N v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 197

Reported Decision: Appeal Dismissed

CITATION:	N -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 197 revised - 13/12/2001
DIVISION:	General Division
PARTIES:	APPLICANT N RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013086
HEARING DATES:	Written submissions only
SUBMISSIONS CLOSED:	10/02/2001
DATE OF DECISION:	11/22/2001
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - secrecy provisions - Freedom of Information Act - access to documents - secrecy provisions
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Police Integrity Commission Act 1996 Police Service Act 1990
CASES CITED:	Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 Mathieson v Burton (1971) 124 CLR 1 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 Chief Executive, SAS Trustee Corporation -v- Daykin [2000] NSWADTAP 20
REPRESENTATION:	APPLICANT In person RESPONDENT M Tzannes, barrister
ORDERS:	Decision under review affirmed.

1 The applicant for review (whose identity is the subject of a suppression order) has, during the course of planning meetings agreed to reduce the scope of this application, one of several that the applicant has lodged naming different agencies as respondents.

2 The issue that remains in this case is whether the respondent, the Commissioner of Police, was justified under the Freedom of Information Act 1989 (FOI Act) in refusing to release three documents the Police Service holds that refer to the applicant and contain allegations of ... [suppressed by Order] against him. The documents were supplied to the Commissioner by the Police Integrity Commission (PIC).

3 The parties have agreed that I should deal with this issue without a formal hearing, based on the written submissions filed by them, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997. I am satisfied that this course is acceptable.

4 The refusal is based on the exemption contained in cl 12, Schedule 1, FOI Act – the secrecy provisions exemption. Clause 12 provides:

‘ 12. Documents the subject of secrecy provisions
(1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions.
(2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence.’
5 The secrecy provision upon which the Commissioner relies is s 56 of the Police Integrity Commission Act 1996 (PIC Act). The Police Service is a body of a kind covered by s 56(1). Section 56 relevantly provides:
‘ 56 Secrecy
(1) This section applies to: ...
(d) a person or body referred to in section 15 (6), 18 (4), 77 (5) or 83 (6), ... .
(2) A person to whom this section applies must not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act:
(a) make a record of any information, or
(b) divulge or communicate to any person any information,
being information acquired by the person by reason of, or in the course of, the exercise of the person's functions under this Act.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(3) A person to whom this section applies cannot be required:
(a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or
(b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act,
except for the purposes of a prosecution, disciplinary proceedings or proceedings under Division 1A or 1C of Part 9 of the Police Service Act 1990 , arising out of an investigation conducted by the Commission in the exercise of its functions.
(4) Despite this section, a person to whom this section applies may divulge any such information:
(a) for the purposes of and in accordance with this Act, or
(b) for the purposes of:
(i) a prosecution, or
(ii) disciplinary proceedings, or
(iii) the making of an order under section 173 or 181D of the Police Service Act 1990 , or
(iv) proceedings under Division 1A or 1C of Part 9 of that Act,
arising out of an investigation conducted by the Commission in the exercise of its functions, or
(c) in accordance with a direction of the Commissioner or Inspector, if the Commissioner or Inspector certifies that it is necessary to do so in the public interest, or
(d) to any prescribed authority or person.
(5) An authority or person to whom information is divulged under subsection (4), and any person or employee under the control of that authority or person, is subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) in respect of that information as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act.
(6) In this section:
"court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
"produce" includes permit access to.’
6 I have not personally examined the documents in issue, but proceed on the following facts, as agreed by the parties.

7 The Police Service received the three documents mentioned from the PIC. They were supplied by the PIC on the understanding that the information is confidential. The PIC is permitted to co-operate in its work with other investigative agencies, such as the Police Service. Section 18 of the PIC Act relevantly provides:

‘ (3) The [PIC] may consult with and disseminate intelligence and information to investigative agencies and such other persons and bodies (including any task force and any member of a task force) as the [PIC] thinks appropriate (whether or not they are in or of the State).
(4) If the [PIC] disseminates information to a person or body under this section on the understanding that the information is confidential, the person or body is subject to the secrecy provisions of section 56 in relation to the information.’
8 The applicant’s submission accepts that the exemption is applicable to the documents in issue. He submits, however, that the Tribunal should nonetheless order release in the exercise of a ‘public interest’ override discretion.

9 The respondent opposes the application on three grounds:

(1) the Tribunal has erred in law in the past in finding that it has the power to exercise such a discretion where an exemption is applicable;
(2) that if that submission is not accepted, the Tribunal should not exercise the discretion in cases where an agency is in possession of documents supplied to it by the PIC and affected by s 56 of the PIC Act; and
(3) if the last submission is not accepted as too wide, that in the circumstances of this case, the documents in issue not be released as the public interest in non-disclosure should be preferred.
10 The parties have filed detailed written submissions on these issues.

11 The Tribunal’s view that it has available to it a ‘public interest’ override discretion derives from the decision in Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 (General Division, Judicial Member Smith).

12 The FOI Act provides in s 25(1)(a) that an agency ‘may’ refuse access to an exempt document ‘if it is an exempt document.’ It is a fundamental objective of the FOI Act that the rights of the public to obtain access to information held by the Government are to be extended ‘as far as possible’: FOI Act, s 5(1). In Mangoplah, the Tribunal noted that prior to the transfer of the review jurisdiction from the District Court to the Tribunal (the transfer occurred on 6 October 1998) the FOI Act, s 55(5) had expressly stated that the District Court was not entitled to determine that access to an exempt document be given. That provision had been repealed; and the Act was now silent on the matter. Such a bar continues to apply at Commonwealth level, while in Victoria there is an express power vested in that State’s tribunal to override a decision to refuse access in the public interest. The Tribunal concluded:

‘83 In my opinion the amendments to the FOI Act suggest that Parliament expected that the Tribunal otherwise would perform its usual function of merits review as provided by the Administrative Decisions Tribunal Act. An inference arises from the repeal that it intended that external merits review should no longer be restrained by the previous special limitation (c.f. Mathieson v Burton (1971) 124 CLR 1 at 26).
84 The substantive function of the Tribunal provided by s 63(1) of the ADT Act is "to decide what the correct and preferable decision is having regard to the material then before it, including ... any applicable ... law". In effect, this provision adopts jurisprudence developed in relation to the Commonwealth Administrative Appeals Tribunal, and requires the Tribunal to address the merits of the decision made by the primary decision-maker by reference to the same legal parameters as governed the primary decision (c.f. Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 per Bowen CJ and Deane J at 68, Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 - the change from "correct or preferable" is, in my opinion, without significance).
85 Consistent with this jurisprudence, absent any special limitation on the Tribunal's review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act - indeed the duty - when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it.’
13 In effect the Tribunal in Mangoplah adopted the view that just as the agency was not bound to refuse to grant access to a document where an exemption was applicable, similarly on review the Tribunal should not be bound to refuse to grant access to a document. That view has been generally endorsed, without close analysis, in a number of other decisions including ones in which I have sat as the presiding member: see, for example, Chief Executive, SAS Trustee Corporation -v- Daykin [2000] NSWADTAP 20. But there are no instances, including Mangoplah itself, where the ‘public interest’ override has, in fact, been exercised in favour of the applicant for access after the exemption upon which the agency relied has been found to be applicable.

14 The issue of whether the Tribunal correctly stated the law in Mangoplah has yet to be finally decided at the Appeal Panel level. I am not inclined on this occasion to explore that issue in detail, as I am satisfied that if there is a public interest discretion available to the Tribunal, it should not be exercised in this case on the basis of the second submission of the respondent.

15 The PIC enjoys an agency exemption from the operation of the FOI Act in respect of its ‘corruption prevention, complaint handling, investigative and report functions’: FOI Act, Schedule 2. The information in issue in this case, the parties agree, contained allegations of ... [suppressed by Order] against the applicant, and was supplied to the Police Service. It is information that when controlled by the PIC fell within the compass of the Schedule 2 agency exemption. The secrecy provision, s 56, applies to officers of the Police Service as recipients in confidence of the information from the PIC: s 18(4) PIC Act.

16 The Tribunal, as it would have been without jurisdiction, could not have exercised any FOI Act discretion against the PIC to order release of this information when held by the PIC as the information was connected with its investigative functions. It would not, I consider, be appropriate for the Tribunal to apply any override discretion that it may have to information totally exempt at its original location, where it passes to a recipient agency and thereby becomes governed by the FOI Act and where the recipient agency is opposed to release. Such an approach ensures that Parliament’s fundamental policy goal is upheld, i.e. that information held by the PIC in relation to its core functions is left unaffected by the FOI Act.

Order
Decision under review affirmed.