McGuirk v NSW Police Force

[2011] NSWADT 155

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

McGuirk v NSW Police Force [2011] NSWADT 155

Hearing dates:

On the papers

Decision date:

27 June 2011

Jurisdiction:

General Division

Before:

N Isenberg, Judicial Member

Decision:

In Matter 103223:

The decision under review is affirmed in respect of folios 1, 3, 7-11, 19, 26, 27, 29, 30-31, 32, 33 to 35, 51 to 52, 53 to 54, 55 to 56, 57, 62, 63 to 72, 112 - 115

The decision under review is set aside in respect of folios 2,4,5, 6, 20 to 25, 28

In Matter 103224:

The decision under review is affirmed in respect of folios 54, 63, 163-164, 269 to 273

the decision under review is set aside in respect of folio 55 commencing with the words 'In the 61 page document' and ending on folio 56 with the words 'the charges of Assault and Resist Police', and folio 72

Legislation Cited:

Freedom of Information Act 1989
Administrative Decisions Tribunal Act 1997

Cases Cited:

Commissioner of Police v District Court of New South Wales and Anor (1993) 31 NSWLR 606

Category:

Principal judgment

Parties:

Gerard Michael McGuirk (Applicant)
NSW Police Force (Respondent)

Representation:

G McGuirk (Applicant in person)
Bartier Perry (Respondent)

File Number(s):

103223 103224

Reasons for decision

Background

Matter 103223

1 By application dated 28 June 2010 Mr McGuirk requested the following documents under Freedom of Information Act 1989 ( the FOI Act ) from the New South Wales Police Force (the Police):

• · All written communications (including letter s, facsimiles, emails etc., and any attachments to those communications) between the Police Prosecutions Unit of the NSW Police Force and Police Legal Services relating to the prosecution of Mr Gerard Michael McGuirk in the Burwood Local Court over some 2 years on the charge of 'remain on inclosed lands' in relation to events which occurred on 12 August 2006 (the 'McGuirk Burwood prosecution').
• · Note:The relevant period during which such communication will have taken place is from August 2006 to April 2009 inclusive.
• · All file notes held by the Police Prosecutions Unit and/or Police Legal Services relating to the McGuirk Burwood prosecution.
• · All written communications Police Legal Services and the Office of the Director of Public Prosecutions relating to the McGuirk Burwood prosecution and the request by Police Legal Services that the Director of Public Prosecutions appeal against the decisio n of Magistrate William Pierce made on 6 February 2009 to permanently stay the McGuirk Burwood prosecution on the basis that it constituted an abuse of the process of the court.
• · All documentation held by the Police Prosecutions Unit of the NSW Police Fo rce relating to the decision to replace Sergeant Gregory Hunt as prosecutor in the McGuirk Burwood prosecution in or around February 2008 by Sergeant Graham Wedge.
• · All invoices from Mr C Lonergan of counsel for legal services provided to the NSW Police Force (and/or to the Commissioner or other officers of the NSW Police Force) in relation to the McGuirk Burwood prosecution.
• · All documents which were sent to, or received from, the Office of the Commissioner of the NSW Police Force by the Police Prosecu tions Unit and/or Police Legal Services relating to the McGuirk Burwood prosecution.
• · Any report made by the NSW Police Force (whether made by officers of the Police Prosecutions Unit, Police Legal Services, officers of the Burwood LAC or any other offic er of the NSW Police Force) to the NSW Ombudsman following the making by Magistrate Pierce of findings of improper conduct by an officer (and/or officers) of the Burwood LAC (whether currently serving or not) in relation to the events of 12 August 2006 and the staying by Magistrate Pierce on 6 February 2009 of the McGuirk Burwood prosecution on the basis that it was an abuse of the process of the court.
• · Any record of any investigation by the NSW Police Force into the arrest of Mr Gerard Michael McGuirk by officers of the Burwood LAC on 12 August 2006, his subsequent
• · detention for 12 hours in the cells at the Burwood Police Station, the 'failed invest igation' conducted by then Acting Inspector Russell Wood into those matters, and the prosecution of Mr McGuirk by the Police Prosecutions Unit over a period of 214 years, after 6 February 2009, the day on which Magistrate Pierce permanently stayed the McGuirk Burwood prosecution on the basis that it was an abuse of the process of the court.
• · Any record of any disciplinary action taken by the NSW Police Force against those officers who were involved in the events of 12 August 2009 (including, but not limited to, Inspector Francis Gomes, A/Inspector Russell Wood, Sergeant Stamatis Drakos, Serg eant Colin Iles, Constable Vanessa Hadley and Constable Clint Geelan), and/or in respect of the decision taken by officers of Police Prosecutions Unit (including, but not limited to, Sergeants Timothy Lowe, Gregory Hunt and Graham Wedge) to maintain the McGuirk Burwood prosecution after 10 November 2006, the date on which the relevant officers knew (and/or should have known) that the complainant, Ms Robyn Buchanan, had misled officers of the Burwood LAC on 12 August 2006 as to the nature of her relationship with Mr McGuirk.
• · All records held by the NSW Police Force (including COPS entries and notebook entries of officers of the Burwood LAC and/or former officers of the Burwood LAC) of reports made by Ms Robyn Buchanan (and/or Gribble) of alleged breaches b y Mr McGuirk of 'bail conditions' imposed on him by Sergeant Colin Iles on 12 August 2006.
• · All records held by the NSW Police Force (including COPS entries and notebook entries of officers of the Burwood LAC and/or former officers of the Burwood LAC) of 'attendances' by officers of the Burwood LAC at the home of Mr McGuirk at 1/2 Regent Street Summer Hill on the following days:15 February 2007, 19 February 2007, 29 March 2007, 1 April 2007, 3 April 2007, 8 April 2007, 9 April 2007.

2 No original decision was made within the statutory time frame and in accordance with section 24(2) of the FOI Act, Mr McGuirk 's application was deemed to have been refused. An internal review was conducted at Mr McGuirk's request, and some documents were released, either in whole or in part.

Matter 103224

3 Also on 28 June 2010 Mr McGuirk made another FOI application for access to further documents held by the Police:

• · The criminal record held by the NSW Police Force of Mr Gerard Michael McGuirk.
• · Any other computer record relating to Mr Gerard Michael McGuirk which would have been accessible to officers ofthe Ashfield LAC on the evening of 7 June 2010 in regard to the 'criminal history' of Mr McGuirk, and the 'history' generally of Mr McGuirk and his dealings with the NSW Police Force.
• · Copies of the notebook entries of Constables O'Connor and Huynh relating to the arrest and detention of Mr McGuirk in the evening of Monday 7 June 2010.
• · Copies of the notebook entries of any other officers of the Ashfield LAC who had any involvement i n the events of Monday 7 June 2010 relating to the arrest and detention of Mr McGuirk.
• · Audio recordings of the calls made by Mr McGuirk to the Police Assistance Line (131 444) and/or to Emergency Services (000) in the evening of Monday 7 June 2010.
• · C opies of any records of communication between operators of the Police Assistance Line and officers of Ashfield LAC in the evening of Monday 7 June 2010, and/or notes made by those persons, in relation to the calls made by Mr McGuirk to the Police Assistance Line. (Note:One of the persons with whom Mr McGuirk spoke via the Police Assistance Line on Monday 7 June 2010 had the surname ' Drummond'. Any records/notes made by that person are expressly included in the scope of this part of the application.)
• · Any COPS entries and other records (including paper records such as a 'Field Arrest Form' etc.) relating to the arrest and detention of Mr McGuirk in the evening of Monday 7 June 2010.
• · Any record kept and/or entry made by Sergeant Mark Dickinson and/o r Inspector Michael O'Rourke in relation to the complaint(s) made by Mr McGuirk on Tuesday 8 June and/or subsequently that he had been assaulted and kidnapped in the evening of Monday 7 June 2010 by Constables O'Connor and Huynh after he requested that they leave his property.
• · Any record/notes/correspondence or other material held by, or sighted by, A/Commander John Duncan of Ashfield LAC in relation to the arrest and detention of Mr McGuirk in the "evening of Monday 7 June 2010 by Constables O'Connor and Huynh and the complai nt(s) made by Mr McGuirk .in regard to that arrest and detention.
• · Any record of any investigation and/or inquiry made by A/Commander Duncan and/or officers under his command in regard to the actions of Constables O'Connor and Huynh on Monday 7 June 2010 and the complaints made by Mr McGuirk in relation to that conduct.
• · Any guidelines or other materials held by the NSW Police Force - whether within Legal -'Services Branch or more generally - which relate to the interpretation and application of parts of s 141 of the Police Act 1990(NSW)
• · A copy of COPS Event Report No. E26907911 relating to the theft of cash and valuables estimated to be worth approximately $250,000 from the Courthouse Hotel, Newtown, on or around 6 April 2007. (The relevance of thi s request is that Mr McGuirk asserts there was an improper relationship between certain officers of the Newtown LAC and the members of the McCarthy family who had owned the licence of the Courthouse Hotel until shortly before this incident and that he got 'caught up in' that relationship,)

Again, some documents were provided to Mr McGuirk (in whole or in part), and others were not.

4 Mr McGuirk asserts that the Respondent has not acted in good faith in claiming exemption in respect of some of the documents, especially, as he believes, there to have been corrupt conduct on the part of senior officers at the Newtown LAC . Mr McGuirk seeks review of both decisions. Further documents were released to Mr McGuirk following his application for review to this Tribunal.

5 It appears that the following documents remain, in whole, or in part, in contention:

• · Matter 103223: folios 1-11, 19, 20 to 25, 26, 27, 28, 29, 30-31, 32, 33 to 35, 51 to 52, 53 to 54, 55 to 56, 57, 62, 63 to 72, 112 - 115
• · Matter 103334: folios 54 to 56, 63, 72, 163-164, 269 to 273

Procedure adopted by the Tribunal

6 Two planning meetin gs were conducted in the matter with a view to providing some case management to the applications.

7 At the planning meeting of 1 February 2011 the parties discussed the possibility of the matters proceeding 'on the papers'. Mr McGuirk was to advise the Tribunal by 15 April 2011 if that course was satisfactory from his viewpoint. In the event this was an acceptable course, a notional date for hearing was fixed - 2 May 2011. A timetable was set for the filing of submissions by the parties, with the Respondent's documents to be filed and served by 5 April 2011. On 15 April 2011 Mr McGuirk advised the Tribunal that a hearing on the papers would be satisfactory, but noted that the Respondent had not filed its submissions, describing the Respondent's omission as its 'contumelious disregard of lawful orders of the Tribunal', and seeking orders that the Respondent be directed to provide all documents reasonably falling within the scope of the application, and that the Respondent's conduct be referred to the Minister for Police under S 58 of the FOI Act.

8 The Respondent's submissions, including sealed confidential submissions, were not received until 20 April 2011. There is no doubt, as Mr McGuirk observed, the Respondent made no formal application for an extension of time for filing its submissions; they were filed apparently without comment, explanation or apology. At some stage at the end of April the solicitor for the Respondent appears to have contacted the Tribunal to the effect that further instructions were being sought which may have led - and ultimately did lead - to the release of further documents.

9 In some of its submissions of 20 April 2011 the Respondent referred to 'oral submissions to be made at the hearing' and this, in part at least, was addressed in its letter of 2 May 2011. On 3 May 2011 the Respondent wrote to the Tribunal advising that further documents were to be released to Mr McGuirk.

10 At my request the Registrar of the Tribunal wrote to Mr McGuirk on 7 June 2011 inviting him to comment on the material filed by the Respondent. Mr McGuirk made no substantive comment other than to refer me to his letter of 15 April 2011 and repeat his contention that the Respondent's submission should not be taken into account by the Tribunal because of its disregard of the timetable I had set.

11 I agree with Mr McGuirk that the Respondent's conduct of the matter has been far from ideal. A courteous request for an extension of time would have been considered, most likely favorably, if proper explanation were provided. However, this did not occur. Notwithstanding that they were late, the Respondent provided some detailed submissions and, importantly, an unredacted copy of the relevant documents - essential to a determination by the Tribunal. A respondent's role in this Tribunal includes the responsibility to assist the Tribunal. In setting out its position, especially in circumstances where the hearing is proceed on the papers, the Respondent has, in my view, gone some distance in undertaking that role. Some of the submissions though, focused on discussion of the legal principles associated with each claimed ground of exemption rather than applying those principles to the documents themselves. Some matters about which oral submissions were said to be made at the hearing, however, were still not addressed, apparently having been overlooked in the later confidential submissions.

12 Much has been written in this Tribunal and elsewhere about respondents' role as the model litigant. Underlying that concept is the notion of fairness to an applicant . In this matter Mr McGuirk was afforded the opportunity to comment on the Respondent's submissions, but chose not to do so in a way that addressed the substantive matters at hand, but rather, focused on the lapse in procedure. Further, it is now some time after the notional hearing date. Mr McGuirk has made no further submissions in that time. There is, in my view, no unfairness to Mr McGuirk in the Tribunal receiving and considering the Respondent's submissions.

13 Further, the Respondent's belated consideration of its position ultimately led to the release of additional documents - a matter about which Mr McGuirk should derive some satisfaction, given that his application sought release of those documents. I have considered Mr McGuirk's submission in the light of section 73 of the Administrative Decisions Tribunal Act 1997(the ADT Act). Therefore I do not propose, as Mr McGuirk had asked, to direct the Respondent to provide all documents reasonably falling within the scope of the application, nor to refer the Respondent's conduct to the Minister for Police under S 58 of the FOI Act.

Legislation

14 Section 5 of the Act provides that the objects of the Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. Section 16 of the Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act . The legally enforceable right to be given access to documents is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information.

15 Section 24(1) of the Act provides that after considering an application for access to a document, the agency is to determine whether access to the document is to be given or refused, and any charge payable for giving access and/or dealing with the application. Under section 25(1)(a) of the Act, an agency has discretion to refuse access to a document. Grounds on which access may be refused are set out in section 25 and include that a document is 'an exempt document'. An 'exempt document' is defined in section 6 to mean (among other things) a document referred to in any one or more of the provisions of Schedule 1.

16 Although in its decision-making the Respondent also relied on clause 4 as a ground for exemption, having regard to the submissions of the Respondent,only the following clauses of Schedule 1 are now pressed as relevant:

Clause 6(1)

Clause 6(1) of the Schedule 1 to the Act provides:

A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

Clause 10(1)

Clause 10(1) of the Schedule 1 to the Act provides:

A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege

Clause 13(b)

Clause 13(b) provides, relevantly:

A document is an exempt document:

(b) if it contains matter the disclosure of which:

1)would otherwise disclose information obtained in confidence;

ii)could reasonably be expected to prejudice the future supply of such information to the government or to an agency; and

iii)would on balance be contrary to the public interest.

Clause 16(a)(iii) and (iv)

17 The exemption clause 16(a)(iii) and (iv) provides:

A document is an exempt document if it contains matter the disclosure of which:

(a)could reasonably be expected:

...

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel,...; and

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, ...; and

(b) would, on balance, be contrary to the public interest.

18 The Tribunal's powers on review are found in section 63 of the ADT Act. Section 63 of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. The Tribunal may exercise all of the functions that are conferred or imposed on the agency.

19 The onus of proof is on the agency to justify any decision to withhold documents: section 61. As Kirby P said in Commissioner of Police v District Court of New South Wales and Anor (1993) 31 NSWLR 606 ( Perrin ) at 625:

Prima facie, the document in its entirety must be disclosed. To withhold disclosure it is for the agency to make out the application for an exemption. Thus the question properly is not why the information should be disclosed but why it should be exempted.

Consideration

20 In coming to the correct and preferable decision it is necessary for the Tribunal to consider whether or not the Respondent has made out the exemptions that have been asserted and if so, whether the documents should nevertheless be released.

21 The Respondent claims that documents should not be released to Mr McGuirk on a number of bases. In order for a document (or part of a document) to be exempt, it is only necessary to establish that it falls within one of the claimed separate bases for exemption.

22 It is clear from the case law that ultimately, a question of whether an exemption provision applies is heavily dependent on the particular facts and circumstances: per Searle Australia Pty Limited v Public Interest Advocacy Centre ( 1992) 108 ALR 163 .

Clause 6(1): Would release of the document unreasonably disclose information concerning the personal affairs of another person?

23 Exemption from release in respect of folios 1 to 11, 20 to 25, and 112 - 115 in 103223 and folios 63, 72, 269 to 273in 103224 was claimed on the basis that the documents contain material relating to the personal affairs of other persons. In respect of folios 1 to 11, pages 2, 4, 5, 6 contain no redactions so it is unclear why the Respondent asserts that these folios are properly the subject of a claim for exemption. There is no reason why they should not be released to Mr McGuirk in full; in respect of those folios the decision under review is set aside.

24 The redactions in the remainder of the documents contain information about another person, namely the alleged victim, identified as Ms Buchanan - her identifier (folio 9), her address (folios 3, 7, 8, 10) and her daughter's name (folio 3). Folios 7 and 8 contain identical accounts in relation to Ms Buchanan's response to having allegedly received a text message from Mr McGuirk on 15 February 2007. Folios 10 and 11 contain similar reports of Ms Buchanan's response to allegedly receiving a text message from Mr McGuirk on 29 March 2007.

25 For the exemption in clause 6 to be made out, two conditions must be satisfied. First, the document must contain material concerning the personal affairs of a person; secondly, the disclosure of the information must be unreasonable.

26 The term 'personal affairs' is not defined. In GJ v NSW Department of Education and Training [2008] NSWADT 310 ( GJ ) at [33] the nature of 'personal affairs' was described as an 'inherently imprecise concept' . In other jurisdictions the cases also make it clear that 'personal affairs' cannot be precisely or exhaustively defined: eg Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 and Young v Wicks (1986) 13 FCR 85. W hether a document contains 'information concerning the personal affairs' of a person is a question of fact that is determined from the circumstances of each individual case: Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 and should not be interpreted narrowly: Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 (Martin). The information does not have to be confidential or secret to attract the 'personal affairs' exemption; it may even be widely known: per Lockhart Jin Colakovski v Australian Telecommunications Corporation [1991] FCA 152 ( Colakovski ).

27 In Perrin Mahoney and Clarke JJA expressed the view that a person's name, as such, is not generally part of their personal affairs and Lockhart J in Colakovski said that, as an abstract concept, the name and telephone number of a person would not be information relating to their personal affairs. It is a question of fact in every case as to whether the name and address of a person amounts to their personal affairs: Perrin per Clarke JA at 644.

28 In Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 ( Gilling ) DP Hennessy considered the names and addresses of objectors to a development to be their personal affairs because they were not supplying the information in the performance of a public duty. There DP Hennessy said the purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government.

29 In Martin JM Higgins found that information relating to the name, address, date of birth, sex, driver licence number, home telephone number and mobile telephone number of the victim and the witness provided to Police in the person's private capacity was personal information under clause 6(1).

30 The second question is whether disclosure of the information is 'unreasonable'.

31 In GJ the Tribunal stated at paragraph [40]:

Whether a disclosure is 'unreasonable' requires consideration of matters such as the nature of the information, the circumstances in which it was obtained, the likelihood of the information being information that the person does not wish to have disclosed without consent, and whether the information has any current relevance: see Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257at [51].

32 Applying GJ , I find that the Ms Buchanan's identifier, her address and her daughter's name is her personal information (folios 3, 7, 8, 9, 10). Some of that information may be known to Mr McGuirk but this does not alter its characterization as personal information: Colakovski .

33 As to the accounts in relation to Ms Buchanan's response to having allegedly received a text messages from Mr McGuirk (folios 7, 8, 10, 11) also, in my view, amounts to personal information.

34 To determine reasonableness an agency must consult with the person concerned, identify the public interest considerations for and against disclosure and establish that disclosure would be contrary to the public interest: Colokovski . The view of Ms Buchanan is unknown. The nature of the prejudice she might suffer is unclear in relation to the matters generally but, at least in relation to her address, it is clear that Mr McGuirk knows where she lived in 2007, because charges laid against Mr McGuirk related to that address.

35 While an applicant does not have to demonstrate a need for or an interest in the documents being sought the applicant's motivation in seeking the information has, in some cases, been held to be relevant to the question of reasonableness: Re Mann and Australian Taxation Office (1985) 7 ALD 698 at 700. Mr McGuirk appears to have formally complained to Police and to the Ombudsman that on an occasion, when he was arrested, he was mistreated and denied basic rights. An extract from a Local Court transcript provided by Mr McGuirk appears to suggest that the presiding Magistrate found this to be the case. It is unclear though how the personal information in these documents may assist in asserting his concerns as those matters do not appear to relate to his concerns, but to the event which precipitated Mr McGuirk's dealings with the Police about which he complains.

36 In Perrin Mahoney JA considered that where the information is sought merely to harass the parties in question, a court would have to 'exercise care' in deciding whether access should be granted. Having said that, there is no evidence that Mr McGuirk is likely to harass Ms Buchanan.

37 A more relevant consideration, in my view, is that expressed by Heerey J in Colakovski that if the information disclosed was of no demonstrable relevance to the affairs of government and was likely to do no more than to excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, he thought disclosure would be unreasonable. There seems to me no demonstrable relevance in having the information about Ms Buchanan's identifier, her address and her daughter's name, to the affairs of the agency.

38 As to the accounts in relation to Ms Buchanan's response to having allegedly received a text messages from Mr McGuirk (folios 7,8,10 and 11), I observe that the object of clause 6 is to protect private information of third parties who may be referred to in agency documents but who may be unaware that their private affairs stand subject to exposure by a claim for access made under the Act: Perrin. I had no information before me, as I have observed, as to Ms Buchanan's views about release of the information to Mr McGuirk. Nor do I have information before me as to whether the text messages were relevant to the matters to which the court proceedings related, and to that extent, if they have already been publicly ventilated.

39 I consider that the redacted portions of folios 1, 3, 7 to 11, are exempt under clause 6.

40 Folios 20 to 25 are copies of emails. Exemption is claimed in respect of the mobile telephone number of the author, Senior Sergeant Pernice. In Perrin Kirby J was clear in deciding that while a police officer's name does not constitute 'personal affairs', because the 'affairs' disclosed are those of the agency, and not of the individual. In referring to the Second Reading speech and that it was 'abundantly plain' that one object of the Act was to 'breach the wall of anonymity of public servants', but this did not extend to disclosure of those public servants' private information. Kirby J referred, by way of example, to the private address of an officer. A mobile phone number, in my view, is similar. However, there was no evidence before me that the phone was exclusively for work purposes, and I am not prepared, in the absence of that evidence, to make a finding that it related to the officer's private, as well as policing role. In the absence of that evidence I find that the officer's mobile telephone number not to be personal information and therefore does not attract the clause 6 exemption.

41 Folios 112 to 115 comprise a witness statement . Other than providing the Tribunal with a copy (on a confidential basis) of the statement the subject of this application, the Respondent did not file any evidence in support of its contention and relied on its submissions. Mr McGuirk , also, did not given the Tribunal any indication of any particular need he has for access to the statement, in circumstances where the proceedings, from what I can make out, have concluded.

42 The Respondent did not indicate which portions of the statement are contended to be exempt under this clause. However, it is clear that exemption cannot be claimed in respect of all the information therein. While the statement contains information concerning the personal affairs of a third person, the majority of the information also concerns the personal affairs of Mr McGuirk , in particular about the events of 11 August 2006. To the extent that it contains personal information about him, this information is not exempt by reason of clause 6(2). The fact that this information is provided by a third party does not make it personal information of that third party exclusively. I find that the only information contained in the statement that comes within the terms of clause 6(1) is the name and age of the maker of the statement.

43 In my opinion, in the circumstances of this matter, it would not be unreasonable to disclose the name of the maker of the statement. Exemption in relation to the balance of the document is discussed below.

44 In 103224 exemptionswas claimed under clause 6(1) in respect of folios 63, 72, 269 to 273.

45 Folio 63 is a letter from the Director, Prevention and Information, to the Assistant Commissioner, Professional Standards Command dated 13 August 2010. The letter lists officers against whom complaints were made. Exemption under clause 6(1) was claimed in relation to other officers, who were not the subject of Mr McGuirk's request. In those circumstances references to other officers would be outside the scope of the request, and the redaction would more properly have been described as such. Nonetheless, I find, the redacted information, that is, the names of other officers is personal information. This is not like Perrin - they are not just 'doing their job'; they are persons against whom complaints have, rightly or wrongly, been made and it would be unreasonable that that information be released.

46 Folio 72 contains an officer's mobile phone number. See my reasons in relation to folios 20 to 25 (in 103223) above.

47 Folios 269-273 comprise a COPS event entry in relation to persons other than Mr McGuirk; in fact, he is not mentioned at all. The whole of the document, in my view, contains informationin relation to the personal affairs of others.

48 With regard to when the disclosure of information is unreasonable, in Saleam v Director General, Department of Community Services [2002] NSWADT 41, at [38], the President of the Tribunal, followed the approach adopted by the Administrative Appeals Tribunal in Re Chandra and the Minister for Immigration and Ethnic Affairs (1984) 6 ALD N257 at N259:

... Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of all 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 have disclosed without consent, and whether the information has any current relevance. Plainly enough what section 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

However, consistently with the stated object of the Act (see section 3); it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.

49 The Respondent submitted that disclosure would be unreasonable because release would be to the world at large; the information does not of itself concern the workings of the Police; there is a need for individuals to provide information to Police without fear that their personal details will be made publicly available; there would be a public expectation that information about them would not be made publicly available without proper cause or reason; and Mr McGuirk has demonstrated no need for the information.

50 I had no information before me as to how the event entry came into existence - whether as a result of the victim voluntarily reporting the dispute to Police for action, or otherwise. There was no evidence before me that the matters considered in that entry ultimately were the subject of any prosecution or that they otherwise became public. The allegations may have been completely without foundation.

51 An applicant's motive may be relevant to the assessment of whether the release of a document would be unreasonable: Ritson v Commissioner of Police [2010] NSWADT 22.Mr McGuirk had asserted in his FOI application that there was an improper relationship between certain officers of the Newtown LAC and the members of the family who had owned the licence of the Courthouse Hotel until shortly before this incident and that he had got 'caught up' in that relationship. He did not specify though how he was involved in the matters the subject of the COPS entry, nor, indeed, was it clear to me that the entry was, on its face, at all relevant to his concerns.

52 In Department of Education and Training v GJ (GD ) [2009] NSWADTAP 33, the Appeal Panel considered whether disclosure under the FOI Act was disclosure to the world at large. In doing so, it considered the Victorian Court of Appeal decision of Victoria Police v Marke [2008] VSCA 218( Marke ). The Appeal Panel decided that it should follow Marke and concluded:

49 Consequently, the FOI decision-maker (agency or review tribunal) must not, uncritically, exclude from its consideration matters pressed by the Applicant personal to the Applicant such as the purpose of the application and promises of limited use. As the Victorian Court noted, that does not mean that the decision-maker must give effect to the Applicant's plea. The decision-maker may form a negative view as to the likelihood that the promise will be kept, and the attributes of the Applicant may militate against acceptance of the promise. The Victorian Court gave the following illustrations of this point: the Applicant who is a political activist, a journalist or a member of parliament, all of whom might reasonably be assumed to be likely to seek maximum publicity for the material released.

53 There was no evidence as what Mr McGuirk proposed to do with the information. I am not able to limit what occurs to a document once it is released and disclosure to the world at large: per Marke. This inability to impose conditions or restrictions weighs heavily against disclosure of private information of third parties, and I consider release of these folios to be unreasonable.

Clause 10(1): Are the documents subject to legal professional privilege?

54 In matter 103223 exemption was claimed in respect of folios 19, 26, 27, 28 29, 30 to 31, 32 33 to 35, 51 to 52 53 to 54, 55 to 56, 57, 62, 63 to 72, and 80 on the basis of legal professional privilege.

55 It is useful to put the various documents in some context. Folio 19 is the first page of instructions and background for the request for legal advice (and is identical to folio 63 except for some highlighting and handwritten notes). Folio 62 is the request for legal advice and folios 63 to 72 are instructions and background for the request for legal advice, to which folio 80 is an attachment. Correspondence ensued between the Office of the Director of Public Prosecutions (ODPP) and the res: folio 30 to 31, requesting, by fax (folio 57) some clarification and further info. Internal emails discussed obtaining the information: folios 29, 32, 33 to 35,53 to 54, 55 to 56. There was email correspondence between the Respondent and the ODPP about the additional information: folio 51 to 52. The legal advice was provided by the ODPP: folio 27.Folio 26is a file completion form, which refers to the advice received.

56 Legal Professional Privilege was recently considered by the Tribunal in SL v University of Sydney [2011] NSWADT 65 at [17] to [20]:

17 The interpretation of the exemption has traditionally been governed by the common law principles of legal professional privilege, rather than the statutory provisions relating to client legal privilege in the New South Wales Evidence Act 1995: see for example Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26, at [9] to [12]; Howell v Macquarie University [2008] NSWCA 26; General Manager WorkCover Authority of NSW v Law Society NSW [2006] NSWCA 84.

However, as noted in Fitzpatrick v NSW Office of Liquor v Gaming [2010] NSWADT 72, since those decisions were made the Evidence Act 1995 has been amended by the Evidence Amendment Act 2007 which made substantial changes to the provisions dealing with client legal privilege, found in Division 1 of Part 3.10, with effect from 1 January 2009.

19 Following reasoning set out in paragraphs 61-67, the Tribunal determined:

'Thus, consistently with the reasons of the Appeal Panel in Director General, Attorney General's Department v Cianfrano, the task of an officer of an agency, when considering an exemption under clause 10, is to is to make up his or her own mind, on the basis of such information as is available, about whether the matter contained in a document has characteristics that would make it privileged from production in legal proceedings on the ground of client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995. (cf Howell v Macquarie University [2008] NSWCA 26 per Campbell JA at [54]). The same task confronts the Tribunal on review.'

20 That decision has not been considered on appeal. However Chan v Department of Education and Training (GD) [2010] NSWADTAP 7, an appeal panel decision, handed down in the months before Fitzpatrick, adopted the traditional approach. This decision adopts the traditional approach in accordance with the relevant appeal decisions.

57 The broader principles governing legal professional privilege were usefully summarised by Young J in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at 44. In applying those principles it is first necessary to decide in relation to each document for which the exemption is claimed, whether the agency has discharged the onus of establishing that it was brought into existence, for the dominant purpose of giving or obtaining legal advice. The 'dominant purpose test' refers to:

a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice, or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect... the fact that the person... had in mind other uses of the document will not preclude that document being accorded privilege, if it were produced with the requisite dominant purpose. (per Barwick CJ in Grant v Downs (1976) 135 CLR 674 )

58 For legal professional privilege to apply under the 'dominant purpose' test, a communication must have been created or brought into existence, ie made, drawn up, written, or prepared, for the 'dominant' purpose of either obtaining or giving legal advice, or in connection with pending or reasonably contemplated or apprehended legal proceedings.

59 As set out in Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 ( Chan ) :

... As Graham J said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445: 'It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence ....

60 In Chan the Tribunal referred to the 'categories of legal professional privilege' outlined by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 ( Sterling ) at 245-246 as including:

( a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. ...

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. ...

( c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. ...

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. ...

(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. ...

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. ...

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.

61 Some of the documents for which the claim of privilege has been made include communications between the Respondent's officers and its internal legal advisers.

62 Young J in AWB Ltd v Cole [at 46] summarised the principles relating to communications between government agencies and their salaried legal officers:

Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford at CLR 96; ALR 705 per Dawson J; see also Deane J at CLR 79-82, ALR 689-92. Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice: see Dawson J in Waterford at CLR 96; ALR 705; Galway v Constable [2002] 2 Qd R 146 at 150 ; [2001] QSC 180; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245 ; [2001] QCA 115. However, in Commonwealth v Vance (2005) 158 ACTR 47 ; [2005] ACTCA 35, the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege: at [23]-[35]. The same view was taken by Lee J in Candacalat [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade (2004) 86 ALD 780 ; [2004] AATA 1365 at [51].

63 Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780 at [51] explained the rationale for the possession of a current practising certificate not being an 'essential precondition'to a claim of privilege made in relation to an employed Government lawyer:

Whether or not legal professional privilege is attracted should be determined by the substance not the form. The rise of requirements for practising certificates is relatively recent and is associated primarily with regulatory considerations and matters associated with lawyers holding themselves out to the public as qualified. Many of these considerations are irrelevant to the role of the employed lawyer .

64 As His Honour pointed out at [51] the real test is 'whether the advice had the necessary quality of being independent advice'.

65 Having examined each document (per Howell ), I am satisfied that, other than folio 28, each was created for the 'dominant purpose' of giving or obtaining legal advice and falling, variously, within one or other of the categories identified above in Sterling . I am also satisfied that the advice provided by the Respondent's in-house lawyers was given as independent advice. That is made plain from the contents of the documents. The privilege claim for exemption is therefore justified.

66 Folio 28 appears to be a proforma memorandum directing another person to take some action in relation to a file. It neither identifies the file, nor refers to any legal advice, nor is it dated. It is difficult to see to what it relates at all, other than as a short-hand means of giving direction to someone as to action to be taken. It does not, in my view, attract a claim for privilege.

Clause 16(a)(iii) and Clause 16(a)(iv):Could disclosure of the doc reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of its personnel, (or in the effective performance by an agency of its functions: clause 16(a)(iv))and would, on balance, disclosure be contrary to the public interest?

67 Exemption was claimed under clause 16(a)(iii) in matter 103224 in respect of folios 163 to 164, which relate to management of a complaint made by Mr McGuirk. Exemption was claimed under clause 16(a)(iv) in matter 103224in respect of folios 54 to 56 and also relates to the complaint made by Mr McGuirk. Exemption was also claimed in respect of folio 63, which was also claimed to be exempt under clause 6(1) and was considered above.

68 Clause 16(a)(iii) provides that a document is an exempt document if it would reasonably be expected that disclosure of matter in that document would have a substantial adverse effect on the management or assessment by an agency of its personnel and disclosure would, on balance, be contrary to the public interest.

69 The Respondent submitted that it was invaluable to the functioning of the Police that its officers were able to discuss proposed response to third parties and work together to finalise an agreed response. If such communications, including draft responses were to be disclosed, and this is known by employees of an agency, it is reasonable to expect that such valuable communications would cease for fear of disclosure. The failure to communicate about proposed responses, it was submitted, would have a substantial adverse effect on the agency's functions in being able to develop the final response.

70 In Department of Education & Training v Mullet and Randazzo (No 2) [2002] NSWADTAP 29 ( Mullet and Randazzo) at paragraph [80] the Appeal Panel set out a three step analysis for determining the appli cation of clause 16(a)(iii), namely:

• · does the administrative practice in issue fall within the description of the administrative practice to which protection is given?
• · has the degree of prejudice specified been demonstrated?
• · would [disclosure], on balance, be contrary to the public interest?
• · In Mullet and Randazzo the Appeal Panel also considered the definition of 'substantial adverse effect' as outlined in clause 16(a)(iii) and stated:

97 It will be seen that, again, the exemption in cl 16( a)(iii) focuses on systemic considerations. 'Substantial adverse effect' involves a higher test than, for example, mere 'prejudice' as referred to in (a)(i) and (ii): see Re James and Australian National University(1984) 6 ALD 687. The effect must be sufficiently serious to cause concern to a properly informed reasonable person: Re Thies and Dept of Aviation(1986) 9 ALD 454; it must not be irrational or absurd: see Attorney General (Comm) v Cockcroft(1986) 64 ALR 97. We agree with the following comments in Australian Administrative Law (Butterworths, Australian Administrative Law Library, June 2002) at [741]:

'Prejudice or substantial adverse effect must arise from the disclosure of the particular information in the particular documents but also from the disclosure of documents of a particular kind. The vice of such disclosure lies in the breach of confidential properties, a breach which can for that reason lead to the cessation or diminution of the future flow of information to the agency in question: Department of Social Security v Dyrenfurth[1988] FCA 148; (1988) 15 ALD 232; 80 ALR 533;Re Fryar and Australian Federal Police(1988) 17 ALD 25.'

71 As to the public interest component of clause 16 (a)(iii), in Fulham & Mohamed v NSW Department of Health [2008] NSWADT 227 DP Handley noted at [69]:

Deciding whether or not disclosure is contrary to the public interest requires a balancing of competing interests, including the public interest in the applicant's right to know and the public interest in the proper working of the Government and its agencies: Forgie DP in Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301, at paragraphs 115 to 119, cited with approval by O'Connor DCJ, President, in Cianfrano v Director General, NSW Treasury[2005] NSWADT 7, at paragraph 83.

72 The Respondent referred me to Black v Hunter New England Area Health Service [2008] NSWADT 301 in which the Tribunal provided a useful summary of the operation of clause 16(a)(iv), and which is also relevant to clause 16(a)(iii):

32....Clause 16(a)(iv) requires first, that the disclosure of documents could reasonably be expected to have a substantial adverse effect on the effectiveperformance by an agency of its functions, and, second, that the disclosure of the documents would, on balance, be contrary to the public interest.

33 A "substantial adverse effect" is one that is more than mere prejudice, and is sufficiently serious to cause concern to a properly informed reasonable person. The focus is on the future effect on the agency's function rather than the effect of disclosure on the matter in dispute between the parties. See McGuinness, at paragraph 21 (Hennessy DP, citing Re James and Australian National University (1984) 6 ALD 687, Re Thies and Department of Aviation (1986) 9 ALD 454, and Director General, Department of Education & Training v Mullet & anor [2002]NSWADTAP 13 (revised as at 11/6/02)); see also Gales Holdings Pty Ltd v Tweed Shire Council [2005] NSWADT 168 (Higgins JM), at paragraph 46.

34 Deciding whether or not disclosure is contrary to the public interest requires a balancing of competing interests, including the public interest in the applicant's right to know and the public interest in the proper working of the Government and its agencies: Forgie DP in Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301, at paragraphs 115 to 119, cited with approval by O'Connor DCJ, President, in Cianfrano v Director General, NSW Treasury [2005] NSWADT 7, at paragraph 83.

73 Again, there was no evidence before me in support of the Respondent's contentions and I must reach my view on the basis of the submissions and the content of the documents. I am prepared to accept the Respondent's submission, but only to a limited degree. I accept that it is useful to the functioning of the Police that its officers were able to discuss the proposed response to Mr McGuirk's complaint and work together to finalise a response. To that extent, I agree some of the material attracts the exemption under clause 16(a)(iv). I do not accept, however, that if officers knew that draft responses were to be disclosed, they would be less candid in creating their drafts. After all, a 'draft' anticipates that, if adopted, will become the official response. I do not consider there to be a substantial adverse effect on the management or assessment by the Police of its officers or in the effective performance of its functions.

74 I therefore find that in folio 55 commencing with the words 'In the 61 page document' and ending on folio 56 with the words 'the charges of Assault and Resist Police' do not attract the exemption under clause 16.

Residual ( 'public interest override') discretion

75 Notwithstanding that I have found that the majority of the subject documents were properly the subject of a claim for exemption from production, I am obliged to consider whether the correct and preferable decision, in the public interest, is that the documents be released even though exempt under the FOI Act: University of NSW v McGuirk [2006] NSWSC 1362 ( McGuirk ). By virtue of section 63(2) of the ADT Act ' and section 25(1)(a) of the FOI Act , the Tribunal has a residual discretion to release documents otherwise found to be exempt pursuant to Schedule 1 of the FOI Act , and, in such a case, must consider whether to exercise its discretion to do so: McGuirk at [102] (per Nicholas J). The Respondent submitted that this aspect of McGuirk was wrongly decided and, in any event, was strictly obiter. It acknowledged though that the Tribunal is presently bound to follow that decision.

76 The principles guiding the exercise of the discretion were discussed by the President of the Tribunal in Cianfrano v Director General, Premier's Department [2007] NSWADT 216. At [27] the President set out some of the factors relevant to the exercise of the discretion:

- whether the exempt matter was, by other means, in the public domain

- whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant

- the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity

- the public interest in an informed debate on issues of significance to the community

- whether there were adverse consequences for the proper administration of government, and their extent

- whether any adverse consequence is remote or innocuous.

77 The question to be considered is whether, bearing in mind the objects of the FOI Act expressed in section 5, stated above, there are strong grounds justifying the overriding of the exemptions found to apply.

78 In P v Greater Western Area Health Service [2007] NSWADT 87 at [39], the Tribunal expressed the test applicable to the exercise of the public override discretion as:

... the discretion should only be exercised where there are strong grounds justifying the overriding of an exemption.The approach to be taken is one of balancing the competing interests involved according to the words of the Act, bearing in mind the stated objects of the Act: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at par 151. In NSW, the public interest is a relevant matter in determining whether there are strong grounds justifying exercise of the discretion, and this should be considered in the light of the objects of the FOI Act, set out in s 5.

79 It is true that Mr McGuirk has a legally enforceable right to obtain documents concerning his personal affairs; indeed, this is stated in section 5(2)(b) of the FOI Act. However, like many rights, this is subject to certain restrictions. As the Appeal Panel acknowledged in Cheney v Central Sydney Area Health Service [2008] NSWADTAP 29, at [18] to [20], neither an agency nor the Tribunal can place restrictions on the use that is made of documents disclosed pursuant to the FOI Act.

80 In Mr McGuirk's case, I am not satisfied that there are strong grounds justifying the overriding of the exemptions.

Does the 'public interest override' discretion apply to Clause 10, in any event?

81 The Respondent submitted that in the circumstances of this case there is no scope for the operation of the public interest override discretion in respect of documents exempt under clause 10. In University of New South Wales v McGuirk [2009] NSWCA 321 the University's grounds of appeal, included, alleged error in proceeding on the basis that it had power to grant access to an exempt document; and in proceeding on the basis that it had power to grant access to a document exempt by operation of legal professional privilege: see [26].

82 The Court of Appeal agreed with the University's argument as to proceeding on the basis that it had power to grant access to a document exempt by operation of legal professional privilege, and, as a result, did not go on to consider other grounds: see [27]. The Court of Appeal held at [29] that the power of the Tribunal to grant access to an exempt document flowed from the express terms of section 63 of the ADT Act which provides that in deciding what is the correct and preferable decision it may exercise all of the functions that are conferred or imposed by any relevant enactment on the original decision-maker. In that regard:

[32] Because s 63(2) is limited to the exercise of functions conferred or imposed "by any relevant enactment" the power to waive legal professional privilege is not a power enjoyed by the Tribunal. A relevant enactment must be an Act, regulation, by-law, rule or ordinance: ADT Act, s 5 and Interpretation Act 1987 (NSW), s 21 A, statutory rule. The University is a body corporate constituted under the University of New South Wales Act 1989 (NSW) ("the UNSW Act"), s 5. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions: see Australian National University v Lewins (1996) 68 FCR 87 at 96-97 (Kiefel J), 101 (Lehane J); Australian National University v Burns (1982) 64 FLR 166 at 174 (Bowen CJ and Lockhart J);Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [22] (Gleeson CJ), [79]-[81] (Gummow, Callinan and Heydon J J)

[33] in the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) to waive any legal professional privilege as might remain extant.

83 Having considered the abovementioned factors in regard to the exemptions claimed by the Respondent in my view, the correct and preferred decision is to refuse Mr McGuirk access to the documents that have been found to be exempt. In conclusion, I am not satisfied that I should exercise the Tribunal's residual discretion to release the information found to be exempt.

Summary

84 In Matter 103223:

the decision under review is affirmed in respect of folios 1, 3, 7-11, 19, 26, 27, 29, 30-31, 32, 33 to 35, 51 to 52, 53 to 54, 55 to 56, 57, 62, 63 to 72, 112 - 115

the decision under review is set aside in respect of folios 2,4,5, 6, 20 to 25, 28

85 In Matter 103224:

the decision under review is affirmed in respect of folios 54, 63, 163-164, 269 to 273

the decision under review is set aside in respect of folio 55 commencing with the words 'In the 61 page document' and ending on folio 56 with the words 'the charges of Assault and Resist Police', and folio 72

86 Pursuant to s.75(2)(b), (c) and (d) of the ADT Act the documents in respect of which the decisions under review have been affirmed and the confidential submissions are not to be disclosed to the Applicant, are not to be published, and are not otherwise to be made publicly available

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Decision last updated: 27 June 2011