Ferns v Commissoner of Police, NSW Police

[2006] NSWADT 198

CITATION:	Ferns v Commissoner of Police, NSW Police & anor [2006] NSWADT 198
DIVISION:	General Division
PARTIES:	APPLICANT Craig Ferns FIRST RESPONDENT Commissioner of Police, NSW Police SECOND RESPONDENT Premier of New South Wales
FILE NUMBER:	053316
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	06/05/2006
DATE OF DECISION:	07/03/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	access to documents - business affairs - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - 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:	Bissett v Director-General, Department of Gaming and Racing [2004] NSWADT 160 BY v Director General, Attorney General’s Department [2002] NSWADT 79 Chapman v Commissioner of Police, New South Wales Police [2004] 35 Johnson v Queensland Transport; Department of Public Works (Third Party) [2004] QICmr 1 (5 January 2004) Kennedy v Commissioner of Police [2001] NSWADT 39 Cerminara v Commissioner of Police and Anor [2001] NSWADT 95 Rittau v Commissioner of Police [2000] NSWADT 186 Saxon and Australian Maritime Authority (unreported, AAT, Cth, 19 June 1995)
REPRESENTATION:	APPLICANT H Ferns, agent FIRST RESPONDENT W Pisani, agent SECOND RESPONDENT J McDonnell, solicitor
ORDERS:	1. The decision of the first respondent to refuse the applicant access to document 1, 7 and 8 (with the exception of the first two pages, being a fax cover sheet and a one page letter from the Department to the second respondent) is affirmed; 2. The decision of the first respondent to refuse the applicant access to document 2, 3, 4, 5, 6, the first two pages of 8 and 9 is set aside and in substitution thereof a decision to grant the applicant access to these documents; 3. The first respondent to provide the applicant with a copy of documents 2, 3, 4, 5, 6, the first two pages of 8 and 9 within 28 days of this decision

Introduction

1 This is an application by Craig Ferns (“the applicant”) seeking review of a decision of the NSW Police (“the first respondent”) to refuse him access to documents that he had requested pursuant to the Freedom of Information Act 1989 (“FOI Act”) on 25 May 2005. In his FOI request, the applicant had requested documents coming within 6 classes of documents concerning external access to the first respondent’s computerised operation policing system (“COPS”) by officers of the Department of Corrective Services. The applicant was granted access to some documents that came within the terms of his request, but access was refused to nine documents. It is the decision to refuse access to these nine documents that is the subject of this application.

2 The grounds relied on by the first respondent in respect to eight of the nine documents in question was clause 4(3B) (law enforcement and public safety) and 7 (business affairs) of Schedule 1 of the FOI Act. Access was refused to the remaining document on the grounds of 7 of Schedule 1 of the FOI Act. A description of the nine documents in question is contained in the list below.

3 This application was before the Tribunal at 2 planning meetings. At the second planning meeting, the parties requested the Tribunal to determine the matter on the papers filed for the parties.

4 In the course of considering the material filed, the Tribunal noted that the documents for which access had been refused on the grounds of clause 4(3B) Schedule 1 of the FOI Act were also “restricted documents”: see s.6 of the FOI Act, definition of “restricted document”. Section 57 of the FOI Act contains specific requirements as to how the Tribunal is to consider an application for review of an agency’s decision that refuses access to a document on the grounds that it is a restricted document. In particular, it provides that the Tribunal is not to reject a claim based on such a ground unless it gives the Premier (the Minister administering the FOI Act) a reasonable opportunity to appear and be heard in relation to the matter: see s.57(5) of the FOI Act.

5 In light of the requirement of s.57(5) of the FOI Act, on 8 February 2006, the Tribunal wrote to the first respondent requesting that it immediately advise the Premier’s Department of the application and ask whether the Premier wished to appear and be heard on the application. At the same time the Tribunal wrote to the applicant’s mother, who has at all times acted as the applicant’s agent, of the Tribunal’s request to the first respondent. The Tribunal was advised that the first respondent had written to the Premier’s Department on1 March 2006. On 6 April 2006, an officer of the Cabinet Office of the Premier’s Department contacted the Tribunal and said that an advice was being prepared in respect to the application and that this should be forwarded the following week. When no response was received, on Thursday, 1 June 2006, the Tribunal requested the first respondent to again advise, in writing, the relevant officer at the Cabinet Office of the Department that the Tribunal will determine the application in the absence of receiving any submissions on behalf of the Premier, unless those submissions were provided by close of business on Monday 5 June 2005. On this day the Crown Solicitor filed and served Written Submissions on behalf of the Premier. In light of this and s.57(6) of the FOI Act, the Premier has been made a party to the application.

Documents in dispute

6 The documents in dispute are as follows:.

(a) document 1: appointment of a liaison officer dated 07/02/03;

(b) document 2: Appendix – External Client Access Agreement signed 16 October 2001;

(c) document 3: Appendix – External Client Access Agreement signed 10 October 2001;

(d) document 4: letter from NSW Police Service Information and Intelligence Centre dated 29 August 2000;

(e) document 5: letter from Department of Corrective Services dated 25 August 2000;

(f) document 6: letter from Department of Corrective Services dated 10 November 1999;

(g) document 7: letter from Department of Corrective Services dated 8 November 1999;

(h) document 8: facsimile from Department of Corrective Services dated 22 January 1999;

(i) document 9: letter from Commissioner Ryan to Commissioner Keliber dated 31 December 1998.

7 It is not disputed that the onus is on the first respondent to satisfy the Tribunal that the documents are exempt on the basis contended for: see s.61 of the FOI Act.

8 I have considered the contents of the disputed documents, which were provided by the first respondent to the Tribunal on a confidential basis, the internal review determination of the first respondent, the affidavit of David Cahill, security manager of the Court Escort Security Unit of the Department of Correctional Services, sworn on 17 October 2005 and the written submissions of the second respondent.

Restricted document – Process of Review

9 The Written Submissions of the second respondent contend that s.57 of the FOI Act sets out an express exception to the usual process of review engaged in by the Tribunal pursuant to the Act. It was submitted that s.57(1) of the FOI Act firstly directed the Tribunal to consider the grounds upon which it had been claimed that the document was a ‘restricted document’ (other than where the document was the subject to a Ministerial Certificate, which in the present case it was not). Having considered those grounds, the next step in the process was for the Tribunal to consider whether there were reasonable grounds for the claim and if it formed the view that there were such grounds, that was the end of the matter and the Tribunal had no jurisdiction to go on and consider whether the decision maker’s decision was the correct and preferred decision: see s.57(3) of the FOI Act.

10 In making these submissions the second respondent acknowledged that decisions of the Tribunal on this issue were contrary to its contended construction of s.57 of the FOI Act: see BY v Director General, Attorney General’s Department [2002] NSWADT 79 at 76; Chapman v Commissioner of Police, New South Wales Police [2004] 35 and Bissett v Director-General, Department of Gaming and Racing [2004] NSWADT 160.

11 While there is no obligation of the Tribunal to follow the decision in BY, Chapman or Bissett it is well accepted that the Tribunal should be cautious to reopen prior rulings of the Tribunal particularly where these rulings were made following detailed submissions and argument and where there no appeal had been lodged from those rulings: see BY (supra) at [220] and [23].

12 In my opinion the present application does not give rise to any issues which are of sufficient importance to depart from the ruling in BY. It is noted that the Tribunal in Chapman, Bissett and in Rittau v Commissioner of Police [2000] NSWADT 186, Kennedy v Commissioner of Police [2001] NSWADT 39 and Cerminara v Commissioner of Police and Anor [2001] NSWADT 95 came to the same conclusion.

13 Accordingly, I have adopted the ruling of the Tribunal’s President in BY and I have considered whether the first respondent’s decision to refuse access to documents 1 to 8 in the grounds that they are exempt under cl. 4(3B) of Schedule 1 of the FOI Act is the correct and preferred decision: see s.63 Administrative Decisions Tribunal Act 1997.

Clause 4(3B)

14 Cl.4 of Schedule1 of the FOI Act exempts documents that affect law enforcement and public safety. Sub-clause 4(1) provides that a document is exempt if it contains “matter” the disclosure of which could reasonably be expected to give rise to one or more of the matters specified in paras. (a) to (i) of that sub-clause (e.g. prejudice an investigation, fair trial, maintenance or enforcement of any law or endanger the life or physical safety of any person). There are exceptions to these exemptions, which are contained in sub-clause 4(2). These exceptions are of no relevance to this application.

15 Sub-clauses 4(3), (3A) and (3B) of Schedule 1 of the FOI Act provide that a document is an exempt document if it is a document that has been “created” by a specified unit of an agency referred to in the respective sub-clauses. Sub-clause 4(3B) relates to the Department of Corrective Services and provides as follows:

“(3B) A document is an exempt document if it is a document that has been created by the Corrections Intelligence Group of the Department of Corrective Services in the exercise of its functions concerning the collection, analysis or dissemination of intelligence.”

16 The exemptions contained in sub-clauses 4(3), (3A) and (3B) differ to those contained in sub-clause 4(1) in that the exemption is based on specific circumstances in which the document was “created” and not on the basis of its actual contents (i.e. “matter” contained in the document).

17 Accordingly, in order to establish that document 1 to 8 are exempt under cl. 4(3B) of Schedule 1 of the FOI Act the first respondent is required to satisfy the Tribunal of the following:

(a) the document in question was “created by” the Corrections Intelligence Group (“ CIG ”) of the first respondent; and

(b) was it “created” in the exercise of its (the CIG) functions; and

(c) the functions concerned the collection, analysis or dissemination of intelligence.

18 The first respondent in its internal review determination construed sub-clause 4(3B) to include documents that were “created for the use of or the purpose of” the CIG in the exercise of its functions. Such a construction would give the exemption a wide application.

19 The applicant in his written submissions has contended that the construction placed on sub-clause 4(3B) by the first respondent is too wide and that on its proper construction the sub-clause only exempts those documents, which were in fact “created by” the CIG in the exercise of its specified functions. That is, it did not include documents that were created by other agencies or other areas within the first respondent for the use of CIG in the exercise of its functions.

20 In my opinion the starting point is the meaning of the term “create”. In my opinion it should be given its ordinary meaning. In this regard it is defined in the Australian Concise Dictionary (4th edition) to mean as follows:

“ create v. 1 tr . a (of natural or historical forces) bring into existence; cause ( poverty creates resentment ). b (of a person or persons) make or cause ( create a diversion; create a good impression ). 2 tr. Originate ( an actor creates a part ). 3 …”

21 This meaning would suggest that for the document in issue to be exempt under this sub-clause it must be shown that as a matter of fact the CIG brought the document into existence. In my opinion the words “by” and “in the exercise of its functions” in that sub-clause support such a narrow construction. If Parliament had intended it to have a broader application as contended for by the respondent it would have used the words “created by and for” the CIG “for the purpose of its functions”. Instead it has expressly used the words “created by” the “in the exercise of its functions”. This construction is also consistent with the purpose for which the exemption was included as pointed out by Anne Cossins at [104.33] in Annotated Freedom of Information Act NSW; namely to ensures that the documents of the nature provided for in cl. 4(3B) will remain exempt even where they are held by any other area within the Respondent or another agency or Minister.

22 The first respondent relies on the affidavit of David Cahill and the contents of the documents in dispute to establish that they are exempt. In his affidavit, David Cahill explained that he had previously, including July 2005, been employed as the Acting Deputy Superintendent of the CIG and in this position he was responsible for:

“… the analysis of all information reports received from intelligence officers based at correctional centres, and from other law enforcement agencies such as the NSW Police Service and the Australian Federal Police. CIG produces strategic and tactical reports relating to various issues affecting the good order and security of the correctional environment, in addition to other areas falling within the scope of departmental responsibility, such as probation and parole. The CIG also processes criminal history and general probative checks in relation to all persons wishing to gain access to NSW correctional facilities, and to all new employees of the Department.”

23 In his affidavit, David Cahill went on to explain that the NSW Police COPS system was an essential tool that was used on a daily basis by the CIG and other areas within his Department in order for them to fulfil their respective functions. Accordingly, it was a tool that was and is used by other areas within the Department of Corrective Services (“the Department”). This is supported by information contained in some of the exempt documents. However, this information suggests that the functions of the CIG and other areas of the Department are very different.

24 On the basis of the content of document 7 and document 8 (with the exception of the first two pages, being a fax cover sheet and a one page letter from the Department to the second respondent) and the affidavit of David Cahill in respect to the functions of the CIG, I find that these documents are exempt under cl. 4(3B). They have clearly been created by the CIG and concern the exercise of the specified functions set out in that clause.

25 On the other hand, document 4 was not created by the Department, let alone by the CIG. It is a document created by the first respondent and is not a document coming within the terms of cl.4(3B).

26 Documents 1, 2 and 3, while in their initial form were appear to have been created by the first respondent, they each contain additions to them and its is these additions which in my opinion make the documents created by the Department. However, the question is whether they were created by the CIG and that they were created in the exercise of the specified functions of the CIG. In my opinion document 1 does come within the term of the exemption. But there is insufficient material before the Tribunal to make a similar finding in respect of documents 2 and 3, which do differ in some material respects to document 1. The content of documents 2 and 3 are of no assistance in determining whether these documents were created by CIG. Nor does the affidavit of David Cahill assist. As the onus rests on the first respondent, in the absence of evidence as to the circumstances in which these particular documents came into existence, I find that the first respondent has failed to satisfy the Tribunal that documents 2 and 3 are exempt under cl. 4(3B).

27 This leaves documents 5 and 6. While some of the contents of these documents concern the specified functions of the CIG, there is no evidence that they were created by the CIG in the exercise of those functions.

28 Accordingly, for the reasons set out above, the Tribunal finds that the first respondent has satisfied it that documents 1, 7 and 8 (with the exception of the first two pages) are exempt under cl. 4(3B) of the FOI Act. However, the first respondent has failed to satisfy the Tribunal that documents 2, 3, 4, 5 and 6 are exempt under this clause. Accordingly, it is necessary to consider whether these documents in addition to document 9 are exempt under cl. 7 of Schedule 1 of the FOI Act.

Clause 7 – documents affecting business affairs

29 Clause 7(1)(c) of Schedule 1 of the FOI Act, which provides, so far as is relevant, as follows:

“7(1) A document is an exempt document:
…
(c) if it contains matter the disclosure of which:
(i) would disclose information … concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs …”

30 In the internal review, the first respondent contended that these documents “… concern and disclose information in relation to the business affairs, particularly the administrative functions in respect of intelligence gathering, of the Corrective Services Department”.

31 In this regard, the first respondent pointed out that, under s.32 of the FOI Act, it was required to consult the Department as it had formed the view that the documents contained information that concerned the “business and financial” affairs of the Department. David Cahill in his affidavit gave evidence of this consultation and he goes on to state what, in his opinion, the adverse effects would be on the Department’s “business affairs” if the documents were disclosed to the applicant. These include, identification of employees of the Department who have permitted access to the respondent’s COPS System and to inform the criminal element of the Department’s methods of conducting preventative measures by gaining intelligence to assist in eliminating those who seek to adversely affect the good order and security of NSW correctional centres.

32 In my opinion, the first issue to be determined is whether the documents do in fact concern the “business, professional, commercial or financial affairs” of the Department.

33 The applicant contended that cl.7 had no application to the documents in question. In this regard he referred to the decision of the Queensland Information Commissioner in Johnson v Queensland Transport; Department of Public Works (Third Party) [2004] QICmr 1 (5 January 2004) which he stated was consistent with the NSW FOI Procedure Manual in relation to this particular exemption.

34 In Johnson, the Queensland Information Commissioner made the following remarks in respect to the Queensland equivalent of the cl. 7 exemption:

“50. In my view the contention of public works that the matter in issue concerns its business, commercial or financial affairs, for the purposes of s.45(1)(c), is misconceived and cannot be accepted. I consider that Parliament’s intention in enacting the s.45(1)(c) exemption was to provide a means by which the general right of access to documents in the possession or control of government agencies could be prevented from causing unwarranted commercial disadvantage to:

(a) individuals who offer professional services to the public on a fee for service basis (see Re Pope v Queensland Health (1994) 1 QAR 616 at p.625, paragraph 29;

(b) the private sector business operators (whether they be individuals, partnerships or corporations); and

(c) government agencies which function on a business model to generate income from the provisions of goods or services.

51. Subject to the possible reservation mentioned in paragraph 54, I consider that an agency will have business or commercial affairs within the terms of s.45(1)(c) if, and only to the extent that, it is engaged in a business undertaking carried on in an organised way for the purposes of generating income or profits or otherwise engage in an ongoing operation involving the provision of goods and services for the purposes of generating income or profits.

52. All government agencies, even those engaged in work of a purely governmental kind such as policy development, operate in accordance with a budget and financial plan, maintain financial accounts, and engage in fairly substantial commercial transactions from time to time (such as the purchase of computers and photocopying equipment). All government agencies carry on what they no doubt refer to as their ‘business’, but I cannot accept that it was Parliament’s intention that all government agencies are to be regarded as having business affairs for the purposes of s.45(1)(c). In a piece of legislation with 48 separate grounds of exemption, it cannot have been Parliament’s intention to provide an exemption so broad as to be triggered by a reasonably based apprehension of any adverse effect on the operations which any government agency carries on as its business.”

35 The Commissioner went on at [53] to say that the common link among the words “business”, “commercial” or “financial” in the equivalent provision in the Queensland FOI Act was that it must be shown that the organization whose business etc affairs are being sought to be protected are in fact engaged in activities for the purpose of generating profits or gains. That is, a government agency, which does not carry on its activities for profit or gain cannot rely on the business affairs exemption. In my opinion, this construction is too narrow when regard is had to the express terms of cl. 7 of Schedule 1 of the FOI Act.

36 While the terms “business”, “commercial” and “financial” in cl.7 have been held to have a wide application (see Saxon and Australian Maritime Authority (unreported, AAT, Cth, 19 June 1995 at [25]) it has also been accepted that the exemption is primarily directed towards protecting the business affairs of organizations or persons that are not government agencies. However, in cl.7 Parliament has expressly stated that the exemption also operates to protect the interests of government agencies. However, this operation is limited to those government agencies who in whole or part compete commercially with private businesses (see Cossins (supra) at [107.1]).

37 In this application, there is no evidence that the Department, or the first respondent, are engaged in a business in the sense of engaging in an activity for the purpose of profit or gain. Even if there was such evidence in my opinion the content of the documents in question are purely administrative in nature and have been created so that the Department was able to perform its administrative functions. That is the documents do not contain any information, which on the ordinary understanding of the word “business” could be regarded as information relating to a business.

38 I note that the first respondent did not at any time expressly contend that the Department or first respondent engaged in a business. However, as the onus rests with the first respondent to satisfy the Tribunal that the exemption applies, and it has failed to establish that the documents in question concern the business affairs of the Department, I find that the first respondent has failed to satisfy the Tribunal that documents 2, 3, 4, 5, 6 and 9 are exempt under cl. 7 of Schedule 1 of the FOI Act. I make a similar finding in respect to the first two pages of document 8.

Decision

39 For the reasons set out above the Tribunal orders:

(i) The decision of the first respondent to refuse the applicant access to document 1, 7 and 8 (with the exception of the first two pages, being a fax cover sheet and a one page letter from the Department to the second respondent) is affirmed.

(ii) The decision of the first respondent to refuse the applicant access to document 2, 3, 4, 5, 6, the first two pages of 8 and 9 is set aside and in substitution thereof a decision to grant the applicant access to these documents.

(ii) The first respondent to provide the applicant with a copy of documents 2, 3, 4, 5, 6, the first two pages of 8 and 9 within 28 days of this decision.