JJK v Police

Case [2023] SASCA 73

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

JJK v POLICE

[2023] SASCA 73

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)

29 June 2023

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS CONCERNING THE OPERATIONS OF AGENCIES

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS SUBJECT TO CLIENT LEGAL PRIVILEGE

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

The applicant applied under s 13 of the Freedom of Information Act 1991 (SA) (FOI Act) for a range of documents relating to an incident involving the applicant and two SA Police officers on 22 December 2019 (the FOI application). 

The respondent determined not to release any documents falling within the scope of the FOI application, on the basis that they were ‘exempt documents’ under cl 12 of Schedule 1 of the FOI Act, by reason that their disclosure would constitute an offence against s 45 of the Police Complaints and Discipline Act 2016 (SA) (PCD Act). Following an internal review, this determination was upheld.

The applicant applied for external review by SACAT, pursuant to s 40 of the FOI Act and s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA). The applicant argued; first, that disclosure would not constitute an offence under s 45(1) of the PCD Act because the applicant had a right to disclosure of the documents under s 12 of the FOI Act, and hence disclosure was ‘required or authorised by this or another Act’ for the purposes of s 45(2)(f) of the PCD Act; and secondly, that the protection provided by s 45(1) (and s 45(3)) expires once the relevant complaint and investigation have been finalised.

The Member rejected the first argument on the basis that the “legally enforceable right” to access to documents under s 12 of the FOI Act is a right to be given effect “in accordance with this Act”, and hence subject to the various restrictions upon that right contained within the FOI Act. The second argument was accepted by the Member. Accordingly, he set aside the decision under review and referred the matter back to SA Police for reconsideration.

SA Police appealed to a single judge of this Court. In that appeal, the applicant conceded that the Member erred in law in his construction of s 45 of the PCD Act; that there is no textual or contextual support for reading in a temporal expiration of that section. However, the applicant maintained that disclosure would not have been an offence against s 45(1) of the PCD Act because the FOI Application did not call for disclosure by a person who ‘is or has been engaged in the administration of’ the PCD Act. Accordingly, the documents were not ‘exempt documents’ within the meaning of the FOI Act.

The single judge rejected the construction advocated for by the applicant.  Accordingly, her Honour allowed…

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AGLC
JJK v Police [2023] SASCA 73
Case
[2023] SASCA 73
Decision Date

CaseChat Overview and Summary

The applicant, JJK, sought access to certain documents from the South Australian Police under the *Freedom of Information Act 1991* (SA) (FOI Act). The Police initially refused access, a decision that was upheld on internal review. The applicant then sought external review of this decision by the South Australian Civil and Administrative Tribunal (SACAT). The matter came before the Full Court of the Supreme Court of South Australia on an application for leave to appeal from SACAT's decision.

The central legal issues before the Court concerned the interpretation of provisions within the FOI Act and the *Police Complaints and Disciplinary Act 2016* (SA) (PCD Act). Specifically, the Court had to determine whether the documents sought by the applicant were exempt from disclosure under the FOI Act, particularly those falling within clause 12 of Schedule 1 (documents the disclosure of which would constitute an offence) and the application of sections 45(1) and (3) of the PCD Act. The applicant argued that disclosure would not constitute an offence, or that disclosure was permitted under exceptions within the PCD Act.

The Court considered the principles of statutory interpretation, emphasising the need to give effect to the legislature's intended meaning by examining the text, context, and purpose of the relevant provisions. While acknowledging the objects and principles of the FOI Act favouring access to information, the Court noted that these principles do not create a presumption in favour of disclosure when interpreting exemption provisions. Instead, the Court applied a balanced approach, interpreting both the right of access and the exemptions according to their plain language, in light of the Act's stated objects. The Court found that the applicant had raised arguable grounds of appeal concerning the interpretation of these provisions and the application of the relevant legislation to the documents in question.

The Court granted the applicant leave to appeal on two proposed grounds. The specific outcome of the appeal itself, and the final orders made by the Court regarding the disclosure of the documents, are not detailed in the provided text.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Smith undertook the internal review and determined to confirm the second determination (the internal review decision). The internal review decision was recorded in a letter from Ms Smith to the applicant dated 6 August 2021. The letter noted that the refusal to release the documents was by reason of them being exempt documents under cl 12 of schedule 1 of the FOI Act, and the operation of ss 45(1) and (3) of the PCD Act. The letter explained that, having reviewed the file, the earlier determination was confirmed. Ms Smith said that she was satisfied that the determination had been made in line with the legislation and the information available, and that the basis upon which it had been made was as outlined in the earlier determination letter.External review by SACAT On 2 September 2021, the applicant made an application for external review by SACAT, pursuant to s 40 of the FOI Act and s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA). The application was accompanied by a letter contending that the internal review decision was wrong. It was argued that the documents sought were not exempt documents under cl 12 of schedule 1 of the FOI Act because no offence would be committed by disclosing them to the applicant. In relation to s 45(1) of the PCD Act, it was argued that the decision maker was not “a person … engaged in the administration” of that Act, and so no offence would be committed by disclosing the documents. Alternatively, disclosure was permitted under s 45(2)(f) by reason of the applicant’s right to the documents under the FOI Act. In relation to s 45(3), it was argued that the documents were sought for the purposes of the applicant seeking legal advice in connection with a civil action against the SA Police, and hence disclosure was permitted under s 45(3)(b)(iii). By October 2021, Sergeant Sandra Watson was relieving in the position of Manager of the FOI Unit of SA Police. In preparation for the SACAT hearing, she located and reviewed the documents said to be exempt documents, referred to as ‘Exempt Documents 1-34’ in a schedule prepared for SACAT. In an affidavit prepared for the purposes of the SACAT proceedings, Sergeant Watson said that she reviewed these documents and considered that they all fell within the scope of the FOI application, as documents relating to the incident the subject of that application; and that disclosure of the documents would involve the disclosure of information in relation to or connected with a matter that forms the subject of a complaint under the PCD Act. Sergeant Watson explained that a decision was made, however, to provide the applicant with seven documents (referred to as ‘V2 Documents 20-26’) which SA Police had previously claimed were exempt. These documents included the applicant’s initial complaint, and were documents which had already been disclosed to the applicant or which were created by the applicant. These documents were no longer claimed to be exempt on the basis that further provision of them to the applicant would not be to “disclose” information to the applicant. [6] Sergeant Watson added, however, that disclosure of these documents to a person other than the applicant would still constitute an offence under s 45(1) of the PCD Act.[6] In the sense, it would seem, that it would not be to “first reveal” the information to the applicant.

Ratio Decidendi

Legal Principle Established

In all the circumstances, we are satisfied that it is in the interests of justice that the applicant be granted leave to appeal on her two proposed grounds of appeal.Consideration In construing the relevant provisions of the FOI Act and PCD Act, the objective is to give the relevant provisions the meaning the legislature is taken to have intended them to have.[24] It involves consideration of the text of those provisions, but having regard to their context and purpose.[25][24] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.[25] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). In the present case, the applicant relies upon her general right of access to documents under s 12 of the FOI Act. But as she acknowledges, that right is one that is, by the terms of s 12 itself, qualified by the other provisions of the FOI Act. In particular, s 20(1)(a) provides that an agency may refuse access to documents which are exempt documents. The list of exempt documents in schedule 1 of the FOI includes those falling within cl 12 of that schedule, being documents containing matter the disclosure of which would constitute an offence. The applicant emphasises the importance, when construing the provisions of the FOI Act, of having regard to the statement of objects and principles of administration in ss 3 and 3A of that Act. She refers, in this respect, to the following passage from the reasons of the High Court in Victorian Public Service Board v Wright,[26] in relation to similar provisions in the equivalent Victorian legislation:[27]In the light of these sections it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information. It is, in our view, evidence that such a purpose would not be promoted by adopting a narrow construction of the appellate functions of the County Court under the Act or by imposing any limitation upon the effect of its decisions beyond any limits plainly imposed by the Act itself.[26] Victorian Public Service Board v Wright (1986) 160 CLR 145.[27] Victorian Public Service Board v Wright (1986) 160 CLR 145 at 153-154 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ). The applicant accepts, however, that the objects and principles of administration do not create any presumption in favour of disclosure in the interpretation of the provisions of the FOI Act which exempt documents from the right of access otherwise provided for under s 12 of that Act.[28] She accepts that what is called for is a consideration of the balance struck between the right of access and the exemptions, having regard to the language of the relevant provisions. As the Full Court of the Federal Court said in relation to the Commonwealth freedom of information legislation in News Corporation Ltd v National Companies & Securities Commission (No 4):[29]In construing our Act we do not favour the adoption of a leaning position. The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act.[28] Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469 at [67]-[73] (Tate, Kyrou and Niall AJJ).[29] News Corporation Ltd v National Companies & Securities Commission (No 4) (1984) 1 FCR 64 at 66 (Bowen CJ and Fisher J).