Johnston v Commissioner of Police, NSW Police Force

[2009] NSWADT 172

CITATION:	Johnston v Commissioner of Police, NSW Police Force [2009] NSWADT 172
DIVISION:	General Division
PARTIES:	APPLICANT Shirley Johnston RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	083027
HEARING DATES:	20 April 2009 and 4 May 2009
SUBMISSIONS CLOSED:	4 May 2009
DATE OF DECISION:	3 July 2009
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to documents – documents affecting law enforcement and public safety
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Johnston v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 82 Johnston v Commissioner of Police, New South Wales Police Service [2008] NSWADT 191 McGuirk v Attorney General’s Department [2007] NSWADT 138 Telefoea (No 2) v Commissioner of Police [2000] NSWADT 192 Trlin v Director General, Department of Fair Trading [2000] NSWADT 192 University of New South Wales v McGuirk [2006] NSWSC 1362.
REPRESENTATION:	APPLICANT P Johnston, agent RESPONDENT K Mattes, solicitor
ORDERS:	1.The applicant’s application in regard to the March 2007 documents is dismissed under paragraph 73(5)(g)(ii) of the Administrative Decisions Tribunal act 1997 2.The decision of the Commissioner in regard to the remaining documents is affirmed.

1 Mr Johnston, as agent for his mother, Shirley Johnston (‘the applicant’), made an application for review of a ‘deemed’ decision of the Commissioner of Police (‘the Commissioner’) to refuse his mother’s request for access to specified documents pursuant to the Freedom of Information Act 1989 (‘the FOI Act’). The ‘deemed’ refusal arose by reason of sections 34(6) and 24(2) of the FOI Act. That is, the Commissioner having failed to make a decision within the time prescribed under these sections, he is deemed to have made a decision to refuse the applicant access to the documents she requested.

2 The FOI request for access had also been made by Mr Johnston on behalf of his mother. The request for access was in the following terms:

‘1. Complete and unexpurgated copies of all documentation generated as a consequence of the site assessment of Watts Road, Denistone East done by Sergeant Robert Tapply & Sergeant Glenn Milner of Eastwood LAC that was referenced in Sergeant Tapply’s email responding to Philip Johnston which was dated 22 May 2007.

2. A complete copy of all statistical information relating to enforcement action in Watts Road, Denistone East over the two month period that included peak & off-peak periods cited in Sergeant Tapply’s email dated 22 May 2007.

3. An unexpurgated copy of all information relating to the site assessment procedures for speed enforcement.

4. An unexpurgated copy of all documents that relate to site selection procedures for the use of radar/lidar.’

3 The Tribunal remitted the ‘deemed’ refusal decision to the Commissioner for re-consideration. On 28 April 2008, the Commissioner made a re-determination, which has formed the basis of the decision that is the subject of review in this application.

4 In that decision the Commissioner granted the applicant access to those documents which fell within Item 1 and 2 of her request. However, he refused the applicant access, in part or in whole, to those documents that fell within the terms of Items 3 and 4 of her request. The Commissioner identified 4 documents that fell within these Items and they were entitled as follows:

- Instructions for Site Assessment (March 2007)

- Standard Operating Procedures Stationary Speed Enforcement – Lidar and Radar (SSE) (March 2007)

- Standard Operating Procedures Stationary Speed Enforcement (Lidar Operations) (August 2004)

- Standard Operating Procedures Stationary Radar and Lidar Duties (9 May 2001)

5 The Commissioner’s decision was to refuse the applicant access to the two ‘March 2007’ documents on the grounds that they were exempt under clause 4(1)(e) of Schedule 1 of the FOI Act (i.e. they contain matter the disclosure of which could reasonably be expected to prejudice the effectiveness of any law enforcement method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law).

6 In regard to the other two documents (i.e. the August 2004 and May 2001 Standard Operating Procedures documents), the Commissioner determined to provide the applicant with a copy of the documents with deletions. In some cases the deletions were identified as containing information that was exempt under clause 4(1)(e) of Schedule 1 of the FOI Act. The remaining deletions were identified as containing information that did not fall within the terms of the applicant’s FOI request.

7 The two March 2007 documents had been the subject of an earlier application (see file no 073228) for review of a decision of the Commissioner under the FOI Act: see Johnston v Commissioner of Police, NSW Police Service [2008] NSWADT 191 (‘the Tribunal’s earlier decision’). Mr Johnston had made the FOI request and the application for external review on behalf of his mother. The Commissioner had refused the applicant access to the documents on the grounds they were exempt under clause 4(1)(e) of Schedule 1 of the FOI Act. The Tribunal affirmed this decision and Mr Johnston, again as agent for his mother, appealed the decision. The Appeal Panel dismissed the applicant’s appeal: Johnston v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 82 (‘the decision of the Appeal Panel’). The decision of the Appeal Panel was published in 21 November 2008, after the parties had filed their submissions in this application.

8 On 10 June 2008, I had made orders for the filing and serving of evidence and submissions by the parties and had formed the view that the issues for determination could be adequately determined on the papers.

9 The Commissioner filed and served his submissions and he also filed and served the statement of the Senior Sergeant Ronald Charles Dorrough, dated 25 September 2007. This statement was the evidence the Commissioner had relied on in the earlier application before the Tribunal (i.e. the application involving the March 2007 documents).

10 In his submissions, Mr Johnston contended that the matter should be listed for hearing and he requested that summonses be issued for Deputy Commissioner John Hartley and Senior Sergeant Dorrough to attend and give evidence and be cross-examined at a hearing of his mother’s application. In light of these submissions and the subsequent decision of the Appeal Panel, I requested that the matter be listed for further directions on 20 April 2009.

11 On 20 April 2009, after hearing from Mr Johnston and Ms Mattes, solicitor of the Commissioner, I declined to approve Mr Johnston’s request for the issue of a summons addressed to Deputy Commissioner Hartley. Ms Mattes submitted that there was no legitimate forensic purpose in the issue of the summons as all relevant evidence was contained in the statement of Senior Sergeant Dorrough. She also pointed out that Deputy Commissioner Hartley was no longer the officer responsible for the Traffic Services Branch and Senior Sergeant Dorrough, the officer responsible for traffic policy within the Branch, remained the most appropriate officer to give evidence of the issues that were before the Tribunal.

12 Mr Johnston was not able to point to any legitimate forensic purpose in being served by the issue of the summons on the Deputy Commissioner, other than him being the previous officer in charge of the Traffic Services Branch. There was no suggestion that the Deputy Commissioner would give evidence that was contrary to or in addition to that of the Senior Sergeant. The Appeal Panel decision, at [31], noted the difficulty a review applicant may find in establishing such a purpose when it is the agency that bears the onus of justifying its determination under section 61 of the FOI Act. Accordingly, it is for the agency to determine the most appropriate person to give evidence in support of its determination.

13 Ms Mattes indicated, however, that the Commissioner had agreed to make Senior Sergeant Dorrough available for cross-examination, if necessary, at a short hearing. Mr Johnston pressed for the attendance of the Senior Sergeant as he wanted to put some fresh evidence before him in regard to the dissemination of the documents to the public following a recent news item on the Channel 9 ‘A Current Affair’ programme. On this basis and in light of the Commissioner’s agreement it was unnecessary to deal with Mr Johnston’s request for the issue of a summons addressed to him.

Issues

14 There are several issues in this application. The first issue is primarily a factual one, namely whether the documents are within the public domain as asserted by Mr Johnston.

15 The next issue is whether the applicant’s application, in so far as it relates to the March 2007 documents is an abuse of process and/or ‘frivolous or vexatious or otherwise misconceived or lacking substance’ and should be dismissed under paragraph 73(5)(g)(ii) (formerly section 73(5)(h)) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). It is the Commissioner’s contention that these documents having already been the subject of determinations by the Tribunal and the Appeal Panel that the Tribunal should not reconsider them.

16 The final issue is whether:

(a) the documents are exempt under clause 4(1)(e) or (f) of Schedule 1 of the FOI Act. The Commissioner had relied on clause 4(1)(e) in his re-determination. However at the hearing the Commissioner also relied on the exemption in clause 4(1)(f), and

(b) if the documents are exempt documents whether the correct and preferred decision is nevertheless a decision to refuse the applicant access to the documents requested: see section 25(1) of the FOI Act, section 63 of the ADT Act and University of New South Wales v McGuirk [2006] NSWSC 1362.

17 In this application, as in his mother’s earlier application, Mr Johnston again seemed to argue that a document held by an agency and shown to be in the public domain cannot be withheld from an FOI applicant who seeks access to that document. In my opinion, Mr Johnston has misconstrued the manner in which the FOI Act operates. The Act does not contain such a provision. However, the fact that the document for which access is sought is within the public domain may be a factor relevant to determining whether a document is an exempt document or where a document is found to be exempt whether the correct and preferred decision is to refuse the FOI applicant access to the document (see section 25(1) of the FOI Act).

18 In support of his contention that the documents were in the public domain, Mr Johnston relied on the content of two data discs, each of which contained the Channel 9 logo and labelled ‘A Current Affair’ and dated 6 April 2009. One disc was labelled as a ‘video transcript’ and the other disc was labelled as an audio transcript’. These data disks were attached to a statement made by Mr Johnston and dated 3 May 2009. In that statement, Mr Johnston asserted the audio and video transcripts ‘proves ‘Standard Operating Procedures’ were provided to members of the public or in the alternative as “Standard Operating Procedures” are commonly referred to as “Police Operational Guidelines”’.

19 I have not been able to view the ‘video transcript’ disc. I have however, listened to the audio transcript. In my opinion, the content of the transcript is of no relevance to the documents at issue in these proceedings. The subject matter of the transcript is the use by police of ‘mobile’ radars in police vehicles to book drivers for speeding within metropolitan areas. The documents the subject of this application concern ‘stationary’ use of radars by police.

20 Even if the contents of the audio transcript were relevant to the use of ‘stationary’ radars, the fact that the news presenter made reference to ‘New South Wales operating guidelines’ does not mean that the documents the subject of this application are in the public domain. There is no evidence as to what the news presenter is referring to. He could merely be referring to what he had heard from someone else.

21 Mr Johnston also tendered into evidence the transcript of an appeal by him, to the District Court, on 16 August 2000, from a speeding conviction that had been entered against him in the Local Court. Again this transcript is of no assistance to the Tribunal in determining this application other than to show that the issue of police use of radars has been a matter of some personal concern to Mr Johnston for some time.

22 It was the evidence of Senior Sergeant Dorrough that the March 2007 documents were ‘at no stage … created with the intention of disseminating them to the public’: see his statement dated 25 September 2007 at paragraph [7]. He gave similar oral evidence in regard to the May 2001 and August 2004 documents. In his oral evidence he also said that that to his knowledge the documents the subject of this application had not been publicly disclosed to anyone. At the same time he agreed with Mr Johnston’s question that he could not guarantee that a copy of the documents had not been released to the public. In my opinion this was an honest answer by the Senior Sergeant, however, it was not a response from which it could be inferred that any one or more of the documents in issue in this application were within the public domain.

23 Senior Sergeant Dorrough also explained that the relevant documents were issued to all police who operated the stationary radars. It is evident from the content of these documents, a full copy of which was provided to the Tribunal on a confidential basis, that they are confidential and are for use by officers of the NSW Police Force only.

24 Accordingly, I find there is no evidence of the documents in question being within the public domain.

Should the applicant’s application in regard to the March 2007 documents be dismissed?

25 The Tribunal has accepted that ‘subject to good reason to do so’ the Tribunal should not allow the re-litigation of matters already decided and where this is the case it is appropriate for the Tribunal to exercise its powers under paragraph 73(5)(g)(ii) (formerly 73(5)(h)) is an equivalent power: see Telefoea (No 2) v Commissioner of Police [2000] NSWADT 48 at [28] to [29], Trlin v Director General, Department of Fair Trading [2000] NSWADT 192 at [13] to [18] and McGuirk v Attorney General’s Department [2007] NSWADT 138. That paragraph provides that the Tribunal may ‘dismiss at any stage any proceedings before it …if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.’

26 In Telefoea at [29] the Tribunal held that:

‘… [Normally] the Tribunal should not allow the re-litigation of matters already decided between the same parties in a competent court. However, the Tribunal should consider an issue if there is good reason to do so. Such reasons include where it is the intention of the legislation that the Tribunal make another decision, where the first decision was not final or where there has been a change in circumstances since the first decision

27 In Trlin at [16], Judicial Member Britton said:

‘It appears to me that, as this Tribunal is administrative in nature (although it operates in a quasi-judicial fashion), it is not strictly bound by the rules of res judicata and issue estoppel. Nonetheless, as was said in Toleafoa, good reason must be shown for the Tribunal to depart from the general practice of prohibiting the relitigation of facts and questions of law, which have already been decided.’

28 In my opinion, Mr Johnston has pointed to no good reason as to why his mother should be given the opportunity to again press her application in regard to the two March 2007 documents. The decision of the Commissioner in regard to these documents was fully considered by the Tribunal in the applicant’s earlier application and that decision was upheld on appeal by the Appeal Panel. Mr Johnston has not put before the Tribunal any new material which would warrant the matter to be considered again.

29 Accordingly, the appropriate order in respect of the two March 2007 documents is to dismiss the applicant’s application for review pursuant to paragraph 73(5)(g)(ii) of the ADT Act. In the event I am incorrect, for the reasons set out in paragraphs [19] to [27] in my earlier decision the appropriate order is to affirm the decision of the Commissioner in regard to these documents.

Do the documents contain matter that is exempt under clause 4(1)(e) or (f) of the FOI Act?

30 Clause 4(1)(e) and (f) of Schedule 1 of the FOI Act relevantly provide as follows:

‘A document is an exempt document if it contains matter the disclosure of which could reasonably be expected to:

(e) prejudice the effectiveness of any law enforcement, method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law …

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

31 Clause 4(2) sets out exceptions to the various circumstances set out in clause 4(1), including the above. Of relevance to these proceedings is clause 4(2)(b) which provides that the document is not exempt ‘if disclosure of the document would, on balance, be in the public interest.’

32 It is not disputed that the onus is on the Commissioner to establish that his decision, including his finding that the document is exempt, is justified: see section 61 of the FOI Act.

33 On the basis of my findings in regard to the two March 2007 documents, it is only necessary to consider the Commissioner’s decision in so far as it relates to the August 2004 and May 2001 documents. As mentioned above, the applicant has been given access to a copy of these with deletions, some identified as containing exempt matter and others identified as not falling within the ambit of the FOI request. In my opinion the latter deletions are not an appropriate way of dealing with documents which are found to fall within the terms of an FOI request. Once a document is found to fall within the terms of the FOI request, it is not a question of dissecting the contents of the document into those parts which meet the description of the request and those that do not. The document must be considered as a whole and any material that is deleted must be determined to contain matter that falls within the terms of one or more of the exemptions in Schedule 1 of the FOI Act.

34 While Mr Johnston has not raised this issue, I have treated the Commissioner’s deletions that have been marked as ‘outside the ambit’ of the applicant’s FOI request as also being a decision that the deleted material is exempt under clause 4(1)(e) and (f) of Schedule 1 of the FOI Act.

35 In support of his decision the Commissioner relied on the statement made by Senior Sergeant Dorrough in regard to the two March 2007 documents and that which he gave at the hearing. The statement evidence of the Senior Sergeant is summarised at paragraph [18] of the Tribunal’s earlier decision and it is unnecessary to repeat it. As I have mentioned, it was the evidence of the Senior Sergeant that his statement evidence equally applied to the deleted material in the August 2005 and May 2001 documents.

36 It was Mr Johnston’s submission that the Commissioner was applying the exemption unnecessarily and contrary to the guidelines as set out in the Premiers FOI Manual, in particular those set out at [11.5.3] and [11.5.4]. These relevantly provide as follows:

Purpose of exemption

11.5.3 The purpose of this exemption is to ensure that confidential documents and information should not be released where such release would have and adverse effect on the ability of public authorities to carry out law enforcement functions, or may compromise the safety of any person. The clause also recognises that certain documents may be exempt if their release may prejudice the process of justice or lead to damage to personal or public property.

Applying the exemption

11.5.4 Applying this exemption requires particular sensitivity because of the need to balance concern that individuals may be endangered against the need to ensure that the exemption is not used unnecessarily.

37 I have considered the content of the deletions and the evidence of Senior Sergeant Dorrough and in my opinion the exemptions claimed by the Commissioner in regard to the deletions have not been used unnecessarily. The deletions do not have any bearing on the accuracy of the readings on stationary radar equipment, they primarily concern the operational methods to be used by police officers so as to ensure a safe and effective positioning of stationary radars for speed enforcement. It was the evidence of Senior Sergeant Dorrough that the release of the deleted information ‘could be detrimental to police operations and so the safety of the general public’ and ‘impede law enforcement’.

38 Although the May 2001 and August 2004 documents appear to have been superseded by the March 2007 documents, I find that the deleted material nevertheless remains relevant to that which is contained in the most recent documents. Accordingly, I am satisfied that the deleted material contains matter the disclosure of which could reasonably be expected prejudice the effectiveness of police methods of enforcing, preventing, detecting, investigating or dealing with unlawful speeding on public roads and also prejudice the enforcement of the lawful use of stationary radars for protecting public safety. I also find that there is no material before the Tribunal to indicate that disclosure of the document would, on balance, be in the public interest.

39 Accordingly, I am satisfied that the Commissioner has established that the deleted material contains matter that is exempt under clause 4(1)(e) and (f) of Schedule 1 of the FOI Act.

Is the decision of the Commissioner the correct and preferred decision?

40 At paragraph [25] and [26] of the Tribunal’s earlier decision are the applicable principles in regard to what is often called the ‘override discretion’ where it is found that a document is exempt or where deletions in a document are found to contain exempt matter. Again it is unnecessary for me to repeat these.

41 Mr Johnston submitted that the Tribunal should use the ‘override discretion’ to grant his mother access to the documents. He said this could be achieved by granting her access to the documents subject to restrictions as to their further dissemination. He also explained that his mother sought access to the documents for the purpose of disciplinary proceedings.

42 In regard to the latter there was no evidence from the applicant before the Tribunal as to why she sought access to the documents. Mr Johnston was asked specifically if his mother continued to press her interest in obtaining access to the documents. He responded by saying that she was and invited the Tribunal to contact her on the telephone. With respect, this is not a matter for the Tribunal to investigate. It is a matter for Mr Johnston, as his mother’s agent, to put the necessary material before the Tribunal. At no time has he done this and in the absence of such material the applicant’s interest in the documents cannot be taken into account. It is also noted that section 53(1) of the FOI Act gives the person who is ‘aggrieved’ by a determination made by an agency in regard to their FOI request for access to documents under the Act a right to lodge an application for review. In this application that person is the applicant and not Mr Johnston.

43 It is also difficult to understand Mr Johnston’s application for access on a restricted basis. This does not appear to be a basis on which access can be granted under section 27 of the FOI Act.

44 There is otherwise no material before the Tribunal which would override the public interest in the non disclosure of the deletions in the May 2001 and August 2004 documents. Accordingly, I find that the Commissioner has established that his decision to refuse the applicant access to the deletions in these documents is justified.

Orders

45 Accordingly the appropriate orders are:

(a) The applicant’s application in regard to the March 2007 documents is dismissed under paragraph 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997.

(b) The decision of the Commissioner in regard to the remaining documents is affirmed.