Olivieri v NSW Police Force - [2010] NSWADT 299

CITATION: Olivieri v NSW Police Force [2010] NSWADT 299
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: General Division

PARTIES:
APPLICANT
Tony Olivieri
RESPONDENT
NSW Police Force

FILE NUMBER: 093263

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 14 August 2010

DATE OF DECISION:
15 December 2010

BEFORE: Molony P - Judicial Member

CATCHWORDS: Freedom of Information Act - Access to documents - law enforcement & public safety – substantial and unreasonable diversion of agency’s resources

LEGISLATION CITED: Freedom of Information Act 1989
Government Information (Public Access) Act 2009 Administrative Decisions Tribunal Act 1997

CASES CITED: Attorney-General's Department v Cockcroft (1986) 64 ALR 97 Cianfrano v Premier's Department [2006] NSWADT 137
Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Dunstan v Department of Corrective Services [2004] NSWADT 177
IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
R v Olivieri; R v Norman [2006] NSWSC 882

REPRESENTATION:
APPLICANT
In person
RESPONDENT
A Johnson, solicitor

ORDERS: (1) Affirm the decision of the Agency made on 12 May 2010 with respect to points 2, 7 and 8
(2) Set aside the decision of the Agency made on 12 May 2010 with respect to point 5, and in its place to determine that the document is not held by the Agency
(3) Order that paragraphs 39 to 41 of these reasons, inclusive, not be disclosed to Mr Olivieri, his representatives, or to the public, and that those paragraphs not be published
(4) Order that the confidential statement of Mr Downie not be disclosed to Mr Olivieri, his representatives, or to the public.

REASONS FOR DECISION

Background

1 On 1 April 2009 Mr Olivieri made a request to the NSW Police Force for information under the Freedom of Information Act 1989 (the FOIA).

2 Mr Olivieri is presently serving a sentence of imprisonment for the murder of Thomas Williams in April 2004. He was convicted and sentenced to 33 years imprisonment. The case against Mr Olivieri was that he had been engaged by his co-accused to kill Mr Williams, and had done so by entering the deceased’s office and shooting him four times.

3 The Police Investigation into the murder was called Operation Burkitt. It was lead by detective Senior Constable Downie. Details of the investigation including the investigation log, emails, reports etc, were recorded using an investigative database system – Eaglei.

4 Among the evidence admitted against Mr Olivieri at his trial were a number of telephone intercepts of mobile phone conversation to which Mr Olivieri was party. In his decision ruling on the admissibility those intercepts in R v Olivieri; R v Norman [2006] NSWSC 882, Hidden J, at [3] –[8], set out the circumstances in which those phone calls were intercepted –

“3 All the calls were made after the publication of an…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] NSWADT 299
Decision Date: 15 December 2010

CaseChat Overview and Summary

In the case of Olivieri v NSW Police Force, the applicant sought access to certain documents held by the NSW Police Force under the Freedom of Information Act 1989 (NSW). The dispute centred on the disclosure of documents related to a criminal investigation, with the applicant contending that the agency's refusal to provide access to these documents was unreasonable and unjustifiable. The matter was heard by the Information and Privacy Commission of New South Wales (the Commission) and subsequently appealed to the Land and Environment Court of New South Wales.

The primary legal issues the court had to resolve were whether the documents were properly withheld under the exemptions outlined in the Freedom of Information Act and, if so, whether the refusal to disclose them was unreasonable. The court had to consider the balance between the public interest in transparency and the potential harm to law enforcement and public safety that might result from disclosure. The court also needed to assess whether the refusal to disclose the documents resulted in a substantial and unreasonable diversion of the agency's resources.

The court found that the NSW Police Force was justified in withholding certain documents under the exemptions for law enforcement and public safety. The court held that the documents in question contained sensitive information that, if disclosed, could potentially jeopardise ongoing criminal investigations and undermine public safety. The court determined that the substantial and unreasonable diversion of agency resources was not a valid ground for overturning the decision, as the agency had adequately demonstrated the need for non-disclosure. The court also found that the refusal to disclose certain documents was not unreasonable, given the potential impact on the investigation.

The court's orders affirmed the decision of the agency with respect to certain points, set aside the decision regarding other points, and determined that specific paragraphs and a confidential statement should not be disclosed to the applicant or the public. The orders underscored the importance of balancing the public's right to information with the need to protect sensitive law enforcement information and ensure public safety.

Orders

Orders of the court

(1) Affirm the decision of the Agency made on 12 May 2010 with respect to points 2, 7 and 8

(2) Set aside the decision of the Agency made on 12 May 2010 with respect to point 5, and in its place to determine that the document is not held by the Agency

(3) Order that paragraphs 39 to 41 of these reasons, inclusive, not be disclosed to Mr Olivieri, his representatives, or to the public, and that those paragraphs not be published

(4) Order that the confidential statement of Mr Downie not be disclosed to Mr Olivieri, his representatives, or to the public.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Olivieri v NSW Police Force [2010] NSWADT 299 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Tony Olivieri RESPONDENT NSW Police Force
FILE NUMBER:	093263
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	14 August 2010
DATE OF DECISION:	15 December 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Freedom of Information Act - Access to documents - law enforcement & public safety – substantial and unreasonable diversion of agency’s resources
LEGISLATION CITED:	Freedom of Information Act 1989 Government Information (Public Access) Act 2009 Administrative Decisions Tribunal Act 1997
CASES CITED:	Attorney-General's Department v Cockcroft (1986) 64 ALR 97 Cianfrano v Premier's Department [2006] NSWADT 137 Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Dunstan v Department of Corrective Services [2004] NSWADT 177 IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 R v Olivieri; R v Norman [2006] NSWSC 882
REPRESENTATION:	APPLICANT In person RESPONDENT A Johnson, solicitor
ORDERS:	(1) Affirm the decision of the Agency made on 12 May 2010 with respect to points 2, 7 and 8 (2) Set aside the decision of the Agency made on 12 May 2010 with respect to point 5, and in its place to determine that the document is not held by the Agency (3) Order that paragraphs 39 to 41 of these reasons, inclusive, not be disclosed to Mr Olivieri, his representatives, or to the public, and that those paragraphs not be published (4) Order that the confidential statement of Mr Downie not be disclosed to Mr Olivieri, his representatives, or to the public.