N (No. 3) -v- Commissioner of Police, New South Wales Police Service

[2002] NSWADT 34

CITATION:	N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34
DIVISION:	General Division
PARTIES:	APPLICANT In person RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013165
HEARING DATES:	21/11/2001
SUBMISSIONS CLOSED:	11/21/2001
DATE OF DECISION:	03/08/2002
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	amendment of documents - Freedom of Information Act - amendment of documents - Jurisdiction
MATTER FOR DECISION:	Jurisdiction
LEGISLATION CITED:	Victims Compensation Act 1987 Victims Support and Rehabilitation Act 1996 Freedom of Information Act 1989
CASES CITED:	Slezankiewicz v Australia and Overseas Telecommunications Corporation 91/984 AAT No 8071 Registrar of Motor Vehicles v Dainer (1985) 57 ALR 759) Squires v Attorney-General (Commonwealth) (1986) 68 ALR 521 Card-O-Matic Pty Ltd v Australian Industrial Research and Development Incentives Board (1986) 81 ALR 283 Booth v Dillon (No 1) [1976] VR 291 O’Sullivan v Family Court of Australia [1997] AAT (16 September 1997)
REPRESENTATION:	APPLICANT In person RESPONDENT M Tzannes, barrister
ORDERS:	1. Objection to jurisdiction dismissed; 2. Application to be relisted for a further planning meeting.

1 The NSW Police Service, the respondent agency has given N access under the Freedom of Information Act 1987 (‘FOI Act’) to 12 documents requested by him. The documents contain various Police notebook entries and Computerised Operational Policing System (COPS) entries relating to N. Section 39 gives persons who have been granted access a right to apply for amendment of records that contain information about their personal affairs. N made such an application in relation to all of the documents. The agency has refused to deal with the request in respect of 9 of the 12 documents on the basis that those 9 documents fall outside the scope of s 39. N has applied for review of the determination. The agency’s position, contested by N, is that the right of review is only available in respect of 3 of the 12 documents. This ruling deals with the agency’s objection in respect of the 9 documents.

2 Section 39 of the FOI Act provides:

‘ 39. Right to apply for amendment of agencies' records
A person to whom access to an agency's document has been given may apply for the amendment of the agency's records:
(a) if the document contains information concerning the person's personal affairs, and
(b) if the information is available for use by the agency in connection with its administrative functions, and
(c) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading.’
3 The agency does not dispute that the documents contain information concerning the person’s personal affairs and fall within ground (a) of s 39. The agency refers to ground (b) of s 39; and contends that the information contained in the records to which access has been granted is not information ‘available for use by the agency in connection with its administrative functions.’ Its contention is that the term ‘administrative functions’ does not embrace ‘law enforcement functions’, and that the 9 documents in issue relate to its ‘law enforcement functions.’

4 The agency’s reasons are set out in detail in its determination on internal review dated 13 June 2001. It is helpful to an understanding of the case to describe briefly the nature of the contents of the 9 documents in issue (Documents 1-2, Documents 6-12):

Documents 1 and 2 : This is a COPS entry created following an alleged complaint to the Police by the manager of a club venue in Darlinghurst relating to N’s conduct on the evening of 5 August 1999.
Document 6 : Intelligence material disseminated to the Police Service by the Wood Royal Commission relating to the alleged conduct of the applicant.
Document 7 : The document records an allegation of a ‘cover-up’ regarding a criminal investigation of which N was the subject. It was also said to contain matters of public record relating to charges laid against N and his subsequent acquittal.
Document 8 : The document gave a description of an encounter between N and the Police on 23 December 1995.
Document 9 : The document was created as a result of anonymous letters received by Police in 1994-1995 alleging that N has been involved in the commission of certain offences.
Document 10 : Entry created following the receipt of a complaint from a member of the public as to the possible commission of an offence under s 101 of the Crimes Act (NSW) 1900.
Document 11 : Information received by Police in relation to a number of allegations against N.
Document 12 : Information recorded by a police officer following information received from a member of the public involving allegations of against N.
5 The agency’s understanding of the distinction is also illustrated by its response in respect of the other 3 documents. Documents 4 and 5 both relate to a complaint made by N in relation to the conduct of police officers in connection with the events of the night of 5 August 1999; while Document 3 is the report issued by the officer who investigated the complaint. The agency considers that these 3 documents relate to its internal affairs, and relate to its administrative function of ensuring that complaints of misconduct by personnel are properly examined.

6 In its reasons for determination, the agency referred to the Shorter Oxford English Dictionary (3rd ed) definition of ‘administrative’ which is expressed as ‘pertaining to management; executive’, and the Random House Dictionary definition - ‘pertaining to administration; executive’. The agency referred to the meaning of ‘administration’ in the Random House Dictionary as ‘the management of any office, employment or organisation; direction.’ The agency asserted that the documents in issue were not created as part of its management or executive activities, or were for use in connection with its management or executive activities.

7 If the agency is in error, then it accepts that the response it has given to the applicant’s request constitutes a refusal to amend its records under s 43. Such a determination may be the subject of a review application: FOI Act, s 53(1).

8 In Victoria and Queensland the respective rights of amendment apply to personal records without any qualification such as that found in ground (b) of the NSW Act (Freedom of Information Act 1982 (Vic) s 39; Freedom of Information Act 1992 (Qld) s 53). On the other hand there is a limitation similar to ground (b) in s 48 of the Commonwealth FOI Act, which provides that amendment can be sought where the document contains personal information ‘that has been used, is being used or is available for use by the agency or Minister for an administrative purpose’.

9 Counsel for the agency (and the Tribunal) have been only able to locate one Commonwealth case dealing with the meaning of the expression ‘administrative purpose’. In Slezankiewicz v Australia and Overseas Telecommunications Corporation 91/984 AAT No 8071 the question was whether various personnel, employment records and workshop histories that the applicant (employed as a motor mechanic for 3 years) had sought to amend were records available for use for an ‘administrative purpose’. In that case, the agency did concede that records relating to personnel matters were available for use for an administrative purpose. But it disputed the applicability of s 48 to some other records, in particular the workshop histories mentioning him to which access had been given. The Tribunal dealt with the submission of the agency as follows:

‘43. … [T]he question remains what is use for an administrative purpose. Mr Richards submitted that a distinction was to be drawn between information used for what he referred to as operational and financial purposes and that used for administrative purposes. In particular he contended that the information in the records maintained by the respondent of work done in the Mechanical Aid Workshop had been used for an operational purpose, not an administrative purpose. He accepted, however, that the information in the record of the applicant's sick leave had been used for an administrative purpose.

44. Mr Richards did not cite any authority for the distinction which he said should be drawn between administrative purposes and operational and financial purposes. So far as I am aware, the meaning of the phrase used in section 48 has not been the subject of consideration by the Tribunal or the Federal Court. The decisions to which the Administrative Decisions (Judicial Review) Act 1977 applies are decisions "of an administrative character" (section 3(1)). A number of Federal Court decisions distinguish between a decision of an administrative character and a decision of a judicial character (e.g. Registrar of Motor Vehicles v Dainer (1985) 57 ALR 759). In Squires v Attorney-General (Commonwealth) (1986) 68 ALR 521 the issue was whether a decision had been made under section 19 of the Commonwealth Prisoners Act 1967 as to remission of sentence. Burchett J. held that calculation of the date of the expiry of the applicant's minimum term of imprisonment for which section 19 provided involved an independent administrative act and should not be characterized as part of ministerial advice to the Governor-General. In Card-O-Matic Pty Ltd v Australian Industrial Researchand Development Incentives Board (1986) 81 ALR 283 the issue was whether the Board's act of resolving that the applicant had received advances in excess of amounts payable to it and of making a demand for return of the excess amount were decisions of an administrative character. Fox J. held they were not; he said (at page 286) that the situation was "a commercial one, where there were commercial transactions and calculations". The fact that payment was made under a statutory scheme and that there was a statutory obligation to repay did not mean that the Board's acts involved either decisions simpliciter or decisions of an administrative character. His Honour was apparently drawing a distinction between an act having a commercial character and a decision having an administrative character.

45. Although in those cases the phrase considered was "administrative character" whereas in this case the phrase with which we are concerned is "administrative purpose", and although Squires affords little assistance in ascertaining the meaning of that phrase, Dainer and Card-O-Matic do I consider, afford some guidance. As acts performed in a statutory context may be judicial or commercial and not administrative, so information in a document in the possession of an agency, particularly one like the respondent, may, I am satisfied, be used for a purpose that is commercial and not administrative. However, the information in the documents with which we are concerned in these proceedings was not recorded, maintained or used for a commercial purpose. Insofar as it was used for an operational purpose, the operations were of a non-commercial nature.

46. In the Shorter Oxford English Dictionary (3rd Ed.) "administrative" is stated to mean "Pertaining to management; executive". In the Random House Dictionary the meaning is given as "pertaining to administration; executive". The primary meaning given to "administration" in that dictionary is "the management of any office, employment, or organization; direction". In my view "administrative purpose" in section 48 means a purpose that has to do with the management of the agency in whose possession a document is held. That management extends at least to all its internal activities, including financial control and activities of an operational nature as well as the employment and management of staff.

47. Consequently, I have come to the conclusion that all the information which the applicant sought to have amended is information which was created and used for an administrative purpose. However, whether or not that conclusion is correct, I have found that information in only four of the documents should be amended and it was my understanding of Mr Richards' submission that he accepted that the information in these documents, pertaining as it does to the management of the respondent's staff, including the applicant, was used for an administrative purpose.’

10 It will be seen that the Tribunal was satisfied that, so far as internal management operations were concerned, it was not appropriate to divide ‘administrative function’ off from ‘financial and operational functions’. It was not called on to deal with the question of whether the operational responsibilities that an agency undertakes vis a vis the general community fall within or outside the concept of ‘administrative functions’.

11 The agency in its determination in this case referred in support of its view that ‘law enforcement functions’ fall outside the scope of the expression ‘administrative functions’ to the various grounds of exemption contained in cl 4 of Schedule 1 to the Act, gathered together under the section-heading ‘documents affecting law enforcement and public safety’. The contention, as I understand it, is that the various grounds represent a catalogue of the activities that belong to the sphere of the ‘law enforcement functions’ of the agency as distinct from its ‘administrative functions.’ These activities include, for example, ‘the investigation of any contravention or possible contravention of the law’ (ground (a) of cl 4(1)); protection of the identity of confidential sources of information (ground (b)); and maintenance of the ‘effectiveness of any lawful method for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law’ (ground (e)).

12 The agency presented confidential evidence by way of affidavits from relevant managers as to the operational and administrative functions of the COPS system and the procedures relating to the creation of a COPS entry; and how each COPS information/intelligence report relates to the operational activities of the agency.

13 In the Commonwealth arena many of the personal records held and used by agencies belong to the context of the agency’s external relationships, e.g. migration records, social security payment records, taxation records. No question has, so far as I am aware, ever been raised as to the appropriateness of successful access applicants to such records being entitled to make applications for amendment. A similar position has prevailed, so far as I am aware, in respect of Federal Police records.

14 The present submission is a novel one. The discussion in Slezankiewicz notes that there may be ‘judicial functions’ and ‘commercial functions’ that lie outside the category of ‘administrative functions’. But it takes the question no further than that. Cossins, Annotated Freedom of Information Act (1997) at [51.4] when discussing Slezankiewicz commented that administrative functions could be seen as distinguishable from policy-making and legislative functions, on the basis ‘that it can be expected that personal records will not usually be used by the Government in relation to such functions.’

15 Counsel for the agency referred to a Victorian case dealing with the scope of the powers of the Ombudsman, Booth v Dillon (No 1) [1976] VR 291. In that case the head of the government department responsible for the administration of prisons had questioned the right of the Ombudsman to entertain a complaint from a prisoner that he had been assaulted by a prison officer during a meeting at the office of the governor of the prison. The assault, he said, occurred following a dispute over a direction that the prisoner return objects in his possession to the person from whom he was said to have borrowed them. The governor of the prison, it was said, was present at the meeting when the assault occurred.

16 Under the relevant legislation, the Ombudsman was empowered to investigate a complaint in relation to ‘administrative action’. The question was whether this was such a complaint. ‘Administrative action’ was defined by the legislation as ‘any matter relating to a matter of administration’ and was stated to include ‘(a) a decision and an act; (b) the refusal or failure to take a decision or to perform an act; (c) the formulation of a proposal or intention; (d) the making of a recommendation (including a recommendation made to a Minister).’

17 The issue was dealt with by the Supreme Court by way of case stated. Lush J noted that the complaint involved in effect allegations that the prison officer did not expect the assault to give rise to any action against him, that the governor condoned the assault, that the governor’s condonation made it impossible for him to investigate effectively the assault, and that there had been a failure on the part of the governor to exercise his responsibilities under prison regulations.

18 His Honour observed at 296:

‘Did the complaint, so analysed, relate to a matter of administration? I have examined the literature referred to in argument and some other writings, but, as counsel submitted, there is no assistance available in the present problem. The literature is concerned with problems of dividing legislative matters, policy making and some decision making from matters of administration.’
19 He noted that the limits of the phrase ‘matters of administration’ are ‘necessarily difficult to ascertain.’ He said that this was not merely a complaint of assault ‘but of facts concerning the enforcement of discipline governing both prisoners and staff and the proper hearing of complaints in the prison.’ (296)

20 The Court found that the Ombudsman had jurisdiction.

21 Counsel’s written submissions also referred to some decisions of the Tribunal, but she acknowledged that they do not shed any light on the meaning of s 39(b). They all went to the practical question of what is needed before an agency or the Tribunal would grant an application for amendment of a personal record that contains subjective comment or expressions of opinion.

22 The meaning to be given to the use of the expression ‘administrative functions’, in the absence of any authority, should be ascertained by reference to its ordinary meaning, the context in which the expression is used and having regard to the purpose and objects of the FOI Act.

23 At its most general level, the term ‘administrative functions’ is often used in the context of government in contradistinction to ‘legislative functions’ and ‘judicial functions’. It is used to describe compendiously the functions of the executive arm of government. This kind of distinction is reflected in the general scheme of the FOI Act. Parliamentary office-holders are not covered by the FOI Act in relation to the documents they hold, with the exception of those Minister’s documents that relate to the affairs of an agency (see s 8; s 6(1) (‘Minister’s document’). Documents held in connection with the ‘judicial functions’ of a court or tribunal are also excluded (s 10; s 6(1) (‘judicial functions’).

24 A Commonwealth case that may be relevant dealt with s 5 of the Commonwealth FOI Act which provides that the Act does not apply to documents of a Court unless they are of an ‘administrative nature’. In O’Sullivan v Family Court of Australia [1997] AAT (16 September 1997) the applicant had been refused access to records of counselling sessions kept by a court counsellor. The AAT concluded that these were not documents of an administrative nature. In its comments the Tribunal distinguished between documents that had to do with the management and administration of an organisation and documents that were connected with the performance of the functions of the court. The Tribunal referred to the matter in this way referring to the skills required of a counsellor in the position duty statement:

‘I am satisfied that "provision of conciliation counselling involving a variety of intervention strategies depending on the needs of the particular case" is not a duty of an administrative nature. It concerns the offering of skilled assistance to help the parties resolve issues in a particular case. It has nothing to do with management of an office or organisation. That seems to me to be a professional duty, the sort of duty for which it is necessary that a counsellor have a qualification and experience in psychology, social work or a related discipline. Similarly the conduct of mediation sessions also requires a qualification, is intended to assist in the resolution of a problem in a particular case and is clearly not administrative in nature. Documents relating to duties 5 and 6 which concern the provision of information sessions and professional supervision and professional development are not relevant to Mr O'Sullivan's request under the Act, so it is not necessary to decide whether or not those duties are of an administrative nature.’
25 As the FOI Act is concerned with the operation of the executive arm of government, it could perhaps be suggested that the expression ‘administrative functions’ is meant to play some delimiting role in regard to what functions of executive government and those which are not. The definition of ‘policy document’ in s 6(1) draws a distinction, as I see it, between such a document and one that relates to the administration of a scheme or policy that is contained in such a document. The definition lends some support to the view of Cossins that the term ‘administrative functions’ can be juxtaposed with ‘policy functions’. The definition is as follows:
"policy document" , in relation to an agency, means:
(a) a document containing interpretations, rules, guidelines, statements of policy, practices or precedents, or
(b) a document containing particulars of any administrative scheme, or
(c) a document containing a statement of the manner, or intended manner, of administration of any legislative instrument or administrative scheme, or
(d) a document describing the procedures to be followed in investigating any contravention or possible contravention of any legislative instrument or administrative scheme, or
(e) any other document of a similar kind,
that is used by the agency in connection with the exercise of such of its functions as affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, eligible, liable or subject, but does not include a legislative instrument.
26 The closing words of the definition of ‘policy document’ after the word ‘exercise’, in my view, give a broad description of all the responsibilities for which an agency could be said to be administratively responsible.

27 There are other points in the Act where the terms ‘administering’ and ‘administrative’ are sometimes used. The broad understanding of the word ‘administering’ as it is used in government is reflected in the definition of ‘responsible Minister’ (in s 6) as the Minister ‘administering’ legislation, while ‘administrative’ is used in contradistinction to ‘legislative’ in item (d) of the definition of ‘policy document’, already referred to. Similarly item (c ) of that definition refers to the ‘administration’ of a ‘legislative instrument’.

28 There is at least one example in the scheme of the FOI Act of a detailed approach being taken to describing the various functions of an agency. Section 9 provides that any body or office specified in Schedule 2 to the FOI Act ‘is, in relation to such of the functions of the body of office as are so specified or described, exempt from the operation of the Act.’ In Schedule 2 various agencies are listed with functions specified for the purposes of s 9. For example the office of Auditor General is exempt in respect of its ‘investigative, audit and report function’; and several agencies (the Ombudsman, the Legal Services Commissioner, the Health Care Complaints Commission, the Police Integrity Commission, the Independent Commission Against Corruption) in respect of their complaint handling, investigative and reporting functions. (Only one agency, the Child Death Review Team, is immune in respect of ‘all functions’.)

29 In my view this more specific approach to delineating functions makes sense when regard is had to the objects of the FOI Act. The purpose of the table is to identify functions that are not covered by the FOI Act. Consequently specific descriptions are used rather than more general phraseology.

30 In the case of Part 4 of the FOI Act (the amendment rights), is there a legislative intention to place ‘administrative functions’ as one set of functions among a range of functions that agencies may undertake, or is ‘administrative functions’ used in a generic sense as a convenient term to describe all the functions carried on by an agency related to its operational responsibilities? This in my view is the fundamental question raised by the case.

31 The agency’s determination and the two Commonwealth decisions mentioned already refer to the first definition of ‘administration’ given in various dictionaries. While the first definition of ‘administration’ in the Macquarie Dictionary (1st ed 1981) (‘the management or direction of any office or employment’) is like the other dictionary sources quoted, two other definitions reflect the broader connotation of the term to which I have referred. The second definition is ‘the function of a political state in exercising its governmental duties’ and the fourth definition is ‘the duty or duties of an administrator’.

32 Parliament’s general intention as to the scope of the FOI Act as it relates to the right to amend personal records is reflected in the objects clause, s 5(1) (b) and s 5(2)(b):

‘ 5. Objects
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
…
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(2) The means by which it is intended that these objects are to be achieved are:
…
(c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.’
The Parliament also stated in sub-section (3):
‘ (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, … .’
33 These provisions sound a caution against restrictive interpretation of the FOI Act. It would be an odd result if the limitation in s 39(b) could be read as only relating to personal records generated and held in connection with the internal administration of an agency. That would mean that employees would have the right to see and amend their personnel records, but members of the public who are the subject of records held about them by the agency would not be entitled to see and amend their personnel records. FOI laws have a democratic justification - they assist in making Ministers and agencies accountable for their conduct through the mechanism of access, and in the case of personal records, through the mechanism of access and amendment. Where there is a choice in the interpretations that can be given to an expression one should be chosen which supports rather than diminishes the democratic justification.

34 A core operational responsibility of many agencies of government is the enforcement of the laws for which they are responsible. If the agency’s submission were to be upheld, many agencies would come forward with submissions that their functions were capable of subdivision as between ‘law enforcement’ functions and ‘administrative’ functions. Many agencies have systems, perhaps less sophisticated, which are analogous to the recording systems used by the Police Service. While some contradistinctions between the term ‘administrative functions’ and other functions can be found in the definition sections and the sections dealing with the general coverage of the Act, no such contradistinctions are made in Part 4 of the Act, the Part headed ‘Amendment of Records’ and including s 39. This points, in my view, towards giving a liberal meaning to the expression ‘administrative functions’, in keeping with the purpose of the FOI Act.

35 In my view the term ‘administrative functions’ is used in s 39 to refer to all those functions performed by the agency which relate to the management and execution of its responsibilities as derived from common law, statute or governmental arrangements. In the present instance the personal records in issue have been created in connection with the execution by the agency of its key responsibility, the enforcement of the criminal law.

36 Incident reports referring to individuals, and the host of records which can then be generated about individuals all involve, I consider, the creation of documents that are available to the Police Service ‘for use … in connection with its administrative functions’. (Personal records that have been removed from ‘use’ by, for example, being permanently archived might not fall into this category, but even then there may be rights of access and amendment nonetheless conferred by other laws, such as archives laws and personal information privacy laws.)

37 In my view the expression ‘administrative functions’ as used in s 39(b) covers documents that are held for operational purposes. It may be that ‘policy’ documents that refer to individuals and ‘commercial’ documents that refer to individuals can be differentiated from operational documents; and fall outside the scope of Part 4.

38 My ruling is that the documents in issue (Documents 1 and 2; 6 to 12) are covered by s 39(b). Accordingly the applicant had a right to apply for amendment pursuant to s 39. The agency has wrongly refused to entertain the application.

ORDER

1. Objection to jurisdiction dismissed.

2. Application to be relisted for a further planning meeting.