Martin v Commissioner of Police, NSW Police Force
[2009] NSWADTAP 67
•13 November 2009
Appeal Panel - Internal
CITATION: Martin v Commissioner of Police, NSW Police Force [2009] NSWADTAP 67 PARTIES: APPELLANT
RESPONDENT
Pilar Martin
NSW Police ForceFILE NUMBER: 089070 HEARING DATES: 3 November 2008 and 29 October 2009 SUBMISSIONS CLOSED: 29 October 2009
DATE OF DECISION:
13 November 2009BEFORE: Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: Freedom of Information - law enforcement exemption - confidential source of information - Freedom of Information Act1989, Schedule 1, Cl 4(1)(b) DECISION UNDER APPEAL: Martin v Commissioner of Police, NSW Police Force [2008] NSWADT 246 FILE NUMBER UNDER APPEAL: 083072 DATE OF DECISION UNDER APPEAL: 09/12/2009 LEGISLATION CITED: Freedom of Information Act 1989
Administrative Decisions Tribunal Act 1997CASES CITED: Barghouthi v Transfield Pty Ltd Hill J [2002] FCA 666
XYZ v State Trustees Limited & Anor [2006] VSC 444
University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Department of Health v Jephcott (1985) 8 FCR 85McEneiry v Medical Board of Queensland [1994] 1 QAR 349 Black v Hunter New England Area Health Service [2008] NSWADT 301 DQ v Commissioner of Police [2002] NSWADT 215 BY v Director General, Attorney General’s Department (No 2) [2003] NSWADT 37McDonald v Commissioner of Police [2003] NSWADT 111R v Abdullah [1999] NSWCCA 188 Re Scholes and Australian Federal Police (1996) 44 ALD 299Department of Education and Training v GJ [2009] NSWADTAP 33REPRESENTATION: APPELLANT
RESPONDENT
In person
V Andersen, solicitorORDERS: 1. Decision of the Tribunal set aside
2. Leave granted to extend appeal to the merits of the Tribunal’s decision
3. The decision of the Police Force not to give Ms Martin access to the deleted material in the report of Dr X dated 21 September 2006 is affirmed.
REASONS FOR DECISION
Introduction
1 Ms Martin applied to the New South Wales Police Force for certain documents under the Freedom of information Act 1989 (FOI Act). The Police Force provided copies of numerous documents in response to her application. The only information still in dispute is the name and other identifying details of a doctor who we refer to in these reasons as Dr X. The background to Ms Martin’s FOI application is that she reported to the Police Force that an orthopaedic surgeon had sexually assaulted her. The Police Force sought an opinion from Dr X as to whether the orthopaedic surgeon acted inappropriately. Dr X provided a ‘medico legal’ report dated 21 September 2006 and stated in a separate letter that the report was a ‘confidential report and is not to be released without my permission under any circumstances’. In response to Ms Martin’s application under the FOI Act, the Police Force decided that the name and other identifying details of Dr X were exempt matters because disclosure would reveal the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law: FOI Act, Schedule 1, Cl 4(1)(b). The Tribunal affirmed that decision. Ms Martin has appealed to the Appeal Panel against the Tribunal’s decision.
Application for adjournment refused
2 At the commencement of the hearing on 3 November 2008 Ms Martin applied for an adjournment. She said that she had applied to the Legal Aid Commission for legal aid on Friday 31 October 2008 and that her application had not yet been assessed. When Ms Martin lodged her Notice of Appeal on 29 September 2008 she wrote, “I have lodged a legal aid application.” She said at the hearing that the application she lodged was in relation to a claim for victim’s compensation not an application in relation to an appeal against the Tribunal’s decision. She also said that she had attended numerous medical appointments during the previous four weeks and that she had been unable to clarify the situation with the Legal Aid Commission.
3 We refused Ms Martin's application for an adjournment because she had a reasonable opportunity before 31 October 2008 to apply for legal aid. After the hearing the legal aid application she lodged on 31 October 2008 was refused. She appealed to the Legal Aid Review Committee but that appeal was unsuccessful. We assured Ms Martin that although she was not legally represented, we have a duty to ensure, as far as possible, that she is not disadvantaged. That duty includes identifying possible legal errors in the Tribunal’s decision: Barghouthi v Transfield Pty Ltd Hill J [2002] FCA 666; XYZ v State Trustees Limited & Anor [2006] VSC 444 at [43].
Statutory framework
4 One object of the FOI Act is to extend, as far as possible, the rights of the public to obtain access to information held by the Government: FOI Act, s 5. A person has a legally enforceable right to be given access to an agency's documents in accordance with the Act: FOI Act, s 16. An agency may refuse access to a document if it is an exempt document: s 25(1). Section 25(4)(a) provides, in part, that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted. Clause 4(1)(b) of Schedule 1 to the Act makes certain documents affecting law enforcement and public safety exempt:
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained…
Tribunal’s decision
5 The Tribunal identified Ms Martin’s reasons for wanting to know the name of Dr X at [5]:
The first was so that she could make effective representation to governmental agencies in an endeavour to obtain redress for alleged falsities in the report and alleged mistreatment at the hands of officers in the service of the respondent. Secondly, she wished to provide the name of the author to her legal representative as to do so would assist litigation that she has on foot.
6 The Tribunal was satisfied that the report was an exempt document pursuant to Cl 4(1)(b). The Tribunal’s reasoning is set out at [9] and [10]:
10 Even though the document be exempt, the respondent decided to grant access to it but with deletions appropriate to concealing the author’s identity. This course was open to the respondent by way of excision of exempt material or pursuant to its discretion to grant access even in relation to an exempt document.9 The applicant stated in submissions that she had attended a medical practitioner for treatment and became concerned about his behaviour. She reported this to the police who made enquiries into the allegation. The report in issue here was obtained by police as part of the investigation into her allegation. Whilst this information from the applicant was not evidence in itself, the facts of which she spoke as just stated are clearly confirmed by the materials in exhibit C1. These facts, together with the other materials in exhibit C1, leave no room for doubt that the exemption provided for by clause 4(1)(b) of Schedule 1 to the Act has application. The report contains matter which identifies the author of the report; the report was provided on a confidential basis so that the author clearly was a confidential source of information; and the report was obtained for the purposes of a police investigation, so there is a clear nexus with the enforcement and administration of the law. The other grounds of exemption pressed may well have application as well, but there is no need to determine this.
7 The Tribunal went on to consider whether, despite the fact that the deleted information in the report was exempt, that information should nevertheless be released: University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362. The Tribunal decided that the reasons Ms Martin put forward to justify release of the document were not persuasive.
Nature of Appeal
8 Ms Martin appealed against the Tribunal’s decision on questions of law and also applied for leave for the appeal to be extended to a review of the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2). Ms Martin’s grounds of appeal were as follows:
1. I do not agree with the decision made on 1 September 2008 in (sic) not to enable the identity of the author of the report to be disclosed to me.
2. The hearing was not fair because the presiding member, Mr Wilson, was not interested in listening to my evidence. So not all of my evidence was taken into account in the making of the decision.
3. I provided oral evidence for almost 6 hours at the hearing, so it is incorrect in paragraph 5 of the decision that ‘no oral evidence was adduced’.
4. I will provide further submissions in support of this application. I have lodged a Legal Aid application for legal assistance.
9 The first ground of appeal is merely an expression of disagreement with the decision. The second ground does not raise a question of law. The third ground is based on a misunderstanding of the difference between evidence and submissions. The fourth ground is not a question of law. Nevertheless, because we have a duty to identify possible legal errors in the Tribunal’s decision we expressed three preliminary views at the hearing on 3 November 2008. The first view was that the exemption on which the Tribunal relied to justify its decision may not apply to the circumstances of this case. The second view was that Ms Martin may not have been afforded procedural fairness by the Tribunal. Thirdly, we were concerned that there were three documents in dispute rather than only one. We expand briefly on these three concerns below.
10 Meaning of “confidential source of information”. Clause 4(1)(b) exempts a document “if it contains matter the disclosure of which could reasonably be expected to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained”. In this case it appeared arguable that Dr X. was not the source of ‘information’ rather, he was the source of a paid professional opinion. Since this was the exemption on which the Tribunal had based its decision, if it was not applicable, then the remainder of the exemptions on which the Police Force relied needed to be addressed.
11 Procedural fairness concerns. Secondly, it became apparent during the hearing in November 2008 that Ms Martin had not been provided with an anonymised version of the confidential statements tendered by the Police Force (Exhibits C1 and C2). While the Police Force had provided Ms Martin with a summary of the material in those statements, it was our preliminary view that she should have received a copy of the entire statements with only the names of the deponents deleted.
12 Characterisation of the “report”. Finally the Tribunal referred to three separate documents in dispute as "the report". One of those documents was a covering letter. It was our preliminary view that the exemption in Cl 4(1)(b) may not apply to those documents. It was also apparent that the Tribunal did not have copies of the version of the three documents that was provided to Ms Martin.
13 Given each of these preliminary concerns and the fact that the issue in dispute was a very narrow one, namely the applicability of Cl 4(1)(b) to the facts, we decided to extend the appeal to the merits of the Tribunal's decision.
Further directions
14 After the hearing on 3 November 2008, we made the following directions:
1. By 10 November 2008, respondent to file and serve an anonymised version of the two confidential statements filed in the Tribunal proceedings (Exhibit C1 and C2).
2. By 1 December 2008, respondent to file and serve any further written submissions.
3. By 9 January 2009 appellant to file and serve any written submissions.
4. By 23 January 2009 respondent to file and serve any further written submissions in reply.
5. Appeal Panel to determine the appeal on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
15 The Police Force complied with the first and second directions. On 19 November 2008 the Tribunal received a letter from the Legal Aid Commission advising that Ms Martin had appealed to the Legal Aid Review Committee for a grant of legal aid. We amended the directions we had made pending the outcome of that appeal: Legal Aid Commission Act 1979, s 57. The appeal was determined adversely to Ms Martin on 22 January 2009. The directions were amended and Ms Martin filed a bundle of documents on 16 March 2009 and another bundle on 31 March 2009. Unfortunately none of that material relates to an issue in dispute in these proceedings. Ms Martin also filed a letter dated 13 March 2009 to the Tribunal together with several attachments. On 10 June 2009 the Tribunal received a translation of this material from Spanish to English by an accredited translator. The submission contains an account of the injustices Ms Martin says she has endured over several years. None of those matters relate to an issue in dispute in these proceedings. The submission ends with a request that the Tribunal “make a just decision or to make a review about the doctors the police use.” We are, of course, unable to make a decision about the doctors the police use. Our role is to review a decision made by the Police Force under the FOI Act. Ms Martin also filed a statutory declaration on 27 May 2009 declaring that her treating doctor had sexually assaulted her and that when she complained to police she was not taken seriously. Again, while we acknowledge Ms Martin’s distress, this statement has no direct relevance to any issue in dispute in these proceedings.
Errors of law
16 The Tribunal is bound to afford parties procedural fairness: ADT Act, s 73(2). Procedural fairness requires that at least the substance or gravamen of any credible, relevant or significant document be disclosed to a party whose interests are affected: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. While disclosing the substance of the evidence may be sufficient in some cases, there are circumstances where a party cannot realistically respond to material in a document unless they have access to a copy of the whole document: Ansell v Wells [1982] FCA 186; (1982) 43 ALR 41. In this case, the Police Force gave Ms Martin a summary of the material in the statements from Dr X and the police woman who had requested the medico legal report (Exhibits C1 and C2). There was no reason why Ms Martin could not have been provided with the statements themselves with any confidential information deleted. In our view, the Tribunal made an error of law in failing to direct the Police Force to do so. That error has now been corrected.
17 A second breach of procedural fairness occurred when the Tribunal failed to ensure that the evidence from the confidential witnesses was tested if it was practicable to do so. It was not possible to test the evidence of Dr X without disclosing his identity. The possibility of Ms Martin cross-examining Dr X and the police woman by phone was discussed at a directions hearing on 12 August 2009. Ms Andersen, representing the Police Force, submitted that neither the identity of Dr X nor that of the police woman should be revealed to Ms Martin. After that discussion, the following directions were made:
2. By 30 September 2009 appellant to file and serve any submissions in response.1. By 9 September 2009, Respondent to file and to serve evidence in support of its submission that the identity of police officer should not be revealed to Ms Martin and that she should not be given an opportunity to cross-examine the police officer.
4. Issue to be determined on the papers.3. Respondent to advise Tribunal of available dates for determining the issue of whether Ms Martin should be permitted to cross-examine the police officer, or whether the tribunal should test that evidence itself.
18 The Police Force filed affidavits from: Ms Andersen, the solicitor representing the Police Force; Ms Saunders former para-legal at the Administrative Law Unit of the Police Force, Mr Johnson, Manager of the Secretariat, Office of the Commissioner of Police; and Mr Cooke, legal consultant at the Police Prosecutions command. These statements set out the history of the excessive number of phone calls Ms Martin had made to each of the deponents and to others in their offices over a considerable period of time. Those affidavits were served on Ms Martin and she did not deny that she engaged in the conduct attributed to her in those statements. We are satisfied that she did so. While Ms Martin knows the name of the police officer, as far as we are aware, she does not know any other identifying information including where the police officer currently lives or works. In order to prevent any further possibility of Ms Martin obtaining identifying details in relation Dr X or the police woman, we made an order to conduct a hearing wholly in private and in the absence of Ms Martin: ADT Act, s 75(2)(a). The purpose of that hearing was for the Appeal Panel to test the evidence of Dr X and the police woman. Ms Martin was advised of that decision. On 29 October 2009, the Appeal Panel questioned both Dr X and the police woman on the issue of whether Dr X was ‘a confidential source of information’ within the meaning of that term in Cl 4(1)(b).
Issues
19 As we have extended the appeal to the merits of the Tribunal’s decision, we need to form a view as to whether the decision of the Police Force should be affirmed, varied or set aside. The issues are:
a) the scope of the review;
b) whether the exception in Cl 4 (1)(b) applies;
c) if not, whether any other exception relied on by the Police Force applies; and
d) if so, whether the Tribunal has power to release the information and, if so, whether we should do so.
Scope of review application
20 At the hearing, we formed a preliminary view that the Tribunal referred to the three separate documents in dispute as "the report". In fact, the Tribunal said at [1] that “. . . one document (the report) was released with the name of the author deleted. Access to this particular document, without deletions, is the only issue in these proceedings.” The Police Force confirmed that in her application for internal review Ms Martin said:
I have been refused the names of the person signing the documents.
I need all the names blocked out from the attached document provided to me, especially the name of the Orthopaedic Specialist mentioned in the document.
21 The Police Force submitted that since the attached document was the report from Dr X dated 21 September 2006 and that was the document attached to the internal review application, the scope of the review was whether the information deleted from that report, including the name of Dr X, should have been disclosed. The Police Force acknowledged that two other letters from Dr X to the Police Force were in evidence (one dated 28 September 2008 and the other dated 12 September 2008) but said that those letters were not the documents that were the subject of the internal review application nor the proceedings at first instance. Ms Martin did not make any submission to the contrary. The Police Force deleted the following pieces of information:
Item 1: name and qualifications of Dr X
Item 2: Address of Dr X
Item 3: Initials of Dr X
Items 4 and 5: Name of police officer
Items 6, 7, 8 & 9, 11, & 12: Name of another doctor
Item 13: Signature of Dr XItem 10 and 14: Name of Dr X
22 We accept that the only matters in dispute are items 1, 2, 3, 10, 13 and 14. Ms Martin knows the name of the police officer and the other doctor. She made it clear both to the Tribunal at first instance and to the Appeal Panel that the only information she was seeking was the name and other identifying details of Dr X.
23 Even though documents affecting law enforcement and public safety are classified as ‘restricted documents’ Ms Martin did not apply under s 57 of the FOI Act for the Tribunal to consider the grounds on which it was claimed that the document was a restricted document. Nor did the Police Force submit that we should make a determination pursuant to that provision. The disputed document (the medico legal report of 21 September 2006) was before the Tribunal. The Tribunal’s inquiry was not whether there were ‘reasonable grounds’ for the Police Forces’ claim but whether the decision not to disclose the identifying details of Dr X on the medico legal report was the ‘correct and preferable’ decision: ADT Act, s 63.
Does the exception in Cl 4 (1)(b) apply?
24 Elements of Cl 4(1)(b). The elements of clause 4(1)(b) are:
1. the existence of a confidential source of information; and
3. disclosure of the information could reasonably be expected to2. the information in the document must relate to the enforcement or administration of the law; and
(b) enable the identity of the confidential source of information to be ascertained.(a) enable the existence of a confidential source of information to be ascertained or
25 In relation to Dr X, it is apparent that disclosure of Items 1, 2, 3, 10, 13 and 14 could reasonably be expected to enable his identity to be ascertained. It was not disputed that the information relates to the enforcement or administration of the law. The only remaining issue is whether Dr X is a ‘confidential source of information’ within the meaning of that phrase in Cl 4(1)(b). To qualify as a confidential source of information, the information must be provided under an express or implied pledge of confidentiality: Department of Health v Jephcott (1985) 8 FCR 85 at 89 per Forster J.
26 When Dr X sent the medico legal report to the police officer, it was stamped “Private and Confidential”. He also included a covering letter saying that, “The report of the above patient is a confidential report and is not to be released without my permission under any circumstances.” In his affidavit dated 24 June 2008, Dr X said that based on his extensive medical experience:
I consider that it is crucial that medical practitioners be able to rely on the arrangements regarding confidentiality of information they make when they are engaged to provide medico-legal reports to the NSW Police Force to assist in investigations. I consider that due to escalating levels of claims against medical practitioners and the rising cost of indemnity insurance, practitioners would be less likely to provide reports of this nature to the NSW Police Force if they could not be certain that the arrangements regarding the confidentiality were not honoured, particularly as concerns the identity of the practitioner with whom the subjects of the report have no contact.
27 Dr X’s oral evidence was that he regularly provides medico legal reports to solicitors in relation to their client’s injuries arising from motor vehicle accidents and injuries at work. He understands that in those cases he may be requested to give evidence in a court or tribunal in which case his identity would not be kept confidential. The report that the police woman requested that he provide in this case was for the purpose of determining whether there was a basis on which a charge might be laid against the orthopaedic surgeon. According to Dr X, it is unusual for him to be asked to provide a medico legal report in those circumstances and he was concerned to ensure that his identity remained confidential. He could not recall ever being asked to give evidence in criminal proceedings to express his expert opinion.
28 The police officer who requested the report provided evidence in a sworn statement filed on 15 June 2008. The officer stated that she asked Dr X whether he would be available to provide an assessment and opinion as to whether Ms Martin’s treating doctor had acted inappropriately. The officer said that Dr X replied, “Yes that is fine. My fee is $300. Please send the papers to me and I will have a look at it.” The police officer delivered the papers to Dr X’s surgery on 23 June 2008 and says she had a conversation with him at that time in which he said, “I don’t want my name released to her.” The police officer said in oral evidence that when Dr X raised the question of confidentiality she thought at the time that she should have been the one to suggest that his identity be kept confidential. In any case, she replied with words to the effect of, “That is a good idea. It is best to keep your details confidential . . .” Dr X did not mention this conversation in his affidavit and did not recall it when he gave oral evidence.
29 Findings. Dr X does not recall the conversation the police woman said she had with him. Having heard the evidence of Dr X and the policewoman we find that the conversation occurred as described by the police woman. She made contemporaneous records of the dates and times of her phone conversations and other communications with Dr X. As this was the first occasion on which she had requested a medico-legal report, she is likely to have remembered what happened. Dr X said that he sees between 80 and 100 patients a week. Given that the report was written in 2006, it is not surprising that he does not recall a conversation he had with the police woman. On the basis of the evidence from both Dr X and the policewoman, we are satisfied that the information provided by Dr X in the medico legal report was provided under an express pledge of confidentiality, including details of his identity.
30 Reasoning and conclusion. Whether a person is a ‘confidential source of information’ is to be determined by reference to all the circumstances. In Re McEneiry and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 at 371, the Information Commissioner referred to the following circumstances:
...the nature of the information conveyed,
the relationship of the informant to the person informed upon,
whether the informant stands in a position analogous to that of an informer,
whether it could reasonably have been understood by the informant and the recipient that the appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source,
whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant’s identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential ...
31 Nature of the information. The Police Force submitted that to satisfy the exemption it must be proved that Dr X is a confidential source not that the ‘information’ itself is confidential information: McEneiry v Medical Board of Queensland [1994] 1 QAR 349 at [24]. The Police Force pointed out that the FOI Act does not define ‘information’ and they were not aware of any decision under Cl 4(1)(b) or an equivalent provision in the Commonwealth, Victorian or Queensland legislation that has turned on the quality or character of the material contained in the document. According to the Police Force, the opinions expressed in Dr X’s reports can be characterised as ‘information’ giving that word its ordinary and natural meaning. The Police Force referred to several decisions in support of their submission including Black v Hunter New England Area Health Service [2008] NSWADT 301, DQ v Commissioner of Police [2002] NSWADT 215; and BY v Director General, Attorney General’s Department (No 2) [2003] NSWADT 37. Contrary to our preliminary view, it is not relevant that the ‘information’ in this case was a paid professional opinion rather than a factual assertion made by a member of the public. The question is whether the source of that information is a confidential source.
32 Relationship of the ‘informant’ to the person. Dr X and Ms Martin are strangers. There is no relationship between them.
33 Position of an informer. The Police Force sought to distinguish the circumstances of this case from the ‘reluctant witness’ situation referred to in decisions such as McDonald v Commissioner of Police [2003] NSWADT 111. In Re Scholes and Australian Federal Police (1996) 44 ALD 299 material relating to a statement made in circumstances which suggested that the person making it had an expectation of being called as a witness in legal proceedings was held not to be exempt. It would only be exempt if the person believed that there was a right to withdraw the statement and so maintain confidentiality. According to the Police Force, Dr X would not be a witness in relation to the core matter being dealt with by police on behalf Ms Martin. The expert opinion of Dr X was for the Police Forces own purposes. Dr X’s evidence on this point was that it was unusual for him to be asked to write a medico legal report in relation to an allegation of a criminal offence.
34 The use of the word ‘informer’ in this context should not be confused with the so-called ‘informer’ immunity which is the public interest immunity that police informers have had for over a hundred years. In R v Abdullah [1999] NSWCCA 188 Spigelman CJ described it in the following way:
[20] The identity of a police informer has, as a matter of public policy, been protected against disclosure at least since Marks v Beyfus (1890) 25 QBD 494 at 498 and 500. This species of public interest immunity was recognised in many cases, including Duncan & Anor v Cammell Laird and Co Ltd [1942] AC 624 at 633 and 634; Rogers v Home Secretary [1973] AC 388 at 401-407; Sankey v Whitlam (1978) 142 CLR 1 at 61; and Cain v Glass (No 2) at 233-234, 242 and 246-247. . .
[21] The rationale is that if the identity of an informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime : D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 232 and 241; Sankey v Whitlam at 65-66; and Cain v Glass (No 2) at 247.
35 It would be wrong to interpret Cl 4(1)(b) as applying only when the doctrine of public interest immunity would prevent the identity of police informers being revealed. Cl 4(1)(b) is broader than that. It protects the identity of any confidential source of information. In Department of Education and Training v GJ [2009] NSWADTAP 33 [61] the Appeal Panel said:
The FOI Act applies to the generality of public administration in the State of New South Wales covering the agencies of the State government, agencies of local government and public bodies conventionally seen as unconnected to the administration of government such as Universities. The understanding of what makes a person an ‘informer’ for the purpose of serious criminal investigations, and special practices of law enforcement agencies that confer ‘informer status’ and possibly special protections such as immunities and increased security, should not unduly colour, in our opinion, the understanding of ‘a confidential source of information’ in a statute going to the generality of public administration, and the law enforcement activities that relate to it.
36 Preserving confidentiality. The next question is whether it could reasonably have been understood by Dr X and the police woman that appropriate action could be taken in respect of the report while still preserving confidentiality. The internal legal advice to the police woman was that it may be relevant to obtain an opinion from an appropriately qualified expert as to whether or not it was necessary for the orthopaedic surgeon to have touched Ms Martin’s breast when examining her. Although the report went beyond that issue, it was requested for the purpose of determining whether or not there was a basis on which to charge the orthopaedic surgeon. Dr X’s reasonable understanding was that he would not be requested to give evidence in any criminal proceedings against the surgeon.
37 Risk of harassment or retribution. Ms Martin admitted to the Tribunal at first instance that if she knew Dr X’s name she would make representations to government agencies to obtain redress for the alleged false statements in the report and alleged mistreatment by police officers. She also said that Dr X’s name would assist her in relation to litigation that she has on foot. In addition, given Ms Martin’s history of making excessive phone calls to government agencies, there is a risk that she would harass Dr X in the same way if she found out his name.
38 Conclusion. The information provided by Dr X in the medico legal report, including his name and address, was provided under an express pledge of confidentiality. We are satisfied that Dr X was a confidential source of information and that the other elements of Cl 4(1)(b) have been satisfied. The correct decision is to affirm the decision of the Police Force not to give Ms Martin access to the deleted text identified as items 1, 2, 3, 10, 13 and 14 of the medico legal report. Even if the inquiry in this case should have been made under s 57 as to whether there were reasonable grounds for the claim, we would have come to the same view. Having come to that conclusion, it is not necessary to consider the other exemptions on which the Police Force relied.
Does the Tribunal have power to disclose the information even though it is exempt?
39 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 at Nicholas J stated that s 63 of the ADT Act gives the Tribunal power to order access to be given to exempt documents if it is the correct and preferable decision to do so. However, documents that come within Part 1 of Schedule 1 (Cl 1 – 4A) are restricted documents. In IPART v Services Sydney [2008] NSWADTAP 79 the Appeal Panel held that once the Tribunal finds that an agency has ‘reasonable grounds’ for claiming that a restricted document is exempt, its jurisdiction is exhausted: FOI Act, s 57. In that case, at first instance, the Tribunal weighed the discretionary factors for and against release of the matter which it had found to be exempt. On appeal, the Appeal Panel held at [46] that there was no scope for the residual discretion in relation to ‘restricted documents’ that is, documents referred to in Part 1 of Schedule 1 to the FOI Act. Although Ms Martin did not ask the Tribunal to engage in a ‘reasonable grounds’ inquiry under s 57, we agree with the Appeal Panel’s conclusion in IPART that once material in a document is found to come within any of the exemptions in Cl 1 to 4A of the FOI Act, the Tribunal is unable to disclose that document.
Conclusion
40 Ms Martin says that she was sexually assaulted by an orthopaedic surgeon. When she complained to police they obtained a ‘medico legal’ report from another orthopaedic surgeon, Dr X as to whether the orthopaedic surgeon acted appropriately. Ms Martin applied under the FOI Act for the report. The Police Force gave her the report but deleted the name and other identifying details of the doctor on the ground that he was a confidential source of information. The Tribunal agreed and Ms Martin appealed to the Appeal Panel. We have decided that the Tribunal did not afford Ms Martin procedural fairness because the Police Force did not give Ms Martin an anonymised version of the statements from Dr X or the police woman who requested the report. Nor did the Tribunal ensure that the evidence of those witnesses was tested. We set aside the decision and decided the merits of Ms Martin’s FOI application ourselves. Ms Martin was given a copy of the anonymised statements from Dr X and the police woman and we questioned those witnesses in the absence of Ms Martin. On the basis of our findings we agreed with the Tribunal’s decision that Ms Martin was not entitled to a full copy of the report because the name and other identifying details of Dr X were exempt from disclosure under the FOI Act.
1. Decision of the Tribunal set aside.
2. Leave granted to extend appeal to the merits of the Tribunal’s decision.
3. The decision of the Police Force not to give Ms Martin access to the deleted material in the report of Dr X dated 21 September 2006 is affirmed.
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