Pedersen v Commissioner of Police

[1999] NSWADT 113

CITATION:	Pedersen -v- Commissioner of Police [1999] NSWADT 113
DIVISION:	General
APPLICANT:	Iver Pedersen
RESPONDENT:	Commissioner of Police
FILE NUMBER:	993119
HEARING DATES:	09/17/1999
SUBMISSIONS CLOSED:	09/17/1999
DATE OF DECISION:	22 November 1999
BEFORE:	K Wilson - Judicial Member
PRIMARY LEGISLATION:	Freedom of Information Act, 1989
APPLICATION:	Review of decision to refuse access to documents (or part thereof) -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: E Oates, solicitor, Oates and Smith Solicitors Respondent: R Henderson of counsel instructed by R Salpeter, Crown Solicitor's Office
ORDERS:	1. The Tribunal determines that the applicant should be given access to copies of the handwritten notes that were made in relation to his assessment and that particular criteria and notes relating to other applicants should be deleted from any documents that are provided to him.

1 The applicant, Mr Iver Pedersen, made an application to the Assessment Services Directorate of the New South Wales Police Services on 4 February 1999 seeking access to all documents, notes, memoranda and reports compiled by, provided to, and/or considered by the Assessment Centre relating to his performance and appearance during an assessment process.

2 These documents were not made available and the applicant was advised by letter dated 1 March 1999 addressed to the Police Association of New South Wales the basis on which the Senior Legal Officer had decided that disclosure of the information sought would be contrary to the public interest. The decision maker sought to rely on the provisions set out in section 25(1)(a) of the Freedom of Information Act in that the provisions in schedule 1, clause 16(a) (I), (ii), (iii), of the Act were relevant. These provide as follows:

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

(a) could reasonably be expected:

(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or

(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or

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

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency’s function, or

(v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and


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

3 In essence the exemption related to the claim that the document if it were disclosed would prejudice the effectiveness of the method and procedures for the conduct of tests, examinations and audits by the Agency and would prejudice the attainment of the objects of those tests and would or could have a substantial adverse effect on the management or assessment of the Agency’s personnel.

4 The applicant then sought review of this decision. Documents were exchanged between the two parties and finally the matter came on for hearing before the Tribunal. The principal piece of evidence was a statement by Chief Inspector Michael Lazarus, who is the Acting Chief Inspector presently attached the Assessment Services Directorate.

5 Chief Inspector Lazarus and the applicant both gave evidence. The applicant’s evidence was that he wished to have access to the actual notes of his assessment so that he could learn from them and improve his chances of passing this assessment on the next occasion. The assessment is one that is tested regularly and is a pre-requisite to officers at a certain level being considered for further promotion.

6 The evidence of Chief Inspector Lazarus was that the assessment is carried out in various forms and essentially is directed to ascertaining the quality of the candidates and their broad management capacity. The Service had objected to the provision of the assessment notes on two bases. The first was that the assessment sheet incorporates the criteria against which the assessment is made and the second was that some of the assessment notes may relate to other candidates.

7 A case was made before the Tribunal that providing the assessment notes to the applicant would detract from the effectiveness of the tests and its use in the future. On this basis exemption was sought within the provisions of schedule 1 of the Act.

8 In evidence, Chief Inspector Lazarus gave a very detailed and comprehensive run through of the assessment test and of the debriefing and further particulars that are given to applicants to the test for their learning process. In the course of his evidence he made it clear however that the assessment notes although containing handwritten assessments by the particular assessment officers could be provided in such a way that the criteria is blacked out and that any reference to any other candidate is deleted or covered.

9 The applicant is clearly uncompromising in his pursuit of the particular notes that were made about his performance in the assessment. It was clear to the Tribunal that his focus on this issue may well detract from his capacity to address the broad areas of development that these assessment tests are meant to quantify. However it does appear to the Tribunal that these notes for whatever purpose they could be used in the future can be provided in such a way that the relevant material which should be covered by the exemption can be covered over or deleted.

10 The Tribunal notes that in this context the evidence of Chief Inspector Lazarus is that when he finally received a request from Mr Pedersen for a debriefing, that he provided the debriefing by reference to the notes and everything that he had access to was able to be provided in an oral session to the applicant but he felt constrained in passing over copies of the document.

11 The Tribunal has given serious consideration to this matter as it is clear that the exemption is available where the integrity of an agency’s assessment process could be threatened. Initially the Tribunal considered that this matter fell within the parameters of the legislation. However, on the basis of the evidence of Chief Inspector Lazarus it was clear to the Tribunal that the actual handwritten notes that relate to the applicant Mr Pedersen can be provided although they would be provided completely out of context. The Tribunal does not believe that the formulated criteria should be made available nor should any comments that might relate to other applicants be made available.

12 The Tribunal determines that the applicant should be given access to copies of the handwritten notes that were made in relation to his assessment and that particular criteria and notes relating to other applicants should be deleted from any documents that are provided to him.