Schultz v Commissioner of Police, NSW Police Service

[2003] NSWADT 86

CITATION:	Schultz & Ors v. Commissioner of Police, NSW Police Service [2003] NSWADT 86
DIVISION:	General Division
PARTIES:	APPLICANTS Dean Andrew Schultz Alby Schultz Grant Damien Schultz RESPONDENT Commissioner of Police, NSW Police Service
FILE NUMBER:	023126
HEARING DATES:	25/11/2002
SUBMISSIONS CLOSED:	11/25/2002
DATE OF DECISION:	04/28/2003
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	access to documents - confidential material - access to documents - law enforcement & public safety - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Cerminara -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 95 Ingram -v- General Manager, Sutherland Shire Council [2000] NSWADT 69 Rittau -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 186 BY -v- Director General, Attorney General's Department (No. 2) [2003] NSWADT 37 Re Saunders and Federal Commissioner of Taxation (1988) 15 ALD 761 Re Briggs (No 2) and Australian Taxation Office (1986) 86 ATC 2040) Fisher -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 267 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Neary v The Treasurer, New South Wales [2002] NSWADT 261 Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11
REPRESENTATION:	APPLICANTS P Livingstone, barrister RESPONDENT D Godwin, barrister
ORDERS:	1. The reviewable decision is affirmed. ; 2. The confidential exhibit is to be made available to the respondent for collection forthwith.

1 The applicants are two sons and their father who are residents of Cootamundra, in New South Wales. They made a joint application to the respondent agency for access to police documents under section 17 of the Freedom of Information Act 1989 (" the Act ") dated 20 May 2001. They sought, broadly, any police documents that bore their respective names and other documents regarding a court appearance concerning a Ms Cassidy.

2 The respondent undertook some searches and, in a determination dated 25 September 2001, an officer of the respondent determined that the original FOI application be partly accepted and partly refused. Some documents were released to the applicants in full, some with deletions and some were not released at all. The primary exemption claimed was that under clause 4(1)(b)&(e) of Part 1, Schedule 1 to the Act (documents affecting law enforcement and public safety). This meant that the disputed documents are regarded by the respondent as “restricted” documents under the Act, and not merely “exempt” documents. Clause 6(1) of Schedule 1 of the Act (documents affecting personal affairs) and clause 13(b) of the said Schedule (confidential information) were also relied upon as claimed exemptions.

3 There was some significant correspondence between the parties that resulted in further documents being uncovered by the respondent’s officers and released to the applicants. An application for internal review was made and it was determined by way of two letters from another officer of the respondent dated 15 April 2002 and 29 April 2002. In these determinations, further documents were released to the applicants or were uncovered and then released. Some identified documents were exempted in whole or in part for stated reasons. The internal reviewer did not describe the exempted documents other than by notation of the respondent’s Computerised Operational Policing System (“COPS”) Information Report number, citing s 28 of the Act which relevantly provides:

“28 Notices of determination …
(3) An agency is not required to include in a notice any matter that is of such a nature that its inclusion in the notice would cause the notice to be an exempt document.”
4 Similarly, there are limitations on the Tribunal recording its determination of a review application pursuant to section 55 of the Act in that the Tribunal cannot in these reasons say anything that would disclose exempt matter under the Act and it therefore must be somewhat constrained in what is said regarding the disputed documents. That section provides:
“55 Procedure for dealing with exempt matter
In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.”
5 As to the grounds of exemption relied upon by the internal reviewer, he primarily relied on clause 4(1) (adding some sub paragraphs) and clause 6. Presumably because of the nature of the material, and the strength of the claimed restricted documents grounds, he did not first undertake notification of the various third persons whose names were mentioned in the some of the disputed documents so as to ascertain their views regarding release (the "reverse FOI" procedure set out in s 31 of the Act). The primary FOI decision-maker had earlier determined that it was “unreasonable” for the respondent to first notify the said third persons in the circumstances.

6 Dean Schultz commenced these proceedings in the Tribunal, and later, by consent, his brother and father were joined as necessary parties. The parties are agreed that the Tribunal has jurisdiction to determine the application, and I am otherwise satisfied that that is the correct position. As there is a clause 4 restricted documents claim, the Premier, being the Minister administering the Act, was invited to participate in the proceedings as a party pursuant to section 57(6) of the FOI Act. However, he apparently declined to appear or participate in the proceedings.

7 The hearing was conducted at Wagga Wagga on 25 November 2002. Both parties were represented by counsel. During the course of the hearing, some useful discussions took place between the parties, the result of which was that further documents were released to the applicants either in full or in part and they are no longer the subject of dispute.

8 The remaining disputed documents are identified in a schedule tendered by the respondent styled “Documents in Issue” (exhibit A). That schedule was amended by the Tribunal by hand during the course of the hearing as further documents were released and with the result that 18 documents remain contested by the applicants.

9 Exhibit A describes the subject document (by COPS ID number) in the first column. In the second column is a reference to the relevant paragraph of the respondent’s confidential affidavit dealing with the document and the third column sets out the sub clause of 4(1) that is relied upon and whether or not clause 6 is also relied upon. By far, the primary ground relied upon for most of the documents is clause 4(1)(b) of Schedule 1 of the Act . Sub-paragraphs (b) & (e) were also relied on at the hearing. Clause 4(1) relevantly provides:

“4 Documents affecting law enforcement and public safety
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(a) 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) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained. …
(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), …”
10 By way of sub-clause (2), the documents are not “exempt” if they are properly regarded as being of the kind listed in clause 4(2)(a)(i) to(v) and if disclosure of the document would, on balance, be in the public interest. I have read all of the disputed documents and none of them falls within the description of the kind of documents listed in clause 4(2)(a)(i) to(v).

11 The evidence relied on by the respondent at the hearing comprised three affidavits sworn on 21 October 2002, 24 October 2002 and 1 November 2002 by Matthew Daykin, an experienced member of the NSW Police and the Co-Ordinator, Freedom of Information, Legal Services. In addition, on the application of the respondent made pursuant to section 57(2) of the Act (relating to restricted document cases) the affidavit of Murray Gillett, sworn 14 October 2002 was directed to be confidential and was read in a brief closed session of the Tribunal to the exclusion of the applicants, their representative and the public. Confidential oral evidence was given in that closed session by Mr Gillett about the matters he swore in his affidavit. Mr Gillett is an acting Inspector of Police attached to the Cootamundra Local Area Command and holds the position of “Crime Manager”. As such, he is responsible for the collection, evaluation, analysis and dissemination of all intelligence material within that Local Area Command. He has been a member of the NSW Police for some 16 years and has taught on the subject of intelligence gathering. In addition to his oral submission at the hearing, written submissions were relied on by counsel for the respondent. Counsel for the applicant made oral submissions on the day as well.

12 The affidavits of Matthew Dakin set out in considerable detail the process the respondent took in dealing with the applicants’ FOI application. That process was plainly thorough and Mr Dakin’s evidence was not challenged by the applicants. As documents were uncovered, some further requests were made by the applicants and they were each attended to by the respondent. A copy of much of the material thereby produced and released to the applicants was annexed to those affidavits. The remaining dispute concerned documents that I am satisfied have been thoroughly studied by a number of senior officers of the respondent and are the subject of specific confidential oral and written evidence.

13 In the confidential affidavit and oral evidence of Murray Gillett, the Tribunal was taken to each of the 18 disputed documents, one at a time. The portion of his affidavit was read and expanded on and in some cases, oral evidence only was adduced so as to explain the stated reasons for the exemptions claimed. I asked the Inspector a number of questions in that process.

14 In addition to reviewing the documents in the course of the hearing, I have again read through the subject documents. I am satisfied that Inspector Gillett’s evidence plainly establishes that, for reasons which I cannot state further without offending s 55 of the Act, each of the documents contains matter the disclosure of which could reasonably be expected to:

(a) prejudice the investigation of a contravention or possible contravention of the criminal law both generally and in particular cases (in relation to documents numbered 1, 10 and 12 of exhibit A);

(b) enable the existence or identity of confidential sources of information, in relation to the enforcement or administration of the law, to be ascertained (in relation to documents numbered 2-7 inclusive, 10, 12, 14, 15, 17, 18, 20, 21 and 22 of exhibit A); and

(c) prejudice the effectiveness of lawful methods or procedure for preventing, detecting, investigating or dealing with contravention or possible contravention of the criminal law (in relation to documents numbered 1, 14, 22 and 23 of exhibit A).

15 The documents are therefore “restricted” documents under the Act and not merely “exempt” documents.

16 In relation to three of the subject documents, only certain identified passages are claimed to be exempt for the reasons identified by the oral evidence of Inspector Gillett and set out in exhibit A. In relation to document numbered 23 in exhibit A (COPS No I 10097920) the exemption is only claimed in relation to the third sentence under the headings “Narrative” and “Information”, up to but not including the words “..association with..”. In relation to document numbered 22 in exhibit A (COPS No I 10438731) the exemption is only claimed in relation to the first sentence under the headings “Narrative” and “POI” (not including the first word there, “Intelligence”). In relation to document numbered 14 in exhibit A (COPS No I 10489975) the exemption is only claimed in relation to the last sentence under the heading “Narrative” (where that heading appears a second time).

17 I accept the evidence of Inspector Gillett in relation to the passages in the three documents referred to above and I find they constitute matter that render the said three documents restricted documents. However, I consider it is practicable for those matters to be deleted, blackened or otherwise expunged from the documents and the remainder of the three documents in question may then be released to the applicants as permitted by s 25(4) of the Act. The applicants do wish to receive such a copy.

18 As for the remaining 15 documents, I am satisfied that it is not practicable for the exempt matter to be simply deleted. It would require extensive deletions, would serve no useful purpose and it could not easily be achieved. If I am wrong, such deletions would render the documents meaningless and I am satisfied that the applicants would not to wish to be given access to a copy of a meaningless bundle of documents.

19 The respondent also relied on the personal affairs exemption in clause 6 of Schedule 1 of the Act in relation to documents numbered 1, 5 and 6. However, due to the views I have formed and the conclusions I have reached regarding the application of clause 4(1) of Schedule 1 to the Act to the disputed documents, I do not need to make any determination based on this ground. If I am wrong as to the restricted documents grounds, I would adopt the submissions of the respondent in that regard and find that the said documents contain matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of particular persons, namely, their names, contact details, home addresses and other information of a personal nature.

Clause 4 Restricted Documents
20 The expression "could reasonably be expected", when used in the opening words of clause 4(1) of Schedule 1 to the Act means reasonableness in all of the circumstances of the particular case (Cerminara -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 95 at [18]). The expression has an ordinary meaning and the focus of the clause is on the adverse or potentially adverse effects of disclosure of the documents (Ingram -v- General Manager, Sutherland Shire Council [2000] NSWADT 69 at [27]).

21 Restricted documents are a special category of exempt documents under Schedule 1 of the Act. Such documents are often particularly sensitive to or necessary for government and that factor should weigh heavily in any consideration of their possible release under the Act by the administrator or by the Tribunal (Rittau -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 186 at [39]-[41] and Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 at [40]).

22 As to the clause 4(1)(a) claim generally, it does not matter that there may be no criminal charges already brought or about to be brought in connection with the investigations of the law referred to there. Even information obtained as a result of a proper investigation that might become useful to the police in the future may well be covered by the sub-paragraph (Cerminara at [19]).

23 As to the clause 4(1)(b), I accept that the clear purpose of the sub-paragraph is to maintain a public willingness to provide government agencies who have a law enforcement function with relevant information, without, at the same time creating in those informants a fear of unwanted disclosure of their identity or of reprisals for supplying information (Ingram -v- General Manager, Sutherland Shire Council [2000] NSWADT 69 at [27] and that the exemption is directed towards protecting the flow of information from the public rather than in relation to the contents of the document (BY -v- Director General, Attorney General's Department (No. 2) [2003] NSWADT 37 at [37]).

24 In the present case, as I have indicated, an examination of the bulk of the documents plainly indicates on their face that there is confidential information within this category. It does not need to be further shown that some specific action was taken by the police to verify or to act on the said information in any particular fashion (see Cerminara at [20] and the cases cited there). The sub-paragraph merely requires that the said confidential information must relate to the enforcement or administration of the law.

25 As to clause 4(1)(e), I accept the submissions of the respondent that this exemption applies where disclosure could reasonably be expected to prejudice the conduct of any relevant investigation or would prejudice the effectiveness of any relevant method or procedure by alerting an applicant to possible means of frustrating such a method or procedure (see, in relation to revenue matters, eg: Re Saunders and Federal Commissioner of Taxation (1988) 15 ALD 761, and Re Briggs (No 2) and Australian Taxation Office (1986) 86 ATC 2040).

26 The determination I have made in these proceedings, that the documents are restricted documents was made by reference to the test contained in clause 4(1) as to whether disclosure of material could “reasonably be expected” to have a certain effect. However, I have also applied the threshold test set out in s 57(3) of the Act, namely, I am also satisfied that there are reasonable grounds for the restricted documents claim for the reasons I have referred to in this determination. While I accept that it is ordinarily appropriate to consider the s 57 test before one moves onto the “ordinary jurisdiction” tests involved in clause 4 (BY -v- Director General, Attorney General’s Department [2002] NSWADT 79 at [68]-[76]), the strength of the confidential evidence and the subject documents made it unnecessary for there me to draw any distinction in this particular case.

27 I therefore do not need to consider the precise scope of the s 57(3) test, that the Tribunal must merely be satisfied that “there are reasonable grounds for the claim”, as the respondent has well satisfied me that the documents are restricted on any view of the said test (see my discussion on this issue in Rittau -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 186 at [50]-[56]). In addition, I agree with and respectfully adopt what was said by Judicial Member Britton in Fisher -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 267 at [34]-[35] in relation to the protection to be accorded to information given to the police.

The Section 25(1) Question
28 As to whether the Tribunal should release the restricted documents in any event as a matter of the Tribunal's discretion in section 25(1) of the Act (see, Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85], referred to there as the "override discretion"), I consider that to the extent that such a discretion may now be said to exist (see, Neary v The Treasurer, New South Wales [2002] NSWADT 261 at [67]), I do not consider that it is appropriate in this case to release the disputed documents in any event as a matter of the Tribunal’s discretion.

29 The disputed documents here are “reasonably necessary for the proper administration of the Government” (see, section 5(2)(b) of the Act, and Mangoplah at [90]). While they might be of some significant personal interest to the applicants (as they concern one or more of them to varying extents) and to some members of the public, the detriment to the work of the respondent and any investigation it might be undertaking would far outweigh satisfaction of that interest by release of the documents. I cannot say that the documents here are innocuous or that there will be no adverse consequences for the respondent should the documents be released (Rittau -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 186 at [73]). Indeed, I consider the contrary would be the position in this case.

30 Accordingly, if a s 25(1) discretion exists, I would not exercise it in the present case.

31 The Tribunal determines:

(a) The reviewable decision is affirmed.

(b) The confidential exhibit is to be made available to the respondent for collection forthwith.