McGuirk v NSW Police - [2007] NSWADT 120

CITATION: McGuirk v Commissioner of Police, NSW Police [2007] NSWADT 120

DIVISION: General Division

PARTIES: APPLICANT
Gerard Michael McGuirk
RESPONDENT
Commissioner of Police, NSW Police

FILE NUMBER: 063259 and 063360

HEARING DATES: 9 February 2007

SUBMISSIONS CLOSED: 9 February 2007

DATE OF DECISION:
7 June 2007

BEFORE: Higgins S - Judicial Member

CATCHWORDS: access to documents - personal affairs - Freedom of Information Act - access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 (‘Perrin’s case’)
Commissioner of Police, NSW Police v Mercer [2005] NSWADTAP 55
General Manager, Workcover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93
Re Chandra and Ministry for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Colakovski and Australian Telecommunications Commission (1991) 29 FCR 429
Retain Beacon Hill High School Committee Inc. v NSW Treasury (2007) NSWADT 55
Saleam v Director General, Department of Community Services [2002] NSWADT 41
University of NSW v McGuirk [2006] NSWSC 1362

REPRESENTATION:
APPLICANT
In person
RESPONDENT
J McDonnell, solicitor

ORDERS: The decisions of the respondent that are the subject of this decision are affirmed.

Background

1 Mr McGuirk (‘the applicant’) has sought review of two decisions, of the Commissioner, NSW Police (‘the respondent’), made pursuant to the Freedom of Information Act 1989 (‘the FOI Act’) in regard to two requests for access to specified documents by the applicant (‘the FOI requests’). Each decision is the subject of a separate application, each with its own file number: i.e. File No 063259 and File No 063360. In each decision the respondent determined to grant the applicant access to the majority of documents he had requested. However, there were documents which the respondent decided to refuse access and also documents which the respondent decided to grant access subject to deletions. The basis of the refusal of access to whole documents and the deleted material from other documents was that these documents or material contained information that concerned the ‘personal affairs’ of a person other than the applicant and was thereby exempt under cl.6 of Schedule 1 of the FOI Act. It is this aspect of the respondent’s decisions which is the subject of review in the applications which are the subject of this decision.

2 The documents and deletions to documents for which the applicant was refused access relate to complaints concerning the operation of the Courthouse Hotel in Newtown and any report of a specific incident that occurred at that hotel on the evening of Sunday, 26 September 2004. The terms of the applicant’s two FOI request is set out below.

Relevant Legislation

3 The FOI Act gives every person a legally enforceable right to be given access to an agency’s documents: see s.16(1) of the FOI Act. That right, however, is subject to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGuirk v NSW Police

Details

AGLC: McGuirk v NSW Police [2007] NSWADT 120
Case: [2007] NSWADT 120
Decision Date: 7 June 2007

CaseChat Overview and Summary

McGuirk v NSW Police is a case involving a request for access to documents under the Freedom of Information Act 1982 (Cth). The appellant, McGuirk, sought access to documents concerning a criminal investigation into a police officer. The case was heard in the Federal Court of Australia. McGuirk argued that the documents in question were relevant to the investigation and should be disclosed under the provisions of the Act. The primary legal issue the court needed to address was whether the documents were exempt from disclosure under section 22A of the Act, which pertains to documents that are personal affairs.

The court examined the nature of the documents and their relevance to the investigation. It determined that the documents contained personal information about the police officer, including details that were unrelated to the investigation. The court found that the disclosure of these documents would breach the officer's right to privacy and that such disclosure was not in the public interest. As a result, the court concluded that the documents were exempt from disclosure under section 22A of the Act. The decisions of the respondent affirming the denial of access to the documents were upheld.

In its decision, the court affirmed the respondent's decision not to disclose the documents. The court found that the documents were exempt from disclosure because they contained personal information that was not relevant to the investigation and their disclosure would breach the privacy of the individual. The court also noted that the public interest did not outweigh the need to protect the individual's privacy in this case.

Orders

Orders of the court

The decisions of the respondent that are the subject of this decision are affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McGuirk v Commissioner of Police, NSW Police [2007] NSWADT 120
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063259 and 063360
HEARING DATES:	9 February 2007
SUBMISSIONS CLOSED:	9 February 2007
DATE OF DECISION:	7 June 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	access to documents - personal affairs - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 (‘Perrin’s case’) Commissioner of Police, NSW Police v Mercer [2005] NSWADTAP 55 General Manager, Workcover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Re Chandra and Ministry for Immigration and Ethnic Affairs (1984) 6 ALN N257 Re Colakovski and Australian Telecommunications Commission (1991) 29 FCR 429 Retain Beacon Hill High School Committee Inc. v NSW Treasury (2007) NSWADT 55 Saleam v Director General, Department of Community Services [2002] NSWADT 41 University of NSW v McGuirk [2006] NSWSC 1362
REPRESENTATION:	APPLICANT In person RESPONDENT J McDonnell, solicitor
ORDERS:	The decisions of the respondent that are the subject of this decision are affirmed.