Sandy v SA Health (Women's and Children's Network) (No 2) - [2017] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Freedom of Information Act)
SANDY v SA HEALTH (WOMEN'S AND CHILDREN'S NETWORK) (No 2)
[2017] SADC 130
Judgment of His Honour Judge Stretton
1 December 2017
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS AFFECTING ENFORCEMENT OR ADMINISTRATION OF THE LAW
In 2006 the appellant's child was hospitalised with serious head injuries and died two days later. In 2009 a Coronial Inquiry found that the child had died as a result of blunt force head trauma. The appellant sought and obtained all relevant medical information generated at the time of her child’s admission to hospital and subsequent death, and that was provided to the Coroner. In February 2015 the appellant was informed by the DPP that there was no prospect of convicting anyone in relation to the death and that the DPP would close their file. In the course of her contact with the DPP the appellant became aware that there had been further medical reports generated subsequent to the Coronial enquiry at the request of the police. She requested that material. That material was not provided and the applicant made a request pursuant to the Freedom of Information Act 1991 (SA) . That request was declined. Several stages of review were pursued unsuccessfully. In August 2016 the Ombudsman conducted an external review, upholding a determination that the documents were ‘exempt documents’ on the basis he had been told by the police “that there was a current police investigation, and that disclosure could reasonably be expected to prejudice that investigation”. On appeal, further evidence was called.
Held:
1. The Ombudsman is required to undertake an independent assessment of whether the documents were exempt documents.
2. Given the passage of time and the DPP advice, it was not sufficient in the circumstances of this matter for the Ombudsman to accept, without more, the single line statement by SAPOL as satisfying the statutory test.
3. On rehearing, the court is satisfied that there is an active current investigation, limited in time, the circumstances of which do satisfy the test.
4. The documents, in their final redacted form, are exempt documents.
5. It is likely that they will cease to be exempt by June 2018.
Freedom of Information Act 1991 (SA) s 4, 20(4), 40 - 42, 47-48, cl 4(2); District Court Act 1991 (SA) s 42B, 42B(1), 42C, 42D, 42E, 42E(3), 42F, 42G, referred to.
Attorney Generals Department v Cockcroft (1986) 10 FCR 180; Parker v ASIC [2016] AATA 767; DZ v Commissioner of Police [2002] NSWADT 274; News Corporation Ltd v NCSC (1984) 5 FCR 88; Ward v Family Care Meeting Convenor, Youth Courts and Courts Administration Authority [2003] SADC 18; Konieczka v South Australian Police [2006] SADC 134; Capone v South Australian Police Information Unit [2011] SADC 7; Jotanovic v Housing SA [2011] SADC 138; Treglown v SA Police [2011] SADC 139; Sandy v SA Health (Women's and Children's Network) [2017] SADC 102, applied.

SANDY v SA HEALTH (WOMEN'S AND CHILDREN'S NETWORK) (No 2)
[2017] SADC 130
Introduction

On 4 August 2006 Vanessa Small’s two year old son Tobias died from head injuries.
These are proceedings brought by Ms Alison Sandy, FOI director of Channel Seven Adelaide, acting as agent for Ms Small appealing a decision of the Ombudsman upholding a determination by the respondent SA Health, Women’s and Children’s Health Network (“SA Health”) refusing to release certain medical reports obtained by SA Police (“SAPOL”) into the death of Ms Small’s son.
At the outset the respondent sought to tender, on a confidential basis, the medical reports in question together with further materials in support of the Ombudsman’s decision to uphold SA Health’s refusal to release the said medical reports. The appellant applied to view those materials.
Section 41 of the Freedom of Information Act 1991 (SA) (“the Act”) restricts access to any such materials unless certain criteria articulated in section 41 are met. The court determined that in all the circumstances the material should be admitted but not disclosed to the appellant, but that upon counsel for the appellant giving a comprehensive undertaking as to confidentiality, counsel for the appellant would have access to the materials. That decision is reported at [2017] SADC 102. Whilst I refer to but do not repeat that judgment, it is necessary to repeat some of the factual history set out therein to properly understand the context of the application.
These reasons address the substantive appeal against the Ombudsman’s decision.
The appeal
The appellant appeals the decision of the Ombudsman which in turn upheld a determination by the respondent SA Health to refuse to release three medical reports obtained by SAPOL into the death of Ms Small’s son.
Background
On 2 August 2006 Ms Small’s two year old son Tobias Dempsey sustained serious head injuries. He was placed on life support and died two days later on 4 August 2006. On 8 September 2009 the State Coroner found that Tobias died as a result of blunt force head trauma.
Ms Small filed an affidavit in this matter saying that at the time of the events in question Tobias was being cared for by her then de-facto partner Mr Lachlan Smith. Ms Small says she arrived home at the time when her son’s injuries were discovered and called triple zero. She said she went with him in the ambulance to the hospital and apart from a short trip to get food and items from her home stayed at the hospital until life support was removed two days later. It is common ground that SAPOL conducted an investigation into the death, but that to date no person has been arrested, charged or convicted of any offence concerning the death.
In her affidavit Ms Small says she obtained access to the Coroner’s Court file and secured copies of documents including witness statements, medical and nursing records and autopsy and brain reports prepared for the coroner. At some stage she also obtained DPP memoranda regarding potential charges.
It is common ground that Ms Small obtained all relevant medical and other reports and records generated at or shortly after her son’s death and that were provided for or to the Coroner.
The first Freedom of Information application and determination
On 27 November 2012 Ms Small says she applied to SA Health for any documents in the category of “copies of medical files and advice on brain injury”.
Ms Small was advised that a partial release had been authorised, and she was provided with copies of a number of medical reports she had already been given, together with a medical report dated 17 August 2006 by neurosurgeon Dr Cindy Molloy. Dr Molloy was one of the treating neurosurgeons during the period of Tobias’ admission and treatment through to the time of death. Dr Molloy’s medical report reads as a relatively comprehensive account of Tobias’ admission, diagnosis, clinical condition, progress, treatment and eventual death. It concludes:
In summary Tobias Dempsey was a 2 year old boy who was admitted with a suspicious history of non-accidental injury and had massive cerebral injuries which was incompatible with life right from his admission to the Women’s and Children’s Hospital on 2 August 2006 at 17:15. Despite full aggressive treatment the prognosis was fulfilled.
I do not have access to the Coroner’s report, however I felt clinically he was a shaken child who sustained massive cerebral injuries due to vascular injuries from being shaken.
This is not a death that could have been prevented by medical intervention and alternative investigations would not have changed the outcome.
From his time of arrival at the Women’s and Children’s Hospital his death was inevitable and his case has been referred to the Coroner’s Department as a non-accidental injury at home at hands of person not known.
Ms Small says that she then, in early 2013, asked the DPP for a review of the investigation into Tobias’ death, and agitated in various ways for that to proceed.
Ms Small says that she eventually, on or about 27 February 2015, attended a meeting with a DPP prosecutor who outlined what the DPP had done and informed Ms Small that they had concluded that there was no reasonable prospect of conviction and that accordingly they would close their file. Ms Small says that in the course of the meeting she was told that Dr Molloy had prepared other reports, so she asked for copies of those further reports.
It is common ground that on 19 March 2015 the DPP wrote to Ms Small confirming the decision not to prosecute anyone. That letter also conveyed that the DPP would not be releasing Dr Molloy’s reports to Ms Small. No reasons were given.
Ms Small was unhappy with this and eventually secured the support of Channel Seven to make a further FOI application on her behalf for access to Dr Molloy’s other reports.
A second Freedom of Information application and determination
On 14 September 2015 Ms Sandy applied on behalf of Ms Small for access pursuant to sections 12 and 13 of the Act to a copy of any reports undertaken by Dr Molloy in relation to Tobias Dempsey.
By 30 October 2015 a SA Health FOI officer had located 3 reports within the scope of the request that had not previously been released to Ms Small, and on that day made and communicated a determination to refuse release of those documents. The officer said that as at 2012 Ms Small had requested and been provided with any documentation Dr Molloy held at that time, but that these subsequent reports would not be provided.
The officer went on to explain the reasons for the refusal of the further requested documents in the following terms:
… all three reports were created in direct response to requests for a report in relation to a SAPOL investigation. The recipients of these reports were contacted in consultation of the status of the investigation and the impact of potential release. I received a response to the consultation which stated:
SAPOL are currently undertaking an investigation relating to Tobias Dempsey and at this time request that the documents are not released under FOI at this time.
In consideration of the response to the status of the investigation, under consultation, it was determined that the disclosure could reasonably be expected to prejudice procedures for investigating contraventions of the law, and are thus exempt by virtue of one or more of the sub-clauses in clause 4.
In accordance with clause 4(2)(b) disclosure of those documents would, on balance, be contrary to the public interest. Documents relate to information given under an ongoing investigation would not be in the public interest if it could disrupt or prejudice those investigations, I therefore make the determination to refuse the release at this time.
Application for a SA Health internal review and the outcome
By letter dated 2 November 2015 Ms Sandy sought an internal review of this decision and on 24 November 2015 another SA Health officer conveyed to Ms Sandy that an internal review had been conducted on 13 November 2015, pursuant to which a determination had been made to refuse release of the documents in question on similar grounds.
Third freedom of information application and the outcome
On 18 January 2016 Ms Sandy made a further application for release of the reports, this time attaching a copy of the letter from the DPP dated 19 March 2015 stating that the DPP had decided that there was no reasonable prospect of conviction against any person over Tobias’ death.
On 5 February 2016 SA Health’s FOI officer replied to the effect that this was the same application that had already been made and rejected, and that in any event SAPOL’s advice as to their ongoing investigation was dated 29th October 2015, which was well after the DPP’s letter of 19 March 2015, and that so far as they were concerned the SAPOL advice as to a current investigation was still correct.
External review by the Ombudsman
On 8 March 2016 Ms Sandy applied to the Ombudsman seeking an external review, arguing that the DPP letter established that the SAPOL investigation was in fact now closed, and that SA Health had failed to internally review the matter and had refused to make a decision in relation to the most recent application.
On 14 April 2016 the Ombudsman replied requesting further information, and said that the fundamental issue was whether SA Health could justify its determination that the documents were exempt pursuant to clause 4, which turned on the status of any SAPOL investigation. As such, he had requested that SA Health obtain information from SAPOL as to the current status of the investigation.
On 7 July 2016 SAPOL wrote to the Ombudsman saying that SAPOL had a current open investigation relative to the death of Tobias Dempsey and that disclosure of the three documents concerned could reasonably be expected to prejudice that investigation.
On 27 July 2016 the Ombudsman conducted his external review of SA Health’s decision and arrived at a provisional determination to confirm the decision, on the basis that the SAPOL letter dated 7 July satisfied the Ombudsman that per clause 4(2)(a)(i) the release could reasonably be expected to prejudice the investigation of a particular case. That release was also contrary to the public interest pursuant to clause 4(2)(b) because of the public interest in protecting the integrity of police investigations.
In response to this provisional determination Ms Sandy submitted to the Ombudsman that the applicant had provided documentation to the effect the investigation was closed and that no-body was charged (no doubt a reference to the letter from the DPP) that the events were over 10 years old and that surely there must be a limit to the timeframe the police should be permitted to keep saying the investigation was proceeding, and that surely if someone was going to have been charged they would have been by now.
Ms Sandy submitted to the Ombudsman that all SA Health were doing as an agency, appeared to be relying on the word of another agency in the form of SAPOL. She asked the question, in effect, where was the actual proof of the fact that the investigation was continuing, and where was the proof of the assertion that disclosure would jeopardise the investigation? She argued that those things needed to be justified and proven by SAPOL rather than just asserted by SAPOL to the Ombudsman.
On 16 August 2016 the Ombudsman confirmed the determination. His reasons were essentially that while he had regard to the fact that on 19 March 2015 the DPP had written to Ms Small stating that it had been determined that there was no reasonable prospect of conviction against any person with respect to any charge, SAPOL had written to him on 7 July 2016 that there was a current open investigation into Tobias’ death and that disclosure of the three documents could reasonably be expected to prejudice the investigation.
The Ombudsman said he accepted this letter and statement ‘as evidence that there is a current open police investigation and that disclosure of the documents could reasonably be expected to prejudice that investigation.’
Although the appendix to the provisional and final determinations indicate that the agency, meaning SA Health, were asked for and provided ‘submissions and documentation’, it is not entirely clear whether the ‘documentation’ included the three medical reports in question.
What is clear is that nothing more than the statement that there was an open investigation and that disclosure would prejudice it was received from SAPOL, either by the agency or the Ombudsman. In other words, there was nothing said about the scope, timing or nature of the investigation and the degree to which it was or was not progressing, and nothing was said by SAPOL as to why or how the disclosure might prejudice that investigation.
As to the requirement that non-disclosure be in the public interest, the Ombudsman said:
I acknowledge the public interest in the mother of a deceased child having access to information relating to the circumstances around the death of the child. I also note the applicant’s assertion that there is an argument for public accountability relating to patient deaths.
I must however weigh this against the public interest in protecting the integrity of police investigations. In my view, this consideration is important in this case and outweighs the considerations that favour disclosure.
Therefore on balance I am satisfied that it would be contrary to the public interest to disclose the documents within the scope of the application.
It is my view that the documents within the scope of the application are exempt pursuant to clause 4(2).
Determination
In light of my views above, I confirm the agency’s determination.
The appeal
Ms Sandy has appealed to the District Court against that determination, on the grounds that the Ombudsman erred in the following ways:
(i)In failing to consider whether the respondent had in fact sufficiently discharged its onus to justify its decision in its determination dated 30 October 2015 that Dr Molloy’s reports were exempt pursuant to clause 4(2)(a)(i) of Schedule 1 to the Freedom of Information Act 1991 (SA);
(ii)failing to sufficiently discharge its onus to justify its decision in its determination dated 16 August 2016 that the respondent’s decision that Dr Molloy’s reports were exempt pursuant to clause 4(2)(a)(i) of Schedule 1 to the Freedom of Information Act 1991 (SA) should be upheld;
(iii)accepting the letter from SAPOL dated 7 July 2016 as evidence of the requirements of clause 4(2)(a)(i) of Schedule 1 to the Freedom of Information Act 1991 (SA) without apparent analysis of the evidentiary weight of that letter in light of the matters raised in the appellant’s detailed submission dated 9 August 2016;
(iv)giving undue weight, without making further investigations, to the letter from SAPOL dated 7 July 2016 when determining whether disclosure of Dr Molloy’s report would be contrary to the public interest;
(v)failing to give weight, or sufficient weight, to the matters raised in the appellant’s detailed submission dated 9 August 2016 when determining whether disclosure of Dr Molloy’s report would be contrary to the public interest;
(vi)failing to consider whether the respondent had considered, or complied with, the requirements of section 20(4) of the Freedom of Information Act 1991 (SA), pursuant to which the Respondent should have at the very least provided the Appellant with a redacted copy of Dr Molloy’s reports with the exempt matter removed;
(vii)failing, in reviewing the respondent’s determination, to consider, or comply with, the requirements of section 20(4) of the Freedom of Information Act 1991 (SA); and
(viii)failing to determine that the respondent should, at the very least, provide the appellant with a redacted copy of Dr Molloy’s reports with the exempt matter removed.
The grounds of appeal place primary emphasis on the proposition that the Ombudsman simply took SAPOL’s word for the fact that there was a current open investigation and just accepted at face value SAPOL’s statement that release of the documents could reasonably be expected to prejudice the investigation without critically assessing either, and in particular without substantively considering how, why and whether the release of the documents could actually be expected to prejudice the investigation.
For the reasons outlined at [2017] SADC 102 the respondent was permitted to tender several affidavits confidentially without disclosure to the appellant, but the affidavits were disclosed to the appellant’s counsel upon his giving a comprehensive confidentiality undertaking.

The affidavits annex the medical reports in question and purport to explain how the documents could reasonably be expected to prejudice the investigation.
The respondent also called the detective in charge of the investigation to give confidential supplementary oral evidence as to how the disclosure of the documents in question were asserted to prejudice the investigation. In accordance with the court’s earlier ruling and section 41(1) of the Act, that evidence was called in a closed court and has been suppressed from publication. The appellant’s counsel was however present, and no constraints were placed upon counsel’s right to cross examine or indeed call further evidence.
The onus in these proceedings
Surprisingly, given the age of the statutory framework governing FOI appeals to this court, the scope and onus in an appeal to this court was a matter of some dispute. That dispute arose from the relationship between the specific appellate provisions found in the Act (which for clarity in this part of the judgment I will refer to as ‘the FOI Act’) as against the general appellate provisions concerning administrative decisions found in the District Court Act 1991 (SA).
Counsel were not able to refer the court to any binding authority on the relationship between these two provisions, although a number of judges of this court have opined on the topic over the years.[1] It is therefore necessary to set out the relevant provisions in more detail than would otherwise be required. The FOI Act provides for an appeal to this court in the following terms; [2]
[1] Ward v Family Care Meeting Convenor, Youth Courts and Courts Administration Authority [2003] SADC 18, Konieczka v South Australian Police [2006] SADC 134, Capone v South Australian Police Information Unit [2011] SADC 7, Jotanovic v Housing SA [2011] SADC 138, Treglown v SA Police [2011] SADC 139.
[2] All parties agree the Act as at the date of the Ombudsman’s 16 July 2016 determination is the relevant version. For example, see transcript page 2 and footnote 1 to the Respondent’s Third Outline of Argument. The Act was subsequently amended and the appellate/review jurisdiction has now been vested in SACAT.
Division 2—Right of appeal
40—Appeal to District Court
(1)An agency that is aggrieved by a determination made on a review under Division 1 may, with the permission of the District Court, appeal against the determination to the District Court on a question of law.
(2)A person (other than an agency)—
(a)who is aggrieved by a determination of an agency following an internal review; or
(b)who is aggrieved by a determination that is not subject to internal review; or
(c)
who is aggrieved by a determination made on a review under Division 1,

may appeal against the determination to the District Court.
(3)Proceedings under this section must be commenced by an agency or person within 30 days after notice of the determination to which the proceedings relate is given to the agency or person or, in the case of a person who was not given notice of the determination, within 30 days after the determination.
(4)Where an application for review is made under Division 1, an appeal cannot be commenced until that application is decided and the commencement of an appeal to the District Court bars any right to apply for a review under Division 1.
(5)The following are parties to proceedings under this section:
(a)the agency;
(b)in the case of an appeal against a determination of an agency following an internal review or a determination made on a review under Division 1—the applicant for the review;
(c)in the case of an appeal against a determination that has not been the subject of a review—the applicant for the determination.
(6)Neither the Ombudsman nor the Police Ombudsman can be a party to proceedings under this section.
(7)If, in proceedings under this section—
(a)the Court is advised that the determination of the agency was made on grounds of the public interest; and
(b)the Minister administering this Act makes known to the Court the Minister's assessment of what the public interest requires in the circumstances of the case subject to the appeal,
(c)the Court must, in determining the appeal, uphold that assessment unless satisfied that there are cogent reasons for not doing so.
(8)In proceedings under this section—
(a)in the case of proceedings commenced by an agency—the Court must order that the agency pay the other party's reasonable costs; or
(b)in any other case—the Court must not make an order requiring a party to pay any costs of an agency unless the Court is satisfied that the party acted unreasonably, frivolously or vexatiously in the bringing or conduct of the proceedings.
41—Consideration of restricted documents
(1)In any proceedings under this Division in which it is claimed that a document is a restricted document, the District Court must, on the application of—
(a)the agency concerned; or
(b)if the agency concerned is a State Government agency—the Minister administering this Act,
receive evidence and hear argument in the absence of the public, the other party to the appeal and, where in the opinion of the District Court it is necessary to do so in order to prevent the disclosure of any exempt matter, the party's representative.
(2)If the District Court is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.
(3)If the agency concerned is a State Government agency, the Minister administering this Act is a party to the proceedings, and the District Court must not determine the appeal unless the Court has given the Minister a reasonable opportunity to appear and be heard in relation to the matter and has given due weight to any submissions made by or on behalf of the Minister.
42—Disciplinary actions
If, at the completion of any proceedings under this Division, the District Court is of the opinion that there is evidence that a person, being an officer of an agency, has been guilty of a breach of duty or of misconduct in the administration of this Act and that the evidence is, in all the circumstances, of sufficient force to justify it doing so, the Court may bring the evidence to the notice of—
(a)     if the person is the principal officer of a State Government agency—the responsible Minister; or
(b)     if the person is the principal officer of an agency other than a State Government agency—the agency; or
(c)     if the person is an officer of an agency but not the principal officer of the agency—the principal officer of that agency.
Part 6—Miscellaneous
47—Service of notices
A notice that an agency is required by this Act to give to a person—
(a)     may be served personally or by means of a letter posted to the person at the person's address last known to the agency; and
(b)     is, if it is served by means of a letter, to be taken to have been given to the person at the end of the fifth day after the letter was posted.
48—Burden of proof
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 also addresses appeals from administrative decisions to this court. I set out those provisions;
Subdivision 2—Administrative appeals
42B—Application of Subdivision and interpretation
(1)This Subdivision applies in relation to the appellate jurisdiction conferred on the Court by another Act (the special Act) subject to the provisions of the special Act.
(2)In this Subdivision—
decision includes an act (such as the giving or making of a notice, direction, determination, requirement or order) and a failure or refusal to make a decision or act;
original decision-maker, in relation to an appeal, means the person or body whose decision is appealed against, and includes, if that person or body made the decision on an appeal against, or review of, a decision made by some other person or body, that other person or body.
42C—Extension of time to appeal
The Court may, in its discretion, extend the time fixed by the special Act for instituting an appeal, even if the time for instituting the appeal has ended.
42D—Stay of operation of decision appealed against
(1)The making of an appeal against a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2)However, on the making of an appeal, the Court or the original decision-maker may, on application or at its own initiative, make an order staying or varying the operation or implementation of the whole or a part of a decision appealed against pending the determination of the appeal if the Court, or the original decision-maker, is satisfied that it is just and reasonable in the circumstances to make the order.
(3)An order by the Court, or the original decision-maker, under this section—
(a)is subject to such conditions as are specified in the order; and
(b)may be varied or revoked—
(i)in any case—by further order by the Court; or
(ii)if the order was made by the original decision-maker—by further order by the original decision-maker or the 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.
42G—Costs and ancillary orders etc on appeals
(1)The Court may, on an appeal, make any ancillary or consequential order that the Court considers appropriate.
(2)However, no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice.
The supposed conflict or tension primarily arises from the provision in section 48 of the FOI Act that:
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.
Whereas on the other hand s 42E(3) of the District Court Act directs that that on an appeal concerning an administrative decision the court must:
… give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
As can been seen, the matter currently before the Court is an appeal against a review by the Ombudsman conducted per Division 1 of Part 5 of the FOI Act, accordingly by a person who is ‘aggrieved by a determination made on a review under Division 1’.[3]
[3] Section 40(2)(c) of the FOI Act.
As observed, s 48 of the FOI Act provides that in any proceedings concerning a determination made under it by an agency, the burden of establishing that an FOI determination is justified lies on the agency. Section 40(7) provides that if, in appeal proceedings to the District Court (a) the Court is advised that the determination of the agency was made on grounds of the public interest and (b) the Minister administering the FOI Act makes known to the Court the Minister's assessment of what the public interest requires in the circumstances of the case subject to the appeal, the Court must, in determining the appeal, uphold that assessment unless satisfied that there are cogent reasons for not doing so.
‘Agency’ is however defined in s 4 of the FOI Act and an ‘exempt agency’ is excluded from the definition of ‘agency’. Per Schedule 2 to the FOI Act, the Ombudsman is listed as an exempt agency. This appeal is against the determination of the Ombudsman made as a result of a review he conducted under Division 1. Hence on a literal reading of the statute, and on the assumption that ‘agency’ wherever used in the FOI Act retains its defined meaning and specifically excludes any ‘exempt agency’ such as the Ombudsman, neither s 48 nor s 40(7) which are each expressed to apply to determinations made by an ‘agency’ will apply to an appeal where, as here, the determination appealed against is one made by an ‘exempt agency’ such as the Ombudsman. On that analysis, if neither s 48 nor s 40(7) of the FOI Act apply to this appeal, the test on this appeal may simply be left to s 42E(3) of the District Court Act 1991 (SA).
The FOI legislation provides that in the case of, as here, ‘an appeal against a determination of an agency following an internal review or a determination made on a review under Division 1’ the parties to an appeal will be the ‘agency’ and the applicant for the review. The section goes on to provide that the Ombudsman may not be a party to the appeal.
The scheme of the District Court Act provisions is not to provide any general right of appeal against an administrative act, rather the scheme is to provide a general enabling framework for appeals authorised by other legislation.[4] The District Court Act provides that this general enabling framework applies ‘in relation to the appellate jurisdiction conferred on the Court by another Act … subject to the provisions of the (other) Act.’
[4] Section 42B(1).
As can be seen, the District Court Act expressly provides that the appellate provisions set out in the District Court Act will be subject to the provisions in the particular legislation which provides for the substantive appeal to the District Court. Accordingly, to the extent that there may be any inconsistency between the District Court Act and the particular legislation that provides a right of appeal to this court, in this case the FOI Act, the legislation appears to intend that the latter must prevail. That is also consistent with principles of interpretation wherein the court will ordinarily approach the interpretation of statutes with the presumption that they are all intended to have force and hence work together or in a complimentary way, such that the specific might be expected to be intended to provide an exception to the general, and the principle that where there is a conflict between general and specific provisions, there is a presumption that the specific provision prevail. That would support the proposition that the FOI Act sections would apply, if they in fact do apply, notwithstanding the argument that the FOI sections do not apply, because the appeal now relates to the determination of an exempt agency in the form of the Ombudsman.
Drawing this together, on balance, the Ombudsman being an exempt agency and hence not an ‘agency’ per the FOI Act, the FOI Act appeal provisions relating to the appellate onus concerning a decision by an ‘agency’ likely do not apply. Hence the only applicable provision as to onus on appeal would be the general provision contained in the District Court Act applying to administrative decision appeals authorised by other Acts.[5]
[5] S 42E(3).
As it has turned out, the parties have placed the entire history of the contest over these documents before the agency, and then the Ombudsman, before the Court, and have tendered all the disputed material itself before the court. Further, without objection, as contemplated by s 42E(1) of the District Court Act, the agency has called further evidence including evidence as to the current basis upon which they continue to resist disclosure.
Hence there has been no real reliance on onus; rather the parties have primarily focussed on whether, on all the evidence available to him, the Ombudsman’s decision was substantively right or wrong, and whether on all the evidence as it currently stands it is still right or wrong to resist disclosure.[6] In those circumstances questions of formal onus fall away, except were the matter to be so finely balanced that only resort to onus would tip that balance.
[6] For example see transcript pp 6 and 18-21.
Here, the agency has provided all the evidence and material it possesses to support the claimed necessity for non-disclosure both at the time of the Ombudsman’s decision and at the time of the hearing in this Court. Hence the agency has taken it upon itself to establish that the determination was and is still justified, and the Court is placed in the position of being fully equipped with the facts to apply what is, after all, an objective test for non-disclosure. If the test is satisfied, then the determination is justified and there will not be cogent grounds to depart from it. If the test is not satisfied, then there will be cogent reasons to depart from it.
At the final hearing the respondent disclosed redacted versions of the three documents to the appellant, and so the application proceeds only in relation to the remaining redacted and hence undisclosed portions of the three reports.
The test
Section 20(1) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document. Schedule 1 of the Act sets out what are exempt documents. Relevantly, clauses 4(2)(a)(i) and 4(2)(b) provide that:
(2)     A document is an exempt document if it contains matter the disclosure of which –
(a)     could reasonably be expected –
(i)    to prejudice the investigation of any contravention or possible   contravention of the law (including any revenue law) whether   generally or in a particular case; or   ….
(b)     would, on balance be contrary to the public interest.
The provision is straightforward, and in terms of the issues in this matter, it requires an assessment as to whether the disclosure of the documents in question could reasonably be expected to prejudice a police investigation in this matter.[7]
[7] Attorney Generals Department v Cockcroft (1986) 10 FCR 180, Parker v ASIC [2016] AATA 767, DZ v Commissioner of Police [2002] NSWADT 274, News Corporation Ltd v NCSC (1984) 5 FCR 88.
Accordingly there needs to be an ongoing or anticipated police investigation, and the material needs to be such that its release could reasonably be expected to prejudice it.
There was no real dispute that it is in the public interest that a mother receive all the information concerning the death of her son, nor that all relevant facts are disclosed in the case of such a death.
Assessment – the Ombudsman’s decision
The appellant argues that the Ombudsman erred, and did so plainly, in simply accepting SAPOL’s one-line claim that it was still investigating the matter after all these years. Further, the appellant argues that where, as here, the Ombudsman had evidence in the form of the DPP letter to the applicant that the DPP had fully considered the matter and formally concluded that there was insufficient evidence available to prosecute any person, such a one-line claim should not be accepted.
The appellant argues in that situation it was not sufficient just to ask whether there was an ongoing investigation and accept a one-line response sourced from SAPOL that there was, nor was it sufficient to simply accept SAPOL’s bare assertion that the release of the material in question would prejudice such investigation.
On a review, the Ombudsman must reach an independent state of satisfaction as to whether the criteria are met. What will be required to reach that state of satisfaction will depend on all the circumstances. Where an agency just asserts that criteria are met, the Ombudsman must carefully consider and assess whether that assertion is sufficient to satisfy the Ombudsman that the criteria have in fact been met. Sometimes it may be sufficient; sometimes it may not be.

On the one hand, if the claim of the investigating agency is within that agency’s statutory remit, seems reasonable on its face, is consistent with the overall factual matrix, and there is no reason to doubt the legitimacy of the claim, then depending on all the circumstances the Ombudsman might be justified in accepting the investigating agency’s claim without more.
On the other hand, simply receiving an assertion from an investigating agency that the criteria are satisfied, may well not suffice. Where there are factors that raise questions as to whether such an investigation would indeed be substantively proceeding, perhaps given the passage of a significant amount of time, or perhaps given evidence that the investigation had actually closed, the Ombudsman must critically analyse whether a bare assertion to the contrary can satisfy the statutory criteria in his mind. The longer the passage of time, and the more indication there is that for all practical purposes the investigation has closed, the less the Ombudsman should be prepared to accept bare assertions to the contrary.
Here, in the court’s view, that point had been reached, and the Ombudsman should have required substantive information as to how and why the asserted investigation was still active in the face of the DPP’s letter, and why in the circumstances of this matter the release of supplementary medical reports from a medical practitioner who had already provided a primary report needed to remain undisclosed lest the investigation be prejudiced.
Assessment – are the documents exempt?
Before this court, the matter was effectively fully re-heard, and the respondent called direct evidence as to the investigation concerned. That evidence was called in the absence of the appellant and the public, as earlier explained.
The appellant’s counsel was present for that evidence and had the opportunity to review and consider it, and to cross examine any witnesses called.
In the nature of things, the court cannot set that information out, as it deals with the investigation itself and the substantive, strategic or tactical reasons why the disclosure is asserted to be such that it could reasonably be expected to prejudice the investigation. The evidence was detailed and specific as to the nature of the investigation that was said to be proceeding, and the steps that were being taken and were being planned to be taken.
One of the appellant’s concerns was that whilst SAPOL claimed it had an ongoing investigation, the DPP letter proved otherwise. SAPOL’s claims about an ongoing investigation might just mean it was keeping its file open in case new evidence ever arose, which could mean forever, and that would mean she would never get access to the documents.
On the basis of the evidence called in the absence of the appellant and the public it is clear, and the Court accepts, that the investigation is active and ongoing, and that a series of actions are occurring and are planned to occur to progress the investigation to a conclusion in the not too distant future.
The court has carefully considered that evidence, given full consideration to the matters raised in cross examination of any witness, and has given the fullest consideration to the submissions of the appellant’s counsel.
Conclusion
Having regard to the evidence before the court, including the supplementary evidence called on the appeal, there is an active ongoing police investigation, the nature of which and the stage of which, and the considerations relevant to that investigation, satisfy the court on the balance of probabilities that at this time and for the immediate future, disclosure of the contested documents could reasonably be expected to prejudice such investigation.
On the evidence before the court, that state of affairs is not however permanent, and the investigation together with the need for non-disclosure are unlikely to remain extant beyond June 2018.