Hall v SA Police
[2019] SADC 5
•31 January 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
HALL v SA POLICE
[2019] SADC 5
Judgment of His Honour Judge Beazley
31 January 2019
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Appeal brought pursuant to the Freedom of Information Act 1991 from a determination made by the Police Ombudsman (the Ombudsman), upon an external review from South Australia Police to decline access to the documents sought by the appellant. At issue on the external review to the Ombudsman was whether the relevant documents were exempt as claimed by South Australia Police. The Ombudsman elected not to examine the documents in dispute - instead concluding, without notice to either party, that she may be prohibited by other legislation from perusing them - she purported to substitute as the basis for exemption the secrecy provisions in clause 12 of the First Schedule to the Act. Inevitably in consequence of the Ombudsman's view of the relevance of clause 12, each party was denied the opportunity to make submissions as to the relevance of clause 12 to the disputed documents. Whether the Ombudsman erred in her approach to clause 12 - the relevance of events subsequent to the hearing of the within appeal.
Held: Appeal allowed.
Pursuant to s 42F(b) of the District Court Act 1991, S.A., the decision of the Ombudsman is rescinded - this court substitutes its decision which has the effect of permitting access to the appellant of some only of the documents sought by him - including some documents conceded by the respondent. Each party will bear its own costs of the appeal.
Freedom of Information Act, 1991 (SA) ss 3, 3A, 4, 12, 19, 25, 26, 39, 40, 41 and 48; Schedule 1 clauses 4(2)(a)(ii) and (iii), 5, 6(1) and (2), 10, 12, 13(1)(a) and (b); District Court Act, 1991 (SA) ss 42E and 42F; Statutes Amendment (SACAT) Act, 2014 (SA) s 63, referred to.
Osland v Secretary of the Department of Justice [2008] HCA 37; Simring v Commissioner of Police (NSW) [2009] NSWSC 270; Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606; Victoria Police v Marke [2008] VSCA 218; Director of Public Prosecutions (Vic) v Smith (1991) VR 63; Levick v Attorney-General (Cth) [2018] FCA 1609; Treglown v SA Police [2011] SADC 139; Bradshaw v SA Police [2012] SADC 184; Mentick v Albeitz (1999) QSC 9; M Paterson: Freedom of Information and Privacy in Australia 2nd Ed (2015) Chapter 6; DPP v Asling [2017] VSC 37; Colakouski v ATC (1991) 100 ALR 111; Craig v South Australia (1995) 184 CLR 163 at 179; News Corporation Ltd v National Companies and Securities Commission (1984) 57 ALR 550 at 561, considered.
HALL v SA POLICE
[2019] SADC 5Introduction
Jeffrey Hall, (the appellant) being a person aggrieved by a determination, made upon an external review, by the Police Ombudsman (the Ombudsman), on 24 June 2015, appeals pursuant to s 40(2) of the Freedom of Information Act 1991 (SA) (the Act).[1]
[1] The relevant section of the Act in force at the time. Appeals commenced before the commencement of the Statutes Amendment (SACAT) Act 2014, remain in the District Court, pursuant to s 63 thereof.
Pursuant to s 40(5) of the Act the parties to this appeal are the appellant, as the applicant for review before the Ombudsman, and SA Police (the respondent), as the relevant agency. The Ombudsman is not, and indeed, at law, cannot be a party to the appeal.
The subject appeal has, as its genesis, the murder of the appellant’s wife, Anthea Bradshaw-Hall (the deceased), on 21 July 1994, in Negara Brunei Darassalam (Brunei).
It directly concerns the application by the appellant, on 5 September 2013, in which he sought to obtain access from the respondent of documents relating to the investigation into the murder.
The appellant and the deceased had married three months prior to her death, although, they had known each other for many years while at school together. Both were residents of South Australia.
The appellant had moved to Brunei shortly before the murder of the deceased. He did so for employment prospects. They had intended that the deceased would also obtain employment in Brunei, as a teacher. She had visited the appellant for that purpose, and had apparently found future employment.
She had been due to return to Australia on 22 July 1994, the day after her murder.
Delays
The subject appeal has had a long and vexed history. The appellant had sought various documents from the FOI Unit of the respondent; and from an internal review officer. Where access to certain documents had been declined, the grounds for exemption under Schedule 1 to the Act were specified.
However, when the appellant’s application came to be considered by the Ombudsman, she did not examine the relevant documents on the external review, the subject of this appeal. She expressly declined to do so because of her concerns that they may be subject to secrecy provisions of other, unrelated legislation. Accordingly, she substituted for the specified grounds for exemption, a blanket exemption on ‘secrecy’ grounds under clause 12 of Schedule 1, in respect of all of the documents in dispute.
From the parties’ perspective no decision had been made.[2] The sole ground of the Notice of Appeal to this Court was that the Ombudsman had erred in substituting clause 12. The respondent did not rely upon clause 12. This has given rise to timing difficulties. When the decision makers ‘determined’ the applications, the factors which influenced them were constantly changing.
[2] See Craig v South Australia (1995) 184 CLR 163.
At the time of the initial determination by the respondent’s FOI Unit, there was little or no prospect of a prosecution against any person for the murder, and the investigation by the Royal Brunei Police had ceased. The prospect had increased marginally by the time of the ‘determination’ by the Ombudsman. By the time it was listed for the hearing of the appeal, an amendment to the Criminal Code Act, (Cth) had the effect that a further investigation was probable.
Background
The subject appeal has some other unusual features.
The first of those features concerns how it was that the respondent came into possession of documents concerning the investigation into the murder of the deceased. Plainly the respondent had no jurisdiction to prosecute any person in respect of the murder in a foreign country.
At the time of the murder, Commonwealth agencies also did not have the power to do so.
However, in 2002, by an amendment to the Criminal Code Act 1995 (Cth), Commonwealth agencies were given jurisdiction to do so in respect of the death of an Australian, overseas. That jurisdiction to prosecute was limited to offences which had occurred on or after October 2002,[3] and accordingly did not apply to the murder of the deceased.
[3] See Criminal Code Act 1995 (Cth) Div 115. The Act however was amended in 2015 as a direct consequence of the subject murder of the deceased to include acts committed to include such acts ‘before or after’ October 2002.
The Royal Brunei Police had conducted its investigations into the murder. It had obtained witness statements and had arranged for evidence to be forensically examined. No person has ever been charged with the murder. In 1998, an Inquest, conducted by a Coroner in Brunei, had returned an open finding. By about 2001 the Royal Brunei Police had effectively ceased its investigation into the murder.
In or about June 2001, the respondent requested that it be provided with a copy of the investigation file of the Royal Brunei Police. It offered to provide such assistance to them, as they may think appropriate. The appellant was highly critical of the involvement of the respondent. This criticism featured prominently in support of the submission that the appellant ought have access to all of the documents sought by him from the respondent. I will deal with this issue subsequently in respect of various documents. However, in my opinion that criticism is unfounded. The police must inevitably have an interest in the death of a citizen outside its jurisdiction at one level. It clearly has no jurisdiction to prosecute but it does not follow that it has no interest in maintaining a file, where a suspect is a resident of the State. It appears that the Royal Brunei Police accepted that the respondent may be in a position to help, because both the appellant and the deceased were residents of this State.[4] A detective from the respondent attended upon the investigators in Brunei.
[4] See the respective Outlines of Argument [2.5] and [3][a].
The respondent thereafter came into possession of various documents which formed part of the Royal Brunei Police investigations. I accept that this may raise a significant issue of law. In Simring v Commissioner of Police (NSW),[5] Smart AJ raised the question of the potential misuse of witness statements at [69]:
When a person speaks to police … and reveals sensitive matters that person expects that statement will only be used for the purpose of those court proceedings and not otherwise … There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up.
If the victims [or witnesses] thought that statements made in the course of a criminal investigation … could be released to an applicant under the FOI Act those sources of information may well dry up … on the other hand there is a strong public interest in access to information held by a Government Agency.
[5] [2009] NSWSC 270.
These concerns would apply, a fortiori, where it is an FOI Act of another country.
The respondent also arranged for additional forensic testing in 2006 and 2007, of the evidence held by the Royal Brunei Police, and provided the report on them to the relevant officers in Brunei.
In or about December 2011 the respondent conducted an interview of the appellant while he was visiting South Australia. That interview was recorded on a disc, and a transcript prepared.
Ultimately the Attorney‑General of Brunei had determined that upon the evidence available to the police, there was no reasonable prospect of securing a conviction against any person. That view of the Attorney‑General, who was responsible for any prosecution in Brunei, did not alter over the intervening years despite the assistance of the respondent.
In addition, at that time, Brunei had a statutory limitation of 20 years for the commencement of a prosecution for such an offence.[6]
[6] Affidavit of John Andrew Schneemilch, sworn 18/11/15.
As is plain, the possibility of a prosecution in Brunei had ceased by 21 July 2014, in consequence of the longstanding view of the Attorney‑General, and the expiry of the limitation period.
The Bradshaw application
In 2010, an application was made by another member of the deceased’s family, pursuant to the Act, to obtain access from the respondent to ‘all information in regard to the SAPOL investigation of the murder of the deceased including forensic evidence, and such information which it gained from overseas police’. That applicant had a particular interest in gaining access to witness statements which had been provided to the Royal Brunei Police. They had been declined by the respondent.
A ‘vast number of documents within the possession of the respondent’ was however released to that family member either in whole or in part. Subsequently when that application came on for appeal, that Court, in very detailed reasons, declared some documents to be exempt, however it ordered the release of other documents, principally because of the lapse of time since the date of the murder, and because of the ‘special interest’ of the family of the deceased.[7]
[7] Bradshaw v SA Police [2012] SADC 184 [64]-[71].
The Court was undoubtedly influenced by the probability that there would be no prosecution being commenced in Brunei. It explained that:
When witnesses provide statements to police they are usually under no compulsion to do so … such is the way of criminal investigation. Indeed, it would be rare for a witness to provide a statement to the police on a confidential basis only. … Even then once a prosecution is commenced there exists a duty upon the prosecution to provide an accused person with all relevant material and statements.
There are significant differences between the 2010 Bradshaw application and the subject appeal. In the Bradshaw application, the significant exemptions, pursuant to clauses 6(1) and (2) of Schedule 1 to the Act, to be considered, were the information concerning the personal affairs of any person (living or dead); and those documents containing suggestions of criminal or improper conduct of Schedule 1 of the Act. Accordingly, in that application the position of the appellant, as a suspect, was a relevant factor. By contrast, in the subject appeal, the appellant’s position is the subject of clause 6(3) which provides that a document is not exempt under clause 6(1) or 6(2) merely because it contains information concerning (the appellant) as the applicant for access.
The underlying reason for greater access as found by the Court, in the Bradshaw case, namely that there was no prospect of a prosecution, was to be dispelled by events in 2015.
The Commonwealth Parliament passed legislation to extend jurisdiction in the Commonwealth to include acts causing the death of an Australian overseas, irrespective of when it occurred.
Counsel for the appellant, in the subject appeal had in fact submitted:[8]
It appears inevitable given what has transpired in the Federal Parliament in recent months and as recently as last week that Mr Hall will be prosecuted, if that’s possible. It would be highly surprising if the Attorney-General of the Commonwealth having passed the Bradshaw Bill did not give his assent to an application for Mr Hall’s extradition … there is every reason to think that should things go ahead as it appears likely they will, this man’s life will be completely uprooted … [he] will inevitably be subject to enormous legal cost.
[8] T13.
Following the hearing of the appeal it became necessary to adjourn consideration of the appeal to allow the Australian Federal Police to determine whether it would investigate the murder.[9] In the event that it did determine to proceed, those officers would need to be given the right to be heard on the release of documents.
[9] See also DPP v Asling [2017] VSC 37.
As it transpired in August 2017, nearly two years after the hearing of the appeal, the decision was made that there would be no investigation – thereby reducing the force of the appellant’s submissions, at least in that respect.
The appellant’s applications
The background to the matters the subject of the appeal is conveniently detailed in affidavits including those sworn by Senior Sergeant Tracy McLeod Gentgall, the then Officer in Charge of the respondent’s Freedom of Information Unit (FOI Unit). One of them was a closed affidavit, which the parties invited me to peruse. I will protect the confidentiality of those documents in these reasons. An affidavit sworn by the appellant’s solicitor Mr Gene Sykes Bidstrup had annexed to it an English translation of Japan’s ‘Act of Extradition 1953’. It was relevant to the appellant’s concern that he may face extradition from Japan.
The appellant’s initial application
On 5 September 2013,[10] the appellant made application under the Act in the following terms:[11]
This request is for access to records of SAPOL in relation to the investigation of the death of my wife Anthea Bradshaw-Hall who died in 1994 in Brunei. Such documents will include statements of witnesses taken in Brunei and in this state, running sheets, reports, advise [sic], correspondence notes and memoranda generated by the investigation authorities in Brunei and SAPOL in the course of their investigations.
[10] Bradshaw v SA Police, [2012] SADC 184.
[11] Ex TMG-C to the affidavit of Tracy McLeod Gentgall sworn 11 November 2015.
In accompanying correspondence, the appellant explained that ‘serious defamatory statements have been made [in the media] that purport to implicate [the appellant] in the death of his wife … [it was necessary] for the appellant to ascertain the basis for those allegations and take whatever action is available to restore [his] reputation’.
On 22 November 2013, undoubtedly aware of the decision of this Court in 2012, the accredited officer of the respondent’s FOI Unit made a determination in respect of 105 groups of documents which were set out in a schedule. It granted full access to 58 of those documents, some of which involved part only of a group; and partial access by redaction of 57 documents, but denied any access to some 19 documents, some of which because of their graphic nature.[12]
[12] Ex TMG-D to affidavit of Senior Sergeant Gentgall.
It is trite that the starting point is that an applicant is entitled to access to the documents unless a document is exempt under the Act. Schedule 1 of the Act provides the basis upon which documents are exempt.
The bases relied upon by the respondent’s FOI Unit for part only access of the 57 documents and the denial of access to the 19 documents were confined to clauses 5(1), 6(1) and (2); 9(1), 10(1) and 13(1) of Schedule 1 of the Act.
A temporal relevance
As I have noted certain exemptions under the Act may apply at one time but not at another. This has given rise to various difficulties in determining, on the appeal, whether the exemptions did apply at any relevant time.
This can be best highlighted by this FOI Unit determination on 22 November 2013. At that time, any prosecution was improbable. For that reason, there was no reliance by the respondent upon clause 4(2). Clause 4 provided that documents are exempt, inter alia, if the disclosure may prejudice a fair trial of a person; or prejudice the investigation of any possible contravention of the law; (including the law of another country); or enable the existence of or identity of any confidential source of information to be ascertained.
Subsequently, by the time of the external review by the Ombudsman, clause 4(2) would have become more relevant. I note that s 39(11) of the Act refers to the circumstances at the time of the review. At the time of the appeal it was of greater relevance.
Much later, after submissions were completed, the parties learnt that no investigation would be undertaken.
I am of course conscious of s 42E(1) of the District Court Act which requires the Court to examine the decision on the evidence before the original decision maker, save for the power to permit further evidence or material.
The internal review
On 20 December 2013, the appellant sought an internal review to enable access to the documents which had been either partially or fully declined by the respondent’s FOI Unit, together with the then undisclosed record of the interview between SAPOL officers and the appellant.
In respect of each document the appellant asserted that the ‘prejudicial effect upon him of not being able to prepare his case should he be charged, outweighed any basis for the refusal of access to him’.[13] The appellant had also sought the documents to enable him to respond to statements defamatory of him in the media.
[13] Exh TM – E, Supra.
On 8 January 2014, the internal review officer declined to order access to the disputed documents, instead affirming that the determination of the FOI Unit, ‘was made in line with the legislation and the information available’.
On 28 January 2014, the appellant applied to the Ombudsman for an external review of that determination. The appellant’s solicitors expressed concern that the appellant may be a suspect in the death of the deceased, even though he had not been charged with any offence, and there had been a considerable delay since 1994.
On 12 February 2014, the accredited officer of the respondent’s FOI Unit determined to release, in full, three additional documents which included the audio-visual record of the interview which had occurred on 22 December 2011, and the transcript of the same.
The external review by the Ombudsman
When the external review was lodged with the Ombudsman, the respondent had maintained the specific bases for the claims that the documents were ‘exempt’ pursuant to Schedule 1 of the Act.
The application for review had concerned some 47 documents which had previously been declared either partially exempt or fully exempt under the Act.
Pursuant to s 39(11) of the Act, I repeat that the Ombudsman could, based upon the circumstances existing at the time of the review, confirm, vary or reverse the determination the subject of the review.
Between February 2014 and June 2015, the Ombudsman had been made aware of other legislation which may have impacted upon her ability to make a determination upon the grounds submitted by the parties. In particular she was concerned that she may unwittingly breach secrecy provisions, concerning some of the documents in dispute.
She concluded that she was unable to determine ‘with certainty; which documents would or would not offend that legislation, at the time of her review.
On 24 June 2015, the Ombudsman purported to determine the external review, writing that:
I therefore do not turn my mind to the individual exemptions relied upon by SAPOL as the circumstances have changed … should the appellant find himself defending a charge of murder, then the usual court processes in accessing information to mount his defence would be available to him.
The Ombudsman, seemed to ascribe the blame to the appellant for her decision.
While I endorse the comment of the Ombudsman to the effect that if any person was charged by the Australian Federal Police then they would be obliged to make full disclosure of all relevant material to the relevant Director of Public Prosecutions, that is no answer to the appellant’s claim.
The Director would then be obliged to make full disclosure to the accused or at least to explain why full disclosure was not made.[14] It would not render a FOI request nugatory for other purposes including those in respect of any other proceedings, whether they be extradition proceedings, or civil proceedings for Defamation.
[14] R v Solomon (2005) 92 SASR 331; Mallard v R (2005) 224 CLR 125; and Grey v R (2001) HCA 65.
As can be observed, the Ombudsman, did not make any determination as to the validity of the bases for exemption as claimed by the respondent. She expressly declined to do so. She felt compelled to so decline because of her view that other legislation had imposed an obligation of secrecy. She declined to peruse the documents. She did not invite submissions from the parties. She refused access to all of the documents the subject of the review, by substituting a blanket finding that each document was an exempt document under clause 12 of Schedule 1 of the Act.
That clause provides that:
12—Documents the subject of secrecy provisions
(1)A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act.
(2)A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is made, would constitute such an offence.
It will not be of any assistance to the parties for me to express any view as to whether the Ombudsman was obliged by that other legislation to take that course, at that time.
The fact of the matter is that she did not determine the issues raised by the parties in respect of the disputed documents.
Other relevant events
In October 2015, the Crimes Legislation Amendment (Harming Australians) Bill 2015 was introduced into the Australian Parliament. In the second reading speech, it was noted:[15]
…we should pause to reflect for a moment on the fact that, although this is a good legislative outcome which is the product of a very good process, it has its genesis in a tragedy. It has its genesis in the killing of Anthea Bradshaw-Hall in Brunei in 1994. This bill will forever be known as the Bradshaw bill.
[15] Commonwealth, Parliamentary Debates, Senate, 12 November 2015, 8447 (George Brandis).
On 1 December 2015, the Bradshaw Bill amendments commenced to operate, after the Royal assent was given a day earlier.
Division 115 of the Criminal Code[16] now relevantly provided at that time:
[16] Criminal Code Act 1995 (Cth).
115.1 Murder of an Australian citizen or a resident of Australia
(1) A person commits an offence if:
(a) the person engages in conduct outside Australia (whether before or after 1 October 2002 or the commencement of this Code); and
(b) the conduct causes the death of another person; and
(c) the other person is an Australian citizen or resident of Australia; and
(d) the first-mentioned person intends to cause, or is reckless as to causing, the death of the Australian citizen or resident of Australia, or any other person by the conduct; and
(e) if the conduct was engaged in before 1 October 2002—at the time the conduct was engaged in, the conduct constituted an offence against a law of the foreign country, or the part of the foreign country, in which the conduct was engaged.
…
115.6 Bringing proceedings under this Division
(1)Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent.
(2)However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this division before the necessary consent has been given.
[Emphasis added.]
The Notice of Appeal
In his Notice filed on 24 July 2015, the appellant provided a sole ground, namely that:
The [Ombudsman] erred in finding that the documents the subject of the review were exempt documents pursuant to section 12(1) of Schedule 1 of the Freedom of Information Act 1991 (SA).
In the particulars, the appellant specifically referred to one other piece of legislation. I see no need to detail that legislation.
The nature of the Appeal
The appeal, at least prior to the Statutes Amendment (SACAT) Act, 2016 (SA) is to the Administrative and Disciplinary Division of this Court.[17]
[17] See Freedom of Information Act 1991 (SA) s 4.
The approach to the disposition of such appeals is governed by s 42E of the District Court Act 1991 (SA), which states:
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal -
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
I have previously acknowledged the tension that exists between s 42E(3) of the District Court Act, and s 48 of the Act.[18] The latter section provides that ‘the burden of establishing that the determination is justified lies on the agency’ which made it. By contrast, on an appeal governed by s 42E, an appellant must establish cogent reasons to depart from the original decision. It has been explained that in order to succeed the appellant bears a general onus of establishing a cogent reason to depart, while the agency bears the specific onus to establish that the determination is justified.
[18] See Pages Hire Centre (NSW) Pty Ltd & Boros v Department of Premier and Cabinet [2014] SADC 3 [59]-[61]; See also, eg, Capone v South Australian Police Information Unit [2011] SADC 7 [18]-[21].
In the subject appeal, the material that was before the Ombudsman was not identical to that before this Court on appeal. Even where the agency can justify the original determination, cogent reasons may still arise if, for example, the Court has received additional information establishing that the agency or Ombudsman has misapplied the legislation. However, in order to succeed in this second scenario, the appellant bears the ultimate onus of establishing the existence of cogent reasons.[19] That requirement of ‘cogent reasons’ demands something more than mere disagreement with the decision below, but there is no specific requirement to detect an error before intervention is justified.[20]
[19] Moore v Department for Education and Child Development [2014] SADC 49 (28 March 2014) [14]; Ward v Family Care Meeting Convenor & Ors [2003] SADC 18 (20 April 2003) [10].
[20] Registrar of the Veterinary Surgeons Board of SA v Mooney [2009] SADC 62 [27].
In determining an appeal under the District Court Act, s 42F empowers the Court to: affirm the decision appealed against; rescind the decision and substitute a decision that it considers appropriate; or remit matters to the original decision maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Invitation to hear the appeal notwithstanding the decision of the Ombudsman
The parties invited the court to proceed to hear the subject appeal on the bases for exemption claimed by the respondent. Both parties submitted that the Ombudsman had erred in determining that the documents were exempt pursuant to clause 12.
There were a number of difficulties with that submission, including the fact that pursuant to s 42E(3) of the District Court Act 1991 (SA), this Court must, on appeal, give due weight to the decision being appealed against, and the reasons for it, and not depart from it except for cogent reasons. The original decision maker, in the subject appeal, is the Ombudsman. Pursuant to s 42F(b) the court may rescind the decision of the Ombudsman and substitute a decision that the court thinks appropriate.
As it transpired the respective parties abandoned their respective claims in respect of a large number of those documents.
I return to the question of temporal relevance. What events may have prevented the Ombudsman from even perusing such documents to determine the possible relevance of the claims for exemption, might be no obstacle months later.[21] If one puts to one side the decision of the Ombudsman, is the relevant time the circumstances existing at the time of the Ombudsman’s external review, or at the time of the appeal?
[21] ACCC v Australian Safeway Stores (1998) 81 FCR 526 at [559].
I formed the opinion that there was nothing to prevent the Court from examining each of the remaining disputed documents, so as to determine whether any of them were protected by any other legislation.
I proceeded to peruse each of the remaining documents in dispute. In my opinion, none of them were excluded by that other legislation. I concluded that clause 12 did not apply to exclude the documents.
Inevitably this would lead to an order rescinding the determination of the Ombudsman.
I concluded that I should proceed to determine the specific issues raised by the parties.
Both parties agreed that, were I to find cogent reasons to interfere with the decision, I should substitute a final decision of my own, rather than remit matters to the original decision-maker.[22]
[22] T19-20.
The revised issues on appeal
It is to be noted that, as indicated in its Outline of Argument, the respondent has abandoned the exemption relied on by the Ombudsman, relying instead upon the exemptions claimed in its initial determination,[23] subject to some amendment.
[23] Respondent’s Outline of Argument [8].
Notably, the respondent now claims a number of documents are exempt pursuant to clause 4(2) of the Act. This clause as I have explained did not form the basis of any of the exemptions asserted at the time of the initial determination.
On 9 December 2015, when the appeal was listed for hearing, the appellant specifically identified some 38 groups of documents, for which access was no longer sought. This left, at that time, the following groups identified by the following numbers: 1, 8, 11-12, 46, 52, 54, 61, 63-65, 71, 75-77, 79, 81-83, 85, 87, 89-93 and 98-100. The respondent then abandoned its claims for full exemption, in respect of documents numbered 11, 12, 71, 85 and 100; and for part exemption in respect of documents numbered 52, 61, 65, 75, 82, 89, 93 and 99.
This resulted in the parties agreeing to the full release of a further five documents, and partial release of another three.
Orders, by consent, for the release of these documents, or the relevant parts thereof, will accordingly be made.
Consequently, a total of 21 documents remain in issue on this appeal. The following table identifies those documents,[24] and indicates the relevant clauses upon which the respondent places reliance for each document.
[24] By the number assigned in the respondent’s original determination, see schedule 1 for further details.
Document Cl 4(2) Cl 5(1) Cl 6(1) Cl 6(2) Cl 9(1) Cl 10(1) 1 X X 8 X 46 X X 52 X X 54 X 63 X X 64 X X 75 X X 76 X X 77 X X 79 X X 81 X 82 X 83 X 87 X 90 X X X 91 X X X 92 X 93 X X 98 X X X 99 X
The respondent did not seek to rely on clause 12.
The orders sought by the appellant were:
·That the determination be set aside.
·That the respondent produce to the appellant the documents sought by him.
·That the respondent pay the appellant’s costs.
Subsequent events
It is common ground that the Commonwealth Director of Public Prosecutions was invited to consider whether the Commonwealth might proceed with an investigation and, if so, its position with respect to the jurisdiction of the Commonwealth to prosecute.[25]
[25] Division 115 of the Criminal Code at that time created an offence in the case of Australian citizens harmed overseas, however it only applied at that time to such acts as were committed after 1 October 2002.
An announcement was made that the Australian Federal Police would conduct some investigations to determine whether it should proceed further.
Until that investigation had been completed by the Australian Federal Police, it was necessary to delay any decision by this Court on the appellant’s appeal pursuant to the Act.
Had a decision been made by the Australian Federal Police to prosecute any person, it would have inevitably led to the SAPOL files being provided to the Australian Federal Police. The latter would therefore have been entitled to make submissions as to the release of any of the documents being sought on the appeal by the appellant.[26]
[26] See DPP v Asling [2017] VSC 37.
Further it was not clear on the documents whether the Royal Brunei Police wished to maintain any interest in the documents provided by it to the respondent.
Both counsel acknowledged that following this development, a further, investigation into the murder was probable.[27]
[27] See T20, T40-41.
The Court notified the parties that any decision in respect of the appeal would be adjourned until the outcome of that investigation. Neither party took issue with that approach.
On 14 August 2017, the Australian Federal Police determined that they would not launch a full investigation into the subject murder.
On 15 August 2017, I directed that a memorandum be provided to the solicitors representing the parties. I invited them to make further submissions in light of that decision, and in particular whether the appeal against the Ombudsman’s ‘decision’ be allowed, but remitted back for consideration in light of the decision of the police to not proceed further.
This would enable a fresh assessment of the limited documents in dispute at the present time, by the respective ‘decision makers’ under the amended FOI legislation. They were asked to reflect upon the fact that not only had the reasons expressed by the appellant for access to the documents changed significantly, but the temporal relevance of an exemption under the Act had also changed. The Court was in effect left in the position of determining an appeal on a different basis, than that previously argued.
It now appeared that no prosecution would be commenced. In addition, the Ombudsman had not considered the grounds of the review. Further the number of documents, and their respective grounds for exemption had also changed over time.
The appellant submitted that notwithstanding the decision of the Australian Federal Police to proceed no further, there was always a risk that it would, and accordingly submitted that the Court ought to determine the question of the exemptions, notwithstanding those obvious difficulties.
Some further delays occurred when further representations were made to the Australian Federal Police to reconsider its position. From about February 2018, it became clear that they did not intend to proceed further, and there was no obstacle to the determination of the appeal.
The relevant sections of the Act
It is convenient at this point to briefly set out some of the relevant sections of the Act, including those clauses of the schedule upon which the respondent relies.
Sections 3 (the Objects), and 3A (the Principles of Administration), of the Act make it clear that any administrative discretion conferred by the Act, should be ‘exercised, as far as possible, in a way that favours the disclosure of information … that can be disclosed without infringing the right to privacy of individuals’ and ‘promote[s] openness in government’. The Act should, accordingly, be approached in a manner, and with a construction, that ‘would further, rather than hinder, free access to information’.[28]
[28] Victorian Public Service Board v Wright (1986) 160 CLR 145, [153-154].
Section 12 of the Act provides that ‘[a] person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act’. This right does not, however, extend to ‘exempt’ documents.
Section 20(1) vests an agency with the discretion to refuse access to a document, inter alia, if it is an exempt document. Documents are exempt by virtue of Schedule 1 to the Act.[29]
[29] See Freedom of Information Act 1991 (SA) s 4(1).
Clause 4 of Schedule 1 creates an exemption for documents that affect law enforcement and public safety. The respondent specifically relies upon subclause (2), paragraphs (a)(i) and (a)(iii), which relevantly state:
(2)A document is an exempt document if it contains matter the disclosure of which—
(a)could reasonably be expected—
(i)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
…
(iii)to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention of the law (including any revenue law); or
…
[and]
(b)would, on balance, be contrary to the public interest.
Clause 5 creates an exemption for documents that, broadly speaking, concern intergovernmental relations. It provides:
(1)A document is an exempt document if it contains matter—
(a) the disclosure of which—
(i)could reasonably be expected to cause damage to intergovernmental relations; or
(ii)would divulge information from a confidential intergovernmental communication; and
(b)the disclosure of which would, on balance, be contrary to the public interest.
Clause 6 creates an exemption for documents that may affect the interests or personal affairs of third parties. It relevantly provides 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 (living or dead).
(2)A document is an exempt document if it contains allegations or suggestions of criminal or improper conduct on the part of a person (living or dead) the truth of which has not been established by judicial process and the disclosure of which would be unreasonable.
(3)A document is not an exempt document by virtue of subclause (1) or (2) merely because it contains information concerning the person by or on whose behalf an application for access to the document is made.
The term ‘personal affairs’ in subclause (1) is defined in s 4(1), to include ‘financial affairs; criminal records; marital or other personal relationships; employment records; [and] personal qualities or attributes’.
Clause 9(1) provides that:
(1)A document is an exempt document if it contains matter—
(a)that relates to—
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii)any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and
(b)the disclosure of which would, on balance, be contrary to the public interest.
Clause 10 creates an exemption for documents that are subject to legal professional privilege, providing:
(1)A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2)A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.
The evidence on appeal
The respondent notionally tendered two affidavits of Senior Sergeant Tracey McLeod Gentgall, the Officer in Charge at the respondent’s Freedom of Information Unit. The first was an ‘open’ affidavit, which had exhibited to it copies of all the documents that have been released to the appellant.
Also supplied to the Court was a ‘closed’, or confidential, affidavit. This second affidavit contained complete copies of all documents, with the redacted portions highlighted, where relevant. These will remain closed and confidential. I will not, in these reasons, publish, except in general terms, any of the information contained in those documents. This accords with the practice of the Court in such matters.[30]
[30] See Rann v SA Water (No 2) (1996) 187 LSJS 438, and Capone v South Australian Police Information Unit [2011] SADC 7 (3 February 2011) [29].
The respondent notionally tendered an affidavit of Detective Sergeant John Andrew Schneemilch, which set out some of the evidentiary bases for the claimed exemptions, while the appellant notionally tendered the affidavit of Gene Sykes Bidstrup to which I have already referred.
Each party provided both oral submissions and extensive written submissions.
Counsel general submissions
The Appellant
Counsel for the appellant, Mr Culshaw submitted that the death of the deceased could not give rise to a contravention of the law of South Australia. He submitted that there could be no prejudice to the investigation from the release of documents because the Brunei authorities have ceased having any interest. He stressed that the appellant had not done anything to prejudice any investigation since the events in 1994. This was the best evidence to establish that there was no causal link between the disclosure of any documents sought by the appellant and any prejudice to the police. He submitted that while there is ‘good sense in the police being able to hold everything close to the chest’ this investigation had been on foot for over 20 years, and the appellant already had possession of a large number of documents.
While he conceded, at that time, that the Commonwealth amendments do enable an investigation to take place, the disclosure of any disputed documents could not ‘reasonably be expected’ to prejudice any such investigation for the purpose of clause 4(2). He submitted that the availability of the exemption had only arisen in December 2015. The delay by the Australian Parliament should not cause the appellant to lose the right of access he had prior to that date. He made submissions in respect of each of the relevant clauses of Schedule 1 of the Act.
I will deal with his submissions on each document separately.
The Respondent
Counsel for the respondent Ms Schwarz stressed the fact that circumstances had changed since the Bradshaw case, supra.
She noted that documents released under FOI can be used for any purpose or be disclosed to any other person. The appellant, she submitted, had already been given access to a ‘significant number of documents’ and had notice of the evidence against him. He has also been interviewed by the police.
She submitted that the appellant confused the concept of a ‘prosecution’ from that of an ‘investigation’. There was no time limit upon a prosecution in Australia. If one did commence it is inevitable that there would be a fresh investigation even by the Royal Brunei Police.
At all times, there has remained a contravention of the law of Brunei.
She made submissions in respect of each of the relevant clauses for exemption under Schedule 1 of the Act, including clauses, 4(2)(a)(i); 5; 6(1) and 6(2); 9, and 10(1).
I will also deal separately with her submissions on each document still in dispute.
Discussion
I turn now to consider, and apply the applicable principles to, each of the documents that remain to be determined on this appeal.[31]
· Document 1
[31] A summary of the relevant documents in issue, and my determination in regards to each, is contained in Schedule 1 to these reasons.
Document 1 was described in the initial determination as a ‘report of Detective Brevet Sergeant JA Schneemilch, SAPOL Major Crime Investigation Branch dated 11 August 2008’. Both the FOI Unit of the respondent and the internal review officer had declined access in full of this document, at that time solely on the exemption in clause 9(1). The respondent did not rely upon the exemption in clause 4(2) at either of those times. However, on the appeal the respondent relied on both clause 4(2) and clause 9(1) of Schedule 1. This was consistent with the Ombudsman making a determination having regard to the circumstances at the time.
I will turn first to the exemption in clause 9(1).
Clause 9(1)
The affidavit of Mr Schneemilch detailed part of the evidentiary basis for the exemption claimed in relation to this document:[32]
…the summary report is significant in that it identifies the fact that SAPOL consider certain witnesses to be important to this matter as well as potential lines of inquiry that could be undertaken in the investigation. Were a potential defendant to have access to this document prior to all such lines of inquiry being pursued, they may be able to interfere with or subvert those investigations, such as by contacting potential witnesses whom SAPOL regards as significant.
[32] Affidavit of John Andrew Schneelich sworn 18 November 2015 [32][a].
This clause deals with, in effect, internal working documents of an agency. It is exempt if it contains matters that relate to ‘any opinion, advice or recommendation that has been obtained, prepared or recorded or any consultation or deliberation that has taken place in the course of, or for the purpose of the decision-making functions of an agency’.[33]
[33] Freedom of Information Act 1991 (SA) Sch 1 cl 9(1)(a).
The first question is whether it meets that threshold test. If so the respondent must establish that disclosure would be contrary to the public interest.
Mr Culshaw submitted that the respondent, at no time, was ‘engaging in decision making functions’, because it had no jurisdiction to investigate or prosecute. Indeed, he submitted that the respondent was engaged in a ‘frolic of its own’.
I repeat that I do not accept that submission. It was plain that the respondent had an interest in that the deceased was a resident of South Australia. The police have a role in protecting its residents – even agitating for changes to the law.
I accept that it had no role in charging or prosecuting any one.
However, it clearly was assisting the Royal Brunei Police between 2004 and 2008, in that respect, at its request. It had a further interest because a suspect was a resident of the State.
I have no doubt that documents generated at that time fall directly within the class of document within clause 9(1). There is no doubt on the face of the documents that from 2002 the Australian Parliament had indicated its intention to grant jurisdiction in respect of the death of Australians overseas. When the respondent interviewed the appellant in 2011 it was a matter of public interest.
I accept the respondent’s submission that these documents fall within clause 9(1), as part of the respondent’s ‘decision-making functions’.
I turn then to the question whether the disclosure would be contrary to the public interest. In my opinion, as a principle it cannot be in the public interest for the police internal analysis to be released, at least until an arrest has been made. In the subject case I accept that over 23 years has elapsed. In the subject neither this nor the decision of the Australian Federal Police not to launch an investigation mean that no future investigation will occur.
There can be no doubt that there is a high public policy basis for this exemption. It is the preservation of confidentiality to promote full and frank advice.[34] That submission has been universally accepted in such cases, on the basis that if views freely exchanged in the context of a decision to lay charges, found their way into the public arena, ‘that would have a ‘chilling effect’ on the frank expression of views’.[35]
[35] See Capone v SA Police Information Unit [2001] SADC 7; Secretary, Department of Justice v Osland, supra.
In my opinion, this strong public interest outweighs the competing public interest in access to this information. In my opinion, the claim for full exemption in respect of document 1 under clause 9(1) was correctly taken. I affirm that determination.
I do not need to detail clause 4(2). I will briefly explain why.
Clause 4(2)
This clause was not raised by the respondent upon the initial application nor upon the reviews.
At the time of the initial application there appeared to be no possibility of any continuing investigation. By the time of the appeal the amendment of the Commonwealth Criminal Code had occurred and such an investigation by the Australian Federal Police was probable.[36] Subsequently the Australian Federal Police announced that it would not proceed with an investigation.
[36] Appellant’s Outline of Argument [15]; T20.
I repeat that it cannot of course be said that such an investigation will never occur. There are many examples of charges being later laid with or without fresh information coming to light. It is at that time that a fresh investigation would arise and inevitably include the assistance of the Royal Brunei Police.
In the event document 1 falls within the scope of clause 4(2)(a)(i) the question would then be whether disclosure of this document creates a reasonable expectation of prejudice to the investigation. In considering the analogous Commonwealth provision, Woodward J, in New Corporation Ltd v NCSC,[37] explained:
A reasonable expectation of an event requires more than a possibility, risk or chance of the event occurring. On the other hand, if the legislature had required a probability of prejudice it could easily have said so. In my view, it is reasonable to expect an event to occur if there is about an even chance of its happening and, without attempting to suggest words alternative to those chosen by the draftsman, it is in that general sense that the phrase should be read.
[37] News Corporation Ltd & Ors v National Companies and Securities Commission (1984) 57 ALR 550, [561-562].
The expectation must not be ‘fanciful, far-fetched or speculative’.[38]
[38] Konieczka v South Australia Police [2006] SADC 134 [14].
The appellant submitted that the evidentiary basis for the reliance on clause 4(2) was no more than a ‘bald assertion’ that the appellant might subvert the investigation.[39]
[39] T39-40.
It was submitted on behalf of the appellant that the suggested case against him is so weak that there is no real prospect of conviction, and so there was no reason for him to consider prejudicing an investigation.
This again raises the question of timing. I have significant concerns in determining this question in respect of clause 4(2), because its relevance depends upon the time the application is to be considered.
The circumstances have changed dramatically over time, in particular whether there is likely to be an investigation. Neither party turned their mind to the relevant time for making a determination. If an investigation were pending then there is a possibility that the receipt of an analysis performed by the respondent might constitute the required ‘jig-saw piece’ of information that puts any person, in a position to take steps to frustrate an investigation.[40]
[40] News Corporation Ltd & Ors v National Companies and Securities Commission (1984) 57 ALR 550, [561].
By the time of the appeal it was probable that there would be an investigation. If that is the relevant time then there may have been a substantial risk to that investigation had such a document indicting the police reasoning been released.
The reliance by the respondent on clause 4(2) was not accepted by the Court in the Bradshaw case. I repeat that the facts in that case were different. However, it again highlights this difficulty of timing. That is why the respondent did not rely upon it initially in this case.
I will not proceed on a speculative basis to determine the exemption under clause 4(2).
Conclusion as to Document 1
Accordingly, the respondent has not made out the exemption under clause 4(2). In any event the document remains exempt under clause 9(1).
Documents 8, 46, 52, 54, 63, 64, 75, 76, 77, and 79
In relation to these 10 documents, the respondent bases its claim for exemption under clause 6, whether subclause 6(2) alone, or both subclauses 6(1) and 6(2).
As noted, clause 6 of the schedule creates an exemption for documents that affect the interests and personal affairs of third parties.
The relevant principles
Clause 6(1), in particular, was enacted to protect personal information. In considering the equivalent clause in the New South Wales Freedom of Information Act 1989, Kirby P (as he then was), made the following observation:[41]
The general object of the clause is to protect private information of third parties who may be referred to in agency documents but who may be unaware that their private affairs stand subject to exposure by a claim for access made under the Act.
[41] Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 [620].
It is, however, a broad concept that is difficult to comprehensively define.[42]
[42] Simring v Commissioner of Police (NSW) [2009] NSWSC 270 [51]-[52].
Clause 6(2) is somewhat more specific. Documents which contain ‘allegations or suggestions of criminal or other improper conduct’ by a third party are exempt from release under its operation. Quite clearly this is in recognition that the release of such information, not subject to the proper scrutiny of judicial process, can be particularly damaging to an individual.[43]
[43] See Bradshaw v SA Police; SA Police v Bradshaw [2012] SADC 184 [40].
Both subclauses involve the application of a two-part test before a document is deemed to be exempt from release. This first stage is determining, as a question of fact, whether the document in question contains the requisite information concerning personal affairs, or suggestions of criminal or improper conduct, respectively.
If the document is considered to contain such information, then the second stage involves assessing whether the disclosure would be ‘unreasonable’.
Substantial interest of the appellant
At all times, including at the hearing of the appeal, the appellant has maintained that he has a substantial personal interest in the contents of the documents irrespective of whether he could be prosecuted. In particular he wishes access to the documents to be able to prepare for any applications whether for extradition, or in respect of civil proceedings.
While, in general, a person’s right of access to documents is not affected by his or her reasons for seeking access, those reasons may still be relevant. By way of example the decision maker is obliged in respect of clause 6(1) of Schedule 1 to the Act, to consider whether the request for access is unreasonable having regard to competing interests. To that extent the agency may take into account the reasons for access. See Victoria Police v Marke,[44] and Simring v Commissioner of Police.[45]
[44] [2008] VSCA 218. See Paterson Freedom of Information and Privacy in Australia, 2nd ed pp [359-360].
[45] [2009] NSWSC 270.
As Pagone AJA stated in Victoria Police v Marke:
A decision-maker is required by the section to predict about the disclosure of a document that its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person. That requires the decision-maker to identify all of the facts and matters relevant to the question to be determined and make an evaluative judgment based upon them. The use in the section of the word ‘would’ indicates that the decision-maker must have a high degree of confidence about the conclusion: it is not enough for the decision-maker to conclude that disclosure of a document might or could result in the unreasonable disclosure of the personal information in question. The need for that degree of confidence reflects the primary objective of the Act to provide public access ‘as far as possible’.
In addition, the right of access is subject to exemptions that recognise both public and private interest. It involves a balance of interests.[46]
[46] See Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [135]; [147-152].
In Paterson Freedom of Information and Privacy in Australia, 2nd Ed, the author at 6.26–6.28, detailed the following factors as relevant to the reasonableness of disclosure:
·The applicant’s interest in the information;
·The nature of that information, including its sensitivity;
·The circumstances in which the information was obtained;
·The likelihood that the person who provided the information would have approved its release;
·Whether the information had any current relevance;
·Whether its disclosure could be restricted;
·Whether and to what extent the information was already known to the applicant.
In considering this stage, I adopt the dicta in Page v Metropolitan Transit Authority in which it was said:[47]
…a balancing of interests: the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by granting access to the information and the object of the Act to extend as far as possible the right of the community to have access to information in the possession of the Government or Agencies. More particularly, this balancing exercise requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance.
[47] Page v Metropolitan Transit Authority (1988) 2 VAR 243 [246] quoted in Bradshaw v SA Police; SA Police v Bradshaw [2012] SADC 184 [54]; See also Re: Chandra and Department of Immigration and Ethnic Affairs (1984) 6 ALN N257.
In Bradshaw,[48] His Honour Judge Muscat when considering the ‘unreasonableness’ test, said:
It is accepted that an applicant seeking access to documents…is not required to demonstrate any particular interest in the document nor disclose what might be done with the document if access is granted. In this way the FOI Act deliberately does not discriminate against one applicant over another. However, there are a number of authorities which have held that in an appropriate case, a decision-maker is permitted to have regard to the special interest of an applicant in seeking access to documents when considering this aspect of the [clause 6] exemption.
[Footnotes omitted.]
[48] Bradshaw v SA Police; SA Police v Bradshaw [2012] SADC 184 [58]; See also, eg, Re: Secretary, Department of Prime Minister & Cabinet and Wood & Anor [2015] AATA 945 [19].
The respondent submitted that any weight given to the appellant’s special interest must take into account the absence of any limitations on further disclosure, and the real possibility that the information could be disseminated further.[49] I accept that this is a factor which can be considered.[50]
[49] Respondent’s Outline of Argument [39].
[50] Bradshaw v SA Police; SA Police v Bradshaw [2012] SADC 184 [64].
I turn now to consider the application of these principles in relation to each of these 10 documents.
Document 8 is a 43 page police property receipt. The appellant has been provided with minor redactions to pages 26 and 27. The deleted text reveals an individual who was, at one stage, considered to be a suspect in this matter.[51] This is plainly within the scope of clause 6(2).
[51] Respondent’s Outline of Argument [53]-[54].
In determining whether release of this information would be unreasonable, regard must obviously be had to the seriousness of the allegations of criminal conduct. It is trite that there could be, in this regard, no more serious an allegation made against a person than naming them as suspect in a murder.
In accordance with s 26 of the Act, at the time of the Bradshaw appeal, that individual was consulted and opposed disclosure.[52]
[52] The views are contained in the closed affidavit of Tracy McLeod Gentgall sworn 11 November 2015.
Counsel for the appellant correctly submitted that whether disclosure would be ‘unreasonable’ involves a balancing exercise between the right of access by the public and the right of privacy. I accept that the Court ought to be satisfied to a high degree of confidence about whether disclosure was or was not unreasonable.
Mr Culshaw conscious of a further investigation at that time of the appeal submitted that the document would be highly relevant to a potential extradition.
As part of a balancing exercise I have taken into account the lapse of time since the murder; the fact that a prosecution is now less likely, and the significant interest that the appellant has in the subject information, both as the husband of the deceased and one who has been named as a suspect at one time.
Conclusion as to Document 8
Weighing the above considerations, I am satisfied that the release of the information would be unreasonable on any objective view. The implicit allegation of criminal conduct in respect of that individual is of course untested. However, its release would cause overwhelming damage to that individual’s reputation. I accordingly affirm the decision to exclude the information sought by the appellant in this document.
Document 46 is a witness statement, taken in question and answer form on 30 July 1994. The appellant has been given access to this document, save for two questions and answers on the third page, and on the fourth page.
The respondent contends that the redacted parts contain information concerning the personal affairs of third parties, and indirect suggestions of criminal conduct.
This document had been considered by the Court in Bradshaw, and the items exempted.
In relation to the questions deleted from page three, I consider both claims to be tenuous. The questions asked relate to two persons named in the preceding pages, to which the appellant already has access. They do not reveal any matters that I consider would fall within the true ambit of clause 6(1). In my view, the questions flow naturally from the answers already given by the witness. They are the sorts of questions that would be expected at the early stage of a criminal investigation, and do not convey, on the face of the document, any allegation or suggestion of criminal or other improper conduct. As such, I consider that the respondent’s reliance on subclauses 6(1) and 6(2), in relation to the third page of this document, fails at the threshold stage.
I do, however, take a different view in relation to the redaction on the fourth page. I consider the answer concerns the personal affairs of a third party, and it also conveys, albeit by implication, a suggestion of criminal conduct.
Consistent with my view as to document 8, I am satisfied, even despite the passage of time and the appellant’s unique interest in the matter, that disclosure in respect of the redacted passage in page four, remains unreasonable.
Conclusion as to document 46
Accordingly, cogent reasons exist to vary the determination for document 46, and I do so, to the extent that the appellant is to be provided access to the two questions and answers on page three. The information on page four is exempt, and is to remain redacted.
Document 52 is also a witness statement, with the substantive redaction involving two questions and answers on the fourth page of the document. The respondent has, properly in my view, abandoned the exemption claim in relation to the second question and answer. As such, it is only the first that falls for consideration.
I accept that the information contained falls within clause 6(1), although I note that it largely concerns the appellant.
I am also not convinced that there is any suggestion, implied or otherwise, of criminal or improper conduct on the part of the three individuals named in the answer. Similar to document 46, it involves an appropriate line of questioning at this point of any investigation. The response does not reveal anything about these individuals beyond their names and that they were, potentially, close to the appellant.
In any event, I am not satisfied that disclosure of this information would be unreasonable. In reaching this conclusion I have weighed the factors referred to above, against the innocuous nature of the information revealed.
Conclusion as to Document 52
I therefore vary the determination in relation to document 52 such that each of the questions and answers on page four of the document be disclosed to the appellant. The witness’s address and passport details on page one, however, are within the scope of 6(1) and are to remain redacted.[53] I understand the appellant is not pressing for release of such information in any event.[54]
[53] But see Sellars v South Australian Police [2012] SADC 9 [16]-[17].
[54] T37.
Document 54, involves another witness statement. It has been provided to the appellant with a series of questions deleted from the third page. The respondent in this case relies solely on clause 6(2) for the exemption of those questions.
In contrast to document 52, where the questioning was of a general nature, the redacted portion of this document contains specific questions directed at two individuals. I am satisfied that the information involved conveys an allegation of criminal conduct, and so falls squarely within the scope of clause 6(2).
I have again weighed up whether disclosure of this information would be unreasonable. The purpose of clause 6(2) must be given proper effect, particularly when the conduct involved is at this level of seriousness.
Conclusion as to Document 54
I am satisfied that disclosure of this information remains unreasonable, and so affirm the determination of the exemption of the subject redaction in relation to document 54.
Document 63 is a witness statement which has been provided to the appellant with redactions. In this case, two questions and answers on the third page have been deleted.
I am satisfied that the relevant information meets the threshold requirement for clause 6(1), and is also sufficient to found an inference, or at least a suspicion of criminal involvement on the part of an individual pursuant to clause 6(2). I note that this is consistent with the decision in Bradshaw, supra.
Conclusion as to Document 63
I am accordingly satisfied that disclosure would be unreasonable. The determination is affirmed. This extends to both the redactions discussed on page three, and the passport and address particulars deleted from page one.
Document 64 is another witness statement. It has been provided to the appellant almost in its entirety. Passport and address details have been removed from the first page, as has one question and answer from the fourth page. At issue is the latter question and answer.
I am satisfied that the information plainly concerns the personal affairs of a particular individual. While there is no direct assertion of criminal conduct on the part of that individual, I accept that the question, on page four when considered in the context of the entire document, would lead to such an inference of criminality. This is also consistent with the decision of the Court in Bradshaw, supra.
Conclusion as to Document 64
Consistent with the considerations that have been discussed above, I am satisfied that disclosure of this information remains unreasonable, and I affirm the determination in relation to document 64.
Document 75 is a witness statement dated 3 August 1994, originally taken in Malay. I have accordingly had regard to the English translation provided in the closed affidavit of Senior Sergeant Gentgall in considering this document. The respondent relies for the exemption upon both clause 6(1) and 6(2).
Apart from the witness’s then address, the only substantive redaction is to a single question and answer on the final page of the statement. The respondent submits that, the witness raises suggestions of criminal conduct against individuals, albeit in general terms and without naming any individuals apart from the appellant himself.[55]
[55] Respondent’s Outline of Argument [65].
In my view, the only allegation or suggestion of criminal conduct in this redacted portion of the document is that levelled against the appellant. Accordingly, I do not consider that it falls within the exemption provided by clause 6(2).[56] I maintain this view having read the entirety of the documents that answer the appellant’s initial application. In my opinion, it is simply too vague and indeterminate to found a claim for exemption based on clause 6(2).
[56] Freedom of Information Act 1991 (SA) Schedule 1 cl 6(3).
Conclusion as to Document 75
Accordingly, I vary the determination in relation to document 75 such that the appellant is to be given access to the deleted question and answer on the final page of the document. The witness’s address details are to remain redacted.
Document 76 is another witness statement in Malay. The appellant has been provided access to a copy with substantive deletions on pages 12 and 13.
The first redaction contains information that I accept falls squarely within the scope of 6(1). I am further satisfied that the second redaction also contains such information. Indeed, it may also fall within clause 6(2). As such, the determination again demands consideration of the reasonableness or otherwise of the disclosure.
I consider the nature of the personal information to be of considerable importance and disclosure of it would be unreasonable. It is, in my view, the type of information is such that the public interest in protecting privacy, and so encouraging full and frank disclosure with investigating authorities, far outweighs any interest that the appellant has in the information.
I repeat the dicta of Smart AJ in Simring v The Commissioner of Police, supra, as to the importance of protecting the sources of information.[57]
[57] Simring v Commissioner of Police (NSW) [2009] NSWSC 270 [69].
Conclusion as to Document 76
This document ought not to have been in dispute. I accordingly conclude that disclosure is unreasonable. I affirm the determination.
Document 77, this witness statement dated 20 November 1996, has also been provided to the appellant in part. There are quite significant redactions to the question and answer section, spanning from pages four to seven.
I accept that the line of questioning, and the answers provided, give rise to an inference of criminal conduct on the part of an individual. They bring the material clearly within the ambit of clause 6(2).
I am equally satisfied that the disputed information contains matters concerning the personal affairs of an individual, sufficient to meet the threshold requirement of clause 6(1).
Conclusion as to Document 77
I am satisfied that the disclosure of this information remains unreasonable. Despite the passage of time, and given the nature of this document when read as a whole, the individual concerned is, in my opinion, entitled to the protection of clause 6(2) against the disclosure of untested allegations of serious criminal conduct. The determination in relation to document 77 is accordingly affirmed.
Document 79 is a request to the Department of Forensic Medicine in Singapore for an expert forensic report. As made plain by the respondent, the redacted portion, specifically names a second suspect in the investigation.
Whilst I am not convinced that this information answers the scope of clause 6(1) as asserted by the respondent, it plainly falls within the exemption in clause 6(2).
Conclusion as to Document 79
I am satisfied that disclosure of this information would be unreasonable. This is again consistent with the decision in Bradshaw. Accordingly, the determination for document 79 is affirmed.
· Documents 81 and 87
It is convenient to deal with these documents collectively, as for each the respondent bases its claim for exemption on clause 4(2)(a)(i). At the initial determination stage the respondent relied upon clause 9(1) for each, however, such reliance was abandoned by the time of this appeal.
Document 81, described as ‘correspondence with SA DPP dated 15 July 2010’, has been released to the appellant in part. The appellant has received almost the entire document, with just two bullet points removed from the first page.
Document 87 is a fax to Peng Eng Lee of the Royal Brunei Police Force, with a letter attached. The appellant has been provided a copy of the covering fax, but not the attached letter.
In both cases, I am satisfied that the redacted portion contains an analysis of the evidence conducted by officers of the respondent.
Both documents present the same issue of timing as referred to in respect of document 1. The respondent relies on clause 4(2)(a)(i) but did not do so initially. Document 81 contains the respondent’s analysis of the evidence. Document 87 contains evidence collated by the respondent. I am aware that it may be suggested that there is an inconsistency between my view of these two documents and that in document 1, in respect of which I was not required to make a decision. I make it plain that the nature of the two documents does give rise to the prejudice to any future investigation. The fact that the Commonwealth Legislation has been enacted makes a future investigation more likely than prior to the enactment, despite the decision of the Australian Federal Police at this time.
Conclusion as to Documents 81 and 87
In my opinion, the disclosure of the document would prejudice any such future investigation. I remain of the view that disclosure would be contrary to the public interest. In my opinion that the public interest in maintaining the effective operation of the police force, and investigations of major crimes outweigh the public interest in the free access to this information.
Accordingly, I affirm the determinations in relation to documents 81 and 87, respectively.
· Documents 82 and 83
It is convenient to deal with these two documents together, as the respondent relies, for each document, solely upon the exemption for legal privilege provided by clause 10.
In F, M v Attorney-General’s Department,[58] the Court observed, at [11]-[12], that:
[b]efore considering the documents in question it is fundamental to understand the reach of the legal professional privilege doctrine. It is deeply entrenched in the common law of this country, one recognised at least from Elizabethan times: Kelway v Kelway and Waldron v Ward. In the latter case the Chief Justice is reported to declare that a councillor at the Bar ‘is not bound to make answer for things which may disclose the secrets of his client’s cause’. The privilege exists because otherwise ‘everyone would be thrown upon his own legal resources’: Pearse v Pearse.
Legal professional privilege most notably covers communications between solicitor and client, however it extends to communications with third parties and their lawyers and the lawyers for the client, when made in contemplation of and for the purposes of extant litigation: Baker v Campbell and Public Transport Authority (WA) v Leighton Contractors Pty Ltd. The privilege further extends to counsel engaged in the case, being the alter ego of the instructing solicitor: Mayor of Bristol v Cox. It has, on the other hand, been doubted that it applies to a self represented party: National Employees Mutual General Insurance Association v Waind and Baker v Campbell.
[Footnotes omitted.]
[58] [2013] SADC 123.
The appellant did not have access to either document and was thus restricted as to what submissions could be put in furtherance of his appeal. His counsel properly conceded that ‘the Court is in the best position to determine whether privilege is properly claimed’.[59]
[59] Respondent’s Outline of Argument [69].
Document 83, as described in the initial determination, is a ‘letter to John Venditto, Officer in Charge, Major Crime, SAPOL dated 17 November 2008’. The appellant was denied access to the entirety of this document. The reasons for refusal were put as follows:
The document contains advice from the DPP to SAPOL regarding the extent of the DPP’s ability to prosecute offences and the limitation regarding the requirement of the jurisdictional nexus. I consider that there are reasonable grounds that the document is subject to legal professional privilege.
Legal professional privilege applies equally to legal advisors employed by the executive arm of government,[60] and extends to communications between those advisors and an agency of government, which falls within the scope of legal professional privilege.[61]
…where there exist[s] a professional relationship between them which secures to the advice an independent character, notwithstanding the employment relationships.
[60] F, M v Attorney-General’s Department [2013] SADC 123 [17] citing Austin v Deputy Secretary, Attorney-General’s Department (1986) 12 FCR 22.
[61] F, M v Attorney-General’s Department [2013] SADC 123 [18] citing Waterford v The Commonwealth (1987) 163 CLR 54 per Mason and Wilson JJ at [62], per Dawson J at [96].
Having seen the document, I am satisfied that the document contains legal advice from the Director of Public Prosecutions to an agency of government. Accordingly, the decision to refuse access to document 83 is affirmed.
Document 82 is correspondence from John Venditto to the Deputy Commonwealth Director of Public Prosecutions, on the same date as document 83. The appellant was supplied with a partially redacted copy of this document, with a single exempt paragraph removed from each of the two pages. The respondent subsequently abandoned the claim for an exemption in relation to the paragraph on page two.[62]
[62] Respondent’s Outline of Argument [9][e], [10].
Having viewed the entirety of this document, I am satisfied that its dominant purpose was seeking, legal advice.[63] The respondent did not argue that the entire document was exempt by virtue of clause 10(1).[64]
[63] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; See also Re: Secretary, Department of Prime Minister & Cabinet and Wood & Anor [2015] AATA 945 [32].
[64] See Treglown v SA Police [2011] SADC 139 [175].
Conclusion as to Documents 82 and 83
Accordingly, in relation to document 82 I vary the determination to the extent that the appellant is to be provided with a copy of the document without the redaction on page two. In relation to document 83 the determination is affirmed.
· Documents 90 and 91
In relation to each of these documents, the respondent relies upon clauses 4(2), 6(1), and 9(1) for its claim for exemption.
Document 90 is email correspondence, and associated attachments, from Mr Schneemilch to the Attorney-General’s Department. A significant portion of the covering email has been released to the appellant, whilst no access has been granted to the attachments.
I briefly note that the document contains Mr Schneemilch’s personal mobile phone number.[65] I assume this is the basis of the claim pursuant to clause 6(1). The appellant is not pressing for release of such information, and as such it will remain exempt.
[65] Affidavit of John Andrew Schneemilch sworn 18 November 2015 [32][m].
In relation to the remainder of the email, I have difficulty seeing how the information falls within any of the exemptions claimed by the respondent. There are statements that may amount to suggestions of criminal conduct, but only by the appellant, and falls within clause 6(3).
The relevant portions of the email relate to the potential extradition of the appellant. The disclosure of this information would not be contrary to the public interest for the purpose of clause 4(2) or 9(1).
The attachments present a slightly different proposition. I am satisfied that the contents of the first attachment, may fall within clause 4(2)(a)(iii), but any prejudice is highly speculative.[66]
[66] Konieczka v South Australia Police [2006] SADC 134 [14].
I am also not satisfied that disclosure would be contrary to the public interest.
In Bradshaw, his Honour Judge Muscat rejected a similar argument based on clause 4(2)(a)(iii), with his Honour concluding:[67]
I cannot see how the contents of the [document] could reasonably be expected to prejudice the effectiveness of cooperation between SAPOL and those other bodies or how it would be contrary to the public interest to release [it].
[67] Bradshaw v SA Police; SA Police v Bradshaw [2012] SADC 184 [110]: the document in question was referred to as ‘document 96’ in Bradshaw. It is also to be noted that access to the attachments was eventually refused by Muscat DCJ pursuant to clauses 6(1) and 6(2). This is presumably due to references to the appellant in this case. As noted, clause 6(3) prevents a similar outcome on this appeal.
I respectfully agree. I will vary the determination in regards to the first attachment such that the appellant is given access to the document in its entirety, with the exception of the mobile phone number at the bottom of the second page, which will remain redacted pursuant to clause 6(1).
I take a similar view in relation to the majority of the second attachment. This is a draft request for the provisional arrest of the appellant. I do not consider it to answer the definition of an internal working document for the purposes of clause 9. While it contains allegations of criminal conduct, by the appellant, it is covered by clause 6(3).
I also do not consider the majority of the document to contain information, the release of which could reasonably be expected to cause prejudice, as required by clause 4(2).
Conclusion as to Documents 90
Accordingly, I would vary the determination in relation to document 90. I would order that the appellant be provided access to the entire document, save for the mobile phone numbers on pages one and three. The fourth paragraph of page four, will also remain redacted.
Document 91 is described as an email from Brenton Rowney to John Venditto. The appellant has been refused access to any part of this document.
Having viewed the document I am satisfied that it falls within the definition of clause 9(1), containing advice and opinion in furtherance of the decision to pursue a prosecution or otherwise. I am also of the opinion that, particularly those paragraphs which the respondent has highlighted contain an analysis of the evidence,[68] would satisfy the threshold requirement of clause 4(2)(a)(i).
[68] Respondent’s Outline of Argument [81].
Conclusion as to Document 91
Consistent with the approach taken to other documents, I am satisfied that release of this information, would be contrary to the public interest.
I affirm the decision in relation to document 91.
· Document 92
Document 92 is a letter from Peng Eng Lee, of the Royal Brunei Police, to the then Commissioner of SAPOL, requesting assistance from the respondent with respect to forensic testing. The appellant was granted access to this document in part, with some two paragraphs deleted from the first page.
The respondent bases its claim for exemption in relation to this document on clause 5(1), that is, for documents affecting intergovernmental relations.
This clause also involves a two-part test. There is a threshold test that must be addressed, and if such criteria are appropriately satisfied, the decision-maker must go on to consider whether disclosure ‘would, on balance, be contrary to the public interest’.
In its original incarnation, this clause was quite clearly limited to relations between the government of South Australia and that of the Commonwealth, or another State of the Commonwealth. It relevantly provided:
(1) A document is an exempt document if it contains matter—
(a)the disclosure of which—
(i)could reasonably be expected to cause damage to relations between the Government of South Australia and the Government of the Commonwealth or of another State; or
(ii)would divulge information communicated in confidence by or on behalf of the Government of the Commonwealth or of another State to the Government of South Australia or to an agency or other person or body receiving the communication on behalf of the Government of South Australia; and
(b)the disclosure of which would, on balance, be contrary to the public interest.
[Emphasis added.]
The current clause, referring to the more generic ‘intergovernmental relations’ and ‘intergovernmental communications’ was inserted by s 34(d) of the Freedom of Information (Miscellaneous) Amendment Act 2001 (SA). The second reading speech suggested that it was restricted to local councils.[69]
The proposed amendment to clause 5 is consequential to the inclusion of [local government] councils under the Act.
[69] South Australia, Parliamentary Debates, Legislative Council, 25 July 2001, 2062 (RD Lawson).
Accordingly, it appears likely that the widening of the scope of clause 5 was directed at the addition of relations and communications with local governments specifically, as opposed to international bodies politic. The definition of ‘government’ in s 4(1), and the operation of s 25 support this contention.[70]
[70] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69].
Both parties proceeded on the basis that the operation of clause 5 could extend to relations and communications with the Government of Brunei and its respective agencies. Giving ‘intergovernmental’ its ordinary meaning of ‘occurring between or involving two or more governments’, I am prepared to proceed upon this basis. I further note this would appear to be consistent with the approach taken in Bradshaw.[71]
[71] Bradshaw v SA Police; SA Police v Bradshaw [2012] SADC 184 [112].
The redacted portion of this communication refers to resource limitations on the Royal Brunei Police Force. I readily infer that this information was provided on a confidential basis.[72] This satisfies the threshold requirement of clause 5(1)(a)(ii).
[72] See Re: Maher and Attorney-General’s Department (1985) 7 ALD 731 [738].
I turn then to consider whether disclosure would be contrary to the public interest. This again involves the balancing of competing public interests: that of public access to information under the Act; and that of the effective function of Government agencies, which includes cooperation with other Governments.
I also acknowledge the long delay since 1994. If there is to be a further investigation into this matter, it would depend upon the cooperation of the authorities in Brunei. As I have explained it cannot be said that there will be no further investigation.
It is a difficult balancing exercise. The document contains frank information between two Government Agencies, the release of which could harm inter‑government relations.
Conclusion as to Document 92
On balance, I am satisfied that document 92 is exempt pursuant to clause 5(1).
· Documents 93 and 98
In relation to these two documents, the respondent relies upon a combination of clauses 4(2), 5(1) and 9(1) to support its claim of exemption.
Document 93 is correspondence from the respondent’s Major Crime Investigation Branch to the Royal Brunei Police, dated 24 June 2004. The appellant had been provided access to a copy with two paragraphs deleted from page one, and a further one paragraph deleted from page two. The respondent has, however, abandoned the latter claim,[73] and so it is just the exemption on page one that falls for consideration. The respondent placed specific reliance on clauses 4(2) and 9(1) in relation to this document.
[73] Respondent’s Outline of Argument [9][g].
I am not satisfied that the document, or the redacted parts thereof, satisfy the threshold definition in clause 9(1). While the document contains advice to the Brunei Police, it is the decision-making function of this entity to which the information attaches. It is plain that the Royal Brunei Police are not an agency for the purposes of the FOI Act.
I have also given careful consideration to the application of clause 4(2) in relation to document 93. In my view, the information withheld does not answer the requirement for a reasonable expectation of prejudice. In arriving at this conclusion, I place significant weight on the fact that the appellant has already been given access to the information contained in these paragraphs.[74] There is some, minor, analysis of this raw information, however I consider the prospect of this prejudicing any investigation to be speculative, even fanciful.
[74] See, in particular document 21 at page 9-10, and document 14, both of which have been released to the appellant in full.
Conclusion as to Document 93
Accordingly, in relation to document 93, I would vary the determination such that the appellant is provided with access to this document in its entirety.
Document 98 is a two-part document, containing a two-page memo to the Commissioner, and an accompanying five-page report prepared by a Detective Senior Sergeant, Baird. The appellant has been granted access to the majority of the memo, whereas the report has been redacted in full. The respondent relies upon clauses 4(2), 5(1), and 9(1) in support of its claim for exemption.
Dealing first with the memo, having viewed it in full and considering the respondent’s submissions,[75] it is clear that the claim for exemption in relation to this memo is based on clause 5(1), and, specifically, subparagraph (a)(i). It discusses the investigation undertaken by the Royal Brunei Police.
[75] Respondent’s Outline of Submissions [84].
In considering the analogous, and not dissimilar, Commonwealth provision, Davies J, President of the Administrative Appeals Tribunal, noted the following:[76]
… s 33(1)(a)(iii) has in mind that disclosure would or could reasonably be expected to cause actual and significant damage to relations between Australia and another country. …I accept that the mere possibility of damage is not sufficient. …The phrase ‘damage to international relations of the Commonwealth’ comprehends intangible damage to Australia’s reputation though such damage may be difficult to assess.
… I accept that it must be shown that the publication of a document claimed to be exempt could reasonably be expected to cause damage to the international relations of the Commonwealth. A mere allegation to that effect is not enough. There must be cause and effect which can reasonably be anticipated. But if it can reasonably be anticipated that disclosure of the document would lessen the confidence which another country would place on the Government of Australia, that is a sufficient ground for finding that the disclosure of the document could reasonably be expected to damage international relations. Trust and confidence are intangible aspects of international relations.
[Emphasis added.]
[76] Re: Maher and Attorney-General’s Department (1985) 7 ALD 731 [742].
A reasonable expectation of damage to intergovernmental relations requires more than a possibility, but less than a probability. The expectation must be based on reason and not be far-fetched, fanciful, or speculative.
I am satisfied that in the case of three of the four redacted paragraphs, the release of their content could reasonably be expected to harm the relations between an agency of the South Australian Government, and another Government, that being Brunei and the Royal Brunei Police. I am not satisfied that the fifth paragraph on the first page satisfies this threshold.
I also have no difficulty concluding that the release of these three paragraphs would be contrary to the public interest. I find, as with document 92, the timing to be of importance. The public interest in investigating crimes of this type cannot be overstated, and if a fresh investigation is to be successful, the ongoing cooperation of the Royal Brunei Police is likely to be critical. I also accept the respondent’s suggestion that there are more far-reaching public interest concerns attaching to this document, in that release could potentially affect the willingness of other law enforcement agencies to cooperate with the respondent. This is clearly contrary to the public interest, and, in my view, dictates that the content remain exempt.
Turning to the report of Officer Baird, it is clear that the respondent places primary reliance upon clause 9(1). I accept that this document contains opinion and advice prepared and recorded in the course of the respondent’s decision-making function. It accordingly answers the threshold requirement of this clause. I also briefly note that it does also contain, as suggested, indirect references to the investigation by the Royal Brunei Police which may fall within the ambit of clause 5(1)(a)(i). There is also, at least arguably, information relating to DNA storage, and evidential analysis, which may be exempt by virtue of subclauses 4(2)(a)(iii) and 4(2)(a)(i), respectively.
As has been noted, each of these three clauses is subject to the overarching public interest test. In relation to this report, I am satisfied that the balancing exercise is against the release of the information. In arriving at this conclusion, I have considered again the public interest in protecting full and frank discussions at such decision-making stages, as discussed in relation to document 1. Regarding the evidential analysis, I again consider the public interest in treating such information as confidential, at least until the decision to prosecute is made, as outweighing any interest in granting free access to it. Similarly, with the information that falls within the scope of clause 5(1), I note again, as in relation to the first part of this document, and document 92, that the public interest in ensuring the cooperation of the Royal Brunei Police, so as to not compromise any investigation into this matter, to be a principal concern.
For the foregoing reasons, I would affirm the decision to refuse access to the Baird report, the second part of document 98.
Conclusion as to Document 98
Accordingly, the determination in relation to this document is varied to the extent that the appellant be provided with a copy without redaction to the fifth paragraph of the first page of the memo but the exemptions are otherwise affirmed.
· Document 99
Document 99, this is a single paged document described as ‘correspondence to Detective Senior Sergeant Baird regarding DNA technology’, was initially released to the appellant with redactions to two paragraphs. However, the respondent has abandoned its claim in relation to paragraph two,[77] and this will be released to the appellant. As such, only the second sentence of paragraph four remains in issue.
[77] Respondent’s Outline of Argument [88].
Having seen the document it is clear, and indeed the respondent has made plain,[78] that the claim for exemption is based upon clause 4(2)(a)(iii), and prejudice to police investigations in general. In particular that if publicly available it could result in the use of DNA analysis being adversely impacted.
[78] Respondent’s Outline of Argument [89].
The impugned statement is generic in its terms. I am not satisfied that the risk of prejudice rises to the level of a reasonable expectation. As a result, I do not find that this satisfies the threshold requirement of clause 4(2).
I also do not consider disclosure of such information to be, on balance, contrary to the public interest. I place significant weight on the generic nature of the information itself, as opposed to specific details of the process of analysing DNA samples. Such information is now freely available. Accordingly, the public interest in access to such a document should prevail.
Conclusion as to Document 99
Accordingly, I vary the determination in relation to document 99, such that the appellant is provided unrestricted access.
Document 100 was to be varied by consent.
Summary
For the above reasons, and to the extent outlined in the attached scheduled, the appeal is allowed in part. The decision of the Ombudsman is rescinded. I have substituted my decision as so outlined.
In my opinion, in the instances where I have affirmed the determination, the respondent has discharged the burden, imposed by s 48 of the Act. Accordingly, there is no reason to depart from those determinations.
In the ordinary course, I will hear the parties as to the question of costs pursuant to s 42G of the District Court Act 1991 (SA). On those matters where the appellant has failed, the discretion is governed by s 40(8)(b) of the Act. Both parties acted entirely reasonably in reaching agreement on the majority of the documents.
It cannot be said that the appellant acted unreasonably, frivolously or vexatiously in proceeding with the appeal on the items upon which he did not succeed.
Formal Orders
1. The appeal is allowed.
2. Pursuant to s 42F of the District Court Act 1991 (SA), the determination of the Ombudsman is rescinded.
3. The substituted decision of the Court is detailed in the Schedule attached to these reasons.
4. Neither party sought an order for costs. Accordingly, each party will bear its own costs.
SCHEDULE OF DOCUMENTS
Document
Document Date
Description of Document
Original Determination
Exemption Clauses Applied
Decision on Appeal
1
11/08/2008
Report of Det. Bvt. Srgt. JA Schneemilch, SAPOL Major Crime Investigation Branch
Access Refused
Clauses 9(1) only
Affirmed
8
30/06/2010
SA Police property receipt 05/A10456.
Part Access
Clause 6(2)
Affirmed
11
13/12/2007
SA Police request for scientific examination
Part Access
N/A
Varied by Consent – appellant to be provided access to the entire document.
12
05/05/2006
Letter from Professor Roger W Byard, SA Forensic Science Centre to Det. Brenton Rowney SAPOL MCIB
Part Access
N/A
Varied by Consent – appellant to be provided access to the entire document.
46
30/07/1994
Statement of Emma Cecilia Timperley.
Part Access
Clauses 6(1) and 6(2)
Varied: redaction on page three removed.
52
30/07/1994
Statement of Beverly Anne McMorrow.
Part Access
Clauses 6(1) and 6(2)
Varied: redaction on page four removed.
54
30/07/1994
Statement of Valerie Harris.
Part Access
Clause 6(2)
Affirmed
61
29/07/1994
Statement of Glenda Joyce Muffutte.
Part Access
Clause 6(1)
Varied by Consent – redaction on page four removed.
63
02/08/1994
Statement of Ma. Aileen J Mallen.
Part Access
Clauses 6(1) and 6(2)
Affirmed
64
02/08/1994
Statement of Sandra Helen Ogunrinde.
Part Access
Clauses 6(1) and 6(2)
Affirmed
65
17/06/1995
Statement of Mona Adly Mostafa Metwaly.
Part Access
Clause 6(1)
Varied by Consent – redaction on page four removed.
71
22/07/1994
Statement of U-Thai Soithong (in Malay).
Part Access
N/A
Varied by Consent – appellant to be provided access to the entire document.
75
03/08/1994
Statement of Anzar Thamrin (in Malay).
Part Access
Clauses 6(1) and 6(2)
Varied: redaction on the final page removed.
76
03/08/1994
Statement of Kuek See Chuan (in Malay).
Part Access
Clauses 6(1) and 6(2)
Affirmed
77
20/11/1996
Statement of Zenaida C. Victoria.
Part Access
Clauses 6(1) and 6(2)
Affirmed
79
09/08/1994
Letter from Dato Hj Abd Rahman Bin Hamid, Head of CID, Royal Brunei Police Force to Director, Singapore Institute of Science and Forensic Medicine.
Part Access
Clauses 6(1) and 6(2)
Affirmed
81
15/07/2010
Correspondence with SA DPP.
Part Access
Clause 4(2)
Affirmed
82
17/11/2008
Correspondence with Commonwealth DPP.
Part Access
Clause 10(1)
Varied: redaction on page two removed.
83
17/11/2008
Letter to John Venditto, Officer in Charge, Major Crime.
Access Refused
Clause 10(1)
Affirmed
85
04/09/2008
Fax entitled cybercrime enquires to Assistant Commissioner Harrison (AC Crime Service) providing response to previous SAPOL correspondence.
Part Access
N/A
Varied by Consent – appellant to be provided access to the entire document.
87
27/08/2008
Fax to Peng Eng Lee, Royal Brunei Police Force with Letter attached.
Part Access
Clause 4(2)
Affirmed
89
29/01/2008
Briefing paper requesting correspondence to be forwarded to Royal Brunei Police. Draft letter attached to document, duplicate of letter attached to document 87.
Part Access
Clause 4(2) and 6(1)
Varied by Consent – redaction on page one removed.
90
21/12/2007
Email correspondence with Commonwealth Attorney-General’s Department, including attachments.
Part Access
Clauses 4(2), 6(1) and 9(1)
Varied: appellant to be provided access to entire document, save and except for: the mobile number on pages one and three; and the fourth paragraph, beginning ‘On the…’ on the fourth page.
91
22/12/2004
Email from Brenton Rowney to John Venditto.
Access Refused
Clauses 4(2), 6(1) and 9(1)
Affirmed
92
21/10/2004
Letter to Commissioner (SAPOL) requesting assistance from SAPOL with forensic examination.
Part Access
Clause 5(1)
Affirmed
93
24/06/2004
Correspondence with Brunei advising SA investigators and experts that further forensic examination is required for progress of investigation.
Part Access
Clauses 4(2) and 9(1)
Varied: appellant to be provided access to the entire document.
98
08/09/2003
Memo to Commissioner (through AC Crime Service) covering report from Det. Snr. Srgt. Baird seeking Commissioner Hyde to raise matter with Commissioner, Royal Brunei Police.
Part Access
Clauses 4(2), 5(1) and 9(1)
Varied: appellant to be given a copy of the memo without redaction of the fifth paragraph on the first page of the memo, but exemptions otherwise affirmed.
99
24/08/2003
Correspondence to Det. Snr. Sgt. Baird regarding DNA technology.
Part Access
Clause 4(2)
Varied: appellant to be provided access to the entire document.
100
01/06/2001
Copy of correspondence with manager, Interpol (Canberra) seeking access to Royal Brunei Police Force’s investigation file for review
Part Access
N/A
Varied by Consent – appellant to be provided access to the entire document.
4
31
0