Police v JK - [2022] SASC 144

Supreme Court of South Australia
(Appeal to a Single Judge)
POLICE v JK
[2022] SASC 144
Judgment of the Honourable Justice McDonald
6 December 2022
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS CONCERNING THE OPERATIONS OF AGENCIES
POLICE - INTERNAL ADMINISTRATION - OTHER MATTERS
This is an appeal by the South Australia Police (“SAPOL”) of a decision of a Member of the South Australian Civil and Administrative Tribunal (“the Tribunal”).
On 4 June 2021 the respondent submitted an application under s 13 of the Freedom of Information Act 1991 (“FOI Act”) for a range of documents relating to an incident involving the respondent and SAPOL officers on 22 December 2019 (“the FOI application”). The respondent had previously lodged a complaint against two police officers in relation to the incident. That complaint had been assessed pursuant to ss 13 and 14 of the Police Complaints and Discipline Act 2016 (SA) (“PCD Act”). It had been concluded that there was no reasonable prospect that further investigation would establish any breach by an officer of SAPOL’s Code of Conduct, and the complaint file was administratively closed.
On 8 July 2021 the appellant determined not to release any documents falling within the scope of the FOI application. It determined that the documents were “exempt documents” pursuant to cl 12(1) of Sch 1 of the FOI Act, on the basis that their disclosure would constitute an offence against s 45 of the PCD Act. On 15 July 2021 the matter was reconsidered by the appellant and it was again determined to not release any of the documents within the scope of the FOI application. On 6 August 2021, following an application for internal review of that determination, the appellant confirmed its original determination. The respondent sought external review by the Tribunal. The question for determination by the Tribunal was whether disclosure of information requested by the respondent constituted an offence under s 45 of the PCD Act and was thereby exempt from disclosure under cl 12(1) of Sch 1 of the FOI Act. The Tribunal set aside the appellant’s decision and remitted it for reconsideration by the appellant in accordance with the Tribunal’s reasons. The appellant appealed that decision to this Court.
Prior to this appeal being heard, the respondent filed a Notice of Alternative Contention, conceding ground 1 of the Notice of Appeal. The Notice of Alternative Contention initially contained two grounds by which it was said that the Tribunal could have arrived at the same decision. By the time of the hearing of this appeal, the respondent had abandoned the second ground and relied only on the first. That ground is:
“Disclosure of the documents in the respondent’s Freedom of Information Act application for access to SAPOL records (FOI Application), except for item 6 in the FOI Application, would not have been an offence against s 45(1) of the Police Complaints and Discipline Act (PCDA) because the FOI Application (except for item 6) did not call for disclosure of information by a person “who is or has been engaged in the administration of” the PCDA. Accordingly, the documents sought by the respondent in her FOI Application (apart from item 6) were not exempt documents within the meaning of the FOI Act”.
The appellant contended that those members of SAPOL tasked with administering, assessing and processing FOI applications, when, and insofar as, they are also considering the application of the relevant PCD Act provisions, are in doing so “engaged in the administration of [the] PCD Act”. Were it otherwise, the practical utility of s 45(1) would be subverted by the mere happenstance that those tasked with administering the confidentiality provision of the PCD Act in the context of FOI applications are not administratively located within the Internal Investigation Section (“IIS”) of SAPOL.
Held, allowing the appeal:
1.Leave to appeal is granted.
2.The appeal is allowed and the Tribunal’s decision is set aside.
3.In lieu thereof, a decision is substituted affirming the decision of the appellant to refuse the respondent access to the documents sought pursuant to her application made under s 13 of the FOI Act dated 4 June 2021.

Freedom of Information Act 1991 (SA) ss 3, 3A, 13, 14, 20, 29, 38, sch 1 cl 12(1), sch 2(e)-(q); Independent Commissioner Against Corruption Act 2012 (SA) s 54; Industrial Relations Act 1996 (NSW) s 84(1); Police Complaints and Discipline Act 2016 (SA) ss 5, 8, 10(3),16, 4, 19, 30, 39, 44, 45, 46; Police Act 1990 (NSW) s 72A; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 40(2), 71; Uniform Civil Rules 2020 (SA) r 212.2(1)(b); , referred to.
Bell v The Queen (2020) 286 A Crim R 501, applied.
New South Wales Commissioner of Police v Cottle (2022) 96 ALJR 304, discussed.
Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; White and Others v State of South Australia and Others (2007) 96 SASR 581, considered.

POLICE v JK
[2022] SASC 144
Civil: Appeal to a Single Judge
McDONALD J.
Introduction

This is an appeal of a decision of a Member of the South Australian Civil and Administrative Tribunal (“the Tribunal”) pursuant to s 71 of the South AustralianCivil and Administrative Tribunal Act 2013 (“SACAT Act”) and rule 212.2(1)(b) of the Uniform Civil Rules 2020 (SA) by the South Australia Police (“SAPOL”). That decision was to set aside a determination by SAPOL to refuse access to documents sought by the respondent pursuant to an application made under the Freedom of Information Act 1991 (SA) (“FOI Act”).
Background
On 22 December 2019, there was an incident involving the respondent and two SAPOL officers in Coober Pedy. On 15 January 2020, the respondent lodged a complaint about the conduct of those police officers during that incident. In the complaint the respondent alleged, inter alia, that she had been assaulted by the police during the course of her arrest.
The complaint was assessed pursuant to s 13 and s 14 of the Police Complaints and Discipline Act 2016 (SA) (“the PCD Act”). On 29 January 2020, Chief Inspector Paul Isherwood from the SAPOL Internal Investigation Section (“IIS”), wrote to the respondent and advised that her complaint had been assessed, the conduct of the officers had been found to be appropriate in the circumstances, and that the complaint file would be closed.
On 4 June 2021, the respondent lodged a freedom of information (“FOI”) application for access to SAPOL records pursuant to s 13 of the FOI Act.
The FOI application sought disclosure of the following:[1]
[1]     Open affidavit of Sandra Watson affirmed on 8 October 2021 (“Watson Affidavit”) at [6].
1.The COPS database event relevant to the arrest, detention of [JK] on 22 December 2019 at the Painters Road Coober Pedy at approximately 12:30 am by South Australian Police Force officer Constable Williamson [‘the incident’];
2.Inspection or a copy of audio or visual footage, such as BWV footage or CCTV footage, held or obtained by the South Australian Police in relation to the incident;
3.Police notebook entries completed by South Australian Police Force in relation to the incident;
4.Use of force forms held by South Australian Police Force in relation to the incident;
5.Inspection or copy of in-car video footage held by South Australian police Force relation to the incident, depicting [JK] and/or South Australian Police Force Officers;
6.A copy of any complaints submitted to the South Australian Police Force regarding the conduct of South Australian Police Force in detaining, arresting, prosecuting or otherwise dealing with [JK] during the course of the incident;
7.Custody management records in relation to [JK] on 22 December 2019;
8.CAD Incident Log for South Australian Police Force attending the incident;
9.Police VKG radio (in all evidence formats) from 22 December 2019 referring to the Incident and/or:
1.    Police Vehicle LAC
2.    Constable Williamson and/or other police officers involved on 22 December 2019
10.Any Witness Statements or notes taken in order to prepare witness statements in relation to the incident.
11.Police Brief of Evidence (including any court report, subpoena, affidavit of service or other information);
12.Warnings in relation to the Plaintiff relevant as of 22 December 2019.
On 10 June 2021, the FOI application was received by the FOI Unit at SAPOL and a file was created, 21/2412 (“2412”). On 16 June file 2412 was reviewed by an administrative support officer in the FOI Unit. He requested that checks were undertaken with the IIS to determine whether they held any relevant documents.[2]
[2] Watson Affidavit at 2.
On 28 June 2021, file 2412 was further reviewed by a research officer in the FOI Unit. During the course of that review, the SAPOL Shield database was accessed. The Shield database was the current mainframe system used by SAPOL. Contained within that database was a document called “Detailed Occurrence Report” that related to the incident that was the subject of the respondent’s FOI application. Reports of this kind are used and can be accessed by several areas within SAPOL to comment on, or upload documents related to, the events that are the subject of the report. Following the location of this document, that same day, the FOI research officer sent a further request to the IIS to ascertain whether there were any complaint files held by them in relation to the incident that was the subject of the FOI application.[3]
[3] Watson Affidavit at 3.
Chief Inspector Joanne Sharman was the Officer in Charge of the IIS at the relevant time. In that role she was responsible for overseeing breaches of discipline relating to all SAPOL employees. These included breaches by sworn members, police cadets and special constables pursuant to the PCD Act.[4] In that role she held a delegation from the Commissioner of Police under s 19 of the Police Act 1998 (SA), authorising her to make a determination about disclosure or release of information under the PCD Act. It follows that part of Chief Inspector Sharman’s role was to make decisions about whether or not such information was to be authorised for release.[5]
[4] Affidavit of Joanne Sharman sworn on 8 October 2021 (“Sharman Affidavit”) at [8].
[5] Sharman Affidavit at [3].
Chief Inspector Sharman received the email that was sent from the FOI Unit of SAPOL on 28 June 2021. As a consequence, she caused staff in the IIS to check to see if there had been a complaint in relation to the incident. It was determined that there had been such a complaint that had been given a file number (C2020-1292) (“1292”).[6] Chief Inspector Sharman ascertained that the complaint had been made against a sworn officer and had been made under the PCD Act. The file was retained electronically on the complaint management system established by the IIS in accordance with s 6 of the PCD Act. That system stored information relevant to complaints received by the IIS.[7]
[6] Watson Affidavit at [13].
[7] Sharman Affidavit at [6].
Chief Inspector Sharman made a determination to exercise her discretion to decline to authorise the release of information relating to the complaint. On 1 July 2021, Chief Inspector Sharman sent an email to the FOI Unit of SAPOL confirming that the FOI application received by them related to the IIS complaint file 1292 and advised that she did not authorise the release of the material relating to the complaint pursuant to the PCD Act.[8]
[8] Sharman Affidavit at [8].
On 8 July 2021, as a result of being advised that there was an IIS complaint file relating to the incident that was the subject of the FOI application and that the release of the information was not authorised by the Commissioner, the manager of the FOI Unit, Senior Sergeant Tracey Gentgall,[9] determined not to release the documents (“the original determination”). The basis for that determination was that in her view all such documents would constitute exempt documents pursuant to cl 12(1) of sch 1 of the FOI Act, in light of the operation of s 45(1) and (3) of the PCD Act.
[9] It is of note that the rank of the manager of the FOI Unit is significantly lower than the Officer in Charge of the IIS.
The original determination was communicated to the respondent in a letter dated 8 July 2021, that was sent by email on 9 July 2021. That same day the FOI Unit received a letter in response from the respondent’s solicitor. In that letter, the respondent’s solicitor made out an argument that “the FOI Act grants a legally enforceable right to obtain documents that are held by South Australian Police” and that in those circumstances there were no valid grounds to refuse the respondent’s application. The letter concluded with a “request [for] the expeditious release of the material requested by [JK], or a new Notice of Decision articulating the reasons for refusal of disclosure pursuant to the FOI Act”.
As a consequence of receiving this letter, Senior Sergeant Gentgall reconsidered the matter. She again determined to not release any of the documents falling within the scope of the FOI application on the same basis as the previous determination (“the second determination”).
The second determination was communicated to the respondent by letter dated 15 July 2021, that was emailed on 16 July 2021.
On 3 August 2021, the respondent attended at the Coober Pedy police station and submitted an application pursuant to s 29 and s 38 of the FOI Act for an internal review of the second determination. Later that day a copy of the application was emailed to the FOI Unit.
On 6 August 2021, the internal review application and the FOI file was forwarded to the Internal Review Officer in the FOI Unit, Ms Debbie Smith.[10] Ms Smith completed the internal review and decided to confirm the second determination. That same day a letter was emailed to the respondent advising her of the outcome of the review. In that letter Ms Smith explained that under the FOI Act the respondent had additional rights to review the decision. The respondent was advised that pursuant to s 39 of the FOI Act she could apply to the Ombudsman or alternatively s 40(2) enabled her to apply to SACAT for an external review. The respondent adopted the latter course.
[10] Ms Smith was a public servant employed by SAPOL.
On 2 September 2021, the respondent made an application under s 34 of the SACAT Act for a review of the decision of SAPOL made on 6 August 2021.
The matter came before the Tribunal for hearing on 8 December 2021. The respondent sought an external review of the internal review decision to refuse access to the documents sought pursuant to the application under the FOI Act. The question for determination by the Tribunal was whether disclosure of information requested by the applicant constituted an offence under s 45 of the PCD Act and was thereby exempt from disclosure under sch 1, cl 12 of the FOI Act.
Relevant Legislative Provisions
At the centre of the contest at the Tribunal hearing and on the appeal before this Court is the statutory interpretation and intersection of relevant sections in the FOI Act and the PCD Act. It is therefore necessary to set out the relevant sections in full.
FOI Act
The FOI Act creates a right of access to information held by government agencies, defines exemptions from access for documents of certain kinds, imposes obligations on agencies in relation to the determination of applications for access to documents, gives qualified rights to members of the public to collect information held about them by government agencies, and provides review processes for decisions relating to access and collation of information.
The objects and principles of administration are set out in s 3 and s 3A of the Act:
3—Objects
(1)The objects of this Act are, consistently with the principle of the Executive Government’s responsibility to Parliament—
(a)     to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and
(b)     to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.
(2)The means by which it is intended to achieve these objects are as follows:
(a)     ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and
(b)     conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and
(c)     enabling each member of the public to apply for the amendment of such government records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading.
(3)Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law.
3A—Principles of administration
(1)It is the intention of the Parliament—
(a)     that this Act should be interpreted and applied so as to further the objects of this Act; and
(b)     that a person or body exercising an administrative discretion conferred by this Act exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals.
(2)Agencies are to give effect to this Act in a way that—
(a)     assists members of the public and Members of Parliament to exercise rights given by this Act; and
(b)     ensures that applications under this Act are dealt with promptly and efficiently.
Section 12 sets out the general principles in relation to an individual’s right to access documents held by a government agency.
12—Right of access to agencies’ documents
A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.
(Emphasis added)
It follows that the right to access documents held by government agencies is not unfettered and is restricted by the very terms of the FOI Act. There is no presumption in favour of disclosure, nor is there a presumption against disclosure. Section 20 sets out circumstances in which an agency may refuse to provide access to a document held by that agency.
20—Refusal of access
(1)An agency may refuse access to a document—
(a)     if it is an exempt document; or
(b)     if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge; or
(c)     if it is a document that is usually and currently available for purchase; or
(d)     if it is a document that—
(i)was not created or collated by the agency itself; and
(ii)genuinely forms part of library material held by the agency; or
(e)     if it is a document that came into existence before 1 January 1987.
(2)Subsection (1)(e) does not permit an agency to refuse access to—
(a)     a document that contains information concerning the personal affairs of the applicant; or
(b)     a document that is reasonably necessary to enable some other document (being a document to which the agency has given access under this Act) to be understood; or
(c)     a document if 20 years have passed since the end of the calendar year in which the document came into existence.
(4)If—
(a)     it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and
(b)     it appears to the relevant agency (either from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy,
the agency must not refuse to give access to the document to that limited extent.
(Emphasis added)

Schedule 1 sets out the various categories of documents that are or may be “exempt documents” for the purpose of the FOI Act. Relevantly, cl 12 of sch 1 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.
(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 made, would constitute such an offence.
It was this provision upon which SAPOL relied on for its refusal to provide the documents requested by the respondent.
It is worth observing that not only are there categories of documents that are exempt from the right to access under the FOI Act, but there are entire government agencies who are exempt from the operation of the Act. These are set out in sch 2 of the FOI Act.[11] Those agencies range from the Office of Public Integrity to the Auditor-General, the Legal Profession Conduct Commissioner and the Commissioner for Children and Young People. Included within that list are current and former sections of SAPOL. These are:[12]
(p)South Australia Police in relation to information compiled by—
(i)    the former Special Branch; or
(ii)     the former Operations Planning and Intelligence Unit; or
(iii)    the Operations Intelligence Section (or a body substituted for the Operations Intelligence Section); or
(iv)    the Anti-Corruption Branch (or a body substituted for the Anti-Corruption Branch);
[11] Freedom of Information Act 1991 (SA) sch 2 (e)-(q).
[12] Freedom of Information Act 1991 (SA) sch 2 (p).
It is not suggested that the units or sections of SAPOL that are under consideration in this case fall into any of these categories, however, the breadth and numbers of exemptions created under the FOI Act is indicative of the limitations to the documents that it is intended be made available by government agencies. It is plain that the FOI Act endeavours to provide openness but at the same time sets up a series of protections for other competing rights.
PCD Act
The second Act under consideration is the PCD Act. The PCD Act provides a regime for the processing, management and resolution of complaints and reports made in respect of police personnel. It contains a comprehensive regime of overlapping confidentiality provisions which are set out in ss 44, 45 and 46. These provisions together form part of one scheme which aims to guard the confidentiality of information created and/or used for a whole range of important and well recognised purposes or public interests that arise under the PCD Act. In White and Others v State of South Australia and Others, [13] in considering the predecessor to the PCD Act,[14] Doyle CJ identified those public interests and the consequential need for secrecy obligations:
I have already referred to the fact that the CDP Act has a number of provisions that emphasise the confidential aspect of investigations undertaken by the PCA and by the internal investigation branch under the CDP Act. There are no doubt a number of reasons for this. First, there may be a need to protect complainants. Confidentiality may also be required to encourage complainants to come forward, in the knowledge that their complaint will be treated as confidential. In some cases there will be a need for the fact of investigation, and its scope, to be kept confidential. If it is not, the persons under investigation might have the opportunity to destroy or to conceal relevant material, or to put their heads together. An investigation under the CDP Act will usually involve the scrutiny of the internal operations of the police force, and there may be aspects of this that should be treated as confidential. There may also be a need to keep confidential the investigation methods used by the internal investigation branch. It is also possible that disclosure of information acquired in the course of an investigation might prejudice the investigation of crimes by the police force: see s 48(3) of the CDP Act (above).
Bearing all those factors in mind, it is not surprising that there should be secrecy obligations imposed by the CDP Act. Nor is it surprising that the standard set by s 48(7)(c) is as stringent as it is. The court must be satisfied that there are “special reasons requiring the making” of an order, and in addition “that the interests of justice cannot adequately be served except by the making of” an order.
[13] (2007) 96 SASR 581 at [46]-[47].
[14] Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) (“the CDP Act”).
The key provisions of the PCD Act for current purposes are s 44 and s 45 which relate to the limitations on the requirement to divulge information and the requirements of confidentiality. Before going to the terms of those sections, it is informative to consider the structure and scheme set out under the PCD Act to deal with complaints made against police personnel.
The PCD Act creates a separate section within SAPOL, the IIS, which has the responsibility of carrying out investigations under the PCD Act. Section 5 sets out the role of the IIS.
5—Separate Internal Investigation Section to be constituted
(1)The Commissioner must ensure that a separate section (the Internal Investigation Section or IIS) is constituted within SA Police to carry out investigations under this Act in relation to the conduct of designated officers.
(2)In addition to carrying out investigations under this Act, the IIS may carry out such other investigations in relation to the conduct of designated officers as may be required by the Commissioner.
(3)The officer in charge of the IIS is entitled to report directly to the Commissioner on any matter relating to the IIS or the performance of its functions.
(4)If a member of SA Police serving in the IIS is able to perform duties unrelated to the operation of this Act without unduly interfering with the duties or functions of the IIS, he or she may be directed to do so by the Commissioner.
(5)For the purposes of this Act, a reference to a member of the IIS will be taken to be a reference to a member of SA Police serving in the IIS.
It is not only the IIS who plays a role in exercising the powers and procedures under the PCD Act. The PCD Act clearly contemplates a role for various other designated and non-designated employees of SAPOL.
By way of example, Part 2 of the Act relates to the making of complaints and reports. The sections contained in that Part set out how and in what circumstances a complaint can be made by a member of the public. Section 10(3) relates to whom a complaint can be made.
10—Making a complaint about conduct of designated officer
…
(3)A complaint may be made by, or on behalf of, an aggrieved person to—
(a)     a designated officer (not being an officer to whom the complaint relates); or
(b)     a police public servant; or
(c)     the OPI,
…
It follows that there is a role for each of those nominated in the administration of the act. Similarly in Part 3 – ‘Certain matters to be resolved by Management Resolution’, the Act envisages that members of SAPOL falling outside of the IIS will be involved in the resolution of a complaint. The sections falling under this Part allow for the Commissioner to cause a matter to be referred to a suitable member of SAPOL (“the resolution officer”) for resolution. It is the clear intention of the PCD Act that the resolution officer will come from outside of the ranks of the IIS and will play a pivotal role in attempting to bring a matter to an appropriate outcome.
Turning then to the two most critical sections of the PCD Act in the determination of this appeal, s 44 and s 45. Those sections read:
44—Limitation on requirement to divulge information
Despite any other Act or law, a person who is, or who has been, engaged in the administration or enforcement of this Act or the repealed Act cannot be required to divulge information disclosed or obtained in the course of an investigation under this Act or the repealed Act except where such a requirement is made—
(a)in proceedings before a court or the Tribunal in respect of—
(i)    an offence; or
(ii)     a breach of discipline,
relating to a matter the subject of the investigation; or
(b)in proceedings under the Royal Commissions Act 1917; or
(c)by the ICAC or the OPI; or
(d)by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.
45—Confidentiality
(1)Except as required or authorised by this Act or by the Commissioner, the ICAC or the OPI, a person who is or has been engaged in the administration of this Act must not, directly or indirectly, disclose information in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment or investigation under this Act.
Maximum penalty: $2 500 or imprisonment for 6 months.
(2)Despite subsection (1), a person engaged in the administration of this Act may disclose information—
(a)     for the purposes of the administration or enforcement of this Act; or
(b)     for the purposes of a criminal proceeding or a proceeding for the imposition of a penalty; or
(c)     for the performance of the functions of the Commissioner, the ICAC or the OPI under another Act; or
(d)     in accordance with an order of a court; or
(e)     if the information relates to the person and is disclosed by the person to a close family member of the person; or
(f)     as otherwise required or authorised by this or another Act.
(3)A person who receives information knowing that the information is connected with a matter that forms or is the subject of a complaint, report, assessment or investigation under this Act must not disclose that information unless—
(a)     the person is authorised in writing by the Commissioner, the ICAC or the OPI, or by a person approved by the Commissioner, the ICAC or the OPI, under this section to give an authorisation; or
(b)     the disclosure of that information is for the purpose of—
(i)dealing with a matter under this Act by the Commissioner, or under this or the Independent Commission Against Corruption Act 2012 by the ICAC or the OPI; or
(ii)a criminal proceeding, a proceeding for the imposition of a penalty or disciplinary action; or
(iii)a person obtaining legal advice or legal representation or for the purposes of determining whether a person is entitled to an indemnity for legal costs; or
(iv)a person obtaining medical or psychological assistance from a medical practitioner or psychologist.
Maximum penalty: $2 500 or imprisonment for 6 months.
(4)For the purposes of subsection (2)(e), a person is a close family member of another person if—
(a)     1 is a spouse of the other or is in a close personal relationship with the other; or
(b)     1 is a parent or grandparent of the other (whether by blood or by marriage); or
(c)     1 is a brother or sister of the other (whether by blood or by marriage); or
(d)     1 is a guardian or carer of the other.
Sections 44 and 45 have a broad application namely to “a person who is or has been engaged in the administration of [the] Act”.[15] Section 44 relates to the limited circumstances in which a person falling into that category can be required to divulge information disclosed or obtained in the course of the investigation.
[15] Section 44 is even broader as it also applies to those engaged in the “enforcement of the Act”.
Section 45, however, creates a prohibition. It makes it a criminal offence for someone who falls into this category “to disclose information in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment or investigation under this Act”. The terms of the prohibition cast the net very widely, permitting disclosure only in such circumstances as are set out in the exemptions in s 45(2).
The SACAT proceedings
During the hearing before the Tribunal, counsel for the respondent made two arguments in the alternative, both of which are no longer relied upon. The first was that the disclosure of the requested documents would not constitute an offence under s 45 of the PCD Act because the release of the documents is “required by and/or authorised” by s 12 of the FOI Act.[16] It was submitted by counsel for the respondent that s 12 of the FOI Act created a legally enforceable right to disclose “information in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment or investigation under the PCD Act”.[17] That submission was based on s 45(2)(f) of the PCD Act which allows for disclosure “as otherwise required or authorised by this or another act”. It was said that the other Act authorising disclosure is the FOI Act and in particular s 12.
[16] JK v South Australia Police (South Australian Civil and Administrative Tribunal, Member Reilly, 16 December 2021) (“Statement of Reasons”) at 3.
[17] Police Complaints and Discipline Act 2016 (SA) s 45(3).
The Tribunal correctly rejected the argument. It did so on the basis that the “legally enforceable right” as set out in s 12 of the FOI Act is subject to a range of substantive and procedural restrictions contained within that same legislation. In this case, the relevant restriction is pursuant to sch 1, cl 12, in that the obligation does not apply to documents that are exempt on the basis that to disclose them would constitute an offence against an Act. The Tribunal found that there was a circularity to the respondent’s reasoning in relation to this submission and further, that the qualified right to gain access to documents under the FOI Act cannot be interpreted to “require or authorise” the disclosure of an otherwise confidential document. To do so would disproportionately elevate the entitlement to disclosure under the FOI Act, ignoring the very limitations created by that Act.
The Tribunal instead favoured the respondent’s alternative argument that related to the scope of the confidentiality offence created under s 45 of the PCD Act. The effect of this argument was to discern from s 45(1) a temporal expiration of s 45 and the confidentiality protection it provides for information relating to police complaints. That is, on the respondent’s suggested construction, all information related to the subject of every complaint, report, assessment or investigation under the PCD Act would cease to attract any protection from s 45 of the PCD Act as soon as the investigation was finalised.
This argument focussed on the words “information in relation to or connected with a matter that joins or is the subject of a complaint, report, assessment or investigation under this Act”. It was submitted that implicit in that wording was a requirement that the investigation was ongoing in order for the protection to be provided. The Tribunal accepted this interpretation of the legislation. The Tribunal considered the broad nature of the confidentiality provision in s 45 and concluded:
[33]The breadth of the confidentiality offence in s 45 and the serious consequences for its breach indicate that its scope was intended to be time limited to prevent it from over-reaching its purpose.
There appears however to have been an element of retrospective reasoning about the manner in which the Tribunal arrived at this decision. The reasons suggest that consideration of the operation of the legislation commenced with what was described as the “curious result” referring to the outcome of the application of the test, rather than starting with a consideration of the words that appear in the relevant sections of the PCD Act. The Tribunal made the following observations about the resulting consequences of applying the legislation in the manner in which it has been applied by SAPOL:
[34]The applicant [now respondent] pointed out that the confidentiality provision has the seemingly curious effect that the applicant’s complaint itself triggered the confidentiality provision in s45 that prevented her from gaining access to information in relation to the incident the subject of her complaint. It was the lodgement of the complaint by the applicant that created a barrier to her FOI application. This may be unremarkable while a complaint is being assessed or investigated. It is common for investigatory bodies to prevent disclosure of information during the course of investigations. Confidentiality is necessary to ensure that investigations are not compromised by key information being disclosed during the process of the investigation that reveals, among other things, the details of persons involved in complaints. It both protects parties to the inquiry and maintains the integrity of the inquiry.
[35]The same justification for confidentiality does not exist once a complaint is finalised.
The Tribunal concluded:
[40]Parliament intended the confidentiality provision to be time limited. The limit is indicated in the complex description of the relevant information, being that which is ‘in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment or investigation.’
The Tribunal determined that information is only connected with a matter that is the subject of a complaint while the complaint was ongoing. Once completed, there was no longer a matter that forms the subject of a complaint.
On that basis, the Tribunal found that the “correct and preferable”[18] decision was that information that related to a complaint which was finalised is not subject to s 45(1) of the PCD Act and no longer attracts the confidentiality protection. Consequently, the Tribunal set aside the decision under review and referred the matter back to SAPOL for reconsideration.
[18] See s 34(4) of the South Australian Civil and Administrative Tribunal Act 2013 (SA).
Respondent’s position on appeal
On the appeal to this Court, the respondent accepted that the Tribunal erred in law in its construction of s 45 of the PCD Act despite that being the interpretation that they had previously advocated for.
In my view, this concession was appropriate. An ordinary reading of the words in s 45 of the PCD Act does not reveal any textual or contextual support for reading-in a temporal expiration of the section and the protection that it affords. The Tribunal erred in so concluding.
Notice of Alternative Contention
The respondent, however, maintains that the Tribunal correctly identified that there was a tension between the provisions of the FOI Act and the PCD Act in that the making of a complaint creates an exemption for documents that would otherwise have been available under the FOI Act.
The respondent submitted that this tension can be resolved by the construction contended for in ground 1 of the Notice of Alternative Contention that had been filed. That Notice initially contained two grounds by which it was said that the Tribunal could have arrived at the same decision. By the time of the hearing of the appeal, the respondent had abandoned the second ground and relied only on the first. That ground is:
Disclosure of the documents in the respondent’s Freedom of Information Act application for access to SAPOL records (FOI Application), except for item 6[19] in the FOI Application, would not have been an offence against s 45(1) of the Police Complaints and Discipline Act (PCDA) because the FOI Application (except for item 6) did not call for disclosure of information by a person “who is or has been engaged in the administration of” the PCDA. Accordingly, the documents sought by the respondent in her FOI Application (apart from item 6) were not exempt documents within the meaning of the FOI Act.
I will refer to this ground as the ‘engagement in the administration of the Act argument’.
[19] Item 6 was a copy of any complaint submitted to the South Australian Police Force regarding the conduct of the South Australian Police Force in detaining, arresting, prosecuting or otherwise dealing with JK during the course of the incident. It was excluded on the basis that the respondent accepted that category of documentation is captured by the PCD Act.
Permission to appeal

Given this appeal is brought under s 71 of the SACAT Act permission to appeal is required. The appellant submits that permission should be granted on the basis that:
1. The grounds of appeal are prima facie reasonably arguable.
2. The grounds of appeal raise questions of general importance in relation to the proper construction of s.45 of the Act, which in turn has ramifications for the confidentiality or otherwise of large volumes of sensitive information the disclosure of which has hitherto been understood as falling within the scope of that confidentiality provision.
3. The implications for disclosure of documents and information under the Act on the basis of the Tribunal’s construction of s.45 will arise in cases under the Freedom of Information Act 1991 as well as in general civil litigation in relation to discovery, subpoenae [sic] and the inspection of documents subject to the Act generally.
The respondent accepts that the Notice of Appeal raises a question of sufficient substance to justify consideration by this Court and that it is in the interest of justice for the appellant to have permission to appeal. Given the position taken on the appeal, such a concession is unsurprising.
I grant permission to appeal.
The engagement in the administration of the Act argument
Respondent’s argument
Although it remained the appellant’s appeal, given the unusual turn of events and the filing of the Notice of Alternative Contention, it is logical to commence with a consideration of the argument made by the respondent.
The respondent submitted that there was a tension between the right of access provided by the FOI Act, the exemption created by cl 12 of sch 1, and s 45 of the PCD Act. It was put that the tension was not resolved by a narrow reading of s 45 (as they had contended in the Tribunal), but rather by reference to the construction of the language of the provisions, its context and purpose. It was observed by the respondent that the case proceeded in the making of the original and second decisions, the internal review and in the Tribunal on the assumption that the confidentiality provisions prohibited disclosure by any employee of SAPOL of any documents that related to a complaint made under the PCD Act. It is now the respondent’s position that this assumption is too broad and fails to give effect to the language of s 45 of the PCD Act.
Central to the respondent’s argument was the fact that the confidentiality provision was not at large but rather was imposed on “a person who is or has been engaged in the administration of this Act”. The PCD Act contains no definition of what is meant by a person who is “engaged in the administration of [the] Act”. However, it was put by the respondent that, relevantly, the Act identifies and nominates “the relevant bodies and sections”[20] that administer the Act: those being the IIS (s 5), the OPI (s 8), the ICAC (s 30), and the Police Disciplinary Tribunal (Part 7). It was submitted that the staff of those bodies and sections are persons who are or have been “engaged in the administration of” the PCD Act.[21] It follows, on the respondent’s interpretation of the section, that the obligation of confidentiality is confined to those persons. Meaning only those documents brought into existence in the course of dealing with a complaint and documents that come into the hands of the persons engaged in the administration of the PCD may not be disclosed by those persons unless authorised by the PCD Act, the Commissioner, the ICAC or the OPI.[22]
[20] Written Submissions of Respondent (FDN 13) at [43].
[21] Written Submissions of Respondent (FDN 13) at [43].
[22] Written Submissions of Respondent (FDN 13) at [44].
The respondent submitted that this interpretation would have the effect that documents that related to the complaint but had an independent existence are not quarantined by the mere fact that a complaint has been made. The evidence established that the documents that were the subject of the application were held in databases that were independent of the IIS records. It follows that it would be possible for FOI officers to obtain the documents without obtaining them from “a person engaged in the administration” of the PCD Act.
The respondent acknowledged that there was then a further hurdle created by s 45(3) of the PCD Act. This provision prohibits disclosure of information relating to a complaint by any person “who receives information knowing that the information is connected with a matter” of a complaint. It follows, on the respondent’s argument, that a FOI officer who had access to the documents but who was either incidentally aware of, or had deliberately educated themselves that the information was connected with a matter that forms or is the subject of a complaint, report, assessment or investigation under the PCD Act is captured by the prohibition.
Section 45(3) of the PCD Act does however create a number of exceptions. The respondent submitted that the documents in question would fall within s 45(3)(b)(iii), in that the disclosure of the information would be for the purpose of the respondent obtaining legal advice. In support of that submission, the respondent relied on an affidavit dated 9 November 2021 in which JK deposed the following:
23.On 21 May 2021 I contacted O’Brien Criminal and Civil Solicitors to seek legal advice concerning the events on 22 December 2019 and the subsequent prosecution and withdrawal of the prosecution.
24.On 4 June 2021 I attended at Coober Pedy Police station and lodged an FOI application to obtain documents relating to the events on 22 December 2019 and the subsequent prosecution and withdrawal of the prosecution. I particularly wanted to obtain a copy of the body worn video footage.
JK’s explanation of the reason for which she requested the documents was accepted in the Tribunal.[23] It was the respondent’s submission that given that JK sought the information for the purpose of obtaining legal advice, s 45(3)(b)(iii) permitted SAPOL to provide it to her.
[23] Statement of Reasons at [36].
In summary, it was submitted that the construction of the PCD Act advocated for by the respondent is consistent with the purposes of the Act because (excluding item 6) the FOI application did not include a request for any details about the complaint or documents or materials that would of themselves disclose that a complaint had been made. It was submitted that s 45 of the PCD Act only concerned documents that came into existence as a consequence of the complaint or in the possession of members of the IIS. Further, it was put that the construction is also consistent with the purpose of the FOI Act in:[24]
Striking the appropriate balance between the right of access to documents and the public interest in upholding the integrity of other laws that improve confidentiality requirements.
[24] Written Submissions of Respondent (FDN 13) at [53].
Appellant’s argument
At the outset of his submissions, counsel for the appellant dealt with the “curious result” reasoning adopted by the Tribunal. It was put to the Court:[25]
It’s not actually seemingly curious and the reason is this: absent a complaint being made, there is no spectre or question of disciplinary or other type of events arising for the police officer. It would then simply be a case of an individual seeks certain information and that information is supplied, there’s no exemption. But as soon as you have a complaint, then the effect of that is to trigger the PCD Act as a whole and what may then flow from that is an investigation all the way through to disciplinary proceedings against the individual and the Act as a whole is set up specifically to give certain protections to police officers with respect to the material that may be the subject of their disciplinary proceedings, such that it’s not just generally exposed to the community.
[25] T9.
The appellant took issue with the suggestion that there was any tension between the FOI Act and PCD Act. It was put that whilst there may be a touchpoint between the two Acts, there was no inconsistency or sharing the field. Rather, the terms of the PCD Act limit the operation of the FOI Act for which very event the terms of the FOI Act allows for.
Before descending into a detailed analysis of the confidentiality provisions of the PCD Act, the appellant made some general submissions about the nature of the disclosure provided under the FOI Act as compared to the protections provided under the PCD Act. It was submitted that the FOI Act is a blunt instrument that requires no provision of reasons for a request for the disclosure of documents. Further, that once the documents are disclosed, they are effectively disclosed to the world at large with no restrictions as to their use. It is no doubt for that very reason that the Act itself quarantines particular government agencies and certain categories of documents.
The appellant emphasised that it was important to bear in mind that the application for disclosure of the documents was made under the FOI Act not the PCD Act. The issue arising is whether the PCD Act and its stringent confidentiality provisions cut across the generic entitlement created by s 12 of the FOI Act. The respondent submitted that the stringency of the secrecy provisions in the PCD Act was significant. It was put that s 45 of the PCD Act created the first layer of confidentiality and s 45(3) created a further layer in the event that documents were disclosed. It was submitted that this was material to an interpretation of the section.
It was the appellant’s submission that the central flaw in the respondent’s argument was an overly narrow reading of the subject of the prohibition, namely the limitation as to who falls within the definition of “a person who is or has been engaged in the administration of this Act”. It was put by the appellant that if the intent had been to limit the prohibition to members of IIS and other external agencies or bodies, then the Act would be explicit in its terms. The fact that it is not reflects an intent that the prohibition extends more broadly. It was the appellant’s submission that not only was Chief Inspector Sharman, with a delegation from the Commissioner, engaged in the administration of the Act but also included in that category were all of those members of SAPOL tasked with administering, assessing and processing FOI applications. Insofar as they were considering the application of the PCD Act provisions, they were doing so “engaged in the administration of [the] PCD Act”. The appellant contended that were it otherwise, “the practical utility of s 45(1) would be subverted by the mere happenstance that those tasked with administering the confidentiality provision of the PCD Act in the context of FOI applications are not administratively located within the Internal Investigation Section”.[26]
[26] Written Submissions in Reply of Appellant (FDN 15) at [4].
As to the respondent’s submission that, pursuant to s 45(3)(b)(iii) of the PCD Act, the documents should be disclosed by the FOI officer because the respondent seeks them for the purpose of legal advice, the appellant contended that this also involves a misunderstanding of the purpose and effect of the legislation. It was submitted that s 45(3) provides a second layer of confidentiality for the same information that is the subject of s 45(1). Once information that is the subject of protection by s 45(1) is disclosed pursuant to one of the exceptions in s 45(1) and (2), the recipient becomes a “person who receives information” within the meaning of s 45(3). It follows that a person who receives information cannot be a person engaged in the administration of the Act. The appellant put to the Court that, given the nature of the legislative regime, the circumstances permitting disclosure in s 45(3)(b) should not be loosely construed. In particular, whilst s 45(3)(b) relates to circumstances in which there may be a second tier disclosure, it does not purport to authorise third and fourth tier disclosures to advance generally the purposes set out in s 45(3)(b)(i)-(iv) of the PCD Act. That would be the consequence if the PCD Act was to be employed in the manner advocated for by the respondent. The appellant submitted to interpret the section in that manner would largely defeat the purpose of having a second layer of confidentiality provisions.
It was submitted that the preferable interpretation was:[27]
In the case of s 45(3)(b)(iv), this means that the disclosure authorised is for the person who “receives” the protected information to themselves make the disclosure(s) necessary for themselves to obtain medical or psychological assistance. So too for s 45(3)(b)(iii). What is permitted is for the recipient of the information to make disclosure(s) for the purpose of obtaining for themselves legal advice or the specified legal representation.
[27] Written Submissions in Reply of Appellant (FDN 15) at [8].
Relationship between the FOI Act and the PCD Act
I do not accept that ground one of the respondent’s Notice of Alternative Contention has been made out.
The problem with the respondent’s argument commences with a misunderstanding of the relationship or interplay between the FOI Act and PCD Act. Throughout the course of submissions, the respondent repeatedly referred to the “need to strike a balance” between the two statutes on the basis that they shared “a field of operation”[28] such that it was necessary to construe them in a manner that would allow for “a harmonious result”. The respondent relied heavily on the High Court decision of New South Wales Commissioner of Police v Cottle[29] in support for the submission that if two statutes cannot stand or live together “the question as to the operation of the statutes remains a matter to be gleaned by reference to legislative intention. That intention is to be extracted “from all available indications”.[30] The respondent contended that Parliament cannot be taken to intend to enact legislation with unlikely or unreasonable consequences. Therefore, if two constructions of a provision are open, the Court should prefer that which avoids such consequences. That, however, leads back to adopting the “curious result” approach that the Tribunal relied upon.
[28] Written Submissions of Respondent (FDN 13) at [24].
[29] (2022) 96 ALJR 304.
[30] Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 at [46] per Crennan, Kiefel and Bell JJ, quoting Wyong Shire Council [1975] AC 538 at 554 per Lord Wilberforce, cited with approval in Cottle.
The difficulty with the respondent’s reliance on Cottle is that the case in fact supports the appellant’s argument. In Cottle, the High Court was considering the relationship between the Police Act 1990 (NSW) (“the Police Act”) and the Industrial Relations Act 1996 (NSW) (“the IR Act”). The first respondent, a serving police officer, had received notification from the Police Commissioner that he would be retired as a non-executive police officer pursuant to s 72A of the Police Act. Section 72A provided:
If:
(a)a non-executive police officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer's position, and
(b)the officer's unfitness or incapacity:
(i) appears likely to be of a permanent nature, and
(ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control,
the Commissioner may cause the officer to be retired.
The first respondent claimed that his dismissal was “harsh, unreasonable or unjust” for the purposes of s 84(1) of the IR Act.
The question that arose was whether the Industrial Relations Commission of New South Wales (“the IR Commission”) had jurisdiction to hear the application given that the initial decision had been made pursuant to s 72A of the Police Act. In the first instance, the IR Commission determined that it had no jurisdiction, however that decision was overturned by the Full Bench of the IR Commission. A single judge of the Supreme Court of New South Wales came to the contrary view and on appeal the Court of Appeal determined that the IR Commission did in fact have jurisdiction.
The sole issue under consideration in the High Court was whether a non-executive police officer, who had been retired pursuant to s 72A of the Police Act, may validly make an application pursuant to s 84(1) of the IR Act that they had been unfairly dismissed. In considering the terms of s 72A, the majority determined there was nothing in the language used in s 72A that by necessary implication excluded the operation of the IR Act. There was no inconsistency between the power to compel retirement under s 72A and the right of review under the IR Act that would justify a conclusion that the IR Act should “yield” to the Police Act.
The legislation central to the resolution of this appeal equally does not share the field or conflict in the manner suggested by the respondent. There is an interaction rather than an overlapping. There is no inconsistency between the two Acts, rather, one in its operation limits the application of the other. The FOI Act, with a broader and more generic application, allows for the application of the very type of confidentiality provision contained within the PCD Act. The words of the FOI Act could not be clearer. The FOI Act endeavours to provide openness and transparency by government agencies, yet at the same time allowing for the protections for other competing rights. That includes the right of that agency or a member of that agency to not disclose information in circumstances in which to do so would amount to the commission of an offence.[31] The public policy underpinning such an exemption is self-evident.
[31] Freedom of Information Act 1991 (SA) sch 1, cl 12.
Does s 45 of the PCD Act fall within the exemptions of the FOI Act?
The question that then arises is whether s 45 of the PCD Act falls within the sch 1, cl 12 FOI Act exemption. There is no dispute, nor could there be, that s 45 of the PCD Act creates an offence involving the disclosure of a certain category of document. That category is broad. Unsurprisingly so, given the reason for the creation of the protection and the reputational damage that has the potential to follow in the event that it becomes known that a police officer has been the subject of a complaint or an investigation. The requirement for confidentiality encompasses “information in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment or investigation”. It is difficult to envisage the net being cast more widely. Unlike s 44 of the PCD Act, it is not necessary that the information is disclosed or obtained in the course of the investigation, it need only have “a connection” with the subject matter of the complaint.
It is also of note that the prohibition relates to the disclosure of “information” as opposed to documents or materials. The significance of this is that it is not an option under the PCD Act to compartmentalise on the basis of where documents are held within SAPOL as was suggested by the respondent. That is because it is the “information” that is the subject of the prohibition. It follows that it is not open to suggest that a document containing information that is stored at IIS is subject to confidentiality whilst another version of the same document or record retained elsewhere is disclosable. The prohibition relates to the information regardless of the means by which it is retained or recorded. This is yet a further feature of the language employed in the section that reflects the intended breadth of its operation.
Who is engaged in the administration of the Act?
The critical words to the resolution of this appeal are “a person who is or has been engaged in the administration of [the] Act”. The respondent contends that those words are to be read narrowly as relating only to those employed in the IIS or at the most, to those employed in the relevant bodies and sections that are specifically identified in the PCD Act, namely, the IIS (s 5), the OPI (s 8) and the Police Disciplinary Tribunal (Part 7). The difficulty with this submission is that if Parliament had intended to limit the category of individuals captured by the confidentiality provision, it could have done so in those terms. It did not. This approach is also somewhat artificial as whilst those bodies and sections are specifically referred to in the PCD Act, the Act clearly contemplates that others will have a role in the various functions that may be undertaken once a complaint has been made. To adopt the approach advocated by the respondent would not only be illogical but would completely undermine the intent behind the creation of a regime of confidentiality.

Whilst there has been no judicial consideration as to the nature of persons who are “engaged in the administration of” s 45 of the PCD Act, some support can be found for a broader interpretation of the section in the Full Court’s decision of Bell v The Queen.[32] In that case, the confidentiality obligation under consideration was s 54 of the Independent Commissioner Against Corruption Act 2012 (SA) which relevantly adopts equivalent language of “a person who is or has been engaged in the administration of this Act”. In that context, the Full Court observed that the confidentiality obligations imposed on a person engaged in the administration of the Act “applies to the Commissioner, the Deputy Commissioner, the Commissioner’s staff, investigators, examiners and the Office’s staff”.[33]
[32] (2020) 286 A Crim R 501 per Kourakis CJ, Peek and Blue JJ.
[33] Bell v The Queen (2020) 286 A Crim R 501 at [234].
The question that then arises on the facts of this case is who made the decision to not disclose the information. It was at least in the first instance the determination of Chief Inspector Sharman who held the delegation from the Commissioner. Her role related to ascertaining whether the matter had been the subject of a police complaint and then, based on the results of that enquiry, evaluate whether any information should be released. Chief Inspector Sharman then conveyed her decision to Senior Sergeant Gentgall from the FOI Unit who made the ultimate decision as to what information was to be released. However, it would seem that given the rank of Chief Inspector Sharman and the delegation with which she had been provided, her assessment and decision was the basis upon which the original and second determinations were made. It is difficult to say, on the limited evidence before the Court, whether that was also what occurred in relation to the internal review conducted by Ms Smith, however I proceed on the basis that it would have been at least a relevant matter relied upon by Ms Smith.
There is no doubt that Chief Inspector Sharman was a person “who is or has been engaged in the administration of [the] Act” given her role and the fact that she was a member of the IIS. On one interpretation, the subsequent decisions made by a member of the FOI section and the internal review officer in reality were the decision of Chief Inspector Sharman being carried into effect by the relevant officer. It is my view, however, that the definition of “a person engaged in the administration of [the] Act” is not confined to those individuals working within IIS. On a plain reading of the section, any of the individuals involved in each of those decision-making processes were involved in the administration of the Act in undertaking that role, regardless of where they were located within SAPOL. It follows that those SAPOL employees were captured by s 45 of the PCD Act and the documents were exempt from the FOI Act.
If that is so, they are not, as contended by the respondent, “a person who receives information knowing that the information is connected with a matter that forms or is the subject of a complaint, report, assessment or investigation under this Act” pursuant to s 45(2) of the PCD Act. As a consequence, the respondent also fails at the second hurdle. I accept the appellant’s submission about the intent behind and purpose of s 45(3) of the PCD Act, in that it creates a second ring of protection in the event someone has received the information pursuant to one of the exceptions in s 45(2) of the PCD Act.
Conclusion
I reject ground 1 of the Notice of Alternative Contention.
The correct and preferrable decision was to affirm the decision under review.
Orders
I make the following orders:
1.Leave to appeal is granted.
2.The appeal is allowed and the Tribunal’s decision is set aside.
3.In lieu thereof, a decision is substituted affirming the decision of the appellant to refuse the respondent access to the documents sought pursuant to her application made under s 13 of the FOI Act dated 4 June 2021.