Konieczka v South Australian Police - [2006] SADC 134

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
KONIECZKA v SOUTH AUSTRALIAN POLICE
[2006] SADC 134
Judgment of His Honour Judge Boylan
8 December 2006
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Appeal to District Court from a determination by the South Australian Police refusing access to documents. Onus of proof on appeal - South Australian Police had the onus of justifying the determination - no onus on the appellant. Consideration and application of criteria in Clauses 4 and 16 of Schedule 1 to the Freedom of Information Act 1991. Held, appeal allowed in part.
District Court Act 1991 Subdivision 1 of Division 2, Section 42B(1) and 42E(3); Freedom of Information Act 1991 Sections 40(7), 48, referred to.
Ipex Information Technology Group Pty Ltd v The Department of Information Technology Services South Australia (1997) LSJS 54 at page 7; Re Nickelberg and Australian Federal Police (1984) 6 ALN N176; Re Thiess and The Department of Aviation (1986) 9 ALD 454 at para 24, applied.
Ward v Family Care Meeting Convenor & Ors [2003] SADC 18 ; Moore v The Registrar of the Medical Board of South Australia [2001] SADC 106, considered.

KONIECZKA v SOUTH AUSTRALIAN POLICE
[2006] SADC 134

Appeal from a determination under the Freedom of Information Act 1991.
The police charged Mr Konieczka with assaulting his former wife. She and her niece both gave evidence at his trial in the Magistrates Court. The Magistrate found that they had made up the story which they had told to the police and, later, given in evidence. The learned Magistrate dismissed the charges.
It is an offence to make a false report to police and the giving of false evidence may amount to an offence. Mr Konieczka believes that the police should prosecute his former wife and her niece. The police have not done so. Mr Konieczka wants to know why and, in his quest to find out, he asked the police to provide him with copies of documents about their prosecution policy. The Freedom of Information Act 1991gives Mr Konieczka a right to have access to the police documents but the police are not obliged to hand over exempt documents. Documents are exempt if they meet certain criteria set out in the Act. The police claim that some passages in some of the documents contain exempt material and have refused Mr Konieczka access to those passages. Mr Konieczka asked the police to review their decision. The police did so and confirmed it. Mr Konieczka now appeals to this court from that decision on review.
There are four relevant documents. I must decide whether or not passages in them are exempt. I shall identify the documents and apply the relevant criteria to each of them. But, first, I must deal with the preliminary issue: who has the burden of proof, Mr Konieczka or the police?
The Burden of Proof
I have been asked to rule on this issue because Ms Hughes, from the Crown Solicitor’s Office, who appeared for the police, submitted that some decisions of the court on this topic are wrong, see Ward v Family Care Meeting Convenor & Ors [2—3] SADC 18 and Moore v The Registrar of the Medical Board of South Australia [2001] SADC 106. Those decisions hold that there is a tension or inconsistency between a provision of the District Court Act 1991 and a provision of the Freedom of Information Act.
This is an appeal to the Administrative and Disciplinary Division of the Court. Subdivison 1 of Division 2 of the District Court Act governs the conduct of such appeal. Two provisions are relevant. They are Section 42B(1) and Section 42E(3).
“Section 42B(1) This sub-division applies in relation to the appellate jurisdiction conferred on the court by another Act (the Special Act) subject to the provisions of the special Act;”
“Section 42E(3) The court must, on appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.”
Section 42E(3) places the burden of proof on Mr Konieczka. I can upset the police decision only if he can satisfy me that there is a cogent reason for my doing so. But Section 48 of the Freedom of Information Act is inconsistent with Mr Konieczka’s having such a burden.
“Section 48 - Burden of Proof
In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.”
Section 48 must prevail because Section 42B(1) provides that Section 42E(3) is subject to the provisions of the special Act. The Freedom of Information Act is a special Act and, therefore, I must allow Mr Konieczka to have access to the documents unless the police can justify their refusal. In my view, that conclusion is supported by Section 40(7) of the Freedom of Information Act. That sub-section requires an appellant to make out cogent reasons but only in circumstances described in that sub-section. Had the Parliament intended that cogent reasons had to be established in other circumstances, then one would have expected it to have said so. I also note that, in Judge Lunn’s decision in Ipex Information Technology Group Pty Ltd v The Department of Information Technology Services South Australia (1997) 192 LSJS 54 at page 7, His Honour said “Under Section 48 of the FOIA the burden on this appeal of establishing that a document is exempt lies on the respondent.” His Honour made no reference to Section 42E(3) of the District Court Act. I note that Ms Hughes told me that the learned Judge who decided Ward and Moore (above) was not referred to Section 42B of the District Court Act.
The Documents
Four documents are relevant to this appeal. They are:
·Policy 42 – Domestic Violence prosecution ( 2 pages)
·General Order – restraining orders (9 pages)
·Domestic Violence Disputes (36 pages)
·Crime Reporting Manual (some 40 pages)
Mr Konieczka was given copies of all four documents but with certain passages in each of them deleted. After discussions with Mr Konieczka, the police let him see the passages deleted in his copies of the first three documents. Accordingly, he has had access by sight to the whole contents of those three documents but has not been allowed to have access by copy to the whole of each of them. The fourth document, the Crime Reporting Manual, is in a different category. The police have not given Mr Konieczka access at all to most of that document. In the copy which he has been given, most of the contents have been deleted (by blacking out).
Mr Konieczka wants me to set aside the police decisions and to order that the police give him access by copy to the whole contents of each document. The police maintain that their refusal to give access by copy or, in the case of the fourth document, at all is justified because the relevant passages are exempt.
What are exempt documents?
Schedule 1 of the Freedom of Information Act defines various categories of exempt documents. Two categories are relevant here: documents effecting law enforcement and public safety and documents concerning the operations of agencies. Clauses 4 and 16 of the Schedule deal with those documents.
DOCUMENTS AFFECTING LAW ENFORCEMENT AND PUBLIC SAFETY
(2)    A document is an exempt document if it contains matter the disclosure of which –
(a)     could reasonably be expected –
(iii)to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law; or
(iv)to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety; and
(b)     would, on balance, be contrary to the public interest.
16 -   DOCUMENTS CONCERNING OPERATIONS OF AGENCIES
(1)    A document is an exempt document if it contains matter the disclosure of which –
(a)could reasonably be expected –
(iv)to have a substantial adverse affect on the effective performance by an agency of the agency’s functions; and
(b)would, on balance, be contrary to the public interest.
I have read the deleted passages in the four documents and have applied to them the criteria set out in Clauses 4 and 16. Before stating my conclusions, I explain how I have interpreted those clauses.
“Could reasonably be expected”
I have given these words their ordinary English meanings. The relevant expectation is one that is based on reason and not one that is fanciful, far fetched or speculative.
“To prejudice the effectiveness of any lawful method or procedure”
Again, I have given these words their ordinary meanings. Prejudice will be caused to the relevant methods and procedures if disclosure of them would make them less useful to the conduct of police operations. In considering this criteria I have borne in mind the following passage from the decision of the Administrative Appeals Tribunal in Re Nickelberg and Australian Federal Police (1984) 6 ALN N176:
“… It is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agency’s own documents or in the proceedings of a tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them.”
“Public interest”
In considering this criterion, I have taken into account the following:
·The community’s interest in the effective operation of the police force.
·The community’s interest in the effective operation of the Freedom of Information Act.
·Mr Konieczka’s interest, both as an individual and as a member of the community, in knowing police procedures and policy when deciding whether or not to prosecute suspected offenders.
·The fact that access given pursuant to the Freedom of Information Act is access to the world at large. While Mr Konieczka’s reason for wanting access is irrelevant to the determination and while there is no reason to think that he would misuse the information, the fact that his access to information about police methods is access to the world is relevant to the criterion of public interest.
·Mr Konieczka has had access by sight to some of the deleted passages. An applicant’s purpose for wanting access to documents is generally irrelevant, but the giving of access in a form which allows Mr Konieczka to know whether any police decision making process bears upon his complaint or enquiry is relevant to the balancing act required for this criterion.
“Substantial adverse effect”
I have treated this phrase as referring to an effect that is “sufficiently serious or significant to cause concern to a properly informed reasonable person”. See Re Thiess and The Department of Aviation (1986) 9 ALD 454, at paragraph 24.
Ms Hughes frankly conceded that the “substantial adverse effect” test is a high one, significantly higher than the test set out in Clause 4. I agree with her.
Conclusions
In my view, the police have not succeeded in justifying their refusal of access to any of the documents on the basis set out in Clause 16, namely, because there would be a substantial adverse effect on police operations.
I turn to my conclusions about the criteria in Clause 4.
Policy 42 – Domestic Violence Prosecutions
The police have given Mr Konieczka a copy of this two page document, but with some four lines deleted. He has seen those lines. The deleted material deals with the lawful methods or procedures referred to in Clause 4. In my view, disclosure of them could reasonably be expected to prejudice the effectiveness or the maintenance or enforcement of such procedures. As Mr Konieczka has seen the deleted portions, I consider disclosure of them by copy is, on balance, contrary to the public interest. I affirm the police determination about this document.
Restraining orders
Two passages, one of four lines and one of five lines, have been deleted from Mr Konieczka’s copy of this document. Neither passage satisfies the criteria for exemption. Only the first sentence of the first passage could be said to deal with police methods and procedures. Disclosure of the contents of that passage could not be reasonably be expected to prejudice the effectiveness of those methods and procedures. The remainder of the first passage is not concerned with such methods and procedures. It summarises the effect of legislation. There is no basis for exemption. The second passage deals with routine office procedure. Again, disclosure could not reasonably be expected to prejudice the effectiveness of lawful methods or procedures as prescribed in Clause 4(2)(a)(iii) and (iv). There is no basis for exemption.
Domestic Disputes
A number of passages have been deleted from Mr Konieczka’s copy. Some of them are fairly bland, others not so. In my view all but two of the deleted passages are concerned with lawful methods and procedures described in the relevant subclauses of Clause 4 and meet the remaining criteria for exemption. The following passages do not meet the criteria: the passages deleted on page 4 and page 25 of Mr Konieczka’s copy. With the exception of those two passages, I affirm the police determination.
Crime reporting manual
This is by far the longest of the four documents. Most of its contents are irrelevant to Mr Konieczka’s request. The police have given him access by copy to only a few lines of the whole document. In my view, the following passages are relevant (if only marginally so) to Mr Konieczka’s request: 1.1; 1.2; 1.3; 1.5, paragraph 6; 1.7, paragraph 4; 1.7.1; 1.7.2; 1.14; 1.16; 1.17.3; 1.17.4; 1.19; 1.20; and 1.21.
Not only are those passages relevant they do not meet the criteria in Clause 4(a)(2)(iii) and (iv). I order that the police give Mr Konieczka access to those passages.
I shall hear the parties as to the form of access.