Howley v Commissioner of Police No. Dcaat-01-215

HOWLEY V COMMISSIONER OF POLICE
[2002] SASC 23
JUDGE BRIGHT
ADMINISTRATIVE & DISCIPLINARY DIVISION

This is an appeal against a number of Determinations made pursuant to the Freedom of Information Act refusing the appellant access to various documents, or parts of documents. In briefest terms, it appears that the appellant is in dispute with various neighbours. There have been reports to and attendances by police in relation to various alleged incidents. In some cases police have taken action, in others not.
The appellant has sought legal advice as to remedies which he may have at law against various people who have made reports about him to police, and against the police for failing to take action in relation to his complaints. He believes that, as a result of complaints against him, police may not have properly considered his own complaints.
Counsel for the respondent has assembled a great deal of documentation. For various reasons, at various times, the scope of requests for documents has been misunderstood. It has been realised that there were other places which might hold relevant documents. In the end, it is accepted that all relevant and potentially relevant documents have been located and assessed.
Inevitably, the appellant does not know what is contained in the documents to which he has not been given access. There is no specific complaint about any specific document. The appeal is against all of the determinations in toto. I must reassess each document, or part of a document to which access has been denied.
Fortunately, the appellant, by his counsel Mr. Twiggs, concedes that there may be many documents to which access has been refused, but which are entirely irrelevant to the grievances he wishes to investigate. Dr. Bleby, for the respondent, confirms that it is his belief that that is so. He has drawn my attention to those documents which he believes are in that class. Mr. Twiggs is content for me to look at those documents. If it appears to me that Dr. Bleby is correct, I may put them to one side, without considering the strict requirements of the Freedom of Information Act in relation to them. If that turns out to be clear cut, I will do that.
Mr. Twiggs also concedes that a body of documents that came into existence for the purposes of a complaint to the Police Disciplinary Tribunal are exempt. However, he wants me to "vet" the remaining documents to see whether exemptions have been properly claimed.
The First Schedule to the Freedom of Information Act sets out the relevant bases for exempting documents. Most claims for exemption have been made pursuant to paragraph 6, and I set out the relevant parts.
"6 (1) A document is an exempt document if it contains matter the disclosure of which would Counsel for the respondent has assembled a great deal of do 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 other improper conduct on the part of a person (living or dead) and the truth of those allegations or suggestions has not been established by judicial process.
(3) 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 made.
I pause to note that exemption has not been claimed pursuant to sub paragraph (3) in respect of documents referring to the appellant. I note that the various grounds for exemption in the Schedule operate independently of each other. If any one ground applies, that is enough. In particular, the fact that sub paragraph 6 (3) does not apply is no reason not to apply other paragraphs, if relevant. Section 3 of the Freedom of Information Act sets out the objects of the Act. I set it out.
3. (1) The objects of this Act are to extend, as far as possible, the rights of the public -
(a) to obtain access to information held by the Government; and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out‑of‑date or misleading.
(2)The means by which it is intended to achieve these objects are as follows:
(a) ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public; and
(b) conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government; and
(c) enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading.
(3) It is the intention of Parliament -
(a) that this Act should be interpreted and applied so as to further the objects of this Act; and
(b) that the administrative discretions conferred by this Act should be exercised, as far as possible, so as to facilitate and encourage the disclosure of information of a kind that can be disclosed without infringing the right to privacy of private individuals.
(4) This Act must be administered so as to make the maximum amount of
information of the kind referred to in subsection (3) available to members of the public promptly and efficiently.
(5)Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.
Insofar as exemption is claimed in respect of documents relating to a person's "personal affairs", that term is defined in Section 4 of the Freedom of Information Act, as follows:-
personal affairs " of a person includes that person's
(a) financial affairs;
(b) criminal records;
(c) marital or other personal relationships;
(d) employment records;
(e) personal qualities or attributes;
I note that the definition is not exhaustive - it merely sets out various matters which are included. The cases make it plain that a variety of other documents may concern the personal affairs of a person.
I do not think the parties are in any dispute as to the law I must apply.
I do not now set out to write an exhaustive treatise on the approach to be taken. I am indebted to Dr. Bleby for the authorities to which he referred me and for his concise exposition of the law. I am indebted to him for the orderly way in which the documents were grouped and presented to me.
When I refer to documents, I shall follow the scheme adopted by Dr. Bleby. They are referred to by number in schedules to two affidavits filed by Ms. Armstrong, which he calls 1SAA and 2SAA, followed by the number of the schedule and the number of the document. There is one affidavit from Mr. Reinberger. I shall deal with the documents in the order in which they are referred to in those affidavits.
I begin with Ms. Armstrong's first affidavit, 1SAA. The first documents withheld are those referred to in paragraph 17, three requests not to release information concerning or originated by those three people. I have viewed them and agree that the requests themselves are exempt. I have borne the requests in mind when considering documents to which they relate.
The next documents are those referred to in paragraph 20. It is, properly, conceded that documents 14, 18 and 55 in the schedule 1SAA6, are exempt. I have inspected the remaining documents and have noted the basis claimed in 1SAA6 for exemption in respect of each document for which that is claimed. Except where I make specific comment, I agree with the determination.
Document 2. patrol log, 2 entries. I can't see why they should not be released. Log entries which are not related to Barker Crescent should be deleted. They relate to personal affairs, but it does not seem unreasonable to release them. However, I cannot see that they are of any use to the appellant.
Comcen report ‑ technically correct, but does not, on its face, appear to relate to appellant.
Document 3Patrol log. This does contain allegations of criminal conduct, unproved in court. It seems strange to me that when the allegation is one made by the appellant, it should be covered by 6 (2) - but I conclude that it is. This refers to message 232.
There is a second entry (no message number, but it is the last entry). The part of that entry which has been highlighted does concern a person's affairs; but it is not unreasonable to release it. It is to be released in full.
Comcen report (2) - I agree that 6 (2) applies. I would not apply 6 (1).
Document 5Patrol log - presumably the part of the entry not released is regarded as referring to "improper conduct" That is not a defined term. While I accept that many might regard "abusing him" as "improper", it is marginal and, having regard to the objects of the Act, I release the entry in full.
Comcen report. For the same reason I release this document.
Document 8Patrol log and comcen report. They relate to personal affairs, but it is not unreasonable to release. I release these documents.
Document 9Incident report. The names of some persons alleged to have witnessed an incident have been withheld. It is not unreasonable to release them.
Apprehension Report and Court file. (The latter is actually a Police file in relation to court proceedings, not a file generated by a court). These deal with investigation and prosecution of a charge arising out of an incident on 12 December 1999. A conviction resulted – so 6 (2) does not apply ( nor is it claimed). It is claimed that 6 (1) applies, as release of the names of witnesses and of what they said would related to the affairs of those witness – with which I agree – and that release would be unreasonable, which I do not accept. Each witness gave a statement which confirmed that they were prepared to go to court. There was no claim of confidentiality, or that their evidence should be suppressed in some way. They accepted that it might become public. Had the matter been defended at trial, the statements may well have found their way onto the file of the Court dealing with the matter – and would have been available for inspection by the public on that file. Nor does it seem to be the sort of matter in which some future police investigation might be hampered. In these circumstances it does not seem to me to be unreasonable to release the whole report and file. I release them.
Document 11 Log – the relevant entry and Comcen Report are both personal –
but it is not unreasonable to release them. I order release.
Document 12 As for 11, both are to be released.
Document 13 as for 12, both are to be released.
Document 16 Ancillary report. In my view the deletion claimed is to extensive.I
allow deletion of the words “the paperwork – info.” I release the remaining words.
Daily log – the entry is to be released. Comcen reports – Nos. A000350599 and A000350769 are to be released – report A000351100 is not.
Document 27 I am not sure that 6 (1) covers these documents – but, if it doesn’t,
then probably 6 (2) does. I do not order release.
Document 33 I order release.
Document 41 I agree may be withheld, but pursuant to 6 (2).
Document 42 Whatever else it may be, it is irrelevant!
Document 51 It is not unreasonable to release the words deleted. I so order.
This brings me to the documents referred to in paragraph 21 of Ms. Armstrong’s affidavit ISAA, and which are detailed in schedule 1SAA10. Certain deletions have been made. The effect of the deletions is to conceal a name. Having regard to what has already been released, the identity of that person is so obvious that I see no point in maintaining the deletion. To release the name is not unreasonable. I order its release.
I turn to Ms. Armstrong’s second affidavit 2SAA. Schedule 2SAA2 lists documents. Again, except where I comment, I agree with the determination.
Document 4 Once more, the allegations which have not been released could be
seen to be “improper”, but, in my view, having regard to the objects of the Act, they should be released. I so order.
Document 5 Is personal and is irrelevant.
*Document 7 Is missing from those supplied to me. I will need to see it.
I turn to the affidavit of Ms. L. M. Reinberger.
I agree with the determination.
I have re-sealed the envelopes containing the various disputed documents. If the parties so desire, they can be kept on file as proof of what I saw. However, if that is not necessary, the papers can be released to the respondent. In any event, the respondent is to have access to those papers to be able to understand certain of the orders I have made.
If desire, I will hear the parties as to costs.
*Document 2SAA2.7 is to be produced.

[2002] SADC 23

8 March 2002