JY v Commissioner of Police, NSW Police

[2008] NSWADT 306

CITATION:	JY v Commissioner of Police, NSW Police [2008] NSWADT 306
DIVISION:	General Division
PARTIES:	APPLICANT JY RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	073233
HEARING DATES:	13 August 2008
SUBMISSIONS CLOSED:	13 August 2008
DATE OF DECISION:	14 November 2008
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Review of a decisions under the Freedom of Information Act 1989 - access to documents - personal affairs – confidential material - statutory interpretation – residual discretion
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Sawires v Commissioner of Police, New South Wales Police [2008] NSWADT 91 LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50 Re Stewart v Department of Transport (1993) 1 QAR 225 Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 News Corporation Ltd v NCSC (1984) 52 ALR 277 Colakovski v Australia Telecommunications Corporation (1999) 29 FCR 429 Commissioner of Police v Perrin (1993) 31 NSWLR 606Young v Wicks (1986) 13 FCR 85 Department of Social Security v Dyrenfurth (1988) 80 ALR 533 Director of Public Prosecutions v Smith [1991] 1 VR 63 Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 Martin v Commissioner of Police [2005] NSWADT 23 Simring v Commissioner of Police [2006] NSWADT 331 Antill-Pockley v Perpetual Trustee Co Ltd [1974] HCA 52 Re Dale and Australian Federal Police (1997) 47 ALD 417 Re Chandra and the Minister for Immigration and Ethnic Affairs (1984) 6 ALD N257 Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADTAP 30 Uddin -v- Chief Executive Officer, South Eastern Sydney Area Health Service and Anor [2002] NSWADT 228 Re Burns and ANU (No 2) (1985) 7 ALD 425 Re Peters and Department of Prime Minister and Cabinet (No 2)(1983) 5 ALN N306Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 Re X (a minor) [1975] 1 All ER 697 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218; 106 ALR 385 Annetts v McCann (1990) 170 CLR 596 Northern Rivers Area Health Service [2005] NSWADT 154 Re B (1994) 1QAR 279
REPRESENTATION:	APPLICANT K Day, barrister RESPONDENT D Mackay, barrister
ORDERS:	1. Pursuant to section 72(2) of the Administrative Decisions Tribunal Act 1997 the Tribunal prohibits the disclosure of JY’s identity 2. The decision made by the Commissioner is varied in accordance with these reasons.

Background

1 JY is a divorced woman whose four year old, severely disabled daughter died while, with her brother, on their first overnight access with their father, JY’s ex-husband, in 2003.

2 JY had been told that her ex-husband was taking the children to a friend’s home for the night, but, following her daughter’s death, found that they had been staying with her ex-husband and his then girlfriend. The death was investigated by Police and reported to the Coroner, but it was determined that no inquest was necessary. The cause of death was a ‘Natural Cause of Unknown Origin.’ The Coroner did provide JY with a copy of the final forensic medical report and short statement of reasons. The Coroner did not call for a Police brief to be prepared concerning the death.

3 JY is not privy to all the information that was before the Coroner or in the possession of the Police. She is anxious to gain as much information and understanding as possible of the circumstances of her daughter’s death. Her ex-husband has refused to discuss the circumstances with her. She is aware that all those involved, including herself, have provided statements to the Police.

4 On 28 December 2006 JY made a request to the Commissioner under the Freedom of Information Act 1989 in which she provided the following description of the documents she was requesting:

… All Statements in the matter of my daughter … who passed away at 4 years old. In my ex husbands care. Would like to know the evidence of what happened on that day, plus statements from other parties. Need closure to my daughter’s death, Case no C17933430 E18044572 Senior Constable Bell. Blacktown Police Station

5 On 9 March 2007 the Commissioner made a determination in which two categories of documents meeting that description were identified. First, JY’s own statement. Secondly, fourteen pages of statements provided to the Police ‘in confidence’. The Commissioner determined to release to JY a copy of her own statement, with the names of all other persons she mentioned deleted on the basis of the personal affairs exemption.

6 The Commissioner refused to disclose the fourteen pages of statements from others on two grounds. First, under the personal affairs exemption. Secondly, on the basis that the statements were provided to Police on a confidential basis and that the ability of the Police to investigate matters would be compromised, if that confidentiality were breached.

7 On 23 March 2007 JY wrote to the Commissioner requesting an internal review of that decision not to release the fourteen pages of statements from others. The Commissioner says this was received on 17 April 2007.

8 On 6 June 2007 the internal review was completed. The review officer did identify the names of the three people who had made the statements in issue. Each statement was made on the date JY’s daughter died. The review officer found that the statements contained information relating to the affairs of the persons who made them, being their ‘observations into the death’ of JY’s daughter. The review officer advised that the release of the statements was opposed by the people who had made them. The review officer concluded that it would be unreasonable to disclose the information, in all the circumstances, and that it was in the public interest that the information not be disclosed.

9 On 31 July 2007 JY filed an application to review the decision made on internal review with the Tribunal.

10 A planning meeting took place on 18 September 2007 at which it was agreed that JY would make a further FOI request for notebook entries made by investigating police, the COPS event summaries, and the statements. On 14 November 2007 the Commissioner released the COPS events summary with the names of the other people involved, apart from her ex-husband, deleted. That summary gives a brief outline of the circumstances of the death, and of what the people involved said happened. Access to the statements and diary entries was again refused.

11 The COPS events summary sets out the times at which various events surrounding the death occurred, which individuals were present and when they arrived. It reveals that one of the witnesses “had contaminated the crime scene by washing the bed sheets which the deceased had slept in”, albeit, in the Police view, inadvertently.

12 A further planning meeting was held on 22 January 2008. At that meeting some time was spent identifying the decision which JY was seeking to have reviewed. As JY's request for internal review was received on 17 April 2007, section 34(6) of the Freedom of Information Act 1989 operated to create a deemed refusal of her application, when the agency failed to determine an application within 14 days after it was received. That deemed refusal took place on 2 May 2007, more than a month before the review officer made the written internal review decision. At the planning meeting it was agreed the decision under review was the deemed refusal, rather than the later decision of 6 June 2008. It was also agreed that the application should be fixed for hearing, but that JY would endeavour to obtain copies of the statements from the Coroner before the hearing took place.

13 One further point needs to be made flowing from the written internal review decision of 6 June 2008, concerning the fact that it appears that JY’s request for internal review, which was received on 17 April 2007, was out of time. The original review decision was made on 9 March 2007 and posted to JY. JY is taken to have received that letter on 13 March 2007: section 60(b). section 34(2)(e) required that JY seek the internal review within 28 days of receipt of the notice of determination, or – as is the case here – where there is a deemed refusal of an original application, because no decision has been made with in 21 days (section 24(2)), within 49 days of receipt of the original application.

14 Whether the original review decision in JY’s case is the decision made on 9 March 2007 or an earlier deemed refusal, it is clear that JY made her request for internal review out of time. In the circumstances, however, I think that it can be inferred, from the fact that the agency actually determined the internal review, that the Commissioner allowed JY further time to lodge her application, under to section 34(2)(e)(iii). The time allowed was until the date the application for internal review was received on 17 April 2007.

15 Following the planning meeting on 22 January 2008 the Commissioner determined that it wished to raise issues going to the jurisdiction of the Tribunal to hear JY’s application to review the decision, on the basis that her application was made outside the 60 day time limit prescribed by section 54(a). If that was the case, under the law as it then stood, the weight of authority pointed to the Tribunal having no power to extend the time in which JY could make her application to the Tribunal, under s 57 of the Administrative Decisions Tribunal Act 1997: see the discussion in Sawires v Commissioner of Police, New South Wales Police [2008] NSWADT 91 at [19-29]. JY disputed that she had made her application outside the time limit set by section 54(a).

16 On 9 July 2008 in response to request made by JY the Coroner provided her with a copy of the Police ‘Report of death to Coroner’ which outlines JY’s daughter’s disability, care requirements, health concerns in the days leading up to her death, and the circumstances of her death. No mention is made in that report of the contamination of the crime scene. Some of the crucial times given in that report also differ from that in the COPS events summary, and in turn are difficult to reconcile with the times in Ambulance and Hospital records obtained by JY.

17 A week before the hearing, which took place on 13 August 2008, an Appeal Panel of the Tribunal published its decision LZ v Office of the Protective Commissioner (GD) [2008] NSWADTAP 50. The Appeal Panel reviewed the authorities concerning the time limits under s 54 of the Freedom of Information Act 1989 and whether the Tribunal’s general power to extend time under s 57 of the Administrative Decisions Tribunal Act 1997 was ousted. The Appeal Panel found, at [49] that the power to extend time under that provision applied to an application for review of a decision made under the Freedom of Information Act 1989. The Appeal Panel concluded at [60]:

… the Tribunal is, … , not precluded from considering an application to extend time. The question will then be whether the applicant has a reasonable explanation for the delay in making the application. In our view, this matter should be approached with some circumspection. The FOI filing period is already a generous one (60 days), as compared to the usual period in the Tribunal (28 days).

18 Before the hearing commenced on 13 August 2008, I arranged for the Registry to provide the legal representatives of both parties with copies of the decision in LZ. This resulted in them agreeing that, whether or not JY’s application to the Tribunal was out of time, that, if it was, then this was an appropriate case for the Tribunal to exercise its power to extend time for the making of application for review under section 57 of the Administrative Decisions Tribunal Act 1997. I agreed with that assessment. As a result, by consent and without determining that the decision was out of time, I extended the time in which JY could make her application to review to the Tribunal to 31 July 2007, when she filed her application. This resulted in the issues to be determined by the Tribunal being reduced.

19 The Tribunal was provided with confidential copies of the statements. Copies of letters from the person who made the statements objecting to the release of the documents, which had been seen by JY’s legal representatives, but not JY herself, were also provided.

20 Section 55 of the Freedom of Information Act 1989 provides that the Tribunal, when determining a review application, is to ensure that it does not, in its reasons for its decision or otherwise, disclose any exempt matter. Section 61 places the burden of proving that the determination made by the Agency was justified on the Agency.

Issues

21 The remaining issues were substantive ones under the Freedom of Information Act 1989.

22 The first concerned whether the personal affairs exemption in clause 6 of Schedule 1 of the Act applies. This required a consideration of:

Whether the three statements contain matters concerning the personal affairs of any person (whether living or deceased), other than JY?

Insofar as the statements contain matters concerning the personal affairs of JY’s deceased daughter, who can consent to the release of the statements on her behalf?

To what extent has the information contained in the statements already been disclosed?

Is there any and what pubic interest in the disclosure, or non-disclosure, of the information to JY?

In the light of the public interest and the information that has already been disclosed, would disclosure of the statements containing information concerning the personal affairs of others be unreasonable?

23 The second issue concerned whether the confidential material exemption in clause 13(b) of Schedule 1 of the Act applies. This requires a consideration of:

Would the release of the documents disclose information obtained in confidence? AND

Would the disclosure of that information reasonably be expected to prejudice the future supply of such information to the Government or to an agency? AND

Would the disclosure of that information, on balance, be contrary to the public interest?

24 The third issue, which will arise if either of the above exemptions is found to apply, is whether the Tribunal should exercise its residual discretion to release the statements.

25 The fourth issue, which will arise only if JY is unsuccessful in the earlier issues, is whether it is possible to release the statements to JY with the exempt matter deleted in accordance with section 25(4) of the Freedom of Information Act 1989.

Personal Affairs

26 Section 16 provides a legally enforceable right to access to “an agency’s documents in accordance with this Act.” section 25 sets out grounds on which an agency may refuse access to documents, the first of which is that the document ‘is an exempt document.’ ‘Exempt document’ is defined in section 4 as, among other things, ‘a document referred to in any one or more of the provisions of Schedule 1.’

27 Clause 6 of Schedule provides:

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) 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 being made.

28 Agencies considering a request for access to a document which contains personal information are required to comply the provisions of section 31, which relevantly states:

(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).

(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

(3) If:

(a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and

(b) the views of the person concerned are that the document is an exempt document by virtue of clause 6 of Schedule 1,

the agency shall:

(c) forthwith cause written notice to be given to the person concerned:

(i) that the agency has determined that access to the document is to be given, and

(ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and

(iii) of the procedures to be followed for the purpose of exercising those rights, and

(d) defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of.

(4) ...

A reference in this section to the person concerned is, in the case of a deceased person, a reference to that person’s closest relative who is of or above the age of 18 years.

29 Each of the three persons concerned has objected in writing to the release of their statements, citing the immense emotional effects of the death on them, and their desire to ensure their privacy.

30 The Commissioner submitted that each of the statements contained information which concerned and affected the people who made them, as well as personal information concerning the deceased child. This information went to each individual’s family, marital or other relationships, and therefore concerned their personal affairs.

31 JY submitted that the statements were made to the Police in anticipation of public coronial inquest, and contain evidence which the individuals concerned were prepared to give in a Court if required. Therefore, it was argued, they do not relate to matters of private concern to an individual. Further, as the statements go to the circumstances surrounding the death of JY’s daughter - whose interests JY has an ongoing right to protect even after her death – the statements contain information going to the personal affairs of JY, both as an individual and in her capacity as mother of the child. The information therefore did not affect the ‘purely private’ affairs of the people who made the statements.

32 The parties referred me to a number of decided cases in support of their contentions. The term “personal affairs” is not defined in the Act. As was observed by the Queensland Information Commissioner in Re Stewart v Department of Transport (1993) 1 QAR 225 at [18] there has been a consistent disinclination by courts and tribunals “from attempting any comprehensive explanation of what is encompassed by the phrase.” There it was held that information about family, marital and other relationships with emotional ties is information about the “personal affairs” of the people concerned.

33 In Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 Beaumont J, sitting as a presidential member of the Commonwealth AAT, said, at 221, personal affairs “refer to matters of private concern to an individual.” Thus because a persons “vocational competence in not something that is ordinarily treated as confidential” it is not, “prima facie at least” part of person’s personal affair.”

34 In News Corporation Ltd v NCSC (1984) 52 ALR 277 the Full Court of the Federal Court, at 283, found that personal affairs refers to the affairs of a natural person and not a corporation. At 540:

It is sufficient for present purposes to indicate our view that information relating to the personal affairs of a person, such as information concerning his or her state of health, the nature or condition of any marital or other relationship, domestic responsibilities or financial obligations, may legitimately be regarded as affecting the work performance, capacity or suitability for appointment or promotion of that person. In those circumstances, it is conceivable that an assessment of work performance, capacity or suitability for appointment or promotion might contain such information. If it did, it would be necessary to consider whether disclosure of that information would be unreasonable so as to render the assessment an exempt document by virtue of section 41(1) of the FOI Act .

35 Colakovski v Australia Telecommunications Corporation (1999) 29 FCR 429 concerned an unsuccessful application to obtain records relating to telephone calls, which would identify the phone number (and the subscriber’s name) from which nuisance telephone calls had been made. Lockhart J, at 436 said:

… I prefer the view that the "personal affairs" of a person within the meaning of sections 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person's private life, in the sense of his personal life, which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person's "personal affairs". Such a document would therefore prima facie answer the description of one which relates to the "personal affairs" of a person within section 41(1). … I agree with the Full Court in Dyrenfurth that it would be inappropriate to attempt to define the meaning of "personal affairs" in some definitive way. It would be unwise to substitute for the word "personal" some other word such as the word "private" because one generally accepted meaning of the word "private" is confidential or not widely known. In my opinion, a person's affairs may be personal to him notwithstanding that they are not secret to him. …

36 Heerey and Jenkinson JJ agreed with Lockhart J. In the course of his decision Heerey J said, at 440:

… The fact that the call was made in itself is a personal affair of the caller. The personal affairs of a person are made up of a myriad of "acts, facts, matters and circumstances". A single act, such as the making of a telephone call, can be a personal affair. …

37 In NSW the ambit of the phrase was considered by the Court of Appeal in Commissioner of Police v Perrin (1993) 31 NSWLR 606 where the issue was whether the name and rank of investigating Police officers constituted their personal affairs. In affirming that they do not Kirby P traversed the authorities and said, at 625:

The ordinary dictionary meaning of “personal affairs” has been held to involve “matters of private concern to an individual”: see Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219; 3 AAR 529; Young v Wicks (1986) 13 FCR 85 at 88-89; 79 ALR 448 at 452. However, it has been suggested that this might be too narrow a paraphrase: see Department of Social Security v Dyrenfurth (1988) 80 ALR 533 at 539; cf Director of Public Prosecutions v Smith [1991] 1 VR 63 at 69. In its context, the words “personal affairs” mean the composite collection of activities personal to the individual concerned.

38 The question of whether a document contains “information concerning the personal affairs” of a person is a question of fact that is determined from the circumstances of each individual case: see Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253. In Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 at [79], it was said that where a document contains a statement about a person’s private life, which is widely known, “this does not deprive it of the character of information relating to the person’s ‘personal affairs.’”

39 In Martin v Commissioner of Police [2005] NSWADT 23 Higgins JM considered an application for the release of witness statements relating to allegations of assault made against her by neighbours. The Tribunal found at [65] that “while the statements do contain information concerning the personal affairs of third persons, the majority of the information also concerns the personal affairs of the applicant.” That information concerning the applicant was not exempt: clause 6(2). Higgins JM concluded, at [66]:

“…the information that concerns the personal affairs of the applicant, in particular the information that records the events involving the applicant on 19 November 2003 (which forms the bulk of the information in both statements) is not exempt under clause6 of Schedule 1 of the FOI Act. The fact that this information is provided by a third party does not make it personal information of that third party exclusively.”

40 In Simring v Commissioner of Police [2006] NSWADT 331 the applicant sought access to statement prepared and used in the course of a completed and successful prosecution of the applicant. Pearson JM said of the statements, at [24]:

“I am satisfied that they contain information or opinion about the applicant, and information about individuals other than the applicant. Disclosure of these documents would reveal the identity of the authors of the documents, and identify others, as well as reveal the personal reasons for the creation of the documents. As such, disclosure of these documents would involve disclosure of personal information about persons other than the applicant: Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55 . ”

41 The information contained in the statements in this case concern the death of a child, a matter of great sensitivity and emotionally turmoil to those present, and to the child’s wider family, including JY as her mother. They also contain personal information relating to persons who made them, and each other. Having examined the statements with care I am of the opinion that the personal information about all the individuals involved is so intermingled that it is difficult to isolate any part of them as relating only to JY or her daughter. In reaching that conclusion I accept that both of her parents have an individual interest in her protection, which subsists after her death: Annetts v McCann (1990) 170 CLR 596, at 603, per Mason CJ, Deane and McHugh JJ. To my mind, the protection of a child interests is undoubtedly within of the personal affairs of a parent.

42 In submissions JY argued that the circumstances surrounding the death of a child are not ‘matters of private concern to an individual,’ relying Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219. As the Full Court of the Federal Court made clear in Colakovski v Australia Telecommunications Corporation (1999) 29 FCR 429 equation of the word “private” with the word “personal” when considering the meaning of personal affairs is to be avoided. I am satisfied that each of the statements contain personal information relating to persons other than JY.

43 It was submitted for JY that she, being the person with whom her daughter lived since her separation from her husband, and as her daughter’s primary carer, was her daughter’s “closest relative.” JY is therefore able to consent to the release of information relating to her daughter’s personal affairs by virtue of section 31(5). The Commissioner argued that the child’s father is also a close relative who could consent to the release of personal information under that section, and submitted that he opposed the release.

44 Section 8(1)(b) of the Interpretation Act 1987 provides that:

In any Act or instrument a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form.

45 In my view there is nothing in section 31 the Freedom of Information Act 1989, or in the context of Act as a whole, which would justify a conclusion that the rule of interpretation expressed in section 8(1)(b) of the Interpretation Act 1987 should not apply to section 31(5). I have proceeded on that basis.

46 According to the ordinary understanding of the words ‘closest relative,’ a person’s closest relatives are the person’s "nearest blood relations": see Antill-Pockley v Perpetual Trustee Co Ltd [1974] HCA 52 per Gibbs J (at [5]), with whom Stephen J agreed. A child’s closest relatives are its parents. Where, however, one parent has the sole parental responsibility for the child, whether by Court order or the death of the other parent, that parent will be the child’s closest relative. In this case, there is no evidence that there were in existence Court orders relating to parental responsibility for the child. As a result I conclude that both JY and her ex-husband were the closest relatives for the purposes of section 31(5). Each of them was required to be and has been consulted.

47 The fact that they have expressed differing views triggers the obligations imposed on an agency by section 31(3), with respect to her father, being the closest relative who has asked that the personal affairs exemption be maintained. His opposition does not mean that the information is exempt, but his objection is one of the factors to be taken into account in considering whether disclosure would be unreasonable: Re Dale and Australian Federal Police (1997) 47 ALD 417 at [23].

48 In this case documents in issue contain information relating to the personal affairs of the individuals who made the statements, which information is intermingled with information relating to the personal affairs of JY and her child.

49 It is therefore necessary to determine whether the release of the documents containing personal information would be unreasonable. In Re Chandra and the Minister for Immigration and Ethnic Affairs (1984) 6 ALD N257 at N259 the Hall DP said

51 … Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of all the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what section

41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

52 However, consistently with the stated object of the Act (see section 3); it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.

50 In Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 the President (O’Connor DCJ) having reviewed the authorities concerning the assessment of whether disclosure would be unreasonable concluded, at [48-50]:

48 The FOI Act sets a standard which is to apply as between citizens and government. Decisions to grant access under FOI should, to use an American expression, ordinarily be facially neutral. The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. But some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9; and generally Cossins, Annotated Freedom of Information Act New South Wales (1997), 313.

49 …

50 For the reasons given, I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else’s personal records, and under which agencies can make varying calculuses as to the ‘reasonableness’ of disclosure in that way. …

51 This decision was upheld on appeal: see Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADTAP 30.

52 Uddin -v- Chief Executive Officer, South Eastern Sydney Area Health Service and Anor [2002] NSWADT 228 was a case in which a father of a child sought access to medical records relating to the birth of his child. Those documents contained personal information relating to the child and its mother. Deputy President Hennessy, in affirming a decision to refuse access, noted that the issue was “whether the relationship between the applicant and the person whose personal affairs are contained in the document … affects the reasonableness of disclosure in this case.” In following the decision in Saleam, she found that the fact that the Applicant was the father of the child did not, alone, make it reasonable for him to have access.

53 In Saleam the President acknowledged, based on the decision in Re Burns and ANU (No 2) (1985) 7 ALD 425, that there may be cases in which a private interest in obtaining access to personal information may amount to a public interest in its own right. In Re Burns Todd DP had earlier expressed the view, at [37], that:

… consideration of the public interest involved dual consideration of the interest of the public generally and of the interest of the public in the rights of an individual whose interests are or may be affected by the documents and thus by their disclosure or non-disclosure to him.

54 In adhering to that view the Deputy President referred to the decision in Re Peters and Department of Prime Minister and Cabinet (No 2)(1983) 5 ALN N306 where Morling J discussed the balancing of the public interest in granting access against that of preserving the confidentiality of ministerial advice. Todd DP explained at [39-40]:

39… But what is important is that his Honour clearly considered that there was a public interest in a citizen having such access in an appropriate case, so that if the citizen's 'need to know' should in a particular case be large, the public interest in his being permitted to know would be commensurately enlarged. But if, on the other side of the scales, the public interest in non-disclosure is somewhat less than is the case in other areas (such as that in fact obtaining in Re Peters), then the balance between the two aspects of the public interest may be, at the least, very close.

40 This conclusion is reinforced by reference to the decision, cited in Bayne Freedom of Information Law Book Co Ltd, 1984, of Jacobs J in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 487, where Jacobs J said: "The words 'public interest' are so wide that they comprehend the whole field of objection other than objection founded on deficiencies in the application and in the required marking out of the land applied for. For instance the public interest may tell against the grant of a mining lease even though the particular interests of an individual are the only interests primarily affected. It may thus be in the public interest that the interests of that individual be not overborne. However, all the objections can be and should be related to the public interest. But private interests as such are not a relevant consideration."

55 In my opinion a consideration of these authorities points to the conclusion that a private interest may coincide with or equate to a public interest in disclosure, but it is the public interest, not the private interest, which is to be considered when balancing the competing interests in disclosure. That public interest in disclosure must be identified. The private interest may, as it does here, graphically illustrate the public interest, but it does not constitute it.

56 In this case JY submits that her own need for information concerning her daughter’s death is of such strength that it amounts to a public interest consideration in its own right. In doing so, she noted that the internal review officer had grappled with the competing public interests and had acknowledged, relying on Re Burns, that JY’s need was of such strength as to amount to a public consideration in its own right. I do not accept this submission because, as I have already explained, I do not consider that a private interest alone can amount to a public interest. In so doing, I acknowledge that a private interest may coincide or equate with a similar public interest.

57 In my opinion there are a number of public interest factors in this case which weigh in favour of disclosure. One of these, which was pressed on JY’s behalf, is the public interest in the administration of justice. JY pointed to the inconsistencies, between the COPS events summary and Police report of death to the Coroner (both as to the timing of key events and as to the contamination of the scene). The public interest in the administration of justice, it was submitted, supported disclosure of the statements so that these inconsistencies could be considered in their light and, if appropriate, the Coroner could then be approached to reconsider.

58 There are, in my opinion, other identifiable public interests considerations which weigh in favour of disclosure of the statements relating to the death of JY’s daughter. These are the public interest in the protection of young children, the public interest in the protection and of the disabled, and the public interest in the protection and maintenance of parental responsibility for infant children.

59 That there is a wider public interest in the protection of the children and of persons with disabilities is well recognised and long standing. This is demonstrated by the early development of the parens patriae jurisdiction in the Superior Courts, which, historically, was founded on the Crown’s duty to protect those incapable of protecting themselves. As Lord Denning explained in Re X (a minor) [1975] 1 All ER 697 at 701:

All subjects owe allegiance to the Crown. The Crown has a duty to protect its subjects. This is and always has been especially so towards minors, that is to say now, the young under the age of 18. And it is so because children are especially vulnerable. They have not formed the defences inside themselves which older people have, and therefore, need especial protection. They are also a county's most valuable asset for the future. So the Crown as parens patriae delegated its powers and duty of protection to the courts. These powers and that duty so derived are not the creation of any statute and are not limited by any statute.

60 That interest of the Crown in the protection of children and people with disabilities represent what, in modern times, is the wider societal and public interest in the protection of children and persons with disabilities. One does not have to go far, in the press or in the statute books, to see the great diversity of laws, government departments and agencies, as well as public statements of concern from diverse individuals, all addressed to the public interest in ensuring the maintenance and improvement of the way in which our society cares for and protects young children and the disabled. In my view that public interest weighs in favour of there being open disclosure of the circumstances surrounding the death of a young, disabled child.

61 Further, I consider that given the fundamental nature of the relationship of parent and child in our society, and legal and moral obligations placed on parents for the care and protection of their children, that there is a public interest in the disclosure of information relating to the circumstances surrounding the death of children to their parents.

62 Blackstone considered the duties of parents to their children to be inalienable and part of the natural order: Commentaries on the Laws of England, 17th ed, Clarendon, Oxford, 1830, chapters 16, 17. Thus parents have legal and moral obligation to provide for the maintenance, protection and education of their children: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 183, 184; [1985] 3 All ER 402 at 420; [1985] 3. Those obligations lessen as the child grows into maturity. but must always be focussed on the child’s best interest. Lord Scarman explained in Gillick , at AC pp 183-184:

Parental rights ... do not wholly disappear until the age of majority. ... But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law ... is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child."

63 See also Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218; 106 ALR 385 at 438; 66 ALJR 300; 15 Fam LR 392 at 441.

64 That this obligation extends beyond the death of a child was made clear by the High Court in Annetts v McCann (1990) 170 CLR 596 a case involving the right of parents of a deceased teenager to make submissions at the inquest into the death of their child. The majority of the Court (Mason CJ, Deane and Mc Hugh JJ) in allowing the appeal, observed that natural justice required that the parents have the right to address the coroner is respect to matters which affected their interest, but also the interest of their deceased child.

65 The fundamental nature of the relationship of parent and child has a central role in the fabric of human society. I consider that it gives rise to a wider public interest in the full disclosure of information relating to the circumstances surrounding the death of young children to their parents, so that all parents may properly fulfil their obligations to their children. In this case, that public interest coincides with JY’s private interest.

66 It is important to remember, when considering whether the release of information relating to the personal affairs of the three people who made the statements, that the release of such information under the Freedom of Information Act 1989 is not release to the Applicant alone, but is release to the world at large: see Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. Also relevant to that consideration is the fact that more than 5 years has passed since the death of JY’s daughter, and the fact that some of the information about the circumstances of her death, contained in the statements, has already been released under the Act. That is the information contained in the COPS event report which is, in effect, a précis of the events outlined in the statements. Bearing all these competing factors in mind, I have concluded that the diverse public interests in disclosure of the information in the statements, outweighs the public interest in the protection of personal information, so that release the of the substance of the information would not be unreasonable.

67 I have one reservation which concerns the names and addresses of the individuals concerned, and other information which would enable them to be identified by the world at large. In my opinion, the wider public interests which underlie my assessment that release is not unreasonable, calls for the circumstances of the child’s death to be exposed. But the identity of the child, and of those involved in her care, does not have to be exposed to the world at large in order for those public interests to be satisfied. The substance of what occurred can be disclosed, without exposing to the world identifying information relating to the individuals involved.

68 In reaching the conclusion that release of the de-identified information would not be unreasonable, I was initially troubled by a number of cases relied on by the Commissioner which point to a different conclusion. They are the decisions of the Tribunal in Uddin and QD v Northern Rivers Area Health Service [2005] NSWADT 154. I have concluded that each of these cases is readily distinguishable on their facts.

69 In Uddin, the facts of which are briefly outlined above at paragraph 52, the Applicant was seeking information relating to his “baby’s” birth, which information was intermingled with personal information relating to the child’s mother. There the Tribunal was satisfied that release of the information to the world at large would be unreasonable. The Tribunal had (apparently) contradictory, confidential evidence before it as to the Applicant’s motivation, which he claimed was the pursuit of the child’s best interest. While it is not clear from the reasons for decision, it would appear that the baby lived with its mother, not the Applicant. In this case, however, the fact that the information relates to the circumstances of the death of a young disabled child who was not in the (usual) care of her mother at the time creates a public interest in disclosure. Additionally, while not strictly relevant, despite the assertion of improper motives on JY’s behalf contained in one of the letters of objection, I am satisfied that her motives are the protection of her child’s interest.

70 QD was a case in which the Applicant sought access relating to psychological counselling and treatment provided to his son (then 11 years old) following the Applicant’s separation from his wife which had not been “smooth.” The child did not want his father to have access to the information and there was evidence, which the Tribunal accepted, that the release of the information would be “prejudicial” to the child’s mental health. QD told the Tribunal he was anxious to verify the accuracy of the information contained in the medical records, “including an assumption that Mr QD has abused his son.” In refusing QD access to the documents the Tribunal found, at [11]:

Mr QD’s motives for seeking access to his son’s personal information do not outweigh the clear evidence of harm that such disclosure would be likely to cause to his son. In addition, disclosure of the documents, is disclosure to the whole world, not just to Mr QD. Despite his undertaking that he would not disclose the documents if he were given access to them, the FOI Act does not allow for the imposition of conditions on disclosure. Finally, even though Mr QD is the father of the child concerned that factor alone, or in combination with other relevant factors, does not make it reasonable for him to have access to the document. ( Wiseman v Commonwealth (unreported, Federal Court, Sheppard, Beaumont and Pincus JJ, 24 October 1989), Saleam -v- Director General, Department of Community Services and ors [2002] NSWADT 41 at [50] and Uddin -v- Chief Executive Officer, South Eastern Sydney Area Health Service and Anor [2002] NSWADT 228 at [29]. In all the circumstances, I am satisfied that disclosure of the son’s personal affairs would be unreasonable.

71 Here, insofar as JY seeks access to personal information relating to her daughter, it is my view that QD is readily distinguishable on the facts. An application for access to personal information relating to the death of a young disabled child, away from the care of her mother, is vastly different to a request for information relating to the psychological counselling of an 11 year old boy, who opposes the release, when there is evidence that the release of the information is not in the child’s best interest.

Confidential Information

72 Clause 13(b) of Schedule 1 of the Freedom of Information Act 1989 provides the following exemption which the Commissioner relied on:

A document is an exempt document:

…

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.

73 The Commissioner argued that the witness statements were obtained in confidence in the course of the investigation into the child’s death. The Commissioner submitted that the release of the statements could prejudice the future supply of such information to the Commissioner on that basis that, “If parties believe that the NSW Police will release witness statements, parties may become reluctant to give statements to the Police.” The Commissioner did acknowledge that the weight of decided authority was against this submission. The Commissioner submitted that because the Coroner has made a determination as to the cause of death, and given the relationship between JY and the persons who had made the statements (including the fact that JY and her ex-husband still have their other child), it would not be appropriate to release the statements.

74 JY submitted that there was no evidence that the witness statements had been provided on a confidential basis. Rather they were given in the knowledge that they could become part of the public record were an inquest held. Similarly, JY argued that there was no evidence – merely assertions – that the disclosure of the information could reasonably prejudice the future supply of this type of information from those sources that are available or likely to be available to the NSW Police (see Re B (1994) 1QAR 279 at 341 and Martin v Commissioner of Police [2005] NSWADT 23 at [45]). Finally, JY noted that the Commissioner asserted but did not point to a pubic interest in non-disclosure.

75 I accept and agree with JY’s submissions. I am not satisfied on the material before me that witness statements were obtained in confidence; indeed, I find that they were obtained on the basis that they could be made public during the coronial process. I also do not accept the Commissioner’s assertions that disclosure could reasonably prejudice the future supply of this type of information from those sources that are available or likely to be available to the NSW Police.

76 Further, had the Commissioner been able to satisfy me with respect to those matters, for the reasons outlined above, when discussing the competing public interests in this matter, I am satisfied, on balance, the public interest requires disclosure of the witness statements with identifying information deleted.

The Residual Discretion

77 As I have already found that the witness statements should be released, with identifying information relating to those involved deleted, there is no call for the Tribunal to exercise the override discretion.

78 Despite this, I think it appropriate to make clear that had I upheld the Commissioner’s claims for exemption, I would nonetheless have exercised the residual discretion to release the de-identified witness statements.

79 In my opinion there are strong grounds for exercising that discretion to ensure that the rights of the public to obtain access to the information so as to ensure the administration of justice, the maintenance and improvement of the way in which our society cares for and protects young children and the disabled, and to foster the fundamental responsibility of parents for children reliant on their care. That conclusion is reached in circumstances where more that 5 years has passed since JY’s daughter died, and when the substances of what occurred is already in the public domain. I can foresee no adverse consequences to the proper administration of government by a decision to release the statements. While the Commissioner asserts that there may be adverse consequences to the people who made the statements, in terms of friction and adverse family relations with JY, I think this unlikely given the content of the statements and my acceptance that JY is not ill-motivated.

Conclusion

80 Given the view I have taken in relation to the protection of the identity of JY’s daughter, and other persons who made the statements, I think it necessary that I also make orders under section 72(2) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure of JY’s identity, which would inevitably point to the identity of her daughter and others involved.

81 The decision made by the Commissioner is varied in accordance with these reasons.