Simring v Commissioner of Police

[2009] NSWSC 270

CITATION:	GENE SIMRING v COMMISSIONER OF POLICE, NSW POLICE [2009] NSWSC 270
HEARING DATE(S):	29 August 2008 (Written submissions - Dec 08)
JUDGMENT DATE :	14 April 2009
JUDGMENT OF:	Smart AJ
DECISION:	Appeal and Application for Orders dismissed
CATCHWORDS:	Freedom of information - Cl 6 of Sch 1 - personal affairs exemption - unreasonable disclosure of information - ADT has no jurisdiction to consider adequacy of search.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Freedom of Information Act 1989 (NSW) Freedom of Information Act 1982 (Vic)
CATEGORY:	Principal judgment
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Craig v South Australia (1995) 184 CLR 163 Exp. Hebburn Ltd; Re Kearsely Shire Council (1947) 47 SR (NSW) 416 Mentink v Albeitz [1999] QSC 9 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257 Re Toohey; ex parte Northern Land Council (1981) 151 CLR 170 Victorian Police v Marke [2008] VSCA 218
FILE NUMBER(S):	SC 30062/2008
COUNSEL:	In person (P) A C Johnson (D)
SOLICITORS:	In person (P) State Crown Solicitor (D)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal of NSW
LOWER COURT FILE NUMBER(S):	053314 (Tribunal - Single Member); 069081 (Appeal Panel)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

SMART AJ

14 April 2009

JUDGMENT

1 The plaintiff applied for certain documents under the Freedom of Information Act 1989 NSW (FOI Act) to NSW Police, namely:

“everything pertaining to myself in NSW Police files, from 1989 to present date, including briefs, advices, statements, memorandum, acknowledgements, interviews etc.”

2 Mr Simring was provided with several documents but 8 others were withheld because NSW Police regarded them as covered by the personal affairs exemption in the FOI Act. Five were statements from the victim, two were statements from witnesses and one was a NSW Police record of an Event [No E3640427], an Event Narrative. They were prepared for the purpose of the investigation and subsequent prosecution of the applicant on indictable offences.

3 Mr Simring told the Appeal Panel of the ADT of NSW that during the course of his trial he had seen two folders of documents that were produced by the NSW Police in response to a subpoena (see para [18] of its reasons for Decision). He said that he had not been given copies of those documents as a result of his FOI application. He disputed that the search undertaken by NSW Police was sufficient. During the prior hearing before a Tribunal Member he seemed to concentrate on the documents produced to this Court on 8 December 2003 in a civil matter pursuant to subpoenas A, B and C.

4 By his Further Amended Summons filed in Court on 29 August 2008, without objection, the plaintiff sought a declaration that an error of law and a denial of natural justice had occurred in the decisions and the reasons therefor made by the Commissioner of Police on 23 February, 22 March and 4 August 2005 as to the plaintiff on the issue of adequacy of search. He also sought a declaration that on the issue on the dates mentioned the Commissioner had acted ultra vires. The plaintiff sought orders in the nature of certiorari and mandamus on the issue of adequate search.

5 He also sought a declaration that an error of law and a denial of natural justice had occurred in the decisions and reasons therefor made by the Administrative Decisions Tribunal on 23 November 2006 and by the Tribunal’s Appeal Panel on 1 November 2007 and 24 April 2008 in relation to him on the issue of access to documents. Consequential orders were also sought.

6 The plaintiff is seeking to appeal against the decision of the Appeal Panel under s 119 of the ADT Act on the issue of access to documents. He has also sought orders in the nature of prerogative relief.

7 As a litigant in person I would not expect the plaintiff to be familiar with the forms of relief and NSW Police were content to address the plaintiff’s appeal and his claims for orders in the nature of prerogative relief.

8 The proceedings before the ADT were conducted on the basis that neither party disputed the Tribunal’s jurisdiction to consider the question whether the agency had failed to produce documents that it had in its possession – see para [19] of the Appeal Panel’s reasons for Decision.

9 NSW Police pointed out that in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 the Court of Appeal held that the Tribunal had no jurisdiction to consider the adequacy of an agency’s search for documents.

10 The Court held:

(a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the Freedom of Information Act 1989;

(b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24;

(c) the jurisdiction of the Tribunal conferred by s 53 of the Freedom of Information Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to ss 17 and 18 of the Freedom of Information Act .

11 The Court held that there was nothing in the FOI Act that confers jurisdiction to conduct a review of, or enquiry into the sufficiency of an agency’s search for documents. Both Beazley JA at [76] and Basten JA at [134] thought that it remains open to an applicant to complain to the Ombudsman or to seek judicial review and orders in the nature of prerogative relief.

12 The initial decision of the Tribunal by Judicial Member Pearson held that NSW Police had conducted a sufficient search for the documents sought and that the challenged documents were exempt documents as they contained matter the disclosure of which would involve an unreasonable disclosure of information concerning the personal affairs of persons other than the applicant.

13 The Appeal Panel upheld the Tribunal Member’s decision that the documents were exempt documents. It declined to grant the plaintiff leave to embark upon a merits review of the issue of sufficiency of the search. The Appeal Panel did grant leave for the appeal to be extended to the merits of the Tribunal’s decision but only on the question of whether access should be given to the disputed documents even though they are ‘”exempt documents”.

14 By its decision of 24 April 2008 the Appeal Panel determined that the exempt documents should not be disclosed in the exercise of its “overriding” discretion under s 63 of the FOI Act.

Adequacy of search

15 As to this issue, the plaintiff relied on the following grounds:

1. The Commissioner of Police, NSW Police, ignored relevant material on the issue of adequacy of search.

2. The Commissioner of Police, NSW Police, made a decision in the absence of evidence on the issue of adequacy of search.

3. The Commissioner of Police, NSW Police, reached a mistaken conclusion on the issue of adequacy of search.

4. The Commissioner of Police, NSW Police, acted ultra vires by not exercising its duty to inquire, its duty to be reasonable; and denying natural justice, on the issue of adequacy of search.

16 The evidence as to search was that of Snr. Sgt Maddox. His affidavit of 4 July 2008 annexed copies of his affidavits of 20 December 2005 and that bearing date 26 January 2006 used in the ADT proceedings. The reference in para [1] of his 2006 affidavit to his affidavit of “9 December 2005” should read 20 December 2005. In his oral evidence he said that the contents of his affidavit of 4 July 2008 were correct. Sgt Maddox was briefly cross-examined by the plaintiff.

17 The plaintiff tendered the transcript of proceedings before Judicial Member Pearson on 11 August 2006. That contained a lengthier cross-examination of Sgt Maddox and some admissions the plaintiff made. The Crown contended that it was irrelevant but the reliance by the plaintiff on his earlier cross examination of Sgt Maddox shortened the proceedings before me and covered matters about which there appeared to be no substantial dispute. The plaintiff was a litigant in person. I was reluctant to have Sgt Maddox recalled and have the plaintiff take Sgt Maddox through what he had previously said.

18 Sgt Maddox joined the Police Service in 1990 and served in various areas. From about February 2003 to February 2004 he was the Coordinator of the Subpoena Section of the Police Service. That Section deals with approximately 8000 subpoenas per year. He was the Coordinator of the FOI Unit of the Police Service from about February 2004 to September 2005. That Unit deals with about 8000 applications annually. In his affidavit of 4 July 2008 he deposed to being the Coordinator of the FOI Unit, NSW Police and in his oral evidence on 29 August 2008 he said that he was a Senior Sergeant of Police presently attached to the NSW FOI Unit.

19 Sgt Maddox stated that the plaintiff’s FOI application was received about 13 May 2004. He outlined the system in place to locate documents the subject of an FOI request and the steps taken to locate those documents in the present case.

20 It is apparent that the Police records allowed NSW Police to identify the proceedings taken against the plaintiff, which Local Command handled the matter and the Officer in Charge of the arrest and charging of the plaintiff.

21 The Service has a computerised record keeping system. Avenues of inquiry can include conducting inquiries on the Computerised Operational Policing System (COPS) and contacting commands or units by telephone or electronic memoranda.

22 In the present case the Narrative Event (the COPS Entry) revealed that the matter was handled at Rose Bay Local Area Command and that the officer responsible for the arrest and charging of the plaintiff was LS Cons Charles Poniris.

23 On 27 May 2004 the FOI Unit of NSW Police forwarded to the Rose Bay Local Area Command a copy of the plaintiff’s application and a request to provide all documents which fall within the ambit of the application. It responded that no information relating to the plaintiff was held at the Command. On 25 October 2004 the FOI Unit forwarded a copy of the plaintiff’s application and a request to provide all documents that fell within it to LS Cons Charles Poniris. He replied by forwarding documents and signed a notification that all documents had been provided to the FOI Unit. On 23 February 2005 Sgt Maddox made a determination and subsequently, after receipt of correspondence from the plaintiff a supplementary determination.

24 In response to prior further inquiries from FOI Unit staff the Brief Handling Manager of Rose Bay Local Area Command advised on 19 April 2005 that the full brief of the arrest and charging of the plaintiff had been located. That brief was forwarded to the FOI Unit.

25 On 4 August 2005, as sought by the plaintiff an internal review determination was made by Chief Inspector Scholz who advised the plaintiff that further searches had been made and had revealed 18 additional documents which were detailed in the determination.

26 On 12 December 2005 Sgt Maddox caused a search of the Archives Unit to be undertaken for documents relating to the plaintiff. On 19 December 2005, the entire holdings of the Archives Unit were returned to the Compliance Law Unit. The documents located at Archives had been previously reviewed and formed part of the earlier determinations.

27 In June 2006 Sgt Maddox was with the Coronial Law Unit. He said that in June 2006 he made further enquiries in an attempt to locate documents falling within the plaintiff’s FOI application. A search was made of the NSW Police Subpoena Section records. He ascertained that three (3) subpoenas had been served on the NSW Commissioner of Police, namely:

Subpoena “A” – this was returnable on 8 December 2003 at “Sydney Supreme Court.” It was forwarded to the Human Resources Unit by Subpoena Unit Staff.

Subpoena “B” - this was returnable on 8 December 2003 at “Sydney Supreme Court.” It was forwarded to the Joint Investigation Team, Kogarah by Subpoena Unit Staff.

Subpoena “C” – this was returnable on 8 December 2003 at “Sydney Supreme Court.” It was forwarded to Detective Annette Bell by Subpoena Unit Staff.

28 There does not appear to be a record of the documents produced pursuant to each subpoena or in general. Sgt Maddox described the Subpoena Section as basically just a processing centre. Sgt Maddox made enquiries of Human Resources, the Joint Investigation Team and Det. Bell but they yielded no presently useful or relevant information. Sgt Maddox concluded that he was unable “to determine what documents were produced (if any) to the Supreme Court in response to Subpoena “A”, “B” or “C”. The police were not a party to the civil proceedings in the Supreme Court but the plaintiff was.

29 At T21 the plaintiff told me that as to the civil proceedings in which he was a party he came to the Supreme Court and saw the documents produced by NSW Police. He said NSW Police produced two arch lever folders full of documents. He was granted photocopy access to them but the case settled before he had a chance to make photocopies. He added:

“The request that I put with the Commissioner of Police was the documents in May 2004. I sighted the documents in Supreme Court in December 2003. The difference is 5 months. In those five months the documents could not be found, any of them.”

30 When documents are produced to the Supreme Court on subpoena the documents and a copy of the subpoena are located in an appropriate storage area of the Supreme Court and a note is made of the addressee of the subpoena and date on which the documents were produced. No record is made of the actual documents produced. That would be too onerous and time consuming. If privilege is claimed a note is made to that effect. If access to the documents (including photocopy access) is granted by a Registrar that is usually noted on the Court’s subpoena database.

31 When a matter is resolved by judgment or settlement the documents produced to the Court are returned to the party producing them by the Court Registry.

32 When documents are returned from the Court Registry they usually come back to the Subpoena Unit of NSW Police. The officers check whether there are original documents. If there are no original documents, the copy documents are shredded. Any original documents are sent back to the Local Area Command or the police officer or the section which had those documents. That was apparently the practice in 2003 and 2004. Sgt Maddox understood that the current procedure was that the Registry, at the request of the Police, caused copy documents to be shredded and not returned. Sgt Maddox was not sure when the current procedures came into operation. Sgt Maddox stated that none of the documents sought were held by the Police Subpoena Unit.

33 The plaintiff contended that NSW Police ignored relevant material. He contended that Sgt Maddox was not in a position to confirm that an adequate search had been conducted as he lacked any direct knowledge of the searches made. The plaintiff complained that Sgt Maddox’s evidence was primarily of a general nature involving NSW Police Department Standard Procedures. Sgt Maddox covers Police Standard Procedures but his evidence goes further than that. He was the officer responsible to ensure that reasonable enquiries were made. He verified that the COPS entry (or Event Narrative) was obtained from the NSW Police computer system and that follow up action had been taken. He verified that the Brief Handling Manager at Rose Bay Local Area Command had been contacted and also the Officer who might be expected to know where the documents were. He made his determination based on the documents forwarded by the Officer in Charge of the arrest and charging. Sgt Maddox verified that the Brief Handling Manager at Rose Bay had been contacted again and the full brief of the plaintiff’s arrest and charging had been obtained.

34 In December 2005 Sgt Maddox caused a search of the Archives Unit to be made and reviewed the result. In June 2006 he caused a search to be made of the NSW Police Subpoena Section records and he deposed to no useful or relevant result being obtained.

35 The plaintiff criticised the NSW Police for not calling an officer or officers from Human Resources and the Joint Investigation Team, Kogarah and Detective Annette Bell. The plaintiff complained that only one possible source of information was scrutinised. To the extent that it is relevant I thought that this criticism was unjustified. It sufficed for the FOI Unit to check with these officers and Sections. The plaintiff suggested that some information, for example, might be found in the time allocation sheets of individual employees in each of the three bodies. It is hard to see how that would help to locate the documents sought. The plaintiff’s suggestion that enquiries should be made of the subpoena compliance section manager of the NSW Supreme Court would not assist. The plaintiff relied on Sgt Maddox not having personally contacted the police officer in charge of or part of the investigation team and who handled the answer to the subpoena.

36 NSW Police submitted that the crux of the plaintiff’s submission was that Sgt Maddox failed to involve external bodies or other parts of the NSW Police in the search for documents and failed to draw “evidence from other identified sources as well as drawing evidence from, as yet, unidentified sources.”

37 NSW Police further submitted that to make an order of the kind sought by the plaintiff under s 65 the Commissioner must have misconstrued his legal obligations under the FOI Act so that he failed to carry them out. Reliance was placed on Exp. Hebburn Ltd; Re Kearsely Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ. The Chief Justice’s statements of principle were cited with approval by Aicken J in Re Toohey; ex parte Northern Land Council (1981) 151 CLR 170 at 267. Reference was also made to Craig v South Australia (1995) 184 CLR 163 at 179.

38 In my opinion the evidence discloses that the Commissioner understood that he had to take all reasonable steps to locate the documents. There is also evidence from which it could be concluded that he did so. The Crown pointed out that the FOI Application was not worded to ask for the documents which had been produced on subpoena. The plaintiff’s point was that at least some of the documents produced on subpoena would also have fallen within the terms of his FOI Application. Sgt Maddox caused searches to be made in the Subpoena Section by way of a further enquiry and search. That tends to underline that efforts were being made to find any other documents.

39 As to the sufficient search point a case has not been made out for orders in the nature of prerogative relief.

Exempt documents

40 In his written submissions of 16 June 2008 the plaintiff stated that he suffered a faulty conviction in 2001 and served seven years of full time penal servitude as punishment for a crime he did not commit and that he sought documents from the NSW Police that would expose the problems with the conviction and the evidence used against him. The plaintiff said that the documents were crucial to his appeal against conviction. The plaintiff told me that his appeal against conviction to the Court of Criminal Appeal was unsuccessful. He had been refused an enquiry into his conviction (See Part 13A of Crimes Act 1900 and its successor, Part 7 of Crimes (Appeal and Review) Act 2001).

41 Some seven of the documents which were held to be exempt documents were statements of witnesses in the criminal proceedings against the plaintiff. It was pointed out that witness statements are made available to an accused either in the prosecution brief prior to committal or if prepared after committal then prior to trial (or at the very latest prior to the witness being called). These statements may only be used for the purposes of the proceedings. The plaintiff was not sure whether he already had copies of the statements in question.

42 Section 578A(2) and (3) of the Crimes Act prohibit a person from publishing any matter which identifies the complainant in certain prescribed proceedings or any matter which is likely to lead to the identification of the complainant and even though the prescribed proceedings have been finally disposed of.

43 Section 16(1) of the FOI Act provides that a person has a legally enforceable right to be given access to an agency’s documents in accordance with that Act. NSW Police is an agency. Section 17 provides that an application for an agency’s documents shall be in writing. Under s 24 an agency is to determine whether access to the document is to be given or refused. Under s 25(1) an agency may refuse access to a document if it is an exempt document.

44 An exempt document is one referred to in any one or more of the provisions in Schedule 1. That Schedule sets out various classes of documents which are exempt documents. Clause 6 of Schedule 1 provides:

6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

45 Section 31(2) provides that an agency shall not give access to a document that contains information concerning the personal affairs of any person unless the agency has taken reasonably practicable steps to obtain the views of the person concerned as to whether or not the document is an exempt document. Each of two witnesses stated in December 2005 that each was happy for the plaintiff to be given a copy of the witness’ earlier statement. The victim did not wish the plaintiff to be given copies of the five statements as they contained private and sensitive material. The victim understood that they were to be used in the context of courtroom proceedings. The victim gave telling detailed reasons for her opposition to the release of the statements.

46 The statement of each witness contains personal and sensitive details relating to the victim. Neither of the two witnesses addressed the issue whether the earlier statement was an exempt document but each did not object to such earlier statement being released as each wished to support the plaintiff. The victim was not asked specifically about the release to the plaintiff of the statements of the two witnesses but given the victim’s opposition to the release of the victim’s statements substantially similar considerations would apply to the release of the statements of the two witnesses, having regard to the details of the victim’s personal affairs which they contained.

47 Two issues arise:

(a) Do the documents or any of them contain matter concerning the personal affairs of any person?

(b) Would disclosure be unreasonable?

In some cases these issues may overlap.

48 In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s case) Kirby P held that in its context the words “personal affairs” mean the composite collection of activities personal to the individual concerned (p 625). At pp 622-625 Kirby P reviewed a large number of cases where courts and tribunals have had to give content to the expression “personal affairs”. This review illustrates the wide variety of cases that the expression can cover. Kirby P referred at 623-624 to the view of Lockhart J in Colakovski, infra at 118-119 that the “personal affairs” of a person connotes information which concerns or affects the person as an individual whether it is known to other persons or not.

49 At 624 Kirby P pointed out there is no simple rule that disclosure of the name of a person will in every case amount to disclosure of information concerning the named person’s personal affairs.

50 In Perrin at 620 Kirby P commenting on cl 6 of the Schedule stated:

“The general object of the clause is to protect private information of third parties who may be referred to in agency documents but who may be unaware that their private affairs stand subject to exposure by a claim for access made under the Act. It is to protect such claims to privacy that the elaborate provisions of s 31 of the Act are enacted requiring notification to the “person concerned” and providing that person with the opportunity to express his or her views, that is, on whether a claim for exemption should be made.”

51 Some of the comments of Kirby P may be obiter. Mahoney JA and Clarke JA made fewer general remarks and primarily confined themselves to the issue litigated, that is, whether the judge at first instance, in the circumstances of the case, erred in holding that the naming of officers and other persons employed by the Police Service was not “information concerning the personal affairs of any person for the purpose of cl 6 of Schedule 1.” That question was answered in the negative. Mahoney JA at 638 cautioned against dealing in absolutes and pointed out whether a fact is part of a person’s personal affairs may be affected by the circumstances of the case.

52 It is not possible to give a comprehensive definition of “personal affairs”. Very often when particular facts and situations are disclosed it will be self evident that they come within the description of “personal affairs”. There is a real danger in endeavouring to be comprehensive or prescriptive. “Personal affairs” is a broad description and a broad concept.

53 Looking at the details contained in the COPS entry (the Event Narrative) and the seven statements they clearly relate to the personal affairs of a person. Experience has shown that contests usually centre upon whether it is unreasonable to disclose information concerning personal affairs.

54 In Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 at 120-121 Lockhart J, with whom Jenkinson and Heerey JJ agreed, discussed what was meant by “unreasonable” in s 41 of the FOI Act 1982 (Cth) which is in substantially the same terms as cl 6, thus:

“What is ‘unreasonable disclosure of information for purposes of s 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of ‘personal affairs’ (s 41) and ‘business or professional affairs’ (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.

55 In Mentink v Albeitz [1999] QSC 9, Muir J considered s 44(1) of the FOI Act 1992 (QLD) which provided:

“Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person … unless its disclosure would, on balance be in the public interest.”

56 At [12] Muir J said:

“[FN Albeitz, Information Commissioner(QLD)] also correctly concluded that there was a ‘strong public interest in protecting the privacy of victims of crime and their families …’. The first respondent then decided that disclosure of the matters on page 151 not already disclosed would not, on balance, be in the public interest. I agree with that conclusion and can detect no relevant error of law on the part of the [Information Commissioner]”.

57 The plaintiff submitted that there was a strong public interest in making the documents classed as exempt available to him as he needed them in his efforts to set aside his conviction. His alleged need has not been demonstrated.

58 The plaintiff contended that in making her statements to the police the alleged victim must have appreciated that the matters would be ventilated in Court proceedings and become public knowledge. This overlooks the prohibition on publication and that documents prepared and produced for particular Court proceedings should only be used for the purposes of those proceedings.

59 The plaintiff contended that he needed to see documents be they notes or draft statements made before the final statements were prepared as to what the alleged victim stated. He also needed to see the Narrative (COPS entry) prepared by the Police as to what they had seen, been told or assumed. They may have gained impressions. The Appeal Panel (in para [10] of its decision) summarised the plaintiff’s contentions. He contended that if the documents were used in relation to his prosecution he had a right to have access to them. He agreed that, as far as he was aware, there was no evidence before the Tribunal as to whether the documents were tendered at his trial. He submitted that a complainant or witness for the prosecution must be held responsible for what they allege and that a defendant in criminal proceedings should be entitled to access, not only the polished version of evidence produced by the prosecutor but the details of what those people actually told the police. The Appeal Panel recorded that the plaintiff suggested that the author of the documents (the alleged victim) expected to gain financial advantage from the proceedings. The Panel noted that the plaintiff did not provide any evidence on that point. The Panel observed that none of these grounds raised a question of law.

60 Before the Appeal Panel the plaintiff contended that the Tribunal did not take into account that he had appealed his conviction.

61 In his written submissions of 16 June 2008 the plaintiff submitted that the Appeal Panel ignored relevant material in that it failed to have regard to the reason why he sought access to the documents, which was to use them in support of his appeal against conviction. At para [35] of those written submissions he adopted an earlier submission. He was in substance submitting that the Appeal Panel did not correctly balance the public interest by concluding that the privacy of a person who made a statement outweighs the public interest in allowing the plaintiff to access the information for use in his appeal.

62 The plaintiff did not raise the issue of his reasons for seeking access to the documents at the initial hearing before the Tribunal. The Appeal Panel held that the Tribunal (the Judicial Member) could not have fallen into error in failing to take that factor into account [at 12]. NSW Police submitted that the Appeal Panel’s decision was correct and that it did not err in dismissing the plaintiff’s appeal.

63 NSW Police drew attention to ss 5 and 17 of the Act. It was submitted, in the alternative, that the reasons why a particular person may wish to exercise his right to access documents held by the government is irrelevant. The FOI Act does not contain any provisions that would allow any agency or the Tribunal to impose restrictions on the use that an applicant can make of material released under the Act.

64 NSW Police submitted that in deciding whether disclosure of a person’s personal affairs in any particular situation is unreasonable requires the Tribunal to balance the public interest factors for and against disclosure. NSW Police further submitted that provided the factors considered by the Tribunal and/or Appeal Panel were relevant factors, no error of law is involved.

65 In para [25] of its decision the Tribunal appeared to adopt the approach of the AAT in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257 at [51] namely:

“Whether disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was being obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance.”

66 The Tribunal recorded that the AAT went on to state that the public interest recognised by the FOI Act (Cth) in the disclosure of information in documentary form held by an agency must be weighed against the public interest in protecting the personal privacy of a third party.

67 At [29] the Tribunal held:

“Documents B1-8 were prepared for the purpose of the investigation and subsequent prosecution of the applicant. The information contained in the documents is particularly sensitive. The proceedings against the applicant have been concluded. Having regard to the nature of the information contained in the documents and the limited purpose for which the information was provided, I am satisfied that disclosure of the information would be an intrusion into the personal privacy of persons identified in the documents which would not be outweighed by any public interest in access to information held by a government agency. I am satisfied that documents B1-8 are exempt under cl 6 because they contain matter the disclosure of which would involve an unreasonable disclosure of information concerning the personal affairs of persons other than the applicant.”

68 The Appeal Panel cited paras [25]-[27] and [29]-[30] of the Tribunal’s reasons and had regard to the matters in para [28] which was subject to a suppression order. The Appeal Panel held that the plaintiff had not identified an error of law in the Tribunal’s decision.

69 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. This was not a point raised in the reasons of the Tribunal or the Appeal Panel. It is a point for the future. On the other hand there is a strong public interest in access to information held by a government agency.

70 After the argument had concluded, my attention was drawn by the Crown Solicitor to the decision of the Victorian Court of Appeal in Victorian Police v Marke [2008] VSCA 218 delivered on 5 November 2008. Both parties were invited to make submissions and did so. That decision involved a detailed consideration of the Victorian Freedom of Information Act, many of the provisions of which have counterparts in the NSW FOI Act. In Marke the three judges delivered separate judgments. All Members of the Court of Appeal considered that it was wrong for a decision maker to proceed on the basis that a disclosure under the FOI Act was a disclosure to the world at large. Weinberg JA and Pagone AJA considered that the applicant’s purpose in seeking access to the documents was relevant. This may have been conceded by the parties. The majority thought it was permissible but not mandatory for a decision maker to have regard to the extent to which documents released under the Vic FOI Act might be further disseminated by the applicant. Both thought that a decision maker was not able to place restrictions on further dissemination of documents released under the FOI Act.

71 NSW Police submitted that it was unnecessary for the Court to decide whether Marke was correctly decided. Should the views there expressed be applied to the NSW FOI Act? I would hesitate before not following the majority view of the Victorian Court of Appeal on legislation which has so many similarities to the NSW FOI Act. NSW Police contended, in the alternative, that the majority of the Victorian Court of Appeal was wrong in deciding that an applicant’s purpose for seeking documents is relevant to the assessment of whether it was unreasonable to disclose documents under cl 6 of Sch 1 to the FOI Act (See Weinberg JA at [74] and [75] and Pagone AJA at [98] and [104]). At [104] Pagone AJA held that there was no warrant to limit the matters relevant for consideration of the statutory condition stipulated in s 33(1) of the Vic FOI Act (equivalent to cl 6 of Schedule 1) for a document to be an exempt document beyond that which is relevant, logical and probative. Pagone AJA at [104] thought that the statutory condition required “the exercise of judgment and analysis to all of the facts which bear relevantly, logically and probatively to the question.”

72 Before the Tribunal the plaintiff did not raise the issue of the purpose for which he required the documentation during the hearing.

73 Before the Appeal Panel the plaintiff stated in his written submissions that the correction of his conviction “is the ultimate point in issue and the reason for this application”. The plaintiff contended before the Appeal Panel that the documents were relevant to his appeal against conviction.

74 The Appeal Panel was not prepared to grant leave to allow the appeal to it to extend to the merits of the Tribunal’s decision except on the limited point earlier mentioned and the subject of the Appeal Panel’s decision of 24 April 2008.

75 In effect, the Appeal Panel held that the plaintiff had not laid the necessary evidentiary and other foundations for the points he sought to agitate before the Appeal Panel.

76 At the hearing before me (T6) the plaintiff said:

“I may have these statements that I’m seeking or I may not. I don’t know. But in addition to statements there is the narrative which I don’t have which I’m seeking …”

77 The plaintiff told the Appeal Panel and me that he required the allegedly exempt documents to challenge his convictions. He submitted that because the documents were required as an aid to challenge his convictions and re-ventilate the issues, public interest considerations in him being able to do so loomed large and were weighty.

78 The plaintiff hoped that he would obtain some assistance from the allegedly exempt documents for his challenge. He could not be expected to outline that assistance when he has not seen those documents. The evidence did not outline the basis on which he challenged his convictions.

79 If the plaintiff wishes to rely on the ground stated (setting aside an unsafe conviction) and the public interest in the administration of justice including challenges to unsafe convictions it is not sufficient for him to state that he wants to access allegedly exempt documents as an aid to challenging and setting aside his convictions. If it appeared that the documents could arguably assist in showing that the convictions were unsafe that would be a powerful reason for granting access.

80 Of course, an applicant does not have to rely on such ground. He may rely on the right of access to documents held by government agencies.

81 At [15] the Appeal Panel stated:

“Given the strength of the other factors, especially the sensitivity of the material, we are not persuaded that the Tribunal would have come to a different view had it known that Mr Simring had appealed against his conviction.”

82 Nor would a different conclusion be reached if it had been known that he was seeking to challenge the safety of his conviction by means of an enquiry.

83 While the judgments in Marke constitute important discussions of the FOI Act (Vic) and much of what is said is applicable to similar provisions in the NSW FOI Act I am of the opinion that there was no relevant error of law on the part of the Tribunal or Appeal Panel having regard to the way each approached the matter and the findings made.

Denial of procedural fairness and bias

84 In his submissions of 16 June 2008 and 28 July 2008 the plaintiff submitted that the decision makers at the ADT did not bring an impartial mind to the resolution of the issues. The plaintiff relied on being barred from viewing the allegedly exempt documents, stating that he could not effectively argue against the NSW Police case and similarly on being barred from reading para [28], the suppressed paragraph of the Tribunal’s reasons. The plaintiff suggested that the documents may be specious. He contended that the ADT was heavily influenced by the contents of the documents. The plaintiff also submitted that the decision makers were so firmly committed to the policy of supporting the Commissioner of Police that they failed to consider the case on its merits.

85 Section 55 of the FOI Act provides:

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.

86 That section justifies the course taken by the Tribunal and the Appeal Panel.

87 The allegations of bias and partiality have no substance. It is not a legitimate ground of complaint that close attention was paid to the terms of the allegedly exempt documents.

Two outstanding matters

88 I have not seen the reasons of the Court of Criminal Appeal for dismissing the plaintiff’s appeal nor the reasons, if any, given for refusing an inquiry. I have proceeded on the basis that the plaintiff is anxious to obtain material that may help him to challenge the safety of his convictions, so far as this is a relevant consideration on his FOI application.

89 The Appeal Panel and the Tribunal did not consider the claims for exemption under cls. 13(b) (documents containing confidential material) and 4(1)(a) and (e) (documents affecting law enforcement and public safety) of Schedule 1 in view of their decision under cl 6 of Schedule 1. Neither have 1.

90 Both the appeal and the application for orders in the nature of prerogative relief should be dismissed with costs.

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