Hanna v Commissioner of Police, NSW Police Force
[2012] NSWADT 137
•18 July 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Hanna v Commissioner of Police, NSW Police Force [2012] NSWADT 137 Decision date: 18 July 2012 Jurisdiction: General Division Before: S. Higgins, Deputy President Decision: The decision of the respondent is affirmed.
Catchwords: Access to documents - exempt documents - documents affecting personal affairs - documents subject to legal professional privilege - documents containing confidential material - documents concerning operations of the respondent agency - whether respondent agency failed to identify all relevant documents or failed to adequately search for documents requested. Legislation Cited: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Freedom of Information Act 1989 (Repealed)
Government Information (Public Access) Act 2009
Police Act 1990
Police Regulations 2008Cases Cited: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140
Chief Executive Officer, State Rail Authority v Woods (No 2) [2003] NSWADTAP 39
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin's case)
Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2202) 213 CLR 543; [2002] HCA 49
Director General, Department of Education and Training v Mullett [2002] NSWADTAP 13
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674 at 677
Howell v Macquarie University [2008] NSWCA 26
Humane Society International Inc v National Parks and Wildlife Services [2000] NSWADT 133
Keriakes v State Rail Authority [2003] NSWADT 191
Macquarie University v Howell (No 2) [2009] NSWADTAP 19
Mann v Carnell (1999) 201 CLR 1
Osland v Secretary to the Department of Justice [2008] HCA 37 at [45]
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at N259
Saleam v Director General, Department of Community Services [2002] NSWADT 41
Vella v Commissioner of Police, NSW Police Force [2009] NSWADT 68
Waterford v Commonwealth (1987) 163 CLR 54
Workcover Authority (NSW)(General Manager) v Law Society of New South Wales (2006) 65 NSWLR 502
Young v Wicks (1986) 13 FCR 85; 79 ALR 448Category: Principal judgment Parties: Nader Hanna (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: N Hanna (Applicant in person)
Crown Solicitors Office (Respondent)
File Number(s): 103305
REasons for decision
Introduction
The applicant, Nader Hanna, a Sergeant of Police, attached to the forensic services group of the respondent, NSW Police Force, seeks review of a decision of the respondent to refuse him access to documents he had sought access to under the Freedom of Information Act, 1989 (the FOI Act).
Although the FOI Act was repealed on 1 July 2010, and replaced by the Government Information (Public Access) Act 2009 (the GIPA Act), the provisions of the FOI Act continue to apply in respect of the applicant's application made on 3 December 2010: see clause 3(1) of Schedule 3 of the GIPA Act.
The applicant had made two requests for access under the FOI Act. The first request, made on 28 January 2010, the applicant sought access to:
'All documents, files, notes, photos and correspondence relating to the drug exposure and chemical exposure to Sgt Nader (Ralph) Hanna from 1/2/09 to 28/1/10 including but not limited to E37230751 and E36692920 as well as all CCTV of the drug rooms and both drug safes during period 1/2/09 to present date being 29/1/10.
Copies of all HAZMAT & Workcover reports for same period.'
The respondent has described this FOI request as the 'drug exposure application'. In these reasons for decision, I have categorised the disputed documents arising from this FOI request as the 'Disputed drug exposure documents'. The documents for which the applicant sought access related to the three month period he had been assigned the Sydney Police Centre (SPC), Surry Hills, to conduct audits of the illicit drug exhibits that were held in the drug room and the drug safes at the Centre. The applicant has made a workers' compensation claim as a result of his work at the SPC. He has a 50% impairment of his lungs and has developed Staphylococcous (MRSA) and claims that this is due to his exposure to the harmful drug exhibits held at the SPC. That exposure allegedly arising from the unsafe manner in which the drug exhibits were kept and the failure of the respondent to provide adequate training and protective clothing in dealing with these exhibits.
The following day, on 29 January 2010, the applicant made a further FOI request, in which he sought access to the following documents:
'Complete copy of all my (Sgt Nader Hanna: - rego no. 23534) C.I.S. and CATSI Files & records to date.
All files & intelligence reports pertaining to my service record kept by 'Professional Standards' and FSG.'
In response to a request by the respondent to refine the scope of his FOI request, the applicant restricted his request to the documents contained in three specific complaint files. The respondent has described this FOI request as the 'complaint file application.' In these reasons for decision, I have categorised the disputed documents arising from this FOI request as the 'Disputed complaints documents'.
When the respondent failed to determine his FOI requests within the 21 days prescribed in subsection 24(2) of the FOI Act, the applicant made an application for internal review, as he was entitled to do under subsection 34 of the FOI Act. On 29 April 2010, the respondent determined the applicant's internal review applications. In these determinations the respondent determined to provide the applicant access to some documents but also determined to refuse the applicant access to other documents (i.e. in whole or in part) on the basis that they contained matter falling within one of the categories of exemption in Schedule 1 of the FOI Act. That is, they were exempt documents, or contained exempt matter: see section 25(1)(a) of the FOI Act which provides that an agency can refuse access to a document which is an exempt document.
Prior to these internal review determinations, the applicant had lodged a complaint with the Ombudsman under section 52 of the FOI Act. By letter dated 6 October 2010, the Ombudsman made a number of recommendations as to the release of various documents the respondent had determined to be exempt documents and for which access was refused. Being dissatisfied with the respondent's response to the recommendations of the Ombudsman, the applicant made this application for external review by the Tribunal: see subsection 53(1) of the FOI Act.
In these proceedings, it is not disputed that the respondent bears the onus to establish that its determination to refuse the applicant access to the documents in dispute is justified: see section 61 of the FOI. The terms of the relevant exemptions relied on by the respondent are set out below.
Proceedings before the Tribunal
The applicant's application first came before the Tribunal at a planning meeting on 25 January 2011. As there were a number of documents in dispute, by consent orders were made for the respondent to file and serve a more detailed list of the documents that were in dispute and for the applicant to identify those documents for which he continued to press access. At this planning meeting, the applicant also raised an issue about documents he asserted fell within the terms of his first FOI request and were held by the respondent, which the respondent had failed to include or refer to in its internal review determinations (the missing documents).
The applicant's application was again considered during three additional planning meetings on 22 March, 19 April and 24 May 2011. During this time the respondent determined to grant the applicant access to some of the documents in dispute and the applicant indicated that he no longer pressed access to other documents in dispute, or parts thereof. However at all times, the applicant pressed his claim in regard to the alleged missing documents.
At the final directions hearing, on 1 August 2011, the respondent submitted a final list of documents and by consent the applicant's application was set down for hearing on 15 and 16 November 2011.
The applicant has at all times appeared by telephone, including at the hearing of his application. At the directions hearing, on 1 August 2011, the applicant said he would appear, in person, at the hearing of his application. The applicant had also indicated that he wished to cross-examine some of the respondent's witnesses. However, on 14 November 2011, the day before the hearing, the applicant wrote to the Tribunal advising that he was unwell and could not appear in person and requested that he be granted leave to appear by telephone. Subsequently, in support of his request, the applicant filed and served a copy of his most recent WorkCover medical certificate and a letter explaining the basis on which his application was made.
In light of the applicant's late notice of his inability to appear in person at the hearing, I dealt with his application to appear by telephone at the commencement of the hearing. After hearing from the applicant and Ms Sato, solicitor for the respondent, I granted the applicant leave to appear by telephone. At the conclusion of the hearing I made orders for the filing and serving of additional evidence and written submissions. The respondent complied with the orders that were made. Mr Hanna filed and served his further written submissions on 30 January 2012. Even though these were filed out of time, I have taken these into account.
Matters in issue
The disputed drug exposure documents are three emails between Superintendent Adney and Paul Zikking dated 8, 28 and 30 September 2009 and a number of documents the applicant alleges are held by the respondent and not disclosed (the missing documents).
The respondent refused the applicant access to the emails on the grounds that they are exempt under clause 10(1) of Schedule 1 of the FOI Act. That is, they are a confidential communication to which legal professional privilege is attached. For the reasons set out below, I am satisfied that the respondent has established that these documents are exempt.
The alleged missing documents are:
(a) the '6-8 colour photographs of approximately A4 size' that were taken of Senior Sergeant Maguire, on 19 March 2009, when he came to inspect the drug room at the SPC following an exposure incident on 18 March 2009,
(b) the CCTV footage of the drug rooms at the SPC from 1 February 2009 to 28 January 2010, and
(c) copies of notes and records made by Marcus Stephenson in regard to telephone calls the applicant made to him about the non-existence of safety equipment at the SPC.
In summary, I have found that the tribunal has no jurisdiction in regard to the missing documents.
In regard to the disputed complaints documents, the applicant only presses the decision of the respondent in regard to those documents (in whole or part) in CIS complaint file no. P0502691, for which the respondent has refused access. Forty eight documents (in whole or in part) are in dispute and the grounds relied on by the respondent in refusing access are those set out in clauses 6(1) (personal information), 13(b) (confidential information), 10 (legal professional privilege) and 16(a)(iii) (operations of agencies) of Schedule 1 of the FOI Act. With one exception, for the reasons set out below, I am satisfied that the respondent has established that the documents are exempt under clause 6(1), 10(1), or 13(b). On the basis of my findings it is not necessary for me to consider the clause 16(a)(iii) exemption.
Evidence
At the hearing the respondent tendered into evidence a statement from the following persons:
(a) Adam James, Manager, Business Service Centre of the respondent, dated 7 September 2011, and
(b) Senior Sergeant Wayne Edward Kelly of the Legal Advice Team, Management Action & Work Place Services, Professional Standards Command, of the respondent, dated 15 July 2011.
Mr James and Senior Sergeant Kelly both gave oral evidence at the hearing and were cross-examined by the applicant.
Subsequent to the hearing, on 29 November 2011, the respondent filed and served a statement of Paul Addison Zikking, Associate Legal Counsel.
At the hearing the respondent also relied on two confidential witness statements. The first statement is dated 9 September 2011 and the other statement is dated 6 July 2011. These statements were received in evidence in confidence in the absence of the public, the applicant and his legal representatives under section 55(b) of the FOI Act and subsection 75(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act). That is they were received into evidence in confidence in order to prevent the disclosure of information, which the respondent had determined to be exempt under Schedule 1 of the FOI Act.
The hearing of the applicant's application proceeded on the basis of the respondent's updated annotated schedule of exempt documents in dispute. Some information in the schedule was deleted, as disclosure of that information would disclose information the respondent had determined to be exempt. However, the Tribunal was provided with a full copy of the schedule together with a full copy of the documents that were in dispute. Again, the full copy of the schedule and the documents in dispute were provided to the Tribunal in confidence pursuant to section 55(b) of the FOI Act and section 75(2) of the ADT Act.
The applicant tendered into evidence a statement made by him dated 25 August 2011.
In the course of the hearing the applicant faxed a copy of a statement of Wayne Tosh, dated 27 November 2006, which he sought to tender into evidence in support of his claim that this was one of the documents for which the respondent had refused access in the disputed complaints documents. On the basis of the oral submission of Ms Sato and the late tender of the material by the applicant who had ample opportunity to file and serve this material previously, I refused the tender of this statement.
Part A: The disputed drug exposure documents
The Emails
It is convenient to first deal with the three email exchanges for which the applicant has been refused access that are contained in the drug exposure file. As I have explained, the disputed emails are dated 8, 28 and 30 September 2009. The respondent relies on the clause 10(1) exemption, which provides:
'10 Documents subject to legal professional privilege
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
...'
Legal professional privilege arises from a client/lawyer relationship. It is 'a rule of substantive law which enables a person [i.e. a client] to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings': Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2202) 213 CLR 543; [2002] HCA 49 (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; see also Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 and Grant v Downs (1976) 135 CLR 674 at 677.
Confidential communications made for the dominant purpose of legal advice is commonly referred to as 'advice privilege' and confidential communications for the dominant purpose to aid in the conduct of litigation (including anticipated litigation) is commonly referred to as 'litigation privilege': see sections 118 and 119 of the Evidence Act 1995.
Where legal professional privilege does attach to a confidential communication between a client and a lawyer, the client can expressly, or by implication waive that privilege. An implied waiver will arise in circumstances where the conduct of the client is inconsistent 'with the maintenance of the confidentiality which the privilege is intended to protect.' see Osland v Secretary to the Department of Justice [2008] HCA 37 at [45] and Mann v Carnell (1999) 201 CLR 1.
Legal advice given by a lawyer employed by a government agency can also be privileged, where the lawyer giving the advice is the holder of a practicing certificate and provides his/her advice in that capacity: see Waterford v Commonwealth (1987) 163 CLR 54 at 62.
Legal professional privilege will not attach to communications that are prepared for the purpose of addressing policy and administrative matters: see Waterford at 84 and Workcover Authority (NSW)(General Manager) v Law Society of New South Wales (2006) 65 NSWLR 502 at [88] & [91].
In Howell v Macquarie University [2008] NSWCA 26 at [48] Campbell JA said the legal professional privilege exemption in clause 10 of Schedule 1 of the FOI Act 'should be construed without any prior inclination to construe it narrowly, nor any prior inclination to construe it broadly'. At [54], His Honour went on to explain how the Tribunal was to assess the evidence where such an exemption is claimed by an agency:
'The task of the Tribunal, in reviewing a claim of legal professional privilege made by an agency, is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege.'
At the time the emails were written, Superintendent Adney and Mr Zikking were both employed by the respondent and the emails were written in the course of their respective employment. The emails written by Mr Zikking are headed 'Legal In Confidence' and contain the usual disclaimer in regard to legal professional privilege. Mr Zikking is identified as 'a/General Counsel, Office of General Counsel NSWPF.' In his statement Senior Sergeant Kelly explained that the role of General Council and his/her Office within the organization of the respondent is to provide independent legal advice to the other arms of the organization. Senior Sergeant Kelly also said that the General Counsel is usually the holder of a practicing certificate to practice as a solicitor.
At the hearing, the applicant contended that the evidence of Senior Sergeant Kelly was insufficient to discharge the onus on the respondent to prove that Mr Zikking was in fact the holder of a practicing certificate at the time the emails were written. As I have indicated, subsequent to the hearing the respondent filed and served a statement by Mr Zikking. Attached to that statement was a copy of Mr Zikking's practicing certificate for the period he was employed by the respondent, which covered the dates on which he received and wrote the emails in question.
Although the applicant continued to dispute that privilege attached to the emails in question, I am satisfied on the basis of the evidence of Mr Zikking, Senior Sergeant Kelly and the contents of the emails that they are privileged. That is, I am satisfied that they are a confidential communication, between Superintendent Adney and Mr Zikking, that came into existence for the dominant purpose of Superintendent Adney seeking legal advice from Mr Zikking and Mr Zikking providing that advice.
It is the applicant's contention that privilege has been waived. In his written submissions he asserts that Superintendent Adney told others what was contained in the advice. In support of his contention, the applicant provided a copy of page 1 of his 'Injury Management Case Notes' for 11 and 18 September 2009. In my view, this material does not amount to a waiver of the substance of the advice contained in the emails. Hence, in the absence of any direct evidence to support the applicant's asertions, I accept the contention of the respondent that there has been no waiver of the advice as contained in the emails. Accordingly, the respondent has established that the emails in dispute are privileged and exempt documents.
In 2006, the Supreme Court held that the tribunal has a discretion to order an agency to give access to documents, even if the document is found to be exempt: see University of New South Wales v McGuirk [2006] NSWSC 1362 at [104]. However, in 2009, the Court of Appeal held that the tribunal does not have such a discretion where the exempt document is a privileged document: see McGuirk v University of New South Wales (2009) 75 NSWLR 224; [2009] NSWCA 321 at [32].
The missing documents
As I have explained in paragraph 17 above, the applicant contends that there are missing documents, which the respondent should have located and disclosed. These are the 6-8 colour photographs taken by Senior Sergeant Maguire on 19 March 2009, the CCTV footage of the drug room in 2009-2010 and the notes made by Marcus Stephenson in regard to telephone calls the applicant made to him about the non-existent safety equipment. Prior to the hearing, at the request of the applicant, Ms Sato sought specific instructions from the respondent in regard to these alleged missing documents.
In regard to the photographs, the respondent did provide the applicant with access to a number of relevant photographs. However, these the applicant contends are not those taken on 19 March 2009. Ms Sato advised that in response to her inquiries about the missing photos, she was informed that there were no such photos and the only relevant photos held by the respondent were those that had already been provided to the applicant.
In regard to the CCTV footage of the drug room, Ms Sato informed the tribunal that these had been destroyed in accordance with policy and practices of the respondent at that time. I note that this is an issue the applicant brought to the attention of the Ombudsman, who made adverse findings against the respondent in regard to their destruction. The applicant also sought access to the CCTV footage outside the drug rooms. These, as pointed out by Ms Sato, did not fall within the applicant's FOI request. His request was specifically for the CCTV footage 'of the drug rooms'. Accordingly, they are not documents that are the subject of this review and hence I have not considered these any further.
In regard to the notes of Marcus Stephenson, Ms Sato advised that the respondent had provided all relevant documents made by Marcus Stephenson. She said that she had been instructed that all relevant documents in regard to the applicant's drug and chemical exposure were contained in the applicant's drug exposure file and not on any other file. Although the applicant questioned this, he was unable to establish that such notes had in fact been made.
Ultimately, whether the documents the applicant alleges to be missing do, or do not exist is not a matter that the tribunal can resolve. Nor does the tribunal have jurisdiction to make orders in regard to the adequacy of search undertaken by the agency in regard to such documents: see Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 at [58]-[59], [68], [103] and [135]. Accordingly, I make no further orders in regard to the missing documents.
PART B: The disputed complaint file documents
As I have explained in paragraph 19 above, in regard to the respondent's CIS complaint file number P0502691, the information in dispute is contained in 48 documents.
As I understand the evidence before the tribunal, the information in this file relates to an internal police complaint made against the applicant on 13 April 2005. Senior Sergeant Kathy Foley, of the Professional Services Branch, in the Forensic Services Group, investigated the complaint. On completion of her investigation, Senior Sergeant Foley prepared an investigation report and made a number of adverse findings against the applicant (i.e. she found that the applicant had engaged in improper conduct on a number of occasions). In early 2006, Detective Inspector Steve Rae (Professional Standards Manager of the Professional Standards Command) conducted a review of the investigation material and the findings of Senior Sergeant Foley. In his review report, Detective Inspector Rae found that the investigation material did not, in part, support the findings made by Senior Sergeant Foley.
In his statement the applicant said, in April/May 2005, he was interviewed and informed about a complaint that had been made against him by a co-worker. He said he was of the view and remains of the view that the complaint was made by way of payback for a complaint he had made about one of his work colleagues. In regard to the complaint, the applicant said he was initially subject to disciplinary action under section 173 of the Police Act 1990. However, this was subsequently changed to managerial action. The applicant said as a consequence of the administrative action, he was denied any right of reply or appeal. However, I note he did make a formal complaint about the actions taken and the manner in which the investigation was pursued. The applicant went on to say he withdrew his complaint on receiving assurances from the respondent that he would be issued with his awards in recognition of his long service in the NSW Police Force, following his withdrawal. As neither award was issued, the applicant made his FOI request so that he could properly defend himself and have his records amended so that he can be awarded his awards. As I explained to the applicant, his application before the tribunal is not one in which the tribunal reviews the investigation that was undertaken in regard to the complaint or the action taken thereafter. Nor does it have any relevance to the issue of the medals he seeks. It is an application for access to the disputed documents, for which the applicant sought access and which must be determined with in accordance with the provisions of the FOI Act and the relevant legal principles to the provisions in that Act: see section 63 of the ADT Act. In this regard, the applicant's FOI request does not deal with amendments to the records he has been granted access to.
With the exception of some deletions, the applicant has been granted access to the information in the investigation report of Senior Sergeant Foley and the review report of Detective Inspector Rae. Document no. 19 is a copy of the report of Senior Sergeant Foley, without attachments and document no. 37 is a further copy of the report with attachments. Document no. 32 is the report of Detective Inspector Rae. The information that has been deleted from these reports are the name of the complainant, the name of persons interviewed by Senior Sergeant Foley, the names and identity of two inmates and the names of persons not relevant to the complaint. These deletions are minor in that the applicant has otherwise been provided with all the information in these reports. This information includes the adverse findings that were made and the basis on which they were made.
Of the remaining 45 documents in dispute, the respondent contends 38 are exempt or contain exempt matter (i.e. the deletions) falling within clauses 6, 13(b) and 16(a)(iii) of Schedule 1 of the FOI Act, or fall outside the scope of the applicant's application. The respondent does not need to establish that each of these exemptions apply to the documents or information in dispute. Establishing that one of these exemptions apply to the document or information in dispute will be sufficient.
Of the 38 disputed documents, the respondent has withheld 16 documents in their entirety (i.e. document no. 4, 6, 8, 9, 10, 11, 13, 14, 29, 33, 34, 39, 40, 41, 48 and 50). In its schedule of documents, the respondent has described these as being transcripts of evidence with witness (including the complainant), file notes regarding the complainant, transcript of a record made in a police notebook concerning a witness, and records of information provided to the investigator by a witness or other person. The remaining 22 documents, contain deletions which the respondent contends to be exempt under the same exemptions are document no. 5, 7, 12, 15, 16, 17, 18, 19, 21, 23, 24, 26, 31, 32, 35, 36, 37, 38, 42, 43, 44, 45, 46, 47, 49, 51. These deletions primarily relate to the name of the complainant and the names of witnesses.
There are 7 disputed documents (i.e. document no.20, 22, 25, 26, 27, 28 and 30), which the respondent contends are exempt under clause 10(1) of Schedule 1 of the FOI Act. It is convenient to first deal with these documents. There are no disputed documents for which the respondent has solely relied on the clause 16(a)(iii) exemption as the basis for refusing access. As I have found that the documents for which the respondent relies on this exemption, are exempt on one or more of the other grounds relied on, it is unnecessary for me to consider this exemption any further.
Clause 10 exempt document and deletions
The respondent has refused access to the entirety of document no 20, 22, 27, 28 and 30 on the grounds of privilege. On the basis of the principles set out in paragraphs [28] to [34] above and my examination of the contents of these documents, I am satisfied that these documents contain confidential information that is privileged in that they each evidence a communication, between the client and its legal adviser, for the dominant purpose of the legal adviser proving the client with legal advice. As identified by the respondent in the schedule of disputed documents, document no. 20 is a request to the Director of the Legal Services Branch for legal advice. Document no. 22, 27 and 28 contains the legal advice provided by Inspector Charlesworth, who is identified in the email as 'Solicitor, Prosecutions Manager, Criminal Law Division' of that Branch. There has been no suggestion that Inspector Charlesworth was not the holder of a practising certificate and that he was providing the advice in that capacity.
Document no. 30 is an advice provided to the respondent by its external solicitor, Anthony Woods a partner of Henry Davis York Lawyers. Having regard to the content of this document I am satisfied that it is privileged.
The applicant has been provided with a copy, with deletions, of document no. 25 and 26. It is apparent from the information that has been disclosed to the applicant that each document concerned a request for further legal advice on an issue arising from the investigation of the complaint made against the applicant. I am satisfied that the deletions in document no. 25 sets out the substance of the advice that had been provided and the matter on which further advice was being sought and are privileged.
I am also satisfied that the information in the first deletion in document no. 26 is privileged as it contains the substance on which legal advice is sought. However, the remaining deletions do not fall within this category. As identified by the respondent these deletions contain the names of two inmates and their respective CNI numbers and barcodes. These the respondent contends are exempt under the personal affairs exemption in clause 6 of Schedule 1 of the FOI Act. I have dealt with this below.
Clause 13(b) exemption
In regard to the remaining documents in dispute in the applicant's complaint file, it is convenient to first consider these in the context of the clause 13(b) exemption.
Clause 13(b) of Schedule 1 of the FOI Act is in the following terms:
13 Documents containing confidential material
A document is an exempt document:
(a) ..., or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.
Accordingly, in order for information to be exempt under clause 13(b) of Schedule 1 of the FOI Act, the respondent must establish that (a) the information was obtained in confidence, (b) the disclosure of that information could reasonably prejudice the future supply of such information to that agency and (c) the release of the information would, on balance, be contrary to the public interest.
In regard to (a) it is not necessary for the agency to show that there was an express obligation or undertaking of confidence when the information was obtained - it is sufficient if such confidence can be inferred from the circumstances in which it was obtained: see Vella v Commissioner of Police, NSW Police Force [2009] NSWADT 68 at [13]. In regard to (b) the question is whether the disclosure could reasonably prejudice future supply of the type of information provided in confidence and not whether the confider in question would in future refuse to supply the information: see Vella at [14] and Director General, Department of Education & Training v Mullett [2002] NSWADTAP 13 at [58].
Finally, in regard to (c) this requires an assessment as to where the balance lies between the public interest for disclosure and the public interest against disclosure. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [12], the Appeal Panel stated that this test should be approached on a relatively abstract level. In Keriakes v State Rail Authority [2003] NSWADT 191, the tribunal found that it was in the public interest for an agency to receive information in confidence from employees about the conduct or performance of other employees. In that decision, the appeal panel went on to say that procedural fairness may require that some or all of the information be disclosed to the person complained about: see Chief Executive Officer, State Rail Authority v Woods (No 2) [2003] NSWADTAP 39: see also Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161 at [72].
In his statement, Senior Sergeant Kelly set out in some detail the procedures for dealing with complaints against police officers. He explained that responsibility for dealing with complaints mainly lies with the local area of command where the officer against whom the complaint has been made is located. He explained that there are 80 local areas of command within New South Wales. He said each local area of command had a Complaints Management Team, which assesses each complaint and handling those complaints which do not fall within Part 8A of the Police Act 1990. Part 8A relates to making and investigating complaints that allege or indicate conduct by a police officer that may constitute an offence, corrupt conduct, unlawful conduct, or is unreasonable, unjust, oppressive, or discriminatory: see section 122 of the Police Act 1990. Senior Sergeant Kelly noted that the complaint the subject of CIS file number P0502691 was dealt with as a complaint under Part 8A.
It is the evidence of Senior Sergeant Kelly that complaints are always received in confidence and that they are investigated in confidence. This means that information provided by complainants, witnesses and others for the purpose of the investigation are all obtained in confidence. In this regard he pointed to the relevant provisions in Part 8A and the Police Regulations 2008. He also pointed to section 169A of the Act, which prohibits a member of the police force from disclosing the identity of a complainant under that Part, unless the disclosure is made in accordance with the Commissioner's (the respondent's) guidelines, the consent of the complainant, or for the purpose of any legal proceedings before a court or tribunal. In this regard Senior Sergeant Kelly attached to his statement a copy the respondent's 'Complaint Handling Guidelines' and the guidelines made pursuant to section 169A of the Police Act 1990.
On the basis of the evidence of Senior Sergeant Kelly, I accept that the respondent's general practice is to receive complaints (including complaints made by another police office) in confidence and that there is a statutory obligation that the identity of the complainant is not disclosed except in the circumstances provided in the Police Act 1990. I also accept that investigations into complaints are conducted in confidence in order to maintain the integrity of the investigation process. This practice, I note, is common to most internal investigations of alleged improper conduct of an employee of an organization. However, such investigations are also subject to the rules of procedural fairness where a complaint is to be acted upon.
Having regard to the material before the tribunal, I am also satisfied that the documents in dispute are documents relating to a complaint about the applicant, which was made in confidence (including the identity of the complainant) and that Senior Sergeant Foley's investigation of the complaint was conducted in confidence. I am also satisfied, that a disclosure of information of this kind could reasonably be expected to prejudice the future supply, to the respondent, of complaints by a police officer about another police officer. As explained by Senior Sergeant Kelly, integral to receiving such complaints is confidentiality as to the identity of the complainant and any witness. Without a complaint mechanism of this nature, misconduct by a police officer may never come to the attention of the respondent or addressed in the most appropriate way.
The primary issue is whether disclosure of the information, would, on balance, be contrary to the public interest. As a general rule, for the reasons already stated, disclosure of information of this kind would be contrary to the public interest as the respondent is reliant on such information in order to receive and address alleged misconduct of its officers. However, in this application the person seeking access is the person against whom a complaint has been made. In my view, in such circumstances, where adverse findings are made against the person complained about, a disclosure of the nature of those adverse findings to the person concerned is not contrary to the public interest. The extent to which disclosure would not be contrary to the public interest in such cases will depend on the particular circumstances. In this application, as I have already indicated, the applicant has been given, in substance, a copy of the investigation report and the review report. These fully inform him of the allegations that were made and the findings of the investigator. The information, which has not been disclosed, is the name of the complainant, the names of the witnesses and the transcript/record of their respective interviews or comments. Having regard to the material before the tribunal (including that which has been provided in confidence), I am satisfied that a disclosure of this information would be contrary to the public interest. I make a similar finding with respect to the documents, which are a copy of telephone records of a person other than the applicant and the deleted information in the remaining documents, which are the name of the complainant and the witnesses.
Accordingly I am satisfied that the respondent has established that:
(a) document no. 4, 6, 8, 9, 10, 29, 33, 34, 39, 40, 41 and 50 are exempt documents, in their entirety, under clause 13(b) of Schedule 1 of the FOI Act; and
(b) the deletions in document no. 12, 15, 16, 17, 18, 19, 21, 23, 24, 31, 32, 36, 37, 38, 42, 43, 44, 45, 46, 47, 49, 51 contains matter which is exempt under clause 13(b) of Schedule 1 of the FOI Act.
While the respondent has not relied on this exemption in regard to the telephone records that are document no. 11, 13 and 14, in my view they also fall within this category of exemption. On the basis of my findings it is unnecessary for me to deal with the clause 6(1) exemption that have also been relied by the respondent in regard to the documents listed above. However, for completeness I have briefly dealt with these below.
Clause 6(1) exemption
Clause 6(1) of Schedule 1 of the FOI Act is in the following terms:
6 Documents affecting personal affairs
(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 (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.
Section 31 of the FOI Act, provides that an agency is not to grant access to information concerning the 'personal affairs' of a person, other than the FOI applicant, unless it has taken 'such steps as are reasonably practicable to obtain the views of the person concerned'. If the agency determines to grant access to the FOI applicant, the agency is required to inform the person concerned about his/her right to seek review of its determination. However, their view is not necessarily determinative of the issue.
It is well accepted that the term 'personal affairs' in the context of the FOI Act is intended to have its ordinary dictionary meaning and refers to matters of private concern to a person: see Young v Wicks (1986) 13 FCR 85; 79 ALR 448. In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 625 (Perrin's case), Kirby P said that the words meant 'the composite collection of activities personal to the individual concerned.'
Depending on the context in which they appear, the names and addresses of individuals may constitute 'personal affairs' of such persons: see Perrin's case per Mahoney JA at 644. Perrin's case concerned documents containing the names of police officers. Their names appeared in the disputed document in the context of their public duties as police officers. In that case, the Court of Appeal held that the names in this context did not concern the 'personal affairs' of the police officers.
Similarly, depending on the circumstances and the context in which the information is contained in the document in dispute, information about a persons work performance or work capacity may relate to their 'personal affairs': see Mullett at [49] and Humane Society International Inc v National Parks and Wildlife Services [2000] NSWADT 133 at [21].
In regard to the question as to whether a disclosure of 'personal information; would be an 'unreasonable disclosure' the tribunal has adopted the same approach that was adopted by the Commonwealth Administrative Appeals Tribunal in regard to the equivalent provision in the Commonwealth Freedom of Information Act: see Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at N259 and Saleam v Director General, Department of Community Services [2002] NSWADT 41 at [38]. In Chandra that approach was described as follows:
51 ... [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including 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. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
52 However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.
On the material before the tribunal, I am satisfied that the information contained in the transcript of interviews, the recorded notes, emails and telephone records in document no. 4, 6, 8, 9, 10, 11, 12, 13, 14 and 50 is information concerning the personal affairs of the complainant and the witnesses. That is, they record information, which is personal to them. The fact that the information, in part may be about another person, it remains their personal account and personal to them. Having regard to the context in which the names of the complainant and the witnesses appear and the circumstances in which the relevant documents came into existence, I am also satisfied that these names are personal information. A similar finding would be made in regard to the applicant's name in these documents had he not been the person seeking access.
This leaves document no. 5, 7 and 26. Document no. 5 is a roster and time sheet record of the Inmate Testing Team of the respondent for 11 May 2004. The roster contains a record of four police officers and their respective roster duties (i.e. times started and finished) and the duties performed that day. There is only one small deletion in this document concerning the details about the duties performed that day by the second named officer on that roster. I agree with the respondent that this information concerns the personal affairs of that person. In my view a disclosure of this information would be an unreasonable disclosure. While it appears to be a document created for administrative purposes (i.e. costings) in my view it is information the relevant officer, or any officer, is likely to object to being disclosed.
Document no. 7 and 26 are a forensic procedure testing record and a report of Inspector Melton concerning legal advice that had been obtained in regard to the complaint. Document no. 7 is a 3 page completed pro-forma document that records testing done on inmates on 29 March 2005. The names of the inmates, their date of birth and their respective CNI/MIN numbers have been deleted. In my view, having regard to the context in which these names and details are contained, the deleted information is personal information of the respective inmates and falls within clause 6(1). The question is whether a disclosure of this information would be an unreasonable disclosure. In my view it would be an unreasonable disclosure. With the exception of two named inmates, the information is of no relevance to the complaint made against the applicant. In regard to the relevantly named inmates, I would make a similar finding. In my view this information is no different to that of the name of the complainant and the witnesses. That is, it is information personal to the respective inmate and the context in which it is contained, it is information, which, in my view, the inmates would not wish it to be disclosed. Accordingly, I am satisfied that a disclosure of this information would be an unreasonable disclosure. I make a similar finding in regard to this information, which has been deleted in the report of Inspector Melton that is document no. 26. This report has two deletions, the first deletion I have found to be exempt on the grounds of legal professional privilege (see paragraph 53 above). It is the remaining deletions, which are the names etc of the two inmates. These names have also been deleted in the investigation report of Senior Sergeant Foley and some other documents. Hence I make a similar finding in regard to these deletions.
Over-ride discretion
For the reasons set out above, I have found that the respondent has established the documents (in whole or in part) to which the applicant has been refused access are exempt under clauses 6(1) and/or 13(b) of Schedule 1 of the FOI Act. However, as I have indicated in paragraph 38 above, the Supreme Court has held that the tribunal has a discretion to order an agency to give access to documents, even if the document is found to be exempt.
In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds justifying the exercise of the override discretion to grant access to a document that is found to be exempt. At [27] the President set out some of the factors relevant to the exercise of the discretion. In my view, none of the factors are relevant to this application. I also note that the clause 6(1) and 13(b) exemptions have incorporated within them a need to consider and balance the public interest consideration for disclosure and against disclosure.
Conclusion and orders
As I have found that the respondent has established that its decision in regard to the disputed documents (in whole or in part) is justified, it is appropriate that I make a finding that its decision is the correct and preferred decision and order that the decision be affirmed.
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Decision last updated: 18 July 2012
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