SA Police v Fitzsimons
[2016] SADC 120
•5 October 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SA POLICE v FITZSIMONS
[2016] SADC 120
Judgment of Her Honour Judge Cole
5 October 2016
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS AFFECTING PERSONAL PRIVACY
Appeal by the South Australian Police (SAPOL) against a decision of the Police Ombudsman (PO), pursuant to s 39 of the Freedom of Information Act 1991, to reverse the deemed confirmation on internal review of an earlier decision of SAPOL to refuse to grant access to a DVD. The DVD contains CCTV footage of an incident which occurred outside of a hotel in 2013. The PO ordered that the appellant release the DVD to the respondent.
Held: The review process miscarried. Pursuant to s42F of the District Court Act 1991, the application is remitted back to the original decision maker to undertake the processes as set out in the Act.
District Court Act 1991 (SA) ss 42C, 42E, 42F; Freedom of Information Act 1991 (SA) ss 3, 4, 12, 24, 26, 27, 29, 39, 40, 48, referred to.
Colakovski v Telecom (1991) 29 FLR 429; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, considered.
SA POLICE v FITZSIMONS
[2016] SADC 120THE COURT DELIVERED THE FOLLOWING JUDGMENT:
This matter concerns a DVD which contains CCTV footage recorded outside of the Walkers Arms Hotel on 29 September 2013.
An appeal has been lodged by the South Australian Police (SAPOL) against a decision of the Police Ombudsman (the PO), pursuant to s 39(11) of the Freedom of Information Act 1991 (the Act), to reverse an earlier decision of SAPOL to refuse to grant access to the DVD. The PO ordered SAPOL to release the DVD to Mr Fitzsimons.
History
Mr Fitzsimons was involved in an incident outside the Walkers Arms Hotel on 29 September 2013. In the course of investigating the incident, SAPOL came into possession of a DVD which contained footage from a CCTV camera which had recorded a video of
·the incident,
·a short period of time before the incident, and
·the events immediately following the incident.
On 20 April 2015, Mr Fitzsimons’ solicitors wrote to the Freedom of Information Unit at SAPOL (the FOI Unit) seeking the following documents:
Copies of all documents held by SAPOL including a copy of the CCTV footage relating to the incident involving Mr Andrew Stroeh and the assault committed upon Mr Fitzsimons on 29 September 2013.
The FOI Unit gathered the documents which answered this description, including the CCTV footage, which was recorded on a DVD. Senior Sergeant Gentgall (SS Gentgall), the Officer in Charge of the FOI Unit, was unable, at that time, to view the DVD on the equipment available to her.[1]
[1] Exhibit A2, Second Affidavit of Tracy McLeod Gentgall sworn on 26 February 2016 para 6.
SS Gentgall wrote to Mr Fitzsimons’ solicitors on 24 July 2015 with a determination in relation to most of the documents. With respect to the DVD, SS Gentgall wrote:
Despite holding a copy of the CCTV footage I am unable to make a determination with respect to this document, as SAPOL does not have the applicable software to enable the footage to be viewed. The footage was created by the Walkers Arms Hotel and it is suggested you direct your enquiry to the Walkers Arms Hotel…
Mr Fitzsimons, through his solicitors, sought to have SS Gentgall reconsider that decision. She declined. By letter dated 17 August 2015, Mr Fitzsimons applied for the internal review of the decision in relation to the DVD. On 1 September 2015, an Accredited FOI officer at SAPOL, Mr Fabio Principe, wrote to Mr Fitzsimmons’ lawyers, saying that he had been able to view the DVD.[2] He said that the applications would be “reverted to the Manager, Freedom of Information Unit to make a determination in relation to the CCTV footage.” He said that it would be necessary, pursuant to “clause 26 and clause 27 of the FOI Act” [sic] to consult third parties, including the Walkers Arms Hotel, before determining the internal review. Mr Principe wrote that
“The Manager, Freedom of Information Unit has been advised of the outcome of this review and will make a determination in the near future.”
[2] Exhibit A2, Second Affidavit of Tracy McLeod Gentgall sworn on 26 February 2016 p 14 TMG 6.
SS Gentgall said, in her affidavit,[3] that upon being advised of the content of that letter, she began processing the application and arranged for the Walkers Arms Hotel to be contacted in order to initiate consultation. However, that process was discontinued because, on 8 December 2015, SS Gentgall received the notice of a determination made by the Police Ombudsman on 3 December 2015, in which the Police Ombudsman determined that the DVD should be released. SS Gentgall had not known, until 8 December 2015, that there had been an application to the Police Ombudsman for external review.[4] The decision of the Police Ombudsman was as follows:
Dear Senior Sergeant Gentgall
Re:Application for external review – Duddy Shopov Lawyers on behalf of Mr Adrian Fitzsimons
[3] Exhibit A2, Second Affidavit of Tracy McLeod Gentgall sworn on 26 February 2016 para 13.
[4] Exhibit A2, Second Affidavit of Tracy McLeod Gentgall sworn on 26 February 2016 para 15.
Duddy Shopov Lawyers, acting on behalf of their client Mr Fitzsimons, applied to SAPOL for a copy of CCTV footage created by the Walkers Arms Hotel. I am informed by Ms Meus of Duddy Shopov Lawyers that the footage was used as evidence in a criminal trial where security guards were charged with assaulting Mr Fitzsimons. Ms Meus informs me that she has viewed the footage and it shows an attack on Mr Fitzsimons by security guards. I understand that the criminal charges brought against the security guards resulted in an acquittal. However, this does not prevent the bringing of civil proceedings.
I am satisfied that the document concerned is not an exempt document. I understand that you are not able to view it, and therefore decided to refuse its release, as you could not assess its content. However, I am satisfied that there could be nothing in the document that would justify a refusal to release it. Whether or not Duddy Shopov are able to view the document is another issue. I expect they will have sufficient IT assistance to be able to view it.
I have determined pursuant to section 39(11) of the Freedom of Information Act 1991 to reverse your determination. My determination is that the document should be released to Duddy Shopov lawyers. I have advised Ms Meus of Duddy Shopov Lawyers of my determination by letter of this date.
Yours faithfully,
M.J Grant
Acting Police Ombudsman
SAPOL asked the Police Ombudsman to reconsider his decision. He declined, giving further, more detailed reasons. The appeal to this Court followed.
The Act
The objectives of the Act are set out in s 3:
(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.
The Act, in s 12, provides as follows:
A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act.
Although the decision communicated by SAPOL to Mr Fitzsimons’ solicitors on 24 July 2015 did not say so expressly, I find that it amounted to a refusal of the application for access to the CCTV under the Act. The letter from Mr Fitzsimons’ solicitors dated 17 August 2015 was an application for internal review pursuant to s 29 of the Act. The Act says, in s 29(3) and (5):
(3)On an application for review under this section the agency may confirm, vary or reverse the determination under review.
…
(5)An agency that fails to determine an application made under this section within 14 days after it is received by the agency is, for the purposes of this Act, to be taken to have confirmed the determination in respect of which a review is sought.
In his letter of 1 September 2015 to Mr Fitzsimons’ solicitors, SAPOL’s accredited FOI officer said that the matter was to be “reverted” to the Manager, FOI unit for a new determination. He described this as “the outcome of this review”. In fact, the powers of the agency on an internal review are to “confirm, vary or reverse the determination under review”. The “decision” on the internal review really amounted to a failure to determine the application for internal review within 14 days, as required under s 29(5), which resulted in a deemed confirmation of the original decision on behalf of the agency. In saying that, I do not intend any criticism of Mr Principe. The situation was already complicated.
It seems that an application was made on behalf of Mr Fitzsimons to the Police Ombudsman for the external review of SAPOL’s decision. That application was not adduced in the hearing before me. The Act provides, in relation to external review, in s 39(5), (10), (11) and (13):[5]
[5] In this matter the Police Ombudsman was the "relevant review authority."
(5)In conducting a review under this section, the relevant review authority—
(a) may carry out an investigation into the subject matter of the application (and for the purposes of such an investigation may exercise the same investigative powers as are conferred on the Ombudsman by the Ombudsman Act 1972 in relation to an investigation duly initiated under that Act, including the powers of a commission as defined in the Royal Commissions Act 1917); and
(b) may, if it appears to the relevant review authority that the agency has failed to properly sort or compile documents relevant to the review or to undertake consultations relevant to the review that should have been undertaken by the agency—
(i)require the agency to sort or compile the documents or undertake the consultations; or
(ii)require officers of the agency to attend at a time and place specified by the relevant review authority for the purpose of sorting and compiling the documents or undertaking the consultations; and
(c) may—
(i)try to effect a settlement between the participants to a review at any time during the review; and
(ii)at the request of the agency, suspend proceedings under this section at any time to allow an opportunity for a settlement to be negotiated.
…
(10)A relevant review authority must not make a determination to the effect that access is to be given to a document to which Division 2 of Part 3 applies unless the relevant review authority has taken steps as are reasonably practicable to obtain the views of any interested person as to whether or not the document is an exempt document under a provision of Part 2 of Schedule 1.
(11)On an application under this section, the relevant review authority may (based on the circumstances existing at the time of the review) confirm, vary or reverse the determination the subject of the review.
…
(13)On making a determination on a review under this section, the relevant review authority must notify each of the following persons of the determination and the reasons for the determination:
(a) the applicant;
(b) the agency;
(c) if—
(i)the determination is to the effect that access is to be given to a document; and
(ii)the relevant review authority—
(A)is aware that the views of an interested person are that the document is an exempt document under a provision of Part 2 of Schedule 1; or
(B)after having taken reasonable steps to obtain the views of an interested person, has been unable to obtain the views of the person,
the interested person.
Nature of the Appeal
The Act provides, in s 40(1):-
An agency that is aggrieved by a determination made on a review under Division 1[6] may, with the permission of the District Court, appeal against the determination to the District Court on a question of law.
[6] A review under Division 1 is an external review.
The Act further provides, in s 48:
In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.
The District Court Act 1991 provides, in Part 6, Division 2, (which concerns administrative appeals in the Administrative and Disciplinary Division of the District Court):
42E—Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
42F—Decision on appeal
The Court may, on an appeal—
(a) affirm the decision appealed against;
(b) rescind the decision and substitute a decision that the Court considers appropriate;
(c) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Pursuant to s 40(1) of the Act, this appeal is an appeal on a question of law and thus most closely resembles a strict appeal. The decision appealed from is the decision of the PO, although the Court has power to remit the matter to the original decision maker; in this case, SAPOL.
The appellant argued that the decision of the PO gives rise to the following questions of law:
Is the PO required by s 39 of the FOI Act to independently assess the contents of a document the subject of an external review before determining to release the document?
Does the footage contain information concerning the “personal affairs” of a person or persons notwithstanding that it depicts events which occurred in a public place?
Does the footage contain information that has a commercial value to a person or persons, or otherwise concern the business, professional, commercial or financial affairs of a person or persons?
I determine that these questions do, indeed, arise from the determination of the PO. They are questions of substance, the determination of which could give rise to an order under s 42F of the District Court Act 1991. It is appropriate that SAPOL be given permission to appeal under s 40(1) of the Act.
The issue of whether the time within which to appeal should be extended requires, in part, an examination of the merits of the appeal. It is convenient to deal with the merits first.
The first question
The PO was undertaking an external review pursuant to Part 5 Division 1 of the Act of the deemed confirmation on an internal review by SAPOL of the refusal by SAPOL (at the FOI Unit level) to give Mr Fitzsimmons access to the DVD.
In his letter to SS Gentgall dated 3 December 2015, the PO said:[7]
I am informed by Ms Meus of Duddy Shopov Lawyers that the footage was used as evidence in a criminal trial where the security guards were charged with assaulting Mr Fitzsimons. Ms Meus informs me that she has viewed the footage and it shows an attack on Mr Fitzsimons by security guards.
I am satisfied that the document concerned is not an exempt document. I understand that you are not able to view it, and therefore decided to refuse its release, as you could not assess its content. However, I am satisfied that there could be nothing in the document that would justify a refusal to release it. Whether or not Duddy Shopov are able to view the document is another issue. I expect they will have sufficient IT assistance to be able to view it.
[7] Exhibit A2, Second Affidavit of Tracy McLeod Gentgall sworn on 26 February 2016 p 16.
In his letter to SAPOL dated 7 January 2016, the PO said, on this topic:[8]
[8] Exhibit A1, Affidavit of Tracy McLeod Gentgall sworn on 28 January 2016 TMG2.
As regards the second issue. You say that I have erred because I had not viewed the document prior to making my determination. I quote from the letter to Duddy Shopov from Senior Sergeant Gentgall of 2 July 2015:
“Despite holding a copy of the CCTV footage I am unable to make a determination with respect to this document, as SAPOL does not have the applicable software to enable the footage to be viewed. The footage was created by the Walkers Arms Hotel and it suggested you direct your enquiry to the Walkers Arms Hotel…”
While Senior Sergeant Gentgall in her letter claimed that she was unable to make a determination, she did in fact make a determination. That was to refuse access to the document in SAPOL’s possession and suggest an alternative to the applicant that he approach the Walkers Arms Hotel to obtain a copy. Section 19(1) of the FOI Act provides that an agency must either provide access or refuse access. There is no middle ground envisaged of making no determination at all. I point out that the determination made by your agency was made without first viewing the document.
I add that I do not intend to be in any way critical of Senior Sergeant Gentgall and I accept without reservation that she acted in good faith. She has a deserved reputation of being a competent and very hardworking officer who does a very good job in difficult circumstances. I am also aware that viewing downloaded CCTV footage saved to a disc can be a “hit and miss” process when using the government IT system.
Prior to making my determination, the contents of the document were described to me by Ms Meus of Duddy Shopov. Prior to the making of the application, Ms Meus had been shown the document on a police computer by a police prosecutor. Given that Ms Meus is an officer of the Court I accepted her description.
You have in turn, in your letter, provided a description of what the document contains. The description holds no surprises. It is what I expected the document would contain and it is consistent with the description provided by Ms Meus prior to me making my determination. I have over the years viewed, if not hundreds, then dozens of CCTV images of pub and street scenes. The content described is typical- depictions of a number of people leaving a hotel, a number of taxis arriving and collecting patrons, the fracas involving Mr Fitzsimons and security guards and the subsequent attendance at the hotel of police and para-medics.
Section 39(5) of the FOI provides that I may carry out an investigation into the subject matter of an application. I appreciate that in the normal course of events, I will usually view the document or documents in dispute. However, I do not accept that because I did not see this particular document my determination is consequently invalid. The document is no different from others routinely and commonly taken into police possession and depicting the movements of individuals in public places by CCTV footage belonging to retail businesses, pubs or public authorities. I do not understand you to disagree with that description.
I note your comments in the fifth paragraph of your letter that Ms Meus viewed the document:
“pursuant to a process that is separate from and different to release under the FOI Act and does not mean that the footage may not be exempt under the FOI Act. Nor does it affect the obligations placed on decision-makers (sic) under the FOI Act.”
I agree with that. I do not suggest anything to the contrary. The significance for me of Ms Meus having viewed the document was that it demonstrated that SAPOL did have the means at the time to view it and explained how Ms Meus was able to describe to me the contents of the document she sought on behalf of her client.
It is apparent from s 39(5)(b) of the Act[9] that the PO is required by the Act, when reviewing a decision, to consider whether the decision maker appealed from properly undertook the “consultations relevant to the review”. The consultation required is set out in Part 3, Division 2 of the Act. Part 3, Division 1 of the Act, which contains the powers to do with the granting or refusal of access, is subject to Division 2.[10] The first step in the process relating to consultation is to make a decision as to whether the document contains the kind of information which might make it an exempt document; in this case, “information concerning the personal affairs of any person”[11] and information concerning business affairs, as described in s 27 of the Act.
[9] Quoted above, p 4.
[10] see s 24.
[11] s 26.
The omission of the PO to view the DVD is similar to an omission to read a document in relation to which a FOI application has been made. The PO relied upon a description of the footage given to him by Ms Meus, solicitor for Mr Fitzsimons. SAPOL had no opportunity to comment upon that description. I have viewed the DVD. It shows a series of events over a considerable period of time, involving numerous people as participants or observers. I consider that the Act requires consideration of such footage as a greater level of detail than the level the PO described in his letter of 7 January 2016. Thinking about the incident shown in the footage, at the level of abstraction he describes, as “typical”, does not assist in determining whether the footage contains information concerning the ‘personal affairs of any person’ or information concerning business affairs as described in s 27 of the Act.
I note that the watermark throughout the footage, which says:
This copy of SiraView is not licensed. To buy a licence visit not referred to by the PO. I infer that the PO’s attention was not drawn to it.
An administrative decision maker is bound to take into account considerations relevant to the decision he or she must make.[12]
[12] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48.
In this matter, the content of the DVD was a relevant consideration with respect to the decision as to whether consultation should be undertaken.
The second question – Personal Affairs
The Act provides, in s 26 (1) and (2):
(1)This section applies to a document that contains information concerning the personal affairs of any person (whether living or dead).
(2)An agency must not give access under this Act to a document to which this section applies (except to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.
‘Personal affairs’ is defined in s 4 of the Act as follows:
personal affairs of a person includes that person's—
(a)financial affairs;
(b)criminal records;
(c)marital or other personal relationships;
(d)employment records;
(e)personal qualities or attributes,
but does not include the personal affairs of a body corporate;
In his letter of 7 January 2016, the PO said:[13]
You say that as the document was one of the sort referred to in Division 2 of Part 3 of the FOI Act, then I was obliged to consult with various persons before making a determination. Your conclusion is correct only if your premise is correct – but I think, with respect, that your premise begs the question. I do not agree that the document as described by Ms Meus and as described in your letter could be properly categorised as one of the sort referred to in Division 2 of Part 3 of the FOI Act.
[13] Exhibit A1, Affidavit of Tracy McLeod Gentgall sworn on 28 January 2016 p 2 TMG2.
Further, in the same letter, the PO said:[14]
In my opinion the image of someone in a public place does not reveal someone’s “personal affairs” any more than I would be revealing my “personal affairs” by walking down Rundle Mall or driving my car, with registration plate visible, along King William Street. By similar reasoning, I do not see that the image of security guards reveals their “personal affairs” as defined. It may be clear that they are security guards – but I find it a stretch to say, for example, that a police officer in uniform in a public place is revealing his “personal affairs” because he is identifiable as a police officer. By the same token, I do not see that an image, for example, of people involved in a fracas in a public place reveals their “personal affairs” as defined.
[14] Exhibit A1, Affidavit of Tracy McLeod Gentgall sworn on 28 January 2016 p 3 TMG2.
The PO has conflated the concept of ‘personal affairs’ with the concept of ‘private affairs’. This is an error. A person’s financial affairs, marital relationship or criminal record, for example, may become the subject of widespread publicity, yet such things remain personal affairs.[15]
[15] Colakovski v Telecom (1991) 29 FLR 429 at 436.
When considering whether to undertake consultation, the decision maker simply needs to decide whether the document contains information concerning the personal affairs of any person. When that consultation is complete (if it occurs), and the decision maker comes to decide whether or not the document is exempt, then the question for the decision maker will be “Does the document contain matter, the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead). Comments made in the course of the consultation, if it took place, may assist the decision maker in making that decision.
It seems to me that the DVD contains footage which potentially relates to the personal affairs of many people. However, in order for the Act to be workable, it is necessary to form an opinion based on the footage as to whose personal affairs are evidently involved, rather than speculating. The footage of participants in a fracas is information concerning their personal affairs which is evident and not trivial. The other party to the altercation with Mr Fitzsimons is required by the Act to be consulted.
The third question - Business Affairs
The Act provides, in s 27(1) and (2):
(1)This section applies to a document that contains—
(a) information concerning the trade secrets of any person; or
(b) information (other than trade secrets) that has a commercial value to any person; or
(c) any other information concerning the business, professional, commercial or financial affairs of any person.
(2)An agency must not give access under this Act to a document to which this section applies (except to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 7 of Schedule 1.
It is clear from the footage on the DVD that SiraView asserts a commercial interest in the footage. I assume that SiraView is a business name. SiraView (or the entity behind it) is required to be consulted under s 27(2) of the Act. The footage was apparently taken from the security system of the Walkers Arms Hotel. Ms Schwarz submitted that the DVD contains information concerning the business affairs of the Walkers Arms Hotel, namely information about the use and positioning of security cameras. I agree. Other information about the security procedures of the Walkers Arms Hotel may also be able to be inferred from the footage. The Walkers Arms Hotel is entitled to be consulted under s 27(2) of the Act.
Extension of Time
Pursuant to s 40(3) of the Act, an agency has 30 days after being given notice of the decision within which to appeal. This appeal is 20 days out of time.
Pursuant to s 42C of the District Court Act 1991, the Court has power to extend the time for the instituting of an appeal. Relevant factors to the question of whether time should be extended include the reason for the delay, the length of the delay, whether the delay occasions prejudice to a party and whether the appeal has merit.
The reason given for the delay was that SAPOL spent part of the time trying to deal with the matter with the PO informally. No prejudice to Mr Fitzsimons arises from the delay in the institution of the appeal. There is merit in the appeal. In all of the circumstances, it is appropriate that time be extended.
Summary and Conclusion
The review process before the PO miscarried because the PO omitted to take into account the detailed content of the DVD footage, instead relying on an account of the content of the footage from an interested party. The PO failed to discern that the DVD footage contains information as to the personal affairs of several people. It also contains information over which SiraView asserts a commercial interest, which amounts to business affairs. It also contains information concerning the business affairs of the Walkers Arms Hotel. The PO did not comply with s 39(10) of the Act. Moreover, the PO conducted his review without notice to SAPOL, and, as a result, SAPOL was deprived of the opportunity to make submissions to the PO.
Pursuant to s 42F(c) of the District Court Act 1991, the appropriate decision is to remit the application for access to the DVD to the original decision maker. It is for the original decision maker to undertake the processes set out in the Act. However, I will direct that consultation be undertaken in a manner consistent with these reasons.
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