Sherman v Commissioner of Police, NSW Police Force

[2016] NSWCATAD 107

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107
Hearing dates:	On the papers
Date of orders:	01 June 2016
Decision date:	01 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Renwick SC, Senior Member
Decision:	The decision of the respondent dated 25 February 2015 to refuse access is affirmed.
Catchwords:	CIVIL AND ADMINISTRATIVE TRIBUNAL- Government Information (Public Access) Act – Applicant seeks statement from third party given to police alleging Applicant committed sexual assault – Applicant arrested but never charged - sexual assault complainant’s statement to Police involves supply of confidential information that facilitates the effective exercise of Police functions– of the information sought - statement not released
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Criminal Procedure Act 1986 (NSW) Freedom of Information Act 1982 (Cth) Government Information (Public Access) Act 2009 (NSW) Police Act 1990 (NSW)
Cases Cited:	Attorney-General’s Department v Cockcroft [1986] FCA 35 Director-General, Department of Education of Training v Mullett [2002] NSWADTAP 13 Flack v Commissioner of Police NSW [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Leech v Sydney Water Corporation [2010] NSWADT 298 Martin v Commissioner of Police [2005] NSWADT 23 McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164 R v LK [2010] HCA 17 Simring v Commissioner of Police [2009] NSWSC 270 Vella v Commissioner of Police [2009] NSWADT 68
Category:	Principal judgment
Parties:	Russell Sherman (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Russell Sherman (Applicant in person) Office of the General Counsel, NSW Police Force (Respondent)
File Number(s):	1510441

Reasons for decision

Introduction

1. This is an administrative review of the decision by the Respondent, the Commissioner of the NSW Police, to refuse to provide access to information under the Government Information (Public Access) Act 2009 (NSW) (the Act), in response to an access application made by the Applicant, Mr Russell Sherman, in 2015, which was in the following terms:

[The complainant, ‘Z’] made a statement alleging sexual assault against me. I was arrested in Feb/March 2011, and interviewed at Macquarie Fields Police Station. I was released without charge. I would like a copy made by [Z] in this matter. It may be relevant in another matter…currently before the courts. Plus I want it for my own records.

2. It related to a single document (‘the withheld document’) which is a police statement by Z: s 61(c) of the Act. For the reasons which follow, the decision of the Respondent dated 25 February 2015 to refuse access to the withheld document is affirmed.

Background

3. This matter comes before the Tribunal as follows:

1. The Applicant made the access application on 3 February 2015.

2. The request was refused on 25 February 2015.

3. On 9 March 2015 a review of that decision was sought from the Information Commissioner who issued a Review Report on 15 June 2015, recommending, under s 93 of the Act, that a new decision be made. No new decision was made.

4. The Applicant filed an administrative review application in this Tribunal on 28 July 2015. Although out of time, an extension of time was granted by the Tribunal.

4. This Tribunal has jurisdiction by reason of s 100 of the Act and s 30 of the Civil and Administrative Tribunal Act (the CAT Act). The Tribunal’s key functions and powers are conferred by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act) which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

5. The onus of proof continues to lie on the agency: s 105 of the Act.

6. The law concerning the particular exemptions claimed is considered later in these reasons.

7. The parties agreed that the review could be conducted on the papers. The Respondent provided two statements, namely from Detective Sergeant Jason Ferns and Senior Sergeant Nargis Fam. I was also provided with a copy of the withheld document. The parties filed submissions. I have considered all of this material.

The Police Evidence

8. Detective Sergeant Ferns gave general evidence, based on his considerable experience, as to the investigation of allegations of sexual assault. In his experience:

1. The making of a sexual assault complaint is often traumatic, with the victim being embarrassed, and feeling guilty and vulnerable.

2. It is therefore necessary for the Police investigator to attempt to build “an extraordinary amount of rapport” and build up trust in the investigator.

3. If the relationship of trust is broken, it may be detrimental not only to the investigation and any trial, but also to the wellbeing of the victim.

4. Many victims are reluctant to cooperate in sexual assault complaints, because they fear embarrassment and reprisals.

5. Thus, if sexual assault complainants’ statements are provided to alleged perpetrators for reasons other than the need to give evidence in criminal proceedings, complainants would feel the trust they placed in police had been breached. That would have adverse consequences for the continued cooperation of existing and future complainants with the Police.

9. This evidence is logical and compelling and within the expertise of the witness. I accept that evidence.

10. Senior Sergeant Fam spoke to Z, the complainant, in February 2016, who told Fam that:

1. He had a strong objection to the applicant having access to the statement which contains his personal information.

2. The applicant had been harassing him, his ex-partner and family members.

3. He did not want the applicant to have the withheld document as that would expose him to (unspecified) serious harassment, or intimidation.

Legislative Framework

11. It is convenient to set out the terms of the following key provisions of the Act:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

5 Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

12 Public interest considerations in favour of disclosure

(1) There is a general public interest in favour of the disclosure of government information.

(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

The following are examples of public interest considerations in favour of disclosure of information:

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

(3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

13 Public interest test

There is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

12. Section 55 of the Act permits the Tribunal to take into account the applicant’s identity and relationship with any other person, that person’s motives for making the application, and any other factors particular to the applicant as set out in ss 55(1), (2), (3) and (6):

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section:

(a) the applicant’s identity and relationship with any other person,

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.

…

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

13. When dealing with the exemptions claimed in this matter, the normal presumption in favour of disclosure applies, unless there is an overriding public interest against it: see ss 3, 5 and s 12(1). What is required is a ‘weighing’ of the public interest considerations against disclosure, with those in favour. Section 15 must also be applied in that exercise.

14. The respondent correctly points out that, unlike the case where documents are produced, for example under subpoena to a Court, where until tendered, they cannot be used for a collateral purpose and are subject to the usual implied undertaking; where access is given under the Act, it is to be taken to be disclosure to the world at large: see s 73(1) of the Act.

15. The respondent relies upon the exemptions contained in the Table in s 14 of the Act, Clauses 1(d), 1(g), 3(a), and 3(f).

16. As I conclude that the Ground in Clause 1(d) is made out, and fully protects the withheld document sought from disclosure, I do not need to consider the other exemptions claimed. Clause 1(d) states:

14 Public interest considerations against disclosure

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

A sexual assault complainant’s statement to Police involves supply to it of confidential information that facilitates the effective exercise of its functions

17. There are two aspects to this proposition: first, facilitating the effective exercise of Police functions, and second, the supply of confidential information. The first proposition is simply established:

1. Under the Police Act 1990, the NSW Police Force has, as a central function, provision of police services so as to prevent and detect crime: ss 6(2) and 3(a).

2. The investigation of sexual assaults falls within that function.

3. Such an investigation, if it is to lead to an arrest, will almost always involve the taking of a statement from the complainant. If there is to be a criminal trial, such a statement will be necessary.

4. The taking of such statements thus facilitates the effective exercise of the respondent’s functions.

Confidential information

18. The respondent contends that in this case, and in every case involving a complainant in respect of an alleged sexual offence, there is an implied obligation or understanding of confidence that complainants provide information concerning the alleged assault on the basis that their information will be kept confidential unless and until it is required to be provided pursuant to Court orders related to criminal proceedings, with the consequence that if charges are not preferred, the statement will be kept confidential and not served. I accept that contention.

19. In Vella v Commissioner of Police [2009] NSWADT 68 at [13], it was said:

It is well established that in order for an agency to satisfy the Tribunal that information was obtained in confidence … it is not necessary to show that there was an express obligation or understanding that the information was given in confidence. It is sufficient for this to be implied from the circumstances in which the information was obtained or given.

20. I am prepared to find such an implied obligation based on:

1. The inherently sensitive and personal information of the complainant, Z, contained in the withheld document, which is no doubt typical of such statements; and

2. The evidence of Detective Sergeant Ferns set out above from which I conclude that there is a general and mutual assumption by police and complainants that statements by sexual assault claimants will be kept confidential unless, and until criminal proceedings are begun, bearing in mind that even when such proceedings are begun, and the statement is served on the accused, there are protections against disclosure of the complainant’s identity to the world at large.

21. In this regard, it is clear that:

1. An arrest does not always lead to a charge, nor a charge to the administrative process of a committal or a criminal trial (summary or on indictment) which is a judicial proceeding: See R v LK [2010] HCA 17 at [23] per French CJ.

2. In a case such as the present, where the Applicant was arrested but never charged, there was no free standing legal obligation for the Applicant to be provided with the complainant’s statement.

22. Next, although a criminal trial for a sexual assault would require evidence to be given by the complainant, and for the complainant’s statement to be served, that would not result in the disclosure of the contents of the complainant’s statement ‘to the world’ as would be the presumed case if the withheld document was provided to the Applicant under the Act: see s 73(1). There are at least three relevant statutory provisions in this regard, namely:

1. Section 578A(2) of the Crimes Act 1900:

A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings [which would encompass any relevant, hypothetical, charges here] or any matter which is likely to lead to the identification of the complainant.

2. Section 291 of the Criminal Procedure Act (although see s 291C):

(1) Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant is to be held in camera, unless the court otherwise directs.

3. Section 8 of the Court Suppression and Non-Publication Orders Act 2010:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

Disclosure of the information could reasonably be expected (whether in a particular case or generally) to prejudice the supply of such information

23. The words ‘disclosure of the information could reasonably be expected to have one or more of the following effects’ is a phrase which is well-understood in the context of the Act, and its Freedom of Information Act analogues. Those words:

1. have their ordinary meaning, and require an objective judgment to be formed as to what is reasonable, as opposed to what is irrational, absurd or ridiculous, or a mere possibility, risk or a chance: see e.g. Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; and

2. the conclusion must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] and the cases there cited.

24. The evidence of Detective Sergeant Ferns, which I have said I accept, provides strong evidence for such a conclusion.

24. There is also strong support for such a conclusion in the cases, thus:

1. In Simring v Commissioner of Police [2009] NSWSC 270 at [69] it was said:

When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up, or at least there could be a reduction in the flow of information available to the police.

2. In McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164 at [25], it was said:

In respect of determining whether disclosure of the information would "prejudice" the future supply of such information to the agency, it is well established that the test is not whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in the future (see Ryder v Booth [1985] VR 870 at 872 and Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at 341).

3. in Director-General, Department of Education of Training v Mullett [2002] NSWADTAP 13 at [58], it was said:

… cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

4. In Martin v Commissioner of Police [2005] NSWADT 23 at [45], it was said:

In determining whether disclosure of information obtained in confidence could "reasonably be expected to prejudice future supply of such information", the question is not whether the confider of the information in question would in future refuse to supply such information to the agency. It is question as to whether disclosure of the information could reasonably prejudice future supply of this type of information from those sources that are available or likely to be available to the agency (see Re B (1994) 1QAR 279 at 341).

26. Reporting an allegation of sexual assault by any complainant is a great challenge for them, due to the acute trauma, emotion, embarrassment and vulnerability that such complainants typically experience or exhibit. Statements by complainants regarding sexual assault are, for the reasons set out above, taken to be made on a confidential basis. The difficult but important task of obtaining such statements would be made harder if that implied obligation of confidentiality were breached. It would be breached if the withheld document was provided to the Applicant. Those matters provide real and substantial grounds for making out the exemption

The weighing exercise

27. Having found Clause 1(d) is engaged, the final task is weighing the identified public interests in favour of disclosure against the corresponding identified public interest against disclosure, bearing in mind that the onus in this matter is on the respondent: see Flack v Commissioner of Police NSW [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [50] and [70].

28. In summary, the applicant submits that the competing considerations favour disclosure, principally because of the general public interest considerations in favour of disclosure (as set out in s 12) but also the fact that some of the information sought is personal to him and he wishes to know the full details of the allegations made against him which led to his arrest, although he was never charged. Personal factors as set out in s 55(1) of the Act can also be taken into account as factors in favour of providing the applicant with access to the information, but in a Clause (1)(d) case, they may not taken into account as factors against providing access: s 55(3) of the Act.

29. As to the matters identified in s 55 of the Act, I am not prepared to find on the information provided, and in the absence of any application by the Respondent to have the Applicant give evidence and to put such an allegation to him, that there is an improper motive in the Applicant making the claim, or that he has, or is likely to harass, Z if he obtains access to the material. Equally, I accept that the arrest of the Applicant must have been a traumatic event for him, and that he has a genuine desire to understand the basis upon which the arrest was made, bearing in mind that charges did not follow.

30. I have also taken into account all factors in favour of disclosure including the general presumption, the onus of proof, and I have disregarded factors made irrelevant by s 15.

31. The public interest considerations against disclosure in Clause 1(d) as found established above do however outweigh those in favour of disclosure such that there is an overriding public interest against disclosure. It is strongly in the public interest that those who wish to make complaints of sexual assault can do so and, as I have already found, release of the withheld document and documents like it would prejudice future supply of the confidential information which those complaints comprise. It is not enough that the allegations relate to the applicant. In the circumstances set out above, the balance is very clearly against disclosure.

32. Having found that there is an overriding public interest against disclosure of the information sought, the decision of the Respondent dated 25 February 2015 to refuse access is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

01 June 2016 - Amended representation on cover sheet.

Decision last updated: 01 June 2016