Savasta v SA Police
[2017] SADC 87
•23 August 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
SAVASTA v SA POLICE
[2017] SADC 87
Judgment of His Honour Auxiliary Judge Clayton
23 August 2017
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Appeal and cross-appeal from external review by the Police Ombudsman of determinations made by South Australian Police.
Held: appellant has not demonstrated cogent reason to depart from decision of Police Ombudsman.
Cross-appeal allowed and application remitted to the Police Ombudsman with a direction that the Police Ombudsman obtain the views of the interested persons for the purpose of deciding whether the audio component of a video recording is exempt.
Freedom of Information Act 1991 ss 4, 4(1) 20(4), 39(10), 39(11) 40, 40(3), 42; Schedule 1 clauses 4(2)(a)(iii), 4(2)(b), 6(1) & 6(2); District Court Act 1991 ss 42C & 42E; District Court Rules 2006 r 285(1); SA Police v Fitzsimons [2016] SADC 120; Kerekes v Department for Education and Child Development [2013] SADC 149; Stewart and Department of Transport (1993) 1 QAR 227; Colakovaski v Telecom (29) FCR 429, referred to.
SAVASTA v SA POLICE
[2017] SADC 87
Mr. Savasta has appealed from a determination of the Police Ombudsman made on an external review of an initial determination by South Australia Police (‘SAPOL’) which has cross appealed. The right of appeal is created by s 40 of the Freedom of Information Act 1991 (‘FOI’).
SAPOL needs to leave to appeal and an extension of time within which to lodge its cross-appeal. Section 42C of the District Court Act gives the court a discretion to extend the time fixed for instituting an appeal. The conduct of the appeal is governed by s 42E of the District Court Act which amongst other things provides 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.
The proceedings have their genesis in events which occurred on 8 January 2015.
Mr Savasta has an interest in a community title between 2 houses at Woodville North. The landlord had given him verbal approval to go onto the property to inspect underground pipes. After Mr Savasta had a brief conversation with the landlord 3 or 4 of the residents came out of the house into the community title area. An incident, which for present purposes, it is not necessary to consider in detail, occurred resulting in the attendance of police officers. The documents which are sought by Mr Savasta relate to that incident.
Mr Savasta made two separate FOI applications, the first on 19 March 2015 and the second on 20 May 2015. Both applications underwent internal review in SAPOL and then external review by the Police Ombudsman who issued a determination on 9 May 2016. It is that determination from which the parties have appealed.
Permission to cross-appeal
SAPOL submitted that permission to cross appeal ought to be granted because the grounds of cross-appeal raise questions of law and those questions of law and associated grounds of the cross-appeal raise issues of general significance with respect to the procedures and processes in determining applications under the FOI Act. Also the purpose of the cross-appeal is to protect the interests of third parties by ensuring that they are consulted in relation to information concerning their ‘personal affairs’ pursuant to Division 2 of Part 3 of the FOI Act.
I accept that submission and grant permission to cross-appeal pursuant to section 40 of the Freedom of Information Act 1991.
Extension of time to cross-appeal
Under Rule 285(1) of the District Court Rules 2006, a notice of cross‑appeal must be lodged within 14 days after service of the Notice of Appeal. The Notice of Appeal was lodged and served on SAPOL on 10 June 2016. Accordingly the time within which to lodge a notice of cross-appeal expired on 24 June 2016 and the cross-appeal which was filed on 17 August 2016 was 54 days out of time.
An affidavit filed by SAPOL attributes the delay in bringing the cross-appeal to SAPOL anticipating the decision in SAPOL v Fitzsimons [2016] SADC 120 and secondly to the time required by SAPOL to obtain legal advice on 8 August 2016.
The decision of Her Honour Judge Cole in Fitzsimons was not handed down until 5 October 2016. The decision could therefore not have influenced the decision to lodge the notice of cross-appeal on 17 August 2016. It took almost two months from 10 June 2016 to 8 August 2016 for SAPOL to meet with the Crown Solicitor’s Office.
In Fitzsimons Judge Cole considered an application to extend the time pursuant to s 42C of the District Court Act 1991. Her Honour said that factors relevant 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. If the only criterion was the reason for the delay I would have doubts about whether an extension should be granted. However the delay has caused no prejudice to Mr Savasta and the cross appeal does have merit.
There will be an order extending the time for lodging the cross-appeal until 17 August 2016.
The appeal by Mr Savasta
Mr Savasta has appealed from the decision of the Police Ombudsman dated 9 May 2016. The Police Ombudsman had considered two determinations seeking access to documents originating from the same events. Because the two applications are significantly related the Police Ombudsman dealt with both applications in the same external review.
The decision of the Police Ombudsman is contained in a 6 page document which considers carefully the various points which had been raised by Mr Savasta. For present purposes it is unnecessary to deal with each of the many individual steps taken by the Police Ombudsman to reach the ultimate conclusion.
The Notice of Appeal
In his Notice of Appeal Mr Savasta describes the orders complained of in the following way:
A request for release of documents was made to SAPOL FOI unit which resulted in a minimal/partial disclosure of this request. As a result of this partial disclosure an application was made to the Police Ombudsman with the determined outcome being the upholding of the partial disclosure.
The orders sought on the appeal are:
Full disclosure of documents in the hands of SAPOL FOI unit which should include copies of audio recording, copies of any video recordings, any other information regarding third parties, which includes authorisations to disclose information and/or any dealings they have in relation to these matters and documents provided to the Police Ombudsman. It is requested that those documents will be deposited to the court as evidence in relation to this case.
The Grounds of appeal are:
The applicant has lodged two applications under the FOI for the release of information:
1. Application number 15/1620.
2. Application number 15/2025.
On the 19th of June 2015 the applicant lodged an application for an External Review. The Police Ombudsman determined that the two applications were significantly interrelated, and both applications would be dealt with at the same time.
The ground (sic) for an appeal are as follows:
1.Much of the information has been supplied subject to exemption, to which the applicant does not agree with and has requested the full disclosure.
2.There are documents that SAPOL FOI Unit did not disclose to the applicant and the Police Ombudsman. It is requested that full disclosure of every single document which will include:
1.Full disclosure of authority from a third person to disclose a person (sic) business and identity
2.Disclosure of audio and video taken by the police that my property situated at 22 Stone Street, Woodville North
3.Any photographic, computerised or recordings in any form in relation to the property situated at 22B Caskey Street Woodville North and the authority from the owner.
4.Reason why on the 12 January 2016 police knocked on the door of property situated at 22 Stone Street, Woodville North and why they had taken video and audio recordings.
5.Provide proof in documentation that police request an authority to take such video and audio recording.
6.Provide information if any crime and been recorded in the nominated areas/or if police assistance had been requested.
The appellant holds the view that his personal legal rights reserved by an Act of Parliament have been seriously denied by SAPOL FOI UNIT and request a full review of this application under the FOI Act 1991.
In order to facilitate the proceeding in this matter, it is requested that the respondent lodges with the court any document available in relation of applications number 15/1620, 15/2025 and application number 15/1869 as all these matters are interrelated. It is requested that those documents be provided in 2 copies one to the court and one to the appellant and have all the pages numbered. The applicant reserves his right to further extend his appeal.
Some of those ‘grounds’ are really inappropriate interrogatories which are not relevant to an FOI request. Others are statements of what Mr Savasta would like. None are grounds of appeal which articulate a basis for overturning the decision of the Police Ombudsman.
Application for extension of time by Mr Savasta
In the Notice of Appeal Mr Savasta has made an application for extension of time. He states that the application is made to seek compliance with s 40(3) of the Freedom of Information Act. That provision requires the appeal to be lodged within 30 days of being given notice of the decision within which to appeal. On the hearing of the appeal, Mr Savasta never argued the application for an extension of time. The Police Ombudsman’s letter is dated 9 May 2016. There is no evidence as to when Mr Savasta received notice of the letter. His Notice of Appeal was lodged in the registry on 10 June. If there was any delay in lodging the Notice of Appeal it was trifling.
To the extent that it may be necessary there will be an order extending the time for lodging a Notice of Appeal to 10 June 2016.
The argument of Mr Savasta
The hearing of the appeal was delayed by several months because surgery had resulted in Mr Savasta having difficulty talking. He represented himself on the hearing of the appeal. I had no difficulty in hearing what he said although on some occasions I struggled to understand the logic of his submissions.
At the outset Mr Savasta sought an adjournment for the purpose of giving the Police Ombudsman an opportunity to review the file (Transcript 6-19, 6-30). He said:
The major problem in this matter is there are so many documents that are missing it would be impossible for this court today to reach a conclusion in relation to the case. Personally as an applicant I will prefer that the matter be referred again to the Ombudsman for an investigation which include even part 3 that is very important. I don’t think there is appropriate for a respondent to delete a document just because they don’t contact the person of interest. (T2-28)
The respondent opposed the adjournment although it did on the cross-appeal itself seek to have the matter remitted to the Police Ombudsman on one particular point which I refer to later.
Mr Savasta did not justify his application for an adjournment and I decided that it should be rejected. The court proceeded to hear the appeal and cross-appeal. I heard oral argument from Mr Savasta and counsel for the respondent.
Mr Micklethwaite, for the respondent, stated that the position of this client was that the search for documents and what documents were found are not appealable and he pointed out that the Police Ombudsman thought that the sufficiency of service was satisfactory.
Mr Micklethwaite referred to the judgment of His Honour Judge Chivell in Kerekes v Department for Education and Child Development [2013] SADC 149 where His Honour said:
There is a clear authority that there is no jurisdiction on an appeal of this nature to examine the sufficiency of the search for documents conducted by the Department or, in other words, to review the determination that the Department has no or no other documents. I refer to the case of Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Others [2008] NSW CA 140 per the judgments of Beazley JA at [76], with Giles J agreeing and Basten JA at [135].
The New South Wales legislation is not materially difficult in this respect from the South Australian legislation (Freedom of Information Act 1991). I therefore hold that I do not have jurisdiction to enquire into the sufficiency of the search conducted by the Department in furtherance of the appellant’s request.
I respectfully follow the decision of Judge Chivell.
Additionally I am not satisfied that the search for documents was inadequate.
Counsel for the respondent argued that Ground 1 of the appellant’s appeal is a statement of disagreement with FOI determinations and that there was no legal basis for the disagreement. I accept that submission.
As to Ground 2 he submitted that the request cannot properly form the subject of this appeal and cannot be determined by this Court. He referred to the decision of Judge Chivell in Kerekes. I accept those submissions.
Mr Savasta did not address the matters raised by his Notice of Appeal. He did refer the court to a number of authorities but did not demonstrate that any of the authorities support the appeal.
Mr Savasta played 3 video recordings of other situations but none of them has any relevance to the issues presently under consideration.
No worthwhile purpose would be served by a detailed analysis of the matters that Mr Savasta mentioned in his oral address. He did not address the grounds of appeal. He has failed to establish his appeal. As I mentioned the court cannot disturb the decision which is appealed against unless there a cogent reason.
Mr Savasta has not established any reason to upset the decision of the Police Ombudsman.
Cross-appeal by SAPOL
Mr Micklethwaite relied principally upon written submissions which he supplemented by a short oral argument.
The reasons of the Police Ombudsman are contained in a letter dated 9 May 2016. The cross-appeal is only concerned with the document under consideration by the Police Ombudsman which has been identified as Application 1 Document 9. The document is a video recording of an interview with the neighbour whom Mr Savasta alleged assaulted him.
SAPOL had refused access to the document claiming exemption clauses 4(2)(a)(iii), 4(2)(b) and 6(1) of Schedule 1 to the Freedom of Information Act 1991 applied.
The Police Ombudsman varied the determination made by SA Police and decided that the audio component of the video recording is to be released subject to the removal of the first 55 seconds. The Police Ombudsman did not agree that clause (2)(a)(iii) applied. He said that clause 6(1) may apply, to the names, dates of birth and address details stated within the first 55 seconds of the recording and found that the record of interview contains allegations or suggestions of misconduct and therefore clause 6(2) prevented full disclosure. He concluded that it was possible to partially release the audio component of the footage after removal of the first 55 seconds which ‘de-identified’ the document.
He varied the determination pursuant to s 39(11) of the FOI Act so that the audio component of the video be released subject to the removal of the first 55 seconds.
SAPOL seeks an order that the matter be remitted to the Police Ombudsman with a direction that the Police Ombudsman take such steps as are reasonably practicable to consult with affected third parties pursuant to s 39(10) of the FOI Act or that in the alternative consideration be given to whether the exempt matter can be deleted pursuant to s 20(4) of the FOI Act.
Subsection 39(10) provides:
A relevant 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.
SAPOL claimed that the primary purpose of the cross-appeal is to protect the interests of third parties who are potentially affected by release of the video footage, audio recordings and witness statements, in accordance with the procedure for consultation set out by the FOI Act. (Affidavit of TM Gentgall sworn 19 August 2016 paragraph 12)
Section 4, the interpretation provision, of the Freedom of Information Act 1991 states:
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,
f) Personal qualities or attributes, but does not include the personal affairs of a body corporate.
Clause 6(1) of the Schedule 1 of the Act provides:
A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning personal affairs of any person (living or dead).
The Police Ombudsman found that clause 6(1) may apply, at most, to the names, dates of birth and address details stated within the first 55 seconds of the video recording. However, the definition of ‘personal affairs’ goes further than that and extends to ‘personal qualities or attributes’.
Counsel referred to Stewart and Department of Transport (1993) 1 QAR 227 at 255 where ‘personal affairs’ was said to be an ‘inherently imprecise concept’ and Colakovski v Telecom (29) FCR 429 where Lockhart J said the expression ‘connotes information which concerns or affects the person as an individual whether it is known to other persons or not’.
The expression was considered by Judge Cole in SA Police v Fitzsimmons [2016] SADC 120 at [34]-[35] where Her Honour said:
The PO has conflated the concept of “personal affairs” with the concept of “private affairs”. 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. When considering whether to undertake consultation, the decision-making 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 involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead). Comments made in the course of consultation, if it took place, may assist the decision-maker in making that decision.”
SAPOL submitted that the Police Ombudsman erred in concluding that the removal of the names, dates and birth and address is, without more, de-identifies the document. It was submitted that the modified document would still contain the reasonably or clearly identifiable voices of third parties and that the reasonably or clearly identifiable voice of an individual being interviewed by SAPOL in relation to a specific incident constitutes the ‘personal affairs’ of a person for the purpose of s 4(1) of the FOI Act.
I find that the voice of a person is a ‘personal quality or attribute’ and therefore within the definition of ‘personal affairs’.
It was submitted that the Police Ombudsman erred in concluding that by removing the first 55 seconds of the video recording clauses 6(1) and 6(2) of Schedule 1 were rendered inapplicable and that the Police Ombudsman was obliged under s 39(10) of the FOI Act to take reasonably practicable steps to obtain the views of the third parties involved following which the Police Ombudsman was then required to determine whether the disclosure of the document would be unreasonable. [1]
[1] Outline of argument paragraph 37.
In the alternative SAPOL submitted that the Police Ombudsman should have considered whether it was practicable to give access to a copy of the document from which exempt matter has been deleted: section 20(4) of the FOI Act.[2]
[2] Outline paragraph 38.
SAPOL has satisfied me that in respect of Application 1 Document 9 of the Police Ombudsman should obtain the views of all interested persons pursuant to s 39(10) and Division 2 of Part 3 of the FOI Act.
There will be orders:
(a) Dismissing the appeal;
(b) Granting an extension of time for lodging the cross-appeal;
(c)Allowing the cross-appeal and remitting the matter to the Police Ombudsman to be determined according to law including a direction that the Police Ombudsman take steps as are reasonably practicable to obtain the views of all interested persons pursuant to s 39(10) and Division 2 of Part 3 of the FOI Act with respect to the audio recording identified in Application 1 as document 9 and Application 2 document 2.
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