Sellars v South Australian Police - [2012] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
SELLARS v SOUTH AUSTRALIAN POLICE
[2012] SADC 9
Judgment of Her Honour Judge McIntyre
16 February 2012
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Appeal to the District Court from a determination by South Australian Police refusing access to a document. Onus of proof on appeal – consideration and application of criteria in clauses 4, 6 and 16 of schedule 1 to the Freedom of Information Act 1991. Held: Appeal allowed
Freedom of Information Act 1991 s3, s3A, s21(a), s23, s26, s29, s40. Schedule 1 clauses 4(2)(a)(i), 4(2)(a)(iii), 6(2), 16(1)(a)(iv); District Court Act 1991 s42E, referred to.
Capone v South Australian Police Information Unit [2011] SADC 7; Registrar of the Veterinary Surgeons Board of SA v Mooney [2009] SADC 62; Ward v Family Care Meeting Convenor Youth Courts & Administration Authority [2003] SADC 18; Argent v SA Police unreported, 19 October 1992, Judgment No D2671; Colakovski v Australian Telecommunications Corporation 100 ALR 111, considered.

SELLARS v SOUTH AUSTRALIAN POLICE
[2012] SADC 9

This is an appeal in the Administrative and Disciplinary Division of this Court from a determination under the Freedom of Information Act 1991 (FOI Act).
Ms Sellars was involved in a motor vehicle accident on 2 April 2011. On 12 July 2011 she requested a copy of all documents held by the South Australian Police (SAPOL) relating to that collision be provided to her under the FOI Act. SAPOL is an agency for the purposes of the FOI Act.
SAPOL undertook a search for documents falling within the scope of the application and identified a number of documents as follows:
1.     Vehicle Collision Report – No. VC11101351
2.     Expiation Notice – No. E3194744A
3.     Statement of witness.
4.     Statement of witness.
5.     Bundle of photographs.
SAPOL made a determination under s.23 of the FOI Act by letter dated 23 August 2011 refusing access to document 3 in its entirety and releasing other documents in part. Ms Sellars applied for an internal review of that determination under s.29 of the FOI Act on 5 September 2011. That review confirmed the initial determination.
Ms Sellars appealed to this court on 27 September 2011 under s.40 of the FOI Act. Initially Ms Sellars appealed the decision in relation to documents 1 and 3 but at the hearing abandoned her application in respect of document 1. Accordingly the only contentious document is document 3.
In dealing with this matter I have had the benefit of submissions from counsel for Ms Sellars and SAPOL. By consent, I received into evidence affidavits from Ms Sellars solicitor sworn on 2 February 2012 and two affidavits from Ms Gentgall of SAPOL sworn on 13 January 2012. One of Ms Gentgall’s affidavits is a closed affidavit containing the document that is the subject of the appeal.
The document
The open affidavit of Ms Gentgall indicates that she was the primary decision-maker and that document 3 is a statement of a person who witnessed the motor vehicle collision involving Ms Sellars. The document contains the person’s name, address and details of the person’s observations of the accident. SAPOL contacted that person in accordance with its obligations under s.26(2) of the FOI Act to obtain the witness’s views as to whether or not they believe the statement was exempt by virtue of clause 6(1) of schedule 1 of the Act. Having determined that this person did not consent to the release of the statement Ms Gentgall took those views into account when assessing whether or not document 3 should be disclosed to Ms Sellars.
Ms Gentgall determined that document 3 was exempt under clause 6(1) of schedule 1 of the FOI Act and therefore could not be disclosed. This determination was confirmed in the internal review. In the appeal the respondent submitted that, in addition to the exemption under clause 6(1) of schedule 1 of the FOI Act, document 3 was also exempt under clauses 4(2), 6(2) and 16(1)(a)(iv).
Appeal
The appellate jurisdiction of the court on an appeal under the FOI Act is set out in s.42E of the District Court Act 1991. In order to depart from the decision appealed against there must be cogent reasons for doing so.[1] This requires something more than mere disagreement with the decision. However, SAPOL bears the onus of establishing that the determination is justified.[2]
[1] Registrar of the Veterinary Surgeons Board of SA v. Mooney [2009] SADC 62
[2] Ward v Family Care Meeting Convenor Youth Courts & Administration Authority [2003] SADC 18; Capone v South Australian Police Information Unit [2011] SADC 7
Legislation
The FOI Act confers on each member of the public a legally enforceable right to be given access to documents held by Government subject only to restrictions consistent with the public interest and the preservation of personal privacy.[3] The principles of administration are set out in s.3A of the FOI Act and state the intention of Parliament that the Act should be interpreted and applied so as to further the objects of the Act and that a person exercising an administrative discretion conferred by the Act must exercise the discretion as far as possible in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals.
[3] Section 3 Freedom of Information Act 1991
It is uncontentious that Ms Sellars has a legally enforceable right to be given access to SAPOL’s documents in accordance with the Act[4] and that she has applied in the appropriate form and within time. Access has been refused to document 3 under s.21(a) on the ground that document 3 is an exempt document. I will deal with each ground of exemption in turn.
[4] Section 12
Clause 6.1
Clause 6 (1) of Schedule 1 of the FOI Act provides as follows:
A document is an exempt document if it contains matters the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
Personal affairs are 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;
The personal affairs identified in document 3 are the name and address of the witness together with that witness’s personal observations of the motor vehicle collision.
It is stating the obvious that none of these matters are contained within the list set out in s.4 the definition of personal affairs. That list is however inclusive and must be read in light of the objects and principles of the Act relating to the preservation of personal privacy. I see no basis upon which it could be said that a disinterested bystander’s observations of a motor vehicle collision imparted to a police officer in circumstances that do not suggest that the matters were disclosed in confidence could be excluded on the ground that they are personal affairs. In saying this I note the witness identified in document 3 was not directly involved in the collision, was not apparently compelled to provide information to the police and further indicated to the police officer that they were willing to give evidence in court. It must therefore have been within the person’s contemplation that the matters imparted to the police officer would be disclosed or disseminated more widely at some stage.
The question as to whether a person’s name and address constitute personal affairs was considered in an unreported decision of the District Court of South Australia Argent v SA Police.[5]Following consideration of the provisions of the FOI Act as they then were, the dictionary definitions of “personal” and “affairs” and the Full Federal Court of Australia decision is Colakovski v Australian Telecommunications Corporation[6] his Honour Judge Roder concluded that each case must be looked at in its own circumstances to determine what might be personal affairs. The circumstances before him were similar to those in this matter, specifically the witnessing of a motor vehicle accident by a bus driver. His Honour concluded that in some circumstances revealing a person’s name and address:
…….would effectively reveal other matters about a person’s personal affairs it would in its own context involve the release of information about personal affairs. In the present case, on its own facts and in its own circumstances, if the name and home address of the bus operator were to be released all that would be revealed would be that the bus operator, a person living at a certain address, was a witness to an accident which occurred on a public thoroughfare, and as a result of which information was provided by him to the police in his capacity as a member of the public. In those circumstances I cannot see how the release of the information relating to name and home address would result in the release of information relating to the bus operator’s personal affairs as that term is used in the legislation. Whilst it may be true that in some circumstances the release of an address might lead inevitably to the release of information relating to a person’s personal affairs there is nothing before me to lead me to the conclusion that that would occur in this present case.[7]
[5] 19 October 1992, Judgment No. D2671
[6] 100 ALR 111
[7] Pages 21-22
I respectfully adopt those comments. It appears to me that the facts and circumstances of this matter are on all fours with the decision in Argent and that the disclosure of the name and address of the witness in this matter together with details of the statement provided to the police would not lead inevitably to the release of information related to the witness’s personal affairs.
Clauses 6(2)
The second basis upon which it is said the document is exempt is clause 6(2) of Schedule 1 of the FOI Act which reads as follows:
(2) A document is an exempt document if it contains allegations or suggestions of criminal or other improper conduct on the part of a person (living or dead) the truth of which has not been established by judicial process and the disclosure of which would be unreasonable.
The respondent contends that the document contains suggestions of improper conduct as to a person’s driving and that those suggestions have not been established by judicial process. It is further said that disclosure would be unreasonable because the individual to whom the suggestions relate has not had and is unlikely to have an opportunity to challenge their veracity and reliability and if released the information has the potential to mislead that the individual has acted improperly.[8]
[8] Para 34 – Submissions of Respondent.
The respondent submits and I agree that the following factors are relevant to a consideration of reasonableness.
·First, whether or not the allegations or suggestions were found to be substantiated in the investigation.
·The action taken.
·The seriousness of the allegations.
·Whether there are issues of wider importance.
·The fair treatment of the individual in not disseminating unsubstantiated allegations.
I accept that document 3 contains suggestions of improper conduct as to a person’s driving and that those suggestions have not been established by judicial process. I do not however consider that it is unreasonable to disclose that document. Whilst it is apparent that SAPOL did not, following investigations, take any further action in relation to those suggestions of improper conduct it must be borne in mind that the police were considering the matter from the stand point of a potential criminal prosecution and the prospects for success given burden of proof which applies in relation to such a prosecution. Questions of negligence and contributory negligence are determined on a different basis and a lower standard of proof.
The allegations whilst significant are not of such a type that would bring the driver into disrepute as one could imagine with other types of allegations of improper or criminal conduct. There is an issue of wider importance because Ms Sellars is making a claim for damages for personal injury sustained in the collision against the compulsory third party motor vehicle scheme. The scheme administrators and ultimately a court may need to consider issues of liability. It is in the public interest that all available material on that topic be provided.
Further I do not consider that it is unfair to the individual to disseminate this information given his insurer would no doubt obtain his comments upon those allegations and, if the matter proceeds to trial, he will be in a position to give evidence about those allegations. I also note that the statement already disclosed, document 4, contains similar allegations.
Accordingly I do not consider that the document should be exempt under clause 6(2).
Clause 4(2)
Clause 4(2) of Schedule 1 of the FOI Act relates to documents affecting law enforcement and public safety. I accept the respondent’s submission that one recognised application of clause 4(2) is to prevent disclosure of the methods and procedures employed in police operations where disclosure would make those methods less effective[9] and I further accept that there is nothing in the words of the clause that would limit its operation to the disclosure of documents of that kind and that the focus of the exemption is on the consequence of disclosure of a document.
[9] Konieczka v SA Police [2006] SADC 134
The respondent submits that portions of the document namely the name, phone number and observation of witnesses are exempt under clause 4(2)(a)(i) and 4(2)(a)(iii) as follows:
….
4      (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
….
(iii)     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); or
….
It is said that release of portions of the document could reasonably be expected to prejudice the capacity of SAPOL to investigate possible contraventions of road traffic and other criminal laws. If the names of individuals who objected to the release were disclosed it is said that members of the public may be deterred from reporting and speaking to police about incident that they have witnessed, that witnesses may have legitimate fears of retribution by persons about whom they have made statements and that it would be contrary to the public interest if police were unable to thoroughly investigate suspected breaches of the criminal law. It is said that there are no factors in the present case that weigh in favour of release.
Whilst the concerns raised by SAPOL are legitimate concerns it will be a matter of fact and degree in each such case. I do not accept that there are no factors in the present case that weigh in favour of release. To the contrary it is my view that there is a public interest in release on two grounds.
First there are the general principles favouring disclosure under the FOI Act that I have referred to. Second there is the public interest that I have referred to in relation to the particular circumstances of this matter being the proper determination of liability in respect of a claim under the compulsory third party motor vehicle insurance scheme. There is also clearly a personal interest of the applicant Ms Sellars in obtaining all available material to determine liability for her injuries.
SAPOL has not suggested that there is any prospect of retribution by the person about whom the statement is made nor is there any suggestion that the witness has a fear, legitimate or otherwise, that this might be the case. Whilst it is certainly the case that members of the public may be deterred from reporting and speaking to police about incidents that they have witnessed, if names and addresses are disclosed I note that this was a motor vehicle accident rather than a serious criminal matter. The information was not as I have indicated above, imparted to the police in circumstances of confidentiality. Accordingly I do not consider that document 3 is exempt under clause 4(2).
Clause 16(1)(a)(iv)
Clause 16(1)(a)(iv) of schedule 1 of the FOI Act provides as follows:
(1)     A document is an exempt document if it contains matter the disclosure of which –
(a)     could reasonably be expected –
(iv)     to have a substantial adverse effect on the effective performance by an   agency of the agency’s functions;
….
In effect this is the same argument as that raised under clause 4(2), specifically the respondent’s contention that disclosure of the document could reasonably be expected to have a substantial adverse effect on SAPOL’s functions namely its function in investigating possible breaches of road traffic and other criminal laws. For the reasons outlined above I reject this contention.
I therefore make the following orders:
1. That SAPOL give Ms Sellars access to document 3.
2. That there be no order as to costs.