the fact of the applicant's knowledge of the exempt material is a relevant consideration bearing on the ultimate decision of the Tribunal.

19 The Tribunal went on to decide that it was satisfied that the agency had made the correct and preferable decision in refusing access to the Issue 2 documents in reliance on the exemption in Cl 4(1)(b) of Schedule 1 to the FOI Act.

20 FA’s submissions. Although FA said he already had copies of the Issue 2 documents, it was apparent that he was seeking access to them from the agency in order to exercise his rights under s 39 of the FOI Act to request amendments to those documents. FA relied on Johns v ASC ([1993] 178 CLR 408 at 432– 433 per Brennan J and 438 per Dawson J) in support of his submission that it is contrary to law for an agency to refuse to grant access to a document once the agency is aware that the document is in the public domain. In that case Brennan, Dawson and Toohey JJ held that information contained in transcripts released to the media was in the “public domain” and had consequently lost its confidential nature. Under s 127(1) of the Australian Securities Commissioner Act 1989 (Cth) the Australian Securities Commission was required to “take all reasonable measures to protect from unauthorised use or disclosure information given to it in the exercise of its powers.” But once the information has entered the public domain by a “lawful gate” the High Court (per Brennan J at 432) held that it could be freely used or disseminated.

21 Agency’s submissions. The agency maintained that whether or not the documents are in the “public domain” is not relevant to the issue of whether the exemption in Cl 4(1)(b) applies. Alternatively, even if the applicant has been given a copy of some or all of the Issue 2 documents pursuant to freedom of information legislation that does not mean that the documents are in the “public domain”. According to the agency, documents released under freedom of information legislation do not enter the public domain unless the applicant publishes those documents. In support of that submission the agency relied on Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd N 88/1223 and N 89/537 AAT No 7245 (23 ALD 714). In that case information was sought under the FOI Act (Cth) in relation to a contraceptive device. Evidence was provided at the hearing that a large number of documents for which a claim for confidentiality was made, was already in the public domain because the information was contained in published articles. The Administrative Appeals Tribunal (AAT) concluded at [44], that if information of an identical kind to that in the disputed documents had already been disclosed to the public then its commercial value would not be further diminished by disclosure under the FOI Act (Cth). However that reasoning related to the applicability of the exemption in s 43(1)(b) of the Commonwealth Act which relates to commercial information where the value of that information could reasonably be expected to be destroyed or diminished if the information were disclosed. It is not of assistance to the Appeal Panel in determining an exemption under Clause 4(1)(b) of the NSW legislation.

22 Appeal Panel’s conclusion on ‘public domain’ ground. 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 terms of the FOI Act. In order to lawfully refuse access to any document it holds, the agency must establish that the document falls within one of the provisions of s 25. There is no reference in the legislation to a document being in the public domain. Asking whether a document is in the public domain is a classic example of asking the wrong question. The answer is not determinative either of an applicant’s right to be given access to a document or of an agency’s entitlement to refuse access.

Issue 2 documents – applicability of exemption

23 Grounds 2 and 3 of the appellant’s Notice of Appeal require the Appeal Panel to interpret Cl 4(1)(b). A document, or part of a document, will be exempt under s 4(1)(b) if:

- there is a confidential source of information;

- the information which the confidential source has supplied relates to the enforcement or administration of the law; and

- disclosure of the document, or part of the document, could reasonably be expected to either:

-enable the existence of the confidential source of information to be ascertained; or

-enable the identity of the confidential source of information to be ascertained.

24 Confidential source of information. The Tribunal found, at [13], that:

I am satisfied that the maker of the allegations would have had an expectation of confidentiality, and there is nothing to suggest any change of mind. I have drawn that inference having regard to all the circumstances, in line with the approach approved in Re Wiseman and the Commonwealth , unreported, FCA, 14 October 1989, cited by Cossins, Annotated Freedom of Information Act New South Wales (1997) at [113.20].

25 In response to that passage, FA submitted that the documents have lost any confidential status they may have had after they were provided to him by other agencies. This submission focuses on the confidentiality of the document itself. Under Cl 4(1)(b) it is the existence or identity of the source of the information that must be confidential, not the subject matter of the document. In Johns v Australian Securities Commission (1993) 178 CLR 408, the High Court found that no obligation of confidence existed in relation to certain documents once they had entered the public domain. But the question in this case is not whether an obligation of confidence exists in relation to the documents, but whether the source of the information is confidential. Because the test in Cl 4(1)(b) relates to the point in time when the information is disclosed, subsequent publication of the information does not affect the fact that it came from a confidential source.

26 The Tribunal quoted the case of Wiseman v Commonwealth in which the Federal Court took into account the circumstances surrounding the communication of the information. In Department of Health v Jephcott (1985) 62 ALR 421 at 426, Keely J found that the phrase "a confidential source of information" in s 42(1)(b) of the FOI Act (Cth) (which is substantially the same as s 4(1)(b)) means “a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential.” The Tribunal’s conclusion on this point was consistent with the applicable case law.

27 Enforcement or administration of the law. The second element of Cl 4(1)(b) is that the information that the confidential source has supplied relates to the enforcement or administration of the law. The Tribunal found at [13], that it did. FA asserted that the Tribunal failed to consider this question adequately, or at all. It does not appear from the transcript of the proceedings or from written submissions that this issue was in dispute before the Tribunal. Nevertheless, the onus is on the agency to establish each element of the exemption. Having examined the “exempt” documents, we are satisfied that the Tribunal was correct in concluding that they contain information which relates to the enforcement of the law.

28 Existence or identity of confidential source of information. The Tribunal interpreted Cl 4(1)(b) to mean that regardless of any previous disclosures which would have enabled the existence or identity of a confidential informant to be ascertained, the agency could still rely on Cl 4(1)(b) because, impliedly, the information was disclosed each time a person was given access to it. The Administrative Appeals Tribunal (AAT) took a different approach in Re Scholes and Australian Federal Police (1997) 44 ALD 299. In that case the AAT applied s 37(1)(b) of the FOI Act (Cth) which is in similar terms to Cl 4(1)(b). Section 37(1)(b) states that:

A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law;

29 Some of the documents in dispute in Re Scholes had been provided to the applicant by another agency under freedom of information legislation. The AAT held at 306, that if documents had already been intentionally disclosed by another agency, the same documents could not be “disclosed” by any further release of those documents. The AAT relied on the definition of “disclose” in the Shorter Oxford English Dictionary:

1. trans. To open up; to unfasten;

2. trans. To uncover; to remove a cover from and expose to view

3. To discover;

4. To open up to the knowledge of others; to reveal.

30 At p 306, the AAT concluded that:

We find that the further release of the four statements which have already been released as a result of an FOI application made by Mr Scholes to the DPP would not disclose anything. Any information that can be “opened up, uncovered, discovered” or disclosed by their release has already been disclosed by the release of or disclosure of those documents by the DPP.

We are satisfied that the release, by the DPP to Mr Scholes, of copies of those statements has already given him access to any information which may be contained in those documents and which would disclose, or enable him to ascertain the existence or identity of, a confidential source of information in relation to the enforcement of the law.

31 This Tribunal has referred to Re Scholes in Latham -v- Director General, Department of Community Services [2000] NSWADT 58 at [29]-[30]; Ingram -v- General Manager, Sutherland Shire Council [2000] NSWADT 69 at [30] and Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 (14 October 2003) at [21].

32 The Queensland Information Commissioner took a similar approach in McCann and Queensland Police Service [1997] QICmr 10 (10 July 1997); (1997) 4 QAR 30. The Commissioner rejected the agency’s claim for exemption under s 42(1)(b) of the Freedom of Information Act 1992 (Qld) (the equivalent to Cl 4(1)(b)) because the documents in dispute, which disclosed the identities of persons who had supplied information to police, had already been put to the applicant in an interview.

33 The AAT distinguished Re Scholes in Re Rees and Australian Federal Police 57 ALD 686. In that case the AAT was asked to apply s 33(1)(b) of the FOI Act (Cth), not s 37(1)(b). Among other things s 33(1)(b) exempts a document if its disclosure would divulge information communicated in confidence by a foreign government to an authority of the Commonwealth. The AAT concluded at p 705, that even if the foreign government had disclosed the information to the applicant the character of the information that was originally communicated remains the same. We cannot discern the distinction which the AAT was attempting to make given that in Re Scholes the question was not whether the information as originally communicated was confidential, but whether subsequent disclosure meant that nothing new would be disclosed or divulged if the documents were released.

34 The agency sought to distinguish Re Scholes from the present case on the basis that the agency in Re Scholes conceded that the statements in the possession of the applicant and those for which an exemption was being claimed, were identical. In this case, the agency did not make such a concession and the Tribunal did not make a finding as to whether or not the documents were identical. In the alternative the agency submitted that the decision in Re Scholes was not binding on the Appeal Panel, being a decision of the Administrative Appeals Tribunal.

35 It is correct that the agency did not specifically concede that any of the Issue 2 documents were the same as the documents tendered by FA (See Exhibits A, D, E, F & G). However, the Tribunal noted at [12] that “The agency did not necessarily dispute that the applicant may have received by other means the documents it is seeking to withhold. . .” The Tribunal decided at [17], that it was “. . . satisfied that the agency has ‘reasonable grounds’ for claiming this exemption (see s 57(3)) of FOIA) and, further, has justified its reliance on this exemption in this case.” Regardless of whether a finding of fact was made on that issue, the Appeal Panel is entitled to examine the Tribunal’s legal reasoning, which included the hypothesis that the documents were the same, and determine whether their conclusion is correct.

36 In determining which of the two interpretations of Cl 4(1)(b) outlined above at [28] is legally correct, we must apply the principles of statutory construction. Section 33 of the Interpretation Act 1987 obliges the Appeal Panel to take a "purposive" approach to statutory interpretation. Section 33 provides that:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

37 This provision requires the Appeal Panel to take into account the purpose of the FOI Act when interpreting Cl 4(1)(b). We must consider the purpose of the legislation to determine whether there is more than one possible construction. If there is, then the construction that is consistent with the purpose of the legislation should be preferred. (Mills v Meeking (1990) 91 ALR 16 at 30-31.) This principle is expanded by s 5(3)(a) of the FOI Act which states that:

(3) It is the intention of Parliament:

(a) that this Act shall be interpreted and applied so as to further the objects of this Act

38 The objects of the FOI Act are set out in s 5(1):

(1) The objects of this Act are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government, and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

39 Notably, it is not an objective of the FOI Act to preserve the flow of information to law enforcement agencies by confidential informants. Any restrictions on a person’s right to access information are only those “reasonably necessary for the proper administration of government.” Section 5(2)(b) states that:

(2) The means by which it is intended that these objects are to be achieved are:

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government

40 Consequently, the purpose of Cl 4(1)(b) is to provide an exemption to a person’s right to access information to the extent that it is reasonably necessary for the proper administration of Government. In interpreting Cl 4(1)(b) it must also be remembered that the onus lies on the agency to make it out. As Kirby P (as he then was) said in Commissioner of Police v District Court of NSW (Perrin’s case) (1993) 31 NSWLR 606 at 625:

Prima facie, the document in its entirety must be disclosed. To withhold disclosure, it is for the agency to make out the application for an exemption. Thus the question is not why the information should be disclosed by why it should be exempted.

41 Applying these principles to the present case, FA has a legally enforceable right to be given access to the disputed documents unless the agency can establish that those documents fall within the exemption in Cl 4(1)(b). The words “disclosure”, “enable” and “ascertained” in that provision can either be interpreted as referring to the uncovering or exposing of that information regardless of whether it has previously been lawfully disclosed or they can be interpreted as being confined to cases where disclosure would reveal the information for the first time. The policy objective of Cl 4(1)(b) is to prevent the existence or identity of any confidential source of information being ascertained because to do so is likely to discourage informants from coming forward in the future. Parliament regarded this exemption as being “reasonably necessary for the proper administration of Government.” However once the relevant information has been lawfully disclosed to the applicant, would-be informants would not be discouraged from coming forward if the same information is disclosed to the same person again. The existence and/or identity of the informant have already been disclosed. Preventing further disclosure of the same information cannot be said to be “reasonably necessary for the proper administration of Government.”

42 It follows that if some or all of the Issue 2 documents have previously been lawfully provided to FA, and they disclosed the existence or identity of a confidential source of information in relation to law enforcement, the Tribunal has made an error of law in relation to its ultimate conclusion that the agency made the correct and preferable decision in refusing access to the Issue 2 documents pursuant to Cl 4(1)(b).

43 As we have noted, the Tribunal did not make a finding as to whether or not the Issue 2 documents are the same as those that the applicant provided to the Tribunal. We assume that the Tribunal was concerned that if it did so, and found that the documents were identical, then that finding would disclose exempt material contrary to s 55(a) of the FOI Act. The Appeal Panel has come to the view that if the documents are identical, then the exemption in Cl 4(1)(b) does not apply. We are faced with the option of either remitting the question of fact to the Tribunal or making the finding ourselves, either in publicly available reasons or in confidential reasons. It is pointless to remit the matter to the Tribunal because, contrary to the agency’s submission, the finding can easily be made on the basis of the publicly available transcript and the evidence. If we made the finding in confidential reasons, it would be obvious if we subsequently set aside the Tribunal’s decision that we found that the documents were the same. Equally if we affirmed the Tribunal’s decision it would be obvious that our finding was that the documents were not the same. Consequently, there is no practical alternative but to make the finding and thereby confirm or dispel FA’s suspicion that the documents are identical.

Finding of fact

44 FA gave unchallenged evidence that the Australian Federal Police (AFP) had given him folios 4, 5, 6, 7, 8, 9, 10 and 11 of the Issue 2 documents under the FOI Act (Cth). Those documents are the three letters referred to in [1] of this decision. That evidence was confirmed by the content of Exhibit A. We find that on 11 March 1999, pursuant to a request under the FOI Act (Cth) the Australian Federal Police gave FA access to folios 4 to 11 of the Issue 2 documents. There is other evidence, supported by Exhibits C, D, E, F and G that FA obtained some or all of folios 4 to 11 from other government agencies. Folios 1, 2 and 3 are documents prepared by the AFP and comprise a cover page and a two-page summary of the information contained in folios 4 to 11. There was no evidence that the appellant had received copies of those documents. Nevertheless, none of the information in those three folios meets the test set out in Cl 4(1)(b) because nothing relating to the existence or identity of a confidential source of information is disclosed in those documents that has not already been previously disclosed to the applicant when the AFP gave FA access to folios 4 to 11. As we have concluded that the exemption in Cl 4(1)(b) has not been made out in relation to the Issue 2 documents, there is no need to consider the exceptions to that exemption in Cl 4(2).

Orders in relation to Issue 2 documents

45 The Tribunal’s decision to affirm the agency’s determination to refuse access to the Issue 2 documents is set aside to the extent that the decision relies on the agency having made out an exemption pursuant to Clause 4(1)(b) to Schedule 1 of the FOI Act. Because the Tribunal did not deal with the exemption under Clause 6, that issue is remitted to the Tribunal pursuant to s 114(2)(b) of the ADT Act. We leave to the Tribunal the question of whether to hear further evidence on that issue.

Issue 3 documents

46 Introduction. As we said in [1] above, the second category of documents (referred to in the Tribunal’s decision as “Issue 3” documents) contains three records of entries on the agency’s Intelligence Information System. The three documents in this category (D1, D2 and D3) were disclosed to FA with certain passages deleted. (See s 25(4)). At the hearing before the Tribunal, the agency gave FA access to the deleted material in D2 and advised FA that none of the deleted material in D3, apart from the second deletion of a single word, related to him. Consequently, we have assumed that the passages deleted from D1 and the single word deleted from D3 are the only deletions now in issue in relation to the Issue 3 documents. The appellant does not seek the CNI number of the informant.

47 Tribunal’s findings on D1. In relation to D1, the Tribunal made the following finding:

As to D1, I am satisfied that all the material excised contains information of the following kinds: information directly identifying a source of the information in relation to the applicant recorded in the documents; information which gives particulars as to the informant (for example, address information) which, if made known, would be likely to enable the ascertainment of the person's identity. I make no finding on whether or not the applicant has correctly identified the person whose identity is sought to be protected.

48 Content of D1. There was no evidence before the Tribunal that the appellant had ever been given D1 in its entirety either by the agency or any other person. The appellant’s submission in relation to the deleted portions of D1 was that he had been given certain information which made it irrefutable that Mr X was the source of complaints about him referred to in that document. The parts of D1 (a document created on 16/2/2000) to which FA was given access include the following passage:

The complainant (name deleted) contacted police and stated that he had received letters through the general postal system which related to paedophile material and slanderous documents against him.

49 The appellant gave evidence before the Tribunal that some time in 1998:

I received a visit from two police officers, Federal Police officers, who informed me that they had received a complaint from [Mr X (name provided)] to the effect that I had been writing anonymous letters and sending material, vicious malicious material, in the mail to him.

50 The appellant also told the Tribunal that he knew the identity of Mr X because “he alleged to my face that I wrote anonymous letters relating to him.” The Tribunal implied that because that evidence was hearsay it would have to be careful in determining what weight, if any, to give it. The appellant then volunteered that he would be quite happy to summons Mr X to give that evidence. On the basis of this and other information, FA concluded that Mr X was the source of the complaint to the agency recorded in D1. None of the appellant’s evidence was challenged by the agency in cross-examination.

51 The appellant sought to tender two letters which he said confirmed that the existence and identity of the person who had supplied information to the police had already been disclosed to him. The Tribunal refused to admit those documents into evidence.

Refusal to admit documents

52 The fourth ground of appeal was that the Tribunal wrongly refused to admit two letters into evidence. The first letter, dated July 1998, is from the Community Justice Centre (CJC) to FA offering a mediation between FA and Mr X. According to FA, the letter advises him that Mr X contacted the CJC and requested assistance in resolving disputes with FA. FA gave evidence that he rang a person from the Community Justice Centre who informed him that Mr X had alleged that FA was writing anonymous letters and making slanderous allegations against him. FA said that he told the person that he was the victim of the slanderous and malicious allegations and that he was not prepared to attend a mediation. FA was asking the Tribunal to draw the conclusion on the basis of the letter (and other evidence) that Mr X was the complainant referred to in D1. The Tribunal declined to admit the letter into evidence.

53 The second document that the Tribunal did not admit into evidence was an anonymous letter, which FA believes was written by Mr X. That letter apparently refers to “(Nickname) X” which, according to FA, was Mr X’s nickname. FA submitted that Mr X’s nickname is also one of the names which has been deleted in D1. FA submitted that both the letters go to the issue of the identity of the complainant in D1.

54 According to the agency, even where the applicant says that he knows the identity of the informant, the Tribunal cannot release information to confirm or deny the existence of an informant or his or her identity. (Saleam v Commissioner of Police, NSW Police Service [2002] NSWADT 40; R v Abdullah [1999] NSWCCA 188.) The Tribunal considered that neither of the two letter was relevant to the issues in dispute.

55 In several cases courts and tribunals have drawn a distinction between the situation where a person suspects another person to be an informant and the situation where a person knows who the informant is because that information has been disclosed to him or her. (See Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 at [53]; C and Department for Community Development, Re [1994] WAICmr 18 (12 October 1994) at [24] and Prisoners' Legal Service Inc and Queensland Corrective Services Commission [1997] QICmr 4 (27 March 1997) at [45].

56 In McCann and Queensland Police Service [1997] QICmr 10 (10 July 1997); (1997) 4 QAR 30 the Queensland Commissioner rejected the agency’s claim for exemption under s 42(1)(b) of the Freedom of Information Act 1992 (Qld) (the equivalent to Cl 4(1)(b)) because the documents in dispute, which disclosed the identities of persons who had supplied information to police, had already been put to the applicant in an interview. The documents in issue concerned a police investigation into possible criminal offences or breaches of discipline by a serving police officer, and the applicant for access was the police officer who was the subject of the investigation. In that case the identities of some of the sources of information were made known to the applicant by a police officer during the course of his investigations.

57 Similarly, in Hamilton and Queensland Police Service [1994] QICmr 21 (26 August 1994); (1994) 2 QAR 182 the Commissioner held at [63] that certain information had already been released to the applicant in another form and there was no reasonable expectation of prejudicial effects from its release in the form recorded in two of the disputed documents.

58 In determining whether the Tribunal made an error of law in refusing to admit the two letters, it must be borne in mind that the Tribunal is not bound by the rules of evidence. (Section s 73(2) of the ADT Act) Nevertheless, the Tribunal must rely only on logically probative evidence. (See Woodside and anor v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8, [43]-[52]). While evidence must be logically probative and relevant to the issues before the Tribunal, the Tribunal can inform itself in whatever manner it sees fit. (See Re Pochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33.)

59 In this case neither the evidence that was admitted, nor the two documents which were not admitted, disclose the identity of the person who provided the information recorded in D1. FA has merely presumed that Mr X is the confidential source of that information based on the admitted and non-admitted evidence relating to other incidents. Communication of information which allows an appellant to draw his or her own inference as to the identity of a confidential source of information is insufficient to constitute “disclosure” of that information within the meaning of that word in Cl 4(1)(b).

60 The material which FA sought to tender was not relevant to the question of whether the identity of the informant referred to in D1 had already been disclosed to FA. Just because FA had been told that Mr X had made similar allegations about him in the past, does not mean that his identity has been disclosed to him in relation to the allegations in D1. The Tribunal was therefore correct to refuse to admit the documents the appellant sought to tender.

61 Clause 4(2)(a)(v) contains an exception for a document which merely consists of “a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation” as long as disclosure would, on balance, be in the public interest. Although D1 is a report on a law enforcement investigation it has not been previously disclosed to the appellant.

62 In relation to the deleted portions of document D1 of the Issue 3 document, the Appeal Panel affirms the Tribunal’s decision.

Tribunal’s decision on D 3

63 As we understand it, the only deleted passage in dispute in this document is the second block of information. The Tribunal’s conclusion in relation to this deletion was that:

The second block of information contains the identity of a source. I am satisfied that Cl 4(1)(b) is applicable.

64 We can detect no error in relation to the Tribunal’s finding and consequently affirm its decision.