Kiernan v Commissioner of Police, New South Wales Police (No. 2) (GD)
[2010] NSWADTAP 18
•26 March 2010
Appeal Panel - Internal
CITATION: Kiernan v Commissioner of Police, New South Wales Police (No. 2) (GD) [2010] NSWADTAP 18 PARTIES: APPELLANT
RESPONDENT
Teresa Kiernan
Commissioner of Police, New South Wales PoliceFILE NUMBER: 089053 HEARING DATES: 22 October 2009 SUBMISSIONS CLOSED: 22 October 2009
DATE OF DECISION:
26 March 2010BEFORE: O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Antonios Z - Non-Judicial Member CATCHWORDS: Freedom of Information – Scope of Request – Form of Access – No Jurisdiction – Sufficiency of Search – No Jurisdiction – Exempt Matter – Unreasonable Disclosure of Personal Affairs – Not Proven – Appeal allowed – Freedom of Information Act 1989, s 27, s 28(1)(b), s 53(3) – Sched 1, cl 6 DECISION UNDER APPEAL: Kiernan v Commissioner of Police, New South Wales Police [2007] NSWADT 207; Kiernan v Commissioner of Police, New South Wales Police (No. 2) [2008] NSWADT 52 FILE NUMBER UNDER APPEAL: 063419 DATE OF DECISION UNDER APPEAL: 02/15/2008 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Administrative Decisions Tribunal Appeal Panel v Department of Commerce [2008] NSWCA 140
Commissioner of Police v District Court of NSW (‘Perrin’s case’) (1993) 31 NSWLR 606
Department of Education and Training v GJ [2009] NSWADTAP 33
Gene Simring v Commissioner of Police [2009] NSWSC 270
Kiernan v Commissioner of Police, New South Wales Police (No 2) [2008] NSWADT 52
Kiernan v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 38
Kiernan v Commissioner of Police, NSW Police Force [2007] NSWADT 207REPRESENTATION: APPELLANT
RESPONDENT
In person
K Edwards, counsel / Minter EllisonORDERS: 1. Leave to extend to merits granted.
2. The appeal is allowed in the following respect.
The determination to refuse the access applicant matter in tapes 52, 54 and 55 on the ground that it is exempt matter within the meaning of cl 6 of Schedule 1 is set aside.
3. Otherwise the appeal is dismissed.
4. As to costs, the following directions are given. Any application for costs by either or both parties, and submissions in support, to be filed and served within 28 days. Any reply to the application to be filed within a further 14 days. Unless a party requests an oral hearing, the decision will be made without holding a hearing, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997. If a party requests an oral hearing, the Registrar will arrange a preliminary hearing to consider that request.
1 This appeal and the underlying proceedings before the Tribunal have a long and convoluted history.
2 Procedural History. The appellant, Ms Kiernan, made an application for access to documents under s 17 of the Freedom of Information Act 1989 (FOI Act) on 21 July 2006 to the NSW Police Force. She was dissatisfied with the response to her application, leading ultimately to an application for review of the agency’s internal review determination. The application for review was lodged on 27 November 2006. The Tribunal has made two substantive decisions in relation to Ms Kiernan’s application: Kiernan v Commissioner of Police, NSW Police Force [2007] NSWADT 207 (10 September 2007); and Kiernan v Commissioner of Police, New South Wales Police (No 2) [2008] NSWADT 52 (15 February 2008).
3 In the second decision, the Tribunal remitted the matter to the agency for reconsideration as to the one issue it regarded as outstanding. On 15 April 2008, the Tribunal dismissed the application on the application of the agency. It was satisfied that the one outstanding issue had been resolved. Ms Kiernan did not appear at the 15 April hearing.
4 The appellant became aware of the order soon afterwards. She protested that she had not understood that the matter had been listed for dismissal but merely for directions, and that she had an explanation for her non-attendance that day. She requested reasons for decision, and they were furnished by Registrar’s letter dated 18 June 2010. She lodged an appeal on 21 July 2008.
5 The notice of appeal raised issues in relation to the two prior decisions. The agency submitted that the appeal was out of time insofar as it raised matters dealt with by the earlier decisions, and should not be further considered in relation to those decisions. The submission was rejected, and the notice of appeal allowed to stand. Directions were given for submissions, and the appeal fixed for hearing on 9 February 2009.
6 Ms Kiernan did not appear on 9 February 2009. Orders were entered dismissing the appeal, together with an order for costs against Ms Kiernan. Ms Kiernan felt that she had a reasonable explanation for not appearing. By this date, the law governing Tribunal procedures had changed, and allowed a party to apply for reinstatement of proceedings. Ms Kiernan applied for reinstatement of the appeal. Her application was granted: Kiernan v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 38. Further directions were given on 29 June 2009, seeking to identify clearly the scope of the appeal. The appeal was re-fixed for 22 October. Ms Kiernan appeared.
7 The Access Request. The documents sought by Ms Kiernan all bore on the events of the night of 26-27 March 2005. She had been arrested, taken into custody, refused police bail and held in the cells at Surry Hills for some hours. She later commenced District Court proceedings, which included allegations of assault by police. Her application requested a variety of documents, most importantly copies of the video recordings of activity inside the police station. These tapes are referred to in the Tribunal’s decision as Tapes 52, 53, 54 and 55. For the purposes of this appeal only Tapes 52, 54 and 55 remain in dispute.
8 As noted above, the Tribunal in its second decision was of the view that only one matter remained unresolved. It said:
‘20 In the first decision I stated that I was satisfied that there are no other video surveillance tapes showing the cells or the charge room at Surry Hills Police Station on 27 March 2005 other than the four tapes identified as tapes 52, 53, 54 and 55. I stated that I considered that it is appropriate that Ms Kiernan’s access be limited to that provided for by section 27(1)(c) of the FOI Act and that the Commissioner should make arrangements for Ms Kiernan to view the tapes.
21 It is apparent from the material filed by the parties that Ms Kiernan attended the Surry Hills Police Station on 30 January 2008 to view the tapes. She has asserted that part of one of the tapes (tape 52) was blacked out. As a consequence of that assertion I have reviewed the copies of the tapes that were filed with the Tribunal and I note that the Tribunal’s copy of tape 52 is also blacked out in the identified section. I have no basis on which I can conclude whether or not the tape has been deliberately blacked out. The Commissioner has not addressed this issue.
22 That being the case, it is my view that neither the copy of the tape numbered 52 that was filed with the Tribunal nor the copy that Ms Kiernan viewed is the complete tape. In the circumstances I am not satisfied that Ms Kiernan has been provided with an opportunity to view all of the tapes.
23 It is appropriate that the matter be remitted to allow the Commissioner to locate a copy of tape 52 in which the period between 2.26 am and 2.28 am has not been blacked out and make arrangements for Ms Kiernan to view the tape. If the period between 2.26 am and 2.28 am has been deliberately blacked out, the Commissioner is to advise Ms Kiernan and the Tribunal as whether any exemption is claimed in relation to the identified section.
24 This process is to be finalised within 21 days of the date of this order.’
9 The agency subsequently informed the Tribunal that a further viewing opportunity had been provided, and the applicant had seen the tape: affidavit of Inspector M Birley sworn 9 March 2009. The Tribunal accepted this evidence at its hearing on 15 April 2008, in the absence of Ms Kiernan, and proceeded to dismiss the application.
Notice of Appeal
10 The notice of appeal as filed on 21 July 2008 was in sweeping terms, raising numerous issues in relation to the decisions of the Tribunal. Both prior to the hearing fixed for 9 February 2009 and the hearing fixed for 22 October 2009, attempts were made to define the scope of the issues that remained in dispute.
Extension to Merits
11 A party to the review of a reviewable decision, as here, has a right to appeal in relation to any question of law; and may apply to the Appeal Panel for leave to extend the appeal to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. This appeal has proceeded on the basis that all issues will be finalised, and if to that end an extension to the merits is necessary, it will be granted.
Scope of Dispute
12 The agency’s position may be put in summary as follows. It has always been prepared to give Ms Kiernan full access to the tapes provided this is done by a private viewing on agency premises. Ms Kiernan’s main grievance is that she has not been granted access in the form and to the extent that she desires, being provision of copies of the tapes unedited.
13 As will be seen from the passage already quoted, in its second decision, the Tribunal’s main concern was whether Ms Kiernan had seen the full tapes. It expressed concern over the fact that an important two minute period was missing from tape 52. For that reason it remitted the matter for a further viewing opportunity to be given. That occurred, and it was on that basis that the Tribunal proceeded to dismiss the application.
14 The agency has declined to give Ms Kiernan copies of the tapes for two reasons. First, in its opinion there is exempt matter on the tapes, being matter the disclosure of which would unreasonably disclose the personal affairs of persons other than police officers (relying on cl 6 of Schedule 1 to the FOI Act). Secondly, the preparation of edited tapes would be costly and time consuming.
Issues that Remain in Dispute
15 The directions given on 29 June 2009 required the agency to file and serve:
(a) evidence as to third party non-police content of tapes 52, 54 and 55
(b) details as to charges of provision of any edited copy tapes of 52, 54 and 55, in particular a costs estimate and its components which refer to the specific costs of various processing charges
(c) [no longer pressed]
(d) a submission as to why the Standard Operating Procedures document may be outside the scope of the request under notice in these proceedings.
16 There was a further direction to Ms Kiernan for the filing and service of submissions in reply.
17 The background to directions (a) and (b) has been given.
18 Direction (d) concerns another matter of concern to Ms Kiernan – the refusal of the agency to provide the Standard Operating Procedures document. The agency’s position, one with which the Tribunal below agreed, is that the document lay outside the scope of the request.
19 At the appeal hearing Ms Kiernan raised another issue, the ‘TIE issue’, which we refer to later in these reasons.
(1) The Third Party Content Issue and Form of Access Issue
20 In this case, we have the situation where, per medium of viewing access, the agency evidence is that Ms Kiernan has seen, unexpurgated, the entirety of the tapes. It might be said, therefore, that she has been given full access, and accordingly there is no reviewable decision on this issue.
21 The jurisdiction of the Tribunal to review agency determinations is confined by s 53(3) of the FOI Act to the following categories of decision:
‘(i) an agency or Minister refuses to give the person access to a document, or
(ii) access to a document is to be given to the person subject to deferral, or
(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or
(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or
(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred.’
22 In this case, Ms Kiernan has pressed for access to be given in the form of a direct hand-over to her of copies of the tapes. The form of access is governed by s 27 which provides:
‘ 27 Forms of access
(1) Access to a document may be given to a person:
(a) by giving the person a reasonable opportunity to inspect the document, or
(b) by giving the person a copy of the document, or
(c) in the case of a document from which sounds or visual images are capable of being reproduced, whether or not with the aid of some other device—by making arrangements for the person to hear or view those sounds or visual images, or
(d) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of sound—by giving the person a written transcript of the words recorded in the document, or
(e) in the case of a document in which words are contained in the form of shorthand writing or in encoded form—by giving the person a written transcript of the words contained in the document, or
(f) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of a written document—by giving the person a written document so reproduced.
(2) If an applicant has requested that access to a document be given in a particular form, access to the document shall be given in that form.
(3) Notwithstanding subsection (2), if the giving of access in the form requested:
(a) would unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions, or
(b) would be detrimental to the preservation of the document or (having regard to the physical nature of the document) would otherwise not be appropriate, or
(c) would involve an infringement of copyright subsisting in matter contained in the document,
- access in that form may be refused but, if so refused, shall be given in another form.
(4) If an applicant has requested that access to a document be given in a particular form and access in that form is refused but given in another form, the applicant shall not be required to pay a charge in respect of the giving of access that is greater than the charge that the applicant would have been required to pay had access been given in the form requested.
(5) This section does not prevent an agency from giving access to a document in any other form agreed on between the agency and the person to whom access is to be given.
(6) An agency may refuse to give access to a document unless any charge payable in respect of dealing with the application, or giving access to the document, has been paid.’
23 The agency has raised the third party content objection as a justification for not giving copy access. It has also asserted that it would be costly for the agency to provide access in that form. The latter objection refers to sub-section (3) above. It will be seen that the agency has a right to refuse the grant of access in a particular form if that would unreasonably divert the agency’s resources, or for one of the other reasons mentioned there.
24 As a way of resolving the application, the agency provided Ms Kiernan with the opportunity to see the tapes unexpurgated at its premises. What has caused, we think, confusion in understanding this part of the case is that the agency has depicted this step as one taken pursuant to s 27, and that view was adopted by the Tribunal in the reasons to which we have referred.
25 That is not a proper understanding of the place of s 27 in the scheme of the legislation. The true position, as we see it, is as follows. The applicant was not happy with the settlement option, though, not surprisingly, she took the opportunity given. She continued to press for a formal determination. The formal determination is constituted by the further decision of the agency, i.e. to refuse access to the tapes in respect of exempt matter, here matter protected by cl 6(1) of Schedule 1 to the FOI Act (the privacy exemption). Clause 6(1) exempts ‘matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased)’
26 Ms Kiernan contests the applicability of the exemption. If the exemption is justified, she wants edited copies. It is at this point that the agency’s s 27 discretion comes into play.
27 In our view, a refusal by the agency to provide access in a particular form is not a matter falling within the review jurisdiction of the Tribunal. It is not one of the matters itemised in the list found in s 53(3) listed earlier. To the extent that the Tribunal’s reasons at para [20] of the passage quoted above suggest otherwise, we do not agree. Accordingly, we will not consider the material in the affidavit furnished in response to the direction of 29 June 2009 going to this issue. See affidavit of Jennifer Jane Windsor, Paralegal, Administrative Law Unit, NSW Police Force, Office of General Counsel, paras 9-16. In any case, for the reasons that follow, we do not think that there is any longer a significant charges issue.
Exempt Matter
28 As to whether there is exempt third party content in the tapes, Ms Windsor deposes that she has viewed the tapes that remain under notice, tapes 52, 54 and 55. She refers to third parties who she is ‘instructed’ are not police officers being depicted at the following points (tape 52, 28:18 to 40:15; tape 54, 7:51:45 to 7:58:30; tape 55, 2:14:05 to 2:54:35).
29 On the other hand, Ms Kiernan asserted to the contrary, based on her private viewing, that the three tapes only showed police personnel.
30 Ms Windsor was called, and cross examined.
31 We accept her evidence that she did see persons depicted in the parts to which she referred who could not reasonably be regarded as police officers. She referred to those persons as not wearing uniforms and moving in and out of the charging dock. She also saw persons being processed consistent with the way arrested persons are dealt with. She saw these people being moved between the custody and the police desk.
Consideration
32 The distinction drawn in the internal review determination, in the submissions and in Ms Windsor’s evidence between depictions of police and depictions of third parties derives from the examination of cl 6 by the Court of Appeal in a police context in Commissioner of Police v District Court of NSW (‘Perrin’s case’) (1993) 31 NSWLR 606.
33 To reiterate, matter is exempt ‘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)’. These words do not didactically separate officials from all other persons. The exemption requires a two-step analysis: one, whether the material is ‘personal affairs’ information; two, whether it is ‘unreasonable’ to disclose it.
34 In Perrin’s case the Court held that such matters as the identity of personnel performing their duties, the nature of those duties, and the performance of those duties did not belong to the sphere of ‘personal affairs’ understood as ‘the composite collection of activities personal to the individual concerned’ (see esp 620-626 per Kirby P).
35 We accept that for many of the ‘civilian’ third persons who passed through the station that night, the fact that they were at the police station and their appearance and behaviour as caught on the tapes could reasonably be regarded as forming part of their personal affairs in the sense explained by the Court of Appeal.
36 But it is difficult to see why disclosure to the present requester of that information would raise any issue of significance in relation to ‘unreasonable’ disclosure of that information, especially at this point in time.
37 The onus lies on the agency in this regard: FOI Act, s 61.
38 In our view, there is nothing in the evidence to indicate that the identity of the ‘civilian’ third persons is apparent, or known or reasonably likely to be known to Ms Kiernan. There is nothing to suggest that Ms Kiernan is likely to misuse this material in a way which will be invasive of the interests of the civilians depicted. She has consistently stated that she is not interested in the third parties. Her interest is the depictions of police activity. As to the appropriateness of giving weight to matters such as these, see further Gene Simring v Commissioner of Police [2009] NSWSC 270 at [70]-[71] per Smart AJ; and Department of Education and Training v GJ [2009] NSWADTAP 33 at [49].
39 We are not satisfied that the agency has made out its case on this point.
40 Our order will therefore be that the determination of the agency to refuse to disclose matter in tapes 52, 54 and 55 on the basis that it is exempt matter within the meaning of cl 6 of Schedule 1 is set aside.
41 As we have already noted, however, the question of the form of access is not one that this Tribunal can address within jurisdiction.
42 The result is that a stalemate over provision of copies may continue. In the interests of bringing an end to this aspect of the dispute, we would encourage the agency to supply Ms Kiernan with unedited copies of the three tapes still in issue.
(2) Item (d): The Standard Operating Procedures (SOP) document issue
43 Point 10 of Ms Kiernan’s access request was as follows:
10. To be provided with all video surveillance of all cells and custody situations I was in at Surry Hills Police Station on 27th March 2005, or to be provided with documentation that explains why police officers were allowed to be alone with the prisoner where the prisoner has no witness and thus is vulnerable to assault and subsequent cover-up by police, and for that matter where police are then vulnerable to allegations, given that Sean Lewis's explanation that video surveillance is not recorded in cells due to toilets and protecting prisoners privacy is inadequate as NSW Police have no concerns about prisoners privacy or any of their rights, and if they did this would be explained in the documentation you are going to provide me.
44 Ms Kiernan’s assertion is that the document, 'NSW Police Standard Operating Procedures for Video Surveillance in Police Charge Rooms and other locations in Police Stations' falls within the scope of the second part of the above request. This document was submitted to the Tribunal as a confidential annexure to an affidavit, as further explained later in these reasons.
45 The agency’s response in the internal review determination was as follows:
I decline to comment on the allegations made by the Applicant in the latter part of this point of her application, for reasons similar to those canvassed above.
46 Earlier in the reasons for determination, the reviewing officer expressed the opinion that the Act provides for individuals to be given access to documents ‘held’ by agencies. He said in respect of two points of her application (11 & 13) then under consideration that ‘the FOI application process is not a possible avenue for individuals to pose questions and to be provided with appropriate answers.’ Items 11 and 13 were expressed as follows:
11. To be provided with sufficient documents that prove that there was such thing as a TIE [i.e. Technical Infrastructure Enhancement] upgrading project of 28 October 2005 at Surry Hills Police Station that meant that computers were replaced in the muster room which meant that the electronic files I sought in the subpoena returnable on the 24th November 2005, District Court File No. 05/12/1249, by Commander Darrell Donnelly, were not able to be found, given that I do not believe that this is genuine and that I believe NSW Police are preventing me from proving that the police have lied under oath here in regards to these electronic files.
13. To be provided with documentation that addresses my previous query to Surry Hills LAC as to why Mathew O'Neil disclosed my address when serving an Application to Extend an AVO on 6 July 2005 when that AVO has my address marked 'not to be disclosed' by the court, and his application had a copy of the court order within it that said exactly that.
47 The reviewer said, as to these points of her application, that the applicant had ‘failed to request specific documents, but rather has requested that this agency conduct a general search for material which may substantiate her allegations’.
48 In its conclusion on points 11 & 13 of the application, the reviewer made a formal determination relying on s 28(1)(b) of the FOI Act that there is no record or document as described at those points in existence. Section 28(1) provides:
‘(1) An agency shall cause written notice to be given to the applicant:
(a) of its determination of his or her application, or
(b) if the application relates to a document that is not held by the agency—of the fact that the agency does not hold such a document.’
49 Such a notice was not given in relation to point 10.
Tribunal Reasons on this Matter
50 In dealing with this aspect of Ms Kiernan’s application for review, the Tribunal examined the matter by considering whether the agency had made an adequate search for documents. The practice of the Tribunal until June 2008 had been to treat an adequacy of search objection as falling within the scope of its FOI review jurisdiction. In June 2008 the Court of Appeal ruled that the Tribunal’s jurisdiction did not extend to that issue. In particular, it had no power to review an agency decision made under s 28(1)(b) that it had no documents responsive to the request: Administrative Decisions Tribunal Appeal Panel v Department of Commerce [2008] NSWCA 140 (19 June 2008).
51 In its decision no 1, the Tribunal referred to evidence from Sergeant Sean Lewis of the Surry Hills Local Area Command in these terms:
‘17 Sergeant Lewis viewed four videotapes of the charge room of the Surry Hills Local Area Command. The cell area is not recorded. He said that the Surry Hills Local Area Command does not videotape the cell area and he is not aware of any police policy or standard operating procedure, which requires the cell area to be video taped. The 'NSW Police Standard Operating Procedures for Video Surveillance in Police Charge Rooms and other locations in Police Stations ' does not require the cell area to be video taped. A copy of that document and copies of the tapes have been provided to the Tribunal.’
52 At [31], the Tribunal held:
‘Nothing in the FOI Act requires an agency to create a document so as to provide specific information requested by an applicant. I am also satisfied that there are no documents in existence “that explains why police officers were allowed to be alone with the prisoner where the prisoner has no witness”.’
Consideration
53 Often, we think, aggrieved applicants will explain their request in argumentative or hostile terms. Reasonable attempts should be made to identify the type of document to which the argumentative language seeks to refer. In this case the agency adopted a narrow interpretation.
54 While the agency took, what we see as, an unduly dismissive approach in its internal review determination to the interpretation of the second part of item 10 of Ms Kiernan’s application, it in effect accepted before the Tribunal that the second part involved a request for documents relating to police procedures in relation to the number of police that should be with a person taken into custody. It will be seen that the Tribunal on review also sought to give meaning to this part of the request. It treated it as a request for documents that explain why police officers might be, using Ms Kiernan’s words, ‘allowed to be alone with the prisoner where the prisoner has no witness’ (see first decision, [31]).
55 But the agency stated that it had no documents responsive to the request so interpreted. Once that point is reached, on the authority of the Commerce case, there is nothing more for the Tribunal to do. It is without jurisdiction to enquire behind the explanation. As it happens, as this case was being decided before the Commerce case, the Tribunal did go behind the explanation and was satisfied with it.
56 There is no ground of appeal.
(3) The TIE Request Issue
57 At hearing, Ms Kiernan raised another aspect of her original request. She referred to point 11 of her request, set out earlier in these reasons, seeking documents ‘that prove that there was such a thing as a TIE [i.e. Technical Infrastructure Enhancement] upgrading project of 28 October 2005 …’. Though it was not one of the matters to which the directions of 29 June 2009 went. It was traversed in the notice of appeal.
58 Ms Kiernan remains aggrieved by the failure of the agency to identify and grant access to document(s) going to this matter. She also asks the Tribunal to make an adverse finding and report under s 58 of the FOI Act. (Section 58 gives the Tribunal power to report to the responsible Minister a failure by an officer to exercise in good faith a function conferred or imposed on the officer by the Act.)
59 In its decision no 1, the Tribunal referred to Mr Egley’s evidence on this issue. He was at relevant times Team Leader for this project. The reason the Tribunal had the evidence before it was because it was seen as relevant to the adequacy of search issue. As noted above, the agency had made a s 28(1)(b) determination in respect of point 11. In light of the decision later made in the Commerce case, the Tribunal was without jurisdiction to consider this issue, and entertain evidence. There can, therefore, be no appealable point in relation to how the Tribunal dealt with this aspect of Ms Kiernan’s case.
Costs
60 The agency foreshadowed an application for its costs, but asked that it be dealt with once this decision had been issued. There was a costs order in its favour when the appeal was dismissed for non-appearance on 9 February 2009. When the appeal was reinstated the costs order was vacated. We make directions below on this issue.
Order
1. Leave to extend to merits granted.
2. The appeal is allowed in the following respect.
The determination to refuse the access applicant matter in tapes 52, 54 and 55 on the ground that it is exempt matter within the meaning of cl 6 of Schedule 1 is set aside.
3. Otherwise the appeal is dismissed.
4. As to costs, the following directions are given. Any application for costs by either or both parties, and submissions in support, to be filed and served within 28 days. Any reply to the application to be filed within a further 14 days. Unless a party requests an oral hearing, the decision will be made without holding a hearing, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997. If a party requests an oral hearing, the Registrar will arrange a preliminary hearing to consider that request.
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