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Hall v SA Police

Hall v SA Police

Case [2019] SADC 5 31 January 2019

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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Pursuant to s 42F(b) of the District Court Act 1991, S.A., the decision of the Ombudsman is rescinded - this court substitutes its decision which has the effect of permitting access to the appellant of some only of the documents sought by him - including some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 5
Introduction

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hall v SA Police

Details

AGLC: Hall v SA Police [2019] SADC 5
Case: [2019] SADC 5
Decision Date: 31 January 2019

CaseChat Overview and Summary

In the case of Hall v SA Police, the appellant sought access to certain documents held by South Australia Police under the Freedom of Information Act 1991. The Police Ombudsman, acting upon an external review, declined access to the documents sought by the appellant. The primary issue in this case was whether the documents in question were exempt from disclosure as claimed by the police. The Ombudsman concluded, without examining the documents or providing notice to either party, that she might be prohibited by other legislation from perusing the documents, and thus based her decision on the secrecy provisions in clause 12 of the First Schedule to the Act. This decision denied the parties the opportunity to make submissions on the relevance of clause 12 to the documents in question.

The court was required to determine whether the Ombudsman erred in her approach to clause 12. The court examined whether the Ombudsman correctly applied the law in concluding that she might be prohibited by other legislation from perusing the documents, and whether she appropriately substituted the basis for exemption without providing the parties an opportunity to make submissions on the relevance of clause 12. The court considered the relevant provisions of the Freedom of Information Act 1991 and the applicable case law to determine if the Ombudsman's decision was legally sound.

The court found that the Ombudsman erred in her approach to clause 12, as she did not examine the documents or provide notice to either party before substituting the basis for exemption. The court held that the Ombudsman should have considered the relevance of clause 12 to the documents in question, and provided the parties with an opportunity to make submissions on the matter. The court found that the Ombudsman's failure to do so resulted in a legally flawed decision. Consequently, the court quashed the Ombudsman's determination and remitted the matter back to the Ombudsman for reconsideration in light of the court's findings.

The court's final order was that the Ombudsman's determination be quashed, and the matter be remitted back to the Ombudsman for reconsideration in light of the court's findings. The court did not grant any further relief to the appellant, and the decision did not address the merits of the exemption claim in relation to the documents in question.

Orders