Ibrahim v Commissioner of Police, New South Wales Police Service

[2003] NSWADT 220

CITATION:	Ibrahim v Commissioner of Police, New South Wales Police Service [2003] NSWADT 220
DIVISION:	General Division
PARTIES:	APPLICANT John Ibrahim RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023227
HEARING DATES:	15/04/2003-16/04/2003
SUBMISSIONS CLOSED:	04/16/2003
DATE OF DECISION:	09/22/2003
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - law enforcement & public safety
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	BY v Director General, Attorney General’s Department [2002] NSWADT 79
REPRESENTATION:	APPLICANT G Wendler, barrister RESPONDENT M Tzannes, barrister
ORDERS:	1 The determination is set aside, and the following determination substituted [NOT DISCLOSED]; 2 Details of the confidential orders and the confidential reaons to remain suppressed unless otherwise ordered following application made by a party after notice to the other party.

1 The applicant applied to the Tribunal for review of a determination made pursuant to the Freedom of Information Act 1989 (FOIA) by the respondent, the NSW Police Service (the agency) to refuse access to documents. The material terms of the request were as follows:

‘I … hereby request … information for the period 1 July 1990 to the date of this authority [14 March 2001] concerning all documents, records, writing, notes, files, computer printouts, films, photographs, tape recordings and video recordings concerning investigations either concerning me directly or involving me (and whether known by this name or any other name) in relation to any liquor licensing and/or gaming licensing, or in relation to the management, ownership, or interest in any licensed premises pursuant to the Licensing Act or otherwise undertake by your agency during the period stated herein.’

2 The determination is dated 8 February 2002, and was as follows:

‘- to release one document, COPS event E903269110478 together with the report of Senior Constable Gleeson dated 19 November 2001

- to exempt any other material that may be in existence pursuant to s 25(1)(a) on the grounds of exemption contained in cl 4 of Schedule 1 to FOIA

- in accordance with the provisions of s 28(3) not to describe in this determination the specific grounds of exemption under cl 4 nor the nature or extent of the material exempted under this provision.’

3 The provisions of s 25(1)(a), cl 4 and s 28(3) were set out in the notice. Section 25(1)(a) confers power to refuse access on the basis that the document is an exempt document and cl 4 sets out various exemptions that may be relied upon relating to law enforcement and public safety. Section 28(3) provides:

‘ (3) An agency is not required to include in a notice any matter that is of such a nature that its inclusion in the notice would cause the notice to be an exempt document.’

4 For the same reason the agency declined to provide a statement of reasons.

5 The applicant applied for an internal review. The internal review determination is dated 1 October 2002. The internal review determination affirms the original determination and for the same reasons, and without identifying in any way the nature of the material for which exempt status was claimed. The internal review determination included two paragraphs not found in the original determination that provided some substantive information as to the reasons for the determination:

‘I am not prepared to specify the extent of the material held in this agency in which the applicant is a suspect. Nevertheless, in general terms, and without specific reference to this application, I can advise that the effectiveness of any law enforcement agency depends heavily on information supplied from both internal and external sources. The totality of this material gathered by police in this State involves a great range of material and naturally includes unsubstantiated material and personal information.

To make such information regarding police investigative methodologies publicly available would, in my opinion, have a substantial adverse effect on the ability of NSW Police to perform its primary role of detecting offenders and protecting public safety.’

6 It will be seen that this paragraph points to the essence of the police case justifying non-disclosure: a concern not to have police investigative methodologies placed at risk.

7 The ground of exemption in cl 4 most closely connected to that justification, cl 4(1)(e) provides that a document is an exempt document if it contains matter the disclosure of which ‘could reasonably be expected: … (e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law).’

8 For completeness the whole of cl 4 is set out below.

‘ 4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

(a) 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

(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or

(c) to endanger the life or physical safety of any person, or

(d) to prejudice the fair trial of any person or the impartial adjudication of any case, or

(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or

(f) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety, or

(g) to endanger the security of any building, structure or vehicle, or

(h) to prejudice any system or procedure for the protection of persons or property, or

(i) to facilitate the escape from lawful custody of any person.

(2) A document is not an exempt document by virtue of subclause (1):

(a) if it merely consists of:

(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or

(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or

(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or

(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or

(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and

(b) if disclosure of the document would, on balance, be in the public interest.

(3) A document is an exempt document if it is a document that has been created by:

(a) the Information and Intelligence Centre of the Police Service or the former State Intelligence Group, or

(b) the Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence.

(4) In this clause, a reference to the law includes a reference to the law of the Commonwealth, the law of another State and the law of another country.’

9 In the experience of the Tribunal it is rare for the agency to take such a blanket approach. Usually a schedule of documents is provided which acknowledges the number of documents the subject of a claim for exemption, and gives a broad description of their contents and the grounds of exemption relied upon.

10 The consequence is that the applicant has filed his application for review dated 4 October 2002 without any knowledge of the type of case put by the agency in justification of its decision.

11 The agency bears the onus of justifying its determination: FOIA s 61. Accordingly it must establish its case before the Tribunal. On this occasion the Tribunal proceeded entirely in camera, but for opening and closing sessions of short duration attended by counsel for the applicant. There was one non-confidential exhibit, containing the record of the request, the original agency determination and the determination on internal review. Otherwise all documentation submitted to the Tribunal including affidavit material was confidential.

12 The Tribunal discussed with counsel for both parties the way in which it should approach the task of giving reasons for decision. Counsel for the applicant accepted that if the degree of secrecy which the agency considers should attach to its determination was to be preserved, pending any appeal, then it was unavoidable that the Tribunal should adopt the course of not disclosing any of its reasons to the applicant to the extent that to do so might lead to the disclosure of matter that the agency regards as exempt.

13 The Tribunal will proceed to set out its reasons on that basis. The reasons will deal with the case heard in camera. The Tribunal will deal with the issue of the degree of publicity that should attach to any order at the end of its reasons. To the extent that the reasons are not disclosed, any appeal rights that the applicant may wish to invoke may be more difficult to exercise. It was accepted in discussion between the Tribunal and the parties that any right of appeal that the applicant might decide to exercise might possibly take the form of a ‘blind’ appeal with the applicant lodging the notice of appeal, and the Appeal Panel having to scrutinise the reasons of the Tribunal in confidence, form a view as to arguable error and then hear agency submissions in confidence and possibly also publish its reasons in confidence.

14 Before moving into closed session, counsel for the applicant said that his client had no objection to the non-disclosure of the contents of any document so as to protect the identity of informants, surveillance methods, surveillance police; and has no objection to the non-disclosure of any content that relates to surveillance methodology including use of techniques and placement of devices.

15 The agency case has been examined taking account of these concessions.

16 Clause 4 falls into Part 1 of Schedule 1 and s 6(1) defines as a "restricted document" a document referred to in any one or more of the provisions of Part 1 of Schedule 1. Then s 57 of FOIA provides:

‘ 57. Consideration of restricted documents

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:

(a) the public, and

(b) the review applicant, and

(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.

(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.

(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.’

17 There was no appearance by the Minister administering the Act (the Premier).

18 As to s 57 and its operation, see further BY v Director General, Attorney General’s Department [2002] NSWADT 79 where I held, after reviewing previous Tribunal decisions, that:

‘(a) Section 57 is applicable to any application for review that seeks review of an agency claim that a document is a restricted document (save for those determinations where a Ministerial certificate has been issued pursuant to s 59 to which ss 58A, B and C are applicable).

(b) As provided by s 57(6) the Administering Minister is entitled to participate as a party in respect of the review of a claim of the kind referred to in Answer (a).

(c) If the Tribunal finds that there are reasonable grounds for the claim, its jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision.’

Remainder of Text

19 The remainder of this text is confidential and is not disclosed to the applicant or by way of publication on the Tribunal’s internet site. This text is set out in a Confidential Appendix provided only to the agency.

Orders

1. The determination is set aside, and the following determination substituted. [NOT DISCLOSED]

2. Details of the confidential orders and the confidential reasons to remain suppressed unless otherwise ordered following application made by a party after notice to the other party.