FA v NSW Police

[2003] NSWADT 196

CITATION:	FA v Commissioner of Police, New South Wales Police Service [2003] NSWADT 196
DIVISION:	General Division
PARTIES:	APPLICANT FA RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023284
HEARING DATES:	20/05/2003
SUBMISSIONS CLOSED:	05/20/2003
DATE OF DECISION:	08/28/2003
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - right of review
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 BY v Director General, Attorney General’s Department [2002] NSWADT 79 Cerminara v Commissioner of Police [2001] NSWADT 95 Chief Constable of the Greater Manchester Police v McNally (2002) EWCA Civ 14 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35 Odisho v Chief Executive, Roads and Traffic Authority [2001] NSWADT 49 Re Department of Health and Jephcott (1985) 62 ALR 421 Re Gold and Australian Federal Police (1994) 37 ALD 168 Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 Re McKenzie and Department of Social Security (1986) 65 ALR 645 Re Wiseman and the Commonwealth, unreported, FCA, 14 October 1989 Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11
REPRESENTATION:	APPLICANT In Person RESPONDENT D Paterson, solicitor
ORDERS:	Decision under review affirmed

REASONS FOR DECISION

1 The applicant, pursuant to the provisions of the Freedom of Information Act 1989 (FOIA), made a request dated 11 September 2002 for access to certain documents. The agency did not respond to the request within the time required, giving rise to a deemed refusal. The applicant applied on 18 October 2002 for an internal review. The internal review decision was issued belatedly on 25 February 2003. The applicant had filed an application for review with the Tribunal on 10 December 2002. The agency refused to grant access to certain documents. Some issues were resolved at planning meetings. The hearing was held on 20 May 2003.

2 The review application has as its genesis a statement made by a police officer in another FOI case brought by the applicant. The officer, in the course of giving evidence about the creation of an entry in the COPS system for which he was responsible, said he recollected that when he accessed the computer system on that occasion there was a warning against the applicant’s name to the effect that the applicant was a vexatious complainant against police. The applicant requested a copy of the document that the police officer said he had sighted (the ‘warning’ document), and he requested a copy of all documents created about and related to any other warnings about him that is to be found on CIDS, COPS or any other computer system used by the agency and including all non-computer related documents. In the next part of the request he asked for documents which underlay the various computer records found on COPS that he had been given in response to previous requests, and itemised the records affected.

3 By the time the matter came on for hearing, the agency was continuing to withhold two categories of documents. Those documents were referred to as Issue 2 and Issue 3 in the proceedings, and these descriptions will be retained.

4 The applicant placed in evidence the following material: documents released to him by the Australian Federal Police (AFP) in 1999 (Ex A); statement of agreement arising out of proceedings in the Commonwealth Administrative Appeals Tribunal dated 16 November 2000, for deletion and destruction of various documents (Ex B); copy letter from NSW Attorney General’s Department dated 3 May 1996 to the Director of Public Prosecutions attaching a document containing a series of allegations by an informant (Ex C); Exhibits D, E, F and G are documents of a similar kind.

5 In the case of both categories of documents in dispute the agency relied primarily on the law enforcement exemption protecting the existence or identity of any confidential source of information, cl 4(1)(b):

‘ 4 Documents affecting law enforcement and public safety

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

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

6 See generally Re Department of Health and Jephcott (1985) 62 ALR 421 esp at 425 per Forster J; Re McKenzie and Department of Social Security (1986) 65 ALR 645; Re Gold and Australian Federal Police (1994) 37 ALD 168 (Commonwealth cases) and in New South Wales, for example, Mauger v General Manager, Wingecarribee Shire Counc il [1999] NSWADT 35 at [34] and following.

7 Clause 4 falls into Part 1 of Schedule 1 and s 6(1) defines as a "restricted document" a document referred to in any one or more of the provisions of Part 1 of Schedule 1. Then s 57 of FOIA provides:

‘ 57. Consideration of restricted documents

(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.[sic]

(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.’

8 There was no appearance by the Minister administering the Act (the Premier).

9 As to s 57 and its operation, see further BY v Director General, Attorney General’s Department [2002] NSWADT 79 where I held, after reviewing previous Tribunal decisions, that:

(a) Section 57 is applicable to any application for review that seeks review of an agency claim that a document is a restricted document (save for those determinations where a Ministerial certificate has been issued pursuant to s 59 to which ss 58A, B and C are applicable);

(b) As provided by s 57(6) the Administering Minister is entitled to participate as a party in respect of the review of a claim of the kind referred to in Answer (a);

(c) 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.

10 The following reasons are expressed in a somewhat circumspect way, because of the requirement of s 55(a) of FOIA that in determining the review application the Tribunal is to ensure in its reasons for decision that it does not disclose any exempt matter.
The ‘Issue 2’ documents
11 The applicant says that he believes that the documents affected by this refusal are all already in the public domain. Accordingly release would not, in terms of cl 4(1)(b) ‘enable’ the identification of a confidential source as the source was already known to him. He said that he had received the same documents following a request to the AFP who had not sought to withhold them. He knew of their contents and went on to name the person he regarded as the informer to the police who gave them the report. The applicant referred to the material that he has produced (the various exhibits mentioned above) which he says demonstrates his point.

12 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. Nonetheless it relied on its confidentially filed affidavit material, and the submissions made in closed session; as well as on the reasons given to the applicant in the internal review determination.

13 I have inspected the documents. It is clear that the documents contain information of a sensitive kind involving allegations against the applicant. 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]. As to the other requirement of cl 4(1)(b) it is clear that the documents are connected with the law enforcement work of the agency.

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 choses 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 choses 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.

15 The Tribunal has now dealt at length in several decisions with the scope and application of cl 4(1)(b). See for example, Cerminara v Commissioner of Police [2001] NSWADT 95, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11, and Odisho v Chief Executive, Roads and Traffic Authority [2001] NSWADT 49.

16 As to the importance of upholding confidentiality, I said in DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215:

‘43 … The central importance of the protection of confidentiality to the operation of the criminal justice system has been discussed in such well known cases as D v National Society for the Prevention of Cruelty to Children [1978] AC 171, see per Lord Denning at 191; per Lord Diplock at 218; per Lord Hailsham at 229; and more recently, in Australia, Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-675; and in the United Kingdom, taking account of European Human Rights law, in Chief Constable of the Greater Manchester Police v McNally (2002) EWCA Civ 14 (25 January 2002).

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

‘It is critical that investigations be conducted in a confidential way until any charges are laid and any evidence in support produced publicly. Up to that point those who give information to law enforcement authorities are entitled to assume the confidentiality of the process. Strict confidentiality during the investigative process offers protection both to witnesses and to persons adversely implicated by allegations.’’
17 The Tribunal is 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. I am satisfied that it made the correct and preferable decision.
The ‘Issue 3’ documents
18 Here there was partial non-disclosure by the agency of the contents of three documents. The documents were referred to in the proceedings as D1, D2 and D3 and are the print out records of entries on the Intelligence Information System. The documents were provided to the Tribunal confidentially in unexpurgated form. The portions excised from the documents given to the applicant were highlighted.

19 Clause 4(1)(b) was also relied on by the agency to justify the excisions.

20 There was confidential affidavit material from the agency and submissions in confidence. The applicant also made submissions as to the documents, based in part on the portions released to him. He claimed to know the identity of the person sought to be protected in the case of document D1.

21 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.

22 As to D2, there is one item of information excised. The applicant referred to Attachment One in the agency’s internal review determination. It is clear that this item of information was revealed there. The agency did not press for the excision of this material. This excision does not remain in issue. The order which follows at the end of the reasons is not applicable to this aspect of the decision under review.

23 As to D3, there are 4 blocks of information excised.

24 The first block of information was said by the agency to be irrelevant to the applicant as it dealt with another person and an incident not said to involve the applicant, though it was held in a record under his name. The applicant submitted that therefore the record should be split, with this material removed and placed on a separate record. The submission is understandable. A person who is the subject of a police intelligence record may feel that in the event that in future they fall under police notice and such a record is accessed, they may be placed in a worse light as a result of having adverse information about someone else held alongside their name.

25 In my view it is inevitable that at times police intelligence records will refer to a number of individuals or a range of circumstances. It would be impractical to have them mechanically split records in the way suggested. In any case FOIA deals with records as they are found in administration. It provides a mechanism under which persons, in particular persons the subject of sensitive records, can access them and have them amended if certain deficiencies are present (see s 39). It does not give the Tribunal power to order splitting of records in the way suggested by the applicant.

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

27 The third block of information would if revealed also be likely to enable the ascertainment of the identity of the source. I am satisfied that cl 4(1)(b) is applicable.

28 The fourth block of information also gives details which might assist in identifying the informant. I am satisfied cl 4(1)(b) is applicable.

29 In terms of s 57(3) the agency had reasonable grounds for invoking the exemption in respect of documents D1 and D3, and that the decision is the correct and preferable one.

30 The agency also referred to cl 6 of Schedule 1 to FOIA, the privacy exemption, as providing another basis for refusal. The claim is tenable. But in light of my conclusion on the primary ground claimed it is not necessary to examine this issue closely or reach a final conclusion.

Suppression Order
31 I should add that after the close of the proceedings a name was uttered by the monitor while the applicant was still in the hearing room. As a result the agency made an urgent ex parte application heard on 23 May 2003. The Tribunal issued the following suppression order pursuant to s 75(2)(b) of the Administrative Decisions Tribunal Act 1997 :
‘The applicant and any other person (other than the Commissioner of Police or his officers) is prohibited from disclosing:

(i) the name recorded in the envelope attached to this Order as well as the address, picture or any other material that identifies, or may lead to the identification of that person; or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person.

I direct that a copy of this Order without the attached envelope be served on the applicant with the additional information that the name placed in the envelope is the name uttered by the monitor in his presence after proceedings were adjourned on 20 May 2003.’

32 A copy of the order was sent to the applicant on 23 May 2003.
Order

Decision under review affirmed.