Johnston v Commissioner of Police, New South Wales Police Force (GD)

[2008] NSWADTAP 82

Appeal Panel - Internal

CITATION:	Johnston v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 82
PARTIES:	APPELLANT Shirley Johnston RESPONDENT Commissioner of Police, New South Wales Police Force
FILE NUMBER:	089055
HEARING DATES:	21 November 2008
SUBMISSIONS CLOSED:	21 November 2008
DATE OF DECISION:	16 December 2008
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	Freedom of Information - exemption - prejudice the effectiveness of a lawful method for detecting contravention of law - evidence - agency onus - procedural fairness - application for summons - no error - Freedom of Information Act 1989, Sch 1, cl 4(1)(e)
DECISION UNDER APPEAL:	Johnston v Commissioner of Police, NSW Police Force [2008] NSWADT 191
FILE NUMBER UNDER APPEAL:	073228
DATE OF DECISION UNDER APPEAL:	07/07/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	IPART v Services Sydney [2008] NSWADTAP 79 Johnston v Commissioner of Police, NSW Police Force [2008] NSWADT 191 Johnston v Department of Education and Training [2007] NSWADTAP 53 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 University of New South Wales v McGuirk [2006] NSWSC 1362
REPRESENTATION:	APPELLANT P Johnston, agent RESPONDENT K Mattes, Crown Solicitor's Office
ORDERS:	Appeal dismissed

1 Mrs Johnston is an applicant under the Freedom of Information Act 1989 (FOI Act) for access to documents held by the NSW Police Force (the agency). Her application was made on 19 June 2007 through an agent, her son Mr Phillip Johnston. After failing to reply within the required time to the request (giving rise to a ‘deemed refusal’ under s 24 of the Act), the agency, on internal review, refused to release two documents covered by the request.

2 Mrs Johnston applied to the Tribunal for review of the decision. The Tribunal affirmed the agency determination: see Johnston v Commissioner of Police, NSW Police Force [2008] NSWADT 191. The Tribunal also ruled that a third document did not fall within the scope of the request. That decision as it relates to the first two documents is the subject of this appeal.

3 The two documents were described by the agency as follows:

Document 1: Standard Operating Procedures; Stationary Speed Enforcement – Lidar and Radar, dated March 2007 (9 pages).

Document 2: Instructions for Site Assessment on Road Traffic Enforcement, dated March 2007 (11 pages).

4 Throughout the course of this matter Mr Phillip Johnston has been the person who has dealt with the agency and the Tribunal. Indeed the notice of appeal names him as the appellant. The Appeal Panel enquired at the outset of its hearing as to whether he retained the consent of his mother to pursue these proceedings. He said that he did, and referred to a form he had lodged with the Registry of the Tribunal said to prove that. The Appeal Panel noted that the appeal should be in the name of his mother, with him as agent. An amendment was made, without objection.

5 Mr Johnston objected to the President continuing to sit because of the way the President had dealt with a request by the agency for a minor variation in the directions timetable. The President declined to accede to the objection.

6 An appeal may be made as of right in relation to ‘questions of law’, and with the leave of the Appeal Panel an appeal may be extended to the merits: Administrative Decisions Tribunal Act 1997, ss 112, 113. The notice of appeal lists several alleged errors of law, and seeks leave for the appeal to be extended to the merits.

7 The Tribunal’s reasons, and the statements made by Mr Johnston to the Appeal Panel, reveal that the FOI request has as its background the issuance of a traffic infringement notice to Mrs Johnston for alleged speeding as adjudged by the use of Radar/Lidar devices. A letter to the agency, accompanying the FOI request, dated 14 June 2007 stated that Mrs Johnston was preparing a submission to have the notice reviewed and withdrawn. The letter stated that she would be seeking the ‘direct involvement’ of Internal Affairs ‘if the information I requested demonstrates the radar/lidar unit was not operated in accordance with operational guidelines’. Mr Johnston told the Appeal Panel that the charge has now been dismissed.

8 The text of the request appears at para [2] of the Tribunal’s reasons.

9 The two documents in issue are internal instructional documents. The agency refused to release them on the ground that they contained exempt matter, being matter the disclosure of which could reasonably be expected 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): see FOI Act, s 25(1)(a); Schedule 1, cl 4(1)(e).

10 In his submissions to the Tribunal and to the Appeal Panel, Mr Johnston acknowledged the agency’s case to a degree. He indicated that he did not object to the deletion in any material released of such information as escape routes and advice and procedures designed to ensure the personal safety of traffic patrol officers and others involved in the use of radar devices. The focus of the request, he said, was documents that ‘relate to site management procedures’, by which we understood him to mean the management of sites where radar guns and similar devices are set up. At the Appeal Panel hearing, he said that what was sought, in particular, was any material in the documents that concerned procedures for use of radar devices in ‘unsuitable gradient or hill’ situations. In that regard he referred to a document he does have, headed ‘Radar Engineering Unit/NSW Police Academy – Speedophot Training Program’ published April 1998. He referred to a section of this document which stated that speed cameras were not to be used in certain highway locations (on a bend, at the bottom of hills, on an unsuitable gradient or hill, within 50m of a speed restriction or derestriction sign). He referred in particular to the next paragraphs of the document which gave an explanation of what is meant by an ‘unsuitable gradient or hill’.

11 He also referred to observations that he said had been made by a District Court judge about the need for police to demonstrate that they had followed the relevant guidelines properly when they rely on machine evidence.

12 He also referred, as he had to the Tribunal, to statements in a Memorandum of Understanding between the Roads and Traffic Authority and the NSW Police issued in or around the year 1999 in which the parties committed themselves to sharing information bearing on traffic management such as operational plans and standard operating procedures.

13 Subject to those concessions, his main criticisms of the Tribunal’s decision went to: the weight it gave to the evidence of a Sergeant Dorrough; whether the onus of proof that lies on the agency had been discharged; the failure to issue a summons sought by him to require the attendance of a Chief Superintendent Hartley to give evidence; and the way in which the Tribunal had conducted the proceedings.

Evidence Issues

14 The Tribunal noted that the following evidence was placed before it by the agency:

‘17 A copy of Documents 1 and 2 were provided by the Commissioner to the Tribunal on a confidential basis. In addition to this the Commissioner relied on the evidence of Sergeant Dorrough, Senior Traffic Policy Advisor, Traffic Services Branch of NSW Police Force and written submissions of his agent, Ms Weiss.’

15 As he had before the Tribunal, Mr Johnston said that Sgt Dorrough had for most of his career been a highway patrol officer and not in the central policy unit as he is now. He said that he had only been in the unit for a short time, and was not the most senior officer in the unit. He said that the appropriate officer to give evidence as to the service-wide prejudice that might be suffered as a result of disclosure of the two documents was the person he said was the head of the policy unit, Chief Superintendent Hartley.

16 The Tribunal summarised Sgt Dorrough’s evidence as follows:

‘18 In his evidence, Sergeant Dorrough said that he has been in his current position for ten years and prior to this he had worked as a traffic and highway patrol officer for a considerable period of time. In summary his evidence was to the following effect:

(a) Documents 1 and 2 came into existence so as to provide detailed documented guidance to police in using the Lidar and Radar equipment so as to better ensure the safety of police officers and members of the public when the equipment was being used;

(b) Documents 1 and 2 did not come into existence for public dissemination or for distribution to another agency such as the RTA;

(c) if the Documents were released, the reader would be able to “circumvent police systems which in turn could be detrimental to police operations and so the safety of the general public”;

(d) the release of the Documents “would also provide the general public with their knowledge that certain geographical characteristics may impede enforcement therefore increasing the possibility of drivers to exceed the speed limit and endangering other members of the public and police.”;

(e) the material in the Documents was of no relevance as to the accuracy of the equipment for the purposes of measuring speed of a vehicle and speed enforcement; and

(f) release of the Documents would “allow members of the public to obtain methods used by police in preventing and detecting contraventions of the law.”’

17 The Tribunal gave the following assessment of Sgt Dorrough’s evidence:

‘21 In my opinion the evidence of Sergeant Dorrough was not that of mere assertion. It was evidence of what he had direct knowledge of and experience in. Accordingly, there is no basis to question his evidence as to how and why Documents 1 and 2 came into existence and how they are used and disseminated. I have also had regard to the content of the documents, which are entirely consistent with the evidence given by Sergeant Dorrough.’

18 Mr Johnston criticised the failure of the Tribunal to permit him to have issued a summons requiring Chief Superintendent Hartley to attend and give evidence. In his view the agency should have produced Chief Superintendent Hartley, and had failed to do so. By the summons, he was seeking to repair the omission, and ensure that the Tribunal had all relevant material before it. He referred to s 73(5)(b) of the ADT Act which requires the Tribunal:

‘(b) … to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings.’

19 In our view, it is for the agency to decide how it will go about discharging the onus that lies on it under s 61 of the FOI Act:

‘ 61 Burden of proof

In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.’

20 The first question in the present case was whether the documents withheld set out a ‘lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law’. There is no real dispute, as we discern Mr Johnston’s position, that documents 1 and 2 are documents of this kind. They set out procedures to be followed by police in managing, setting up and using radar devices. The real question is whether their disclosure ‘could reasonably be expected to prejudice the effectiveness’ of the methods or procedures they specify.

21 An agency’s case stands or falls on the material it places before the Tribunal. In this case it followed the usual course of placing the refused documents before the Tribunal, providing a history of its dealings with the access request, and calling officers it regarded as having appropriate expertise to form on behalf of the agency the opinions to which cl 4(1)(e) refers.

22 The agency is engaged, when giving an opinion on prejudicial effect, in expressing an agency opinion. It can chose through whose voice it does that. In our view, it would rarely, if ever, be appropriate for the Tribunal to accede to a demand from the access applicant for someone from within the agency not chosen by the agency to be called to give evidence. The Tribunal’s interest is in hearing the case of the agency – not in being exposed to any differences of opinion that might be held as between particular officers or in facilitating a contest of opinions between serving officers of the agency.

23 The review applicant is at liberty, of course, to lead his/her own evidence to contrary effect, say, by producing a retired police officer of relevant experience. The review applicant is given the opportunity to test the agency’s evidence, unless a confidential session is conducted from which the review applicant is excluded. A recent illustration of a review applicant leading contrary evidence from retired officers and other experts in public administration can be seen in the Commonwealth case that ultimately reached the High Court: McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423.

24 In our view, Sgt Dorrough was sufficiently experienced and senior to be a credible witness on a question of the kind to which cl 4(1)(e) refers as it relates to traffic law enforcement instructions relating to the use of radar devices.

25 In this instance the Tribunal was satisfied that the burden was met. It gave clear reasons for accepting Sgt Dorrough’s evidence.

Procedural Fairness

26 Mr Johnston submitted that the Tribunal had failed to accord him procedural fairness in failing to give reasons for refusing his application for the summons.

27 He drew attention to s 73(4) of the ADT Act which provides:

‘(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings.’

28 When the summons application was first made, the Tribunal Member did deal with it and record reasons for refusal. See file note dated 24 October 2007, as follows: (1) The respondent should make the Sergeant available for cross-examination if they seek to rely on his affidavit; (2) Do not know the relevance of this witness’s evidence so far as the FOI decision the subject of the complaint is concerned – no copy of an internal review etc, is on file. The Tribunal file contains a Registry note that Mr Johnston was informed by telephone of the decision at 11 am on 25 October 2007.

29 The hearing occurred on 22 November 2007. There were directions for the filing of further evidence, with a timetable that continued until 28 January 2008. (The decision was delivered on 10 March 2008.)

30 In submissions filed under this timetable in December 2007, Mr Johnston continued to raise the issue of Chief Superintendent Hartley giving evidence. The Tribunal did not return to the issue in its final reasons for decision.

31 As noted earlier, Mr Johnston saw the summons as serving the objective of ensuring that all ‘relevant material’ was before the Tribunal. Given that the agency bears the onus of justifying its determination, it would be difficult, for the reasons already canvassed, for an access applicant to demonstrate that any legitimate forensic purpose is served by such a summons. Consequently, an application from a review applicant for a summons requiring a serving agency officer other than the officer(s) relied upon by the agency might properly be regarded as an abuse of process.

32 This does not mean that the Tribunal might not intercede in the course of proceedings, and indicate to an agency that it does not regard a witness as having relevant expertise to express an opinion on the question raised by an exemption. The Tribunal might give the agency an opportunity to lead a more appropriate witness. In our experience, this has sometimes happened in Tribunal proceedings, with the agency then electing whether to rely on the evidence already presented or to call a more senior officer.

33 Even if the Tribunal failed procedurally in not returning to the summons request issue in its final decision, we do not consider any unfairness arose. In our view in the present case the Tribunal could only have refused Mr Johnston’s summons application. Accordingly, the Tribunal would have remained seized only of the evidence to which it referred in its reasons.

Residual Discretion and Restricted Documents Claims

34 The notice of appeal also criticised the Tribunal’s failure to exercise the residual discretion, and grant access even if the material was exempt under cl 4(1)(e).

35 In line with the practice of the Tribunal since the Supreme Court decision in University of New South Wales v McGuirk [2006] NSWSC 1362, the Tribunal did go on to consider whether it should, standing in the shoes of the agency (see ADT Act s 63(2)) exercise the discretion not to withhold the exempt documents given by s 25 of the FOI Act. (The Act does not compel agencies to withhold exempt documents – they merely ‘may’ refuse an exempt document.)

36 This case falls into the ‘restricted documents’ class of matters, as the exemption claimed belongs to Part 1 of Schedule 1.

37 The Appeal Panel has recently decided in IPART v Services Sydney [2008] NSWADTAP 79, contrary to previous authority in the Tribunal, that the Tribunal’s jurisdiction in relation to restricted documents claims, at least in cases where the FOI Act’s s 57 procedure is invoked, is to ascertain merely whether there are ‘reasonable grounds’ for the claim. Here, as has been usual in Police cases raising cl 4 grounds of exemption, the s 57 procedure was not invoked. The agency simply made its case in the usual way that applies to the exemptions that fall outside the ‘restricted documents’ circle.

38 At the time this appeal was heard IPART had not been decided. In light of the IPART decision, we are inclined to the view that the only jurisdiction the Tribunal has when a restricted document claim is made is the s 57 jurisdiction, with the consequence that there is no jurisdiction to exercise the residual discretion.

39 In any event, if there remains a residual discretion jurisdiction in restricted documents cases, we are of the view that the Tribunal dealt satisfactorily with the question as it arose in this case. It would, we think, be most unusual for a Tribunal having found that a document is exempt under cl 4(1)(e) to go on and allow release of the document. The Tribunal had regard to relevant considerations.

Other Matters

40 There were a number of other points raised in the notice of appeal, many of which were not actively pressed at the appeal hearing.

41 There was also a notice of motion filed seeking to have the Tribunal order that the agency not continue to be represented by the Crown Solicitor’s Office (CSO). Section 71 of the ADT Act is the provision which, it would seem, is seen as supporting such an application. The President dealt with a similar matter in proceedings last year where Mr Johnston was a party: see Johnston v Department of Education and Training [2007] NSWADTAP 53 (refusing leave to appeal against an interlocutory decision of the Tribunal at first instance dismissing such an application).

42 It is usual for government agencies to be represented by legal officers either from within the agency or from an external law firm, such as the CSO. Mr Johnston’s concern appears to be that a senior legal officer of the CSO is the representative on the record in other proceedings involving him, including a Supreme Court appeal relating to the 2007 decision mentioned. A coincidence of this kind does not justify any interference with the agency’s choice of legal representation, if indeed the power given by s 71 extends to the level of making orders as to who may appear from among the qualified staff of a law firm or agency legal unit.