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 provisions of that Act. An agency is able to refuse access to a document if it is an ‘exempt document’: see s.25(1)(a) of the FOI Act. An ‘exempt document’ is defined in s.6 to include a document referred to in one or more of the provisions in Schedule 1. In this application the relevant provision is that contained in cl.6 of Schedule 1 of the FOI Act, which provides:

‘ 6 . Documents affecting personal affairs

(1) A document is an exempt document if it contains matter for disclosure which would involve the unreasonable disclosure of information concerning the personal affairs of a 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.’

4 Even where an agency considers that a document for which access has been sought is an exempt document (but not a restricted document), or contains exempt matter, the agency is to consider whether it is practicable to give access to a copy of the document from which any exempt matter has been deleted where it appears to the agency that the applicant would wish to be given access to such a copy: see s.25(4) of the FOI Act.

5 There are four categories of exempt documents for which an agency is required to undertake consultation: see Part 3 Division 2 of the FOI Act. This includes documents that are exempt on the grounds of the ‘personal affairs’ exemption in cl.6 of Schedule 1 of the FOI Act. The relevant consultation provision is contained in s.31 of the FOI Act and, so far as it is relevant provides, as follows:

‘31. Documents affecting personal affairs

(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 in 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. (underlining added)

(3) If:

(a) an agency determines, after having sought the views of the person concerned, that access to the 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 right 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 documents 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) …

6 In these proceedings, as in any proceedings that concern a determination made by an agency under the FOI Act, the burden of establishing that the determination is justified rests on the respondent agency: see s.61 of the FOI Act.

7 In determining a review of a reviewable decision (which includes decisions under the FOI Act), s.63(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) provides that the Tribunal is to decide what the correct and preferable decision is having regard to all the relevant factual material and the applicable law both written and unwritten. In University of NSW v McGuirk [2006] NSWSC 1362 at [102], Nicholas J held that s.63 provides the Tribunal with a discretion to order access to be given to documents which are exempt documents where the Tribunal decides that in the circumstances it is the correct and preferred decision. This discretion is often referred to as the ‘override discretion’ and in finding that such a discretion equally applies to the Tribunal, His Honour went on at [103] to cite with approval the decision in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93. In that decision at [88] Smith JM held that the override discretion arose under ss.24 and 25 of the FOI Act. That is, it was a discretion available to the agency whose decision was the subject of review and s.53 of that Act did not limit the powers of the Tribunal in regard to decisions made under the FOI Act. Accordingly, the Tribunal standing in the shoes of the agency was required under s.63 of the ADT Act to decide what the correct and preferred decision is and this included consideration of the override discretion in ss.24 and 25 of the FOI Act.

Background to the decisions the subject of review

File No 063259

8 The application which is file no.063259 relates to a request made by the applicant on 2 May 2006 for access to three categories of documents. It is only those documents which come within the terms of the third category of documents which remain in dispute. The applicant’s FOI request in regard to that category of documents was as follows:

‘3. An (sic) record of complaint, whether a written complaint by a complainant, or a file note or other record made by an officer of Newtown Police station, in regard to the operation of the Courthouse Hotel Newtown, for the period from 1 March 2004 to the present.’

9 When the respondent failed to determine the applicant’s FOI request within 21 days after it had been received, by virtue of s.24(2) of the FOI Act, the respondent was taken to have determined the FOI request by refusing access to the documents sought. In reliance on this deeming provision, on 8 June 2006, the applicant sought an internal review of the determination pursuant to s.34 of the FOI Act. The respondent failed to determine the internal review application of the applicant within 14 days of having received it and was, by reason of s.34(6), taken to have made an internal review determination of refusing access to the documents that had been sought. In reliance on this particular provision, the applicant lodged his application for review with the Tribunal on 6 July 2006.

10 Subsequently, on 18 September 2006, the respondent filed and served an internal review determination by J Scholz, Deputy Director, Compliance Law Division, Legal Services of the respondent agency, in respect to the applicant’s FOI request. In that internal review determination the respondent identified 34 documents which came within the terms of the whole of the applicant’s FOI request. Of these the respondent determined to grant the applicant access to 21 documents, to release 7 documents subject to deletions on the grounds that the deleted matters were exempt under cl.6(1) of Schedule 1 of the FOI Act and to refuse access to 9 documents on the grounds that they were also exempt under cl.6(1) of Schedule 1 of the FOI Act. It is these latter 9 documents that are the subject of this application. Eight of these documents were identified as a COPS Event Report of a specific incident and the other was identified as an Information Report. These documents also came within the third category of the applicant’s FOI request.

11 In his application filed in the Tribunal, the applicant stated the following as his reasons for making this application:

‘Failure to comply with statutory obligation to determine application, failure to exercise in good faith functions conferred or imposed on NSW Police under the Freedom of Information Act 1989 (NSW), failure to give effect to the objects of the Freedom of Information Act 1989 and relevant government policy (including the Premier’s FOI Manual 1994).’

12 The application which is file no.063360 relates to a request made by the applicant on 18 May 2006. Only point 1 of that request is relevant to these proceedings. That point was in the following terms:

‘1. All documents held by the NSW Police (…) in relation to the incident which occurred at the Courthouse Hotel Newtown on the evening of Sunday, 26 September 2004 (or alternative date if it is incorrect) as reported by ‘Serge from Newtown’ on sydneypubguide.net on 27 September 2004;

a copy of this report – printed from the website referred to above is attached. This report states as follows: …’

13 On 22 June 2006, a delegate of the respondent, D. Stuart, determined the applicant’s FOI request. In respect to point 1 of the applicant’s FOI request, he determined that following a search of the COPS event reports on the respondent’s Computerised Incident Dispatch system for the relevant period, no record could be found of the incident on 26 September 2004.

14 On 4 July 2006, the applicant made an internal review request. In that internal review request he requested that:

‘…[a more] thorough search be carried out for the documents covered by my initial FOI application. I specifically request that the notebooks of those officers who were on duty at Newtown Police station on Sunday, 26 October 2004 be inspected by a responsible officer who can then make a statement as to whether those notebooks contain any reference to the alleged incident.

For my part I am seeking to identify “Serge of Newtown” so that in the event of any proceedings which may take place before the Tribunal should it be necessary to conduct an external review of the determination of my application by NSW Police, he can be called to give evidence.”

15 On 27 July 2006, J. Sholz, on behalf of the respondent, made an internal review determination. In that internal review determination the respondent identified a document, being pages 52 to 54 of a police notebook issued to Constable J. Wilson. The respondent determined to grant access to a copy of these pages with the material which did not relate the applicant’s FOI request and that which contained the personal affairs of a person, other than the applicant, being deleted. The only information relevant to the applicant’s request was that contained on the lower portion of page 53 and the upper portion of page 54 of Constable Wilson’s notebook. That which was not relevant to the applicant’s FOI request was deleted and marked ‘outside ambit of Application’ and that which was relevant to his application was, with the deletions, as follows:

‘Sunday 26/09/04

On Duty 1800 – 0630 hrs

Newtown Police Station

Station –Mall

Time: 9:35

LOC: Courthouse Hotel

INC: Refuse to leave

POI: [deleted]

DOB: [deleted]

ADD: [deleted]’

16 It is the determination in respect to the latter deletions that is the subject of review in this application.

17 In this application for review, the applicant stated that his reasons for making the application was to obtain the name of the person who was, on 26 September 2006, at the Courthouse Hotel, subjected to the same treatment he experienced 12 months later at the same hotel and by the officers of the Newtown Local Area Command. He also included the following as a reason for making his application:

‘Failure to exercise in good faith the functions conferred or imposed on NSW Police under the Freedom of Information Act 1989 (NSW), failure to give effect to the objects of the Freedom of Information Act 1989 and relevant government policy (including the Premier’s FOI Manual 1994) ’.

18 In addition to the filing and serving the documents relevant to the determinations the subject of review, the respondent provided the Tribunal, on a confidential basis with a copy of the documents for which access was refused together with a full copy of pages 53 and 54 of Constable Wilson’s notebook. In addition to this the respondent filed a Statement of Evidence of Senior Sargent Brendan Searson of the NSW Freedom of Information Unit in respect to each of the decisions that are the subject of review. The essence of each of his statements was that he had read the relevant internal review determination and that he had examined the documents and agreed with the determinations that had been made by J Scholz.

19 At the request of the applicant, Senior Sargent Searson was also called to give oral evidence at the hearing. In that evidence he stated that he had only been in his current position for about 4 weeks. He also stated that he had been made aware that the applicant’s motivation in seeking access to documents held by the respondent was to investigate what the applicant asserted to be police corruption in regard to the activities of the Courthouse Hotel in Newtown. He went on to state that he was not aware of any such corruption occurring. During cross examination, Senior Sargent Searson stated that he was familiar with the requirement of s.25(1)(a) of the FOI Act. He explained his understanding of the approach to be taken in regard to this particular provision. That understanding being to release documents requested but where a document is an exempt document access should be refused. He went on say that in respect to an exempt document, consideration should nevertheless be given to releasing the document, on public interest grounds, even if it is exempt. He acknowledged that in applying the exemption in cl.6 of Schedule 1 of the FOI Act this involved a balancing test in that it must be shown that disclosure of personal information would be “unreasonable”. In determining this he said he would consider the nature of the information and the circumstances in which it was obtained. Later in his evidence he also agreed that in determining whether disclosure of personal information was unreasonable, he would take into account the motivation or reasons that are given by the FOI applicant for seeking access to the particular document.

20 The applicant also put to Senior Sargent Searson a proposition that the facts of the incident that occurred on 26 September 2004 at the Courthouse Hotel had surprising similarities to the circumstances in which the applicant had found himself to be in 12 months later at the very same hotel. In response to this proposition Senior Sargent stated that he agreed there were similarities, however he went on to say that in his view they were not “considerably similar”. He was also asked by the applicant whether the persons to whom the personal information related had been contacted by the Sargent or any other officer of the respondent. In response Senior Sargent Searson stated that as he did not make the determination, he did not consider this. He pointed out that J. Sholz, who had made the determination, had made a finding that it was unreasonable to disclose this information and on this basis there was no need to consult as a decision had been made not to disclose it.

21 Otherwise, the respondent primarily relied on the internal review determination in respect of the two decisions which are the subject of review. In respect to the decision to refuse to disclose the name of the person on page 54 of Constable J. Wilson’s police notebook, which is the subject of the decision in file no.063360, the respondent contended that while the name and date of birth of a person other than the applicant may of themselves not be regarded as information concerning the personal affairs of the person concerned, in the context in which the deleted name appeared was such that it did amount to information concerning the personal affairs of that person. The respondent also pointed out that the information was obtained more than 2 years ago, it was recorded by Constable Wilson during the course of his duties on the particular day in question and it could not be said that the person named in the notebook was the same person referred to in the Sydney Pub Guide report. The respondent also submitted that having regard to the circumstances in which the record was made by Constable Wilson, the inference was that the person would be most unlikely to wish to have his/her personal information disclosed.

22 The respondent went on to state that there was no evidence of any corruption nor was there any other evidence before the Tribunal which would justify invoking the override discretion as set out by Nicholas J. in The University of NSW v McGuirk (supra). It was also the respondent’s submission that the public override discretion did not apply to the exemption contained in cl.6 of Schedule 1 of the FOI Act as there is a public interest component within the discretion. That public interest component being ‘reasonableness’.

The Applicant’s Case

23 The applicant made lengthy submissions on the powers of the Tribunal under s.63 and 73 of the Administrative Decisions Tribunal Act 1997. In this regard he pointed to s.73(5)(b) of that Act which requires the Tribunal to ensure that all relevant material is disclosed to it so as to enable the Tribunal to determine the relevant facts and issues in the proceedings. He contented that the respondent had failed to do this primarily by failing to bring before the Tribunal all material witnesses. The Tribunal understands that the relevant witness referred to by the applicant was J. Sholz who had made the internal review determination in each application. A failure to call J. Sholz, the applicant asserted, gave rise to an adverse inference. Again, the Tribunal understands that the adverse inference is in respect to the manner in which the respondent exercised its discretion in determining his FOI request in that consideration had not been given to his assertion of improper conduct by the police officers stationed at Newtown. Alternatively, the applicant appears to assert that there is ‘a cover up’ of such conduct by the respondent.

24 The applicant also made reference to s.28(2)(e) of the FOI Act which requires an agency that determines to refuse access to a document to provide written reasons for that refusal together with ‘the findings of any material questions of fact underlying those reasons,…’. It was the applicant’s submission that the name of the person deleted from page 54 of Constable Wilson’s notebook, involved a material finding of fact in that the person named was assaulted by police and that person was not happy with what had happened and the fact that the applicant was seeking access to that person’s name so that he could assist that person in addressing his concerns.

25 The applicant went on to contend that the principles of the NSW Court of Appeal decision in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 (‘Perrin’s case’) applied in that the name was not personal information.

26 While the applicant did not make separate submissions for each application, the Tribunal has assumed that the submissions that were made applied equally to both applications.

Consideration

27 I have read and considered all of the material that has been placed before the Tribunal. In my opinion there are primarily two issues for determination. These are:

(a) would the disclosure of those documents or deletions in documents for which access was refused involve the ‘unreasonable disclosure’ of information concerning the personal affairs of a person other than the applicant? and

(b) should the override discretion be exercised in the event the Tribunal is satisfied the documents or deletions to documents for which access has been refused is exempt?

28 Before considering whether disclosure of the documents or deletions in documents is unreasonable, I must be satisfied that the documents and the deletions in documents contain information the disclosure of which would disclose personal information of a person other than the applicant. And the onus in regard to this rests on the respondent.

29 In regard to the documents that are the subject of file no.063259 (the 8 COPS Event reports and the Information Report), I am satisfied from the contents of these documents that they contain they contain information concerning the personal affairs of persons other than the applicant. I am also satisfied that the names, date of birth and address of those persons the subject of these reports and the deletions on page 54 of Constable Wilson’s notebook that is the subject of file no. 063360, is information concerning the personal affairs of the persons named.

30 The circumstance in which these names have been recorded in these reports and Constable Wilson’s notebook, differ significantly to that which applied in Perrin’s case (supra). In Perrin, exemption was claimed in respect of the names of individual police officers who had prepared and supplied material about a particular company to the Queensland Criminal Justice Commission. In that case, at 638, Mahoney JA stated that a person’s name would not ordinarily be considered to be part of their personal affairs, as a name “is that by which, not merely privately, but generally” a person is known. However, His Honour and Clarke JA agreed with the approach adopted by Kirby P in Perrin’s case. That approach requires an examination of the document as a whole and not only the deleted names. A similar approach had been adopted by Justice Lockhart in Re Colakovski and Australian Telecommunications Commission (1991) 29 FCR 429 at [27].

31 In Perrin’s case at 625, Kirby P concluded that in the circumstances of that case, it could not be said “that the disclosure of the names of police officers and employees involved in the preparation of reports” which occurred in the performance of their duties as policemen was information concerning their personal affairs. That is, the affairs disclosed through the release of the names of these police officers was in fact, the affairs of the agency. In this application the names of the persons the subject of the COPS Events reports, the Information Report and the report of Constable Wilson are not the names of the police officers who made the reports in question, but are the names of private individuals who police officers have questioned or have been provided information about concerning incidents that have come to the attention of the reporting police officer in the course of his/her duties.

32 In regard to the question as to whether or not disclosure of these documents and the deletions in Constable Wilson’s notebook would be ‘unreasonable’, it is well accepted that this question has at its core public interest consideration: see Colakovski (supra). That is, it involves an examination of all the circumstances related to the document in question and then weighing up the public interest in protecting personal privacy against the public interest in the applicant being given access to the document. Ultimately, however, the question of whether or not a disclosure would be unreasonable is a question of fact.

33 In Saleam v Director General, Department of Community Services [2002] NSWADT 41 at [38] the President of the Tribunal cited with approval the approach taken on this issue by the Commonwealth Administrative Appeals Tribunal in Re Chandra and Ministry for Immigration and Ethnic Affairs (1984) 6 ALN N257 at [51]:

‘Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of 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 be disclosed without consent, and whether that information has any current relevance.’

34 Anne Cousins, in Annotated Freedom of Information Act, NSW at [106.16.1] sets out a number of considerations that the courts have held to be relevant in determining where the balance of public interest lies in the equivalent provision under the Commonwealth Freedom of Information Act 1974. These include the following:

(a) the test is to be assessed in light of the fact that disclosure under FOI legislation is disclosure to the whole world, not just the applicant, since FOI legislation contains no provision to impose conditions on how an applicant can use or disseminate information obtained under FOI: see R.E. Williams & Registrar, Federal Court of Australia (1985) 8 ALD 819;

…

(c) whether or not disclosure, “would serve the public interest purpose of the legislation” – that is to promote open, accountable government;

(d) whether or not the public as a whole would benefit from disclosure;

(e) whether or not the functions of the government would be inhibited because of disclosure;

(f) the applicant’s interest in the information;

(g) whether or not disclosure of information would be prejudicial to the person whose affairs are contained in the documents, for example, disclosure of a person’s police files or police reports is generally considered to be unreasonable because of the prejudicial effect of disclosing that a person is or has been the subject of police investigation: re Anderson (1986) 11 ALD 355.

35 In my opinion, in light of the abovementioned principles and having regard to the circumstances in which the information concerning the personal affairs of the named persons in the COPS Events reports, the Information Report and the deletions to Constable Wilson’s notebook a disclosure of this information would be unreasonable. The information is unquestionably recorded as part of a police report and the disclosure thereof would undoubtedly prejudice those who are named who may not even be aware that they are so named.

36 The applicant’s interest or motivation in seeking access to this information, in my opinion is primarily a private interest, which in the circumstances does not outweigh the public interest underlying the ‘personal affairs’ exemption, namely that the public interest does not lie in the disclosure of such information.

37 In respect to the applicant’s contention that the persons concerned be consulted, I agree with the submissions of the respondent that on its proper construction, s.31 of the FOI Act only comes into operation where an agency forms the view that the documents containing information about the personal affairs of a person, other than the FOI applicant, should be released to that applicant. That is not the situation here. It was in respect to the deletion in the notebook of Constable Wilson in which the applicant made his submissions for consultation most forcefully, primarily because he assumed that the deleted name was the same name as that of ‘Serge from Newtown’ referred to in the Sydney Pub Guide. Whether his assumption is correct or incorrect is immaterial. What is clear from the contents of the notebook of Constable Wilson is that he entered the deleted name etc as part of his record of events on that particular day while he was on duty. As I have mentioned above, in my opinion the public interest lies in information of this nature not being released to persons other than those to whom it relates.

38 In respect to the documents that are the subject of file no.063259, I have also considered whether it would be practicable to give the applicant access to a copy of the documents with the exempt material deleted pursuant to s.25(4) of the FOI Act. In my opinion it would not be practicable to do so. In any event I note that the applicant is only interested in obtaining access to the exempt material.

Override discretion

39 The override discretion was recently considered by Acting Deputy President Handley in Retain Beacon Hill High School Committee Inc. v NSW Treasury (2007) NSWADT 55 at [44] to [58]. In that decision Acting Deputy President Handley also cited with approval the following paragraphs [90] and [91] of the decision of Smith JM in Mangoplah (supra) as to the matters to be taken into account when exercising the override discretion. These paragraphs provide as follows:

“90. In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is “reasonably necessary for the proper administration of the Government” (s.5(2)(b)).

91. Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption. I would not see the question as necessarily suggesting that such a release would be rare, unusual or exceptional. In some areas of government, there may be many documents which fall within an exemption, but, for example, whose public interest in release is so overwhelming, or whose potential for relevant damage is so obviously remote as to leave disclosure totally innocuous.”

40 The objects of the FOI Act are set out in s.5 of the Act. In summary they are ‘to extend, as far as possible, the rights of the public: (a) to obtain access to information held by government … by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government’ (see ss 5(1) and (2)). That section, at 5(3) goes on to expressly provide as follows:

‘5(3) It is the intention of Parliament:

(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and

(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.’

41 In the NSW Court of Appeal decision of General Manager, Workcover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at [151] McColl JA (with whom Handley and Hodgson JJA agreed) said the following in respect to the approach to be taken when balancing the competing public interest that arise under the FOI Act:

‘The Full Federal Court’s approach, in my view, accords with the s.5(3) obligation to interpret and apply the FOI Act so as to further its objects, bearing in mind that while the Act gives a legally enforceable right to be given access to documents held by the government, that right is subject to such restrictions as are reasonable necessary for the proper administration of the government; s.5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters. Thus, as Beaumont J. said, testing whether disclosure of documents would be contrary to the public interest requires the decision maker “to weigh the public interest in citizens being informed of the process of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other; Harris v Australian Broadcasting Corporation (at 246)”.

42 In my opinion, as indicated in Mangoplah, where, as in this application, in determining whether the documents and deletions are exempt, consideration has already been given to the question as to where the public interest lies in respect to the unreasonable disclosure of the exempt information, the exercise of the override discretion has a very limited scope. However, there may be a public interest, other than that which has already been considered which would justify the exercise of the override discretion. In my opinion, in this application there is no evidence of another public interest warranting the release of the exempt information. As I have already indicated the applicant’s interest is primarily a private interest. Furthermore, on the material before the Tribunal there is no evidence to support the applicant’s assertion of corrupt conduct. The documents for which an exemption has been claimed do not appear from their content to have come into existence other than in the ordinary course of every day policing activities.

43 Accordingly, for the reasons set out above, I find that the decision of the respondent, the subject of both applications (File no 063259 and File no 063360), is the correct and preferred decision.

44 For completeness I will briefly deal with the applicant’s submission concerning the failure of the respondent to call J Sholz, the officer of the respondent who made the internal review decisions that are the subject of review. In my opinion, there was no basis for this officer to be called. As pointed out by the Appeal Panel in Commissioner of Police, NSW Police v Mercer [2005] NSWADTAP 55 at [25] ‘… it is difficult to see what possible justification there can be for summonsing an internal review decision-maker. The decision-maker’s reasons are exposed. The Tribunal has them for information. The Tribunal’s duty is to make a fresh decision. It should have no need to hear from the internal review decision-maker.’

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