Halls v South Australian Police (Freedom of Information Unit) - [2017] SADC 47

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
HALLS v SOUTH AUSTRALIAN POLICE (FREEDOM OF INFORMATION UNIT)
[2017] SADC 47
Judgment of His Honour Judge Tilmouth
2 May 2017
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Appeal against refusal to disclose a document dismissed on the merits.
Freedom of Information Act 1991 (SA) s 40, Schedule 1, clause 4(3); Schedule 2, sub-clause (p); District Court Act 1991 (SA) s 42G(2); Capone v South Australian Police Information Unit [2011] SADC 7; Zeithouneh v SA Police [2015] SADC 34; State of South Australia (DPTI) v The Honourable Robert Brokenshire MLC [2015] SADC 61; Iwancki v Commissioner of Police 29 October 2011, referred to.

HALLS v SOUTH AUSTRALIAN POLICE (FREEDOM OF INFORMATION UNIT)
[2017] SADC 47
The Issue

This is an application for permission to appeal from a decision refusing access to the appellant Mr Halls, to a report made by him to the Salisbury Park Police Station on 20 November 2014. Access was so refused on the basis that the document in question was held by the State Intelligence section of the South Australian Police (SAPOL) and was therefore exempt.
The notice of appeal lodged in this court on 26 October 2016 by Mr Halls claims that the refusal was unjustifiable, that the exemption did not apply and that the report contained ‘information concerning the personal affairs of the applicant’. He seeks an extension of time in which to appeal on the basis that the letter of refusal of 13 September 2016 was not received by him until 28 October that year.
Application History
The original application was made for access to SAPOL records on 26 July 2016, the details of the request being these:[1]
Documented report made by Jeremy Halls in person at Salisbury Police Station on 20/11/2014 in ancillary report SAPOL no. SAI140008957 against Malcolm Corkhill @ Northern Neurology Mawson Lakes of asphyxiating me/choking me on the said date, at the medical centre.
[1] Affidavit of Tracy McLeod Gentgall, TMG3.
By letter dated 12 August 2016, the Officer in Charge of the SAPOL Freedom of Information Unit wrote to Mr Halls refusing the application on the basis that the document was held by State Intelligence and was exempt from disclosure under clause 4(3) to Schedule 1 of the Freedom of Information Act. This provides:
Schedule 1—Exempt documents
…
Part 1—Restricted documents
…
4—Documents affecting law enforcement and public safety
… (3) A document is an exempt document if it is a document that was created by the former Bureau of Criminal Intelligence or has been created or is held by the State Intelligence Section of South Australia Police or any authority substituted for that body.
Mr Halls made an application for internal review of the decision on 6 October 2016, adding the further reason that the document was required:[2]
… by SAPOL, Prosecutor and Applicant Mr J Halls in Magistrates Court of SA hearing. Applicant reported a criminal act and requires a copy for court.
[2] Exhibit TMG.
On 13 September 2016 another accredited officer of SAPOL refused the application on the same basis. The question for determination then is simply whether the document is exempt. There is evidence before the court that the State Intelligence Branch is now the authority substituted for the former Bureau of Criminal Intelligence, that control of SAPOL’s intelligence is the responsibility of the Officer in Charge of that Branch, and that the subject document is held by the State Intelligence Branch.
Applicant’s Submissions on Appeal
In a written submission to the court, Mr Halls points to Schedule 2 of the Freedom of Information Act ‘Exempt Agencies’ and particularly to sub-clause (p), which provides:
(p)South Australia Police in relation to information compiled by—
(i)the former Special Branch; or
(ii)the former Operations Planning and Intelligence Unit; or
(iii)the Operations Intelligence Section (or a body substituted for the Operations Intelligence Section); or
(iv)the Anti-Corruption Branch (or a body substituted for the Anti-Corruption Branch);
This however has no bearing on the case and was not relied on to refuse access. He next claims never to have been a ‘person of interest’ and he points to s 20(2)(1) of the Freedom of Information Act. The Act itself does not permit an agency to refuse access to documents containing personal information concerning the personal affairs of the applicant. However, this is expressly limited to documents coming into existence before 1 January 1987, by reason of s 20(1)(e).
Mr Halls further put into issue whether the documents fall within the law enforcement and public safety exemption. I inspected the document annexed in two closed affidavits submitted to the court, which have since been returned to counsel for the Commissioner. Having done so, I am satisfied that the document is an exempt document in the way claimed by SAPOL, and that it falls squarely within the exemption because it is held by the successor to State Intelligence. This is consistent with the procedure and the approach adopted in Iwanicki v Commissioner of Police.[3]
[3] 29 October 2011, 1041/2011, p 23, Judge Smith.
A number of further points were made by Mr Halls which can be shortly disposed of.
Mr Halls referred to the failure of SAPOL to discharge the onus of proof within the meaning of s 48 of the Freedom of Information Act. There can be no doubt that the document falls squarely within the exception. Furthermore as I pointed out in Capone v South Australian Police Information Unit:[4]
An appellant, in order to succeed, bears an overall or general onus of establishing that there is ‘cogent reason’ to depart from the agency’s decision to refuse access (s42E of the District Court Act). The agency bears the specific onus of establishing that the determination is justified (s48 of the FOI Act). If the agency fails to justify the determination then almost inevitably the appellant will succeed.
[4] [2011] SADC 7, [10].
Mr Halls next questioned the motives or reasons behind the refusal of SAPOL to release the document. This is irrelevant so far as this exemption is concerned, although it might have been otherwise if questions of the public interest arose.
In this instance the balance of the public interest is struck by the very terms of the Freedom of Information Act and qualified by the exemptions: State of South Australia (DPTI) v The Honourable Robert Brokenshire MLC.[5] Questions of public interest do not apply to Clause 4(3) of Schedule 1, as it is drafted in absolute terms: Zeithouneh v SA Police.[6]
[5] [2015] SADC 61, [19].
[6] [2015] SADC 34, [88].
For the above reasons the appeal by Mr Halls must fail and the decision of 13 September 2016, affirmed. The application for an extension of time is refused. There will be no order as to costs in accordance with s 42G(2) of the District Court Act 1991 (SA).