Stephens v South Australian Commissioner of Police

[2010] SADC 154

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division)

STEPHENS v SOUTH AUSTRALIAN COMMISSIONER OF POLICE

[2010] SADC 154

Judgment of Her Honour Judge Cole

15 December 2010

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - GENERALLY

Appeal in relation to an application for access to documents pursuant to the Freedom of Information Act 1991 - whether the documents sought were exempt as claimed by SAPOL - the appellant's grounds of appeal considered. Determined that none of the grounds of appeal have been made out - appeal dismissed.

Freedom of Information Act 1991, referred to.

STEPHENS v SOUTH AUSTRALIAN COMMISSIONER OF POLICE
[2010] SADC 154

1. Mr Stephens has appealed pursuant to the Freedom of Information Act 1991 (“the Act”) in relation to the response received by him from the South Australian Police (SAPOL), on behalf of the Commissioner of Police, to his request for access to documents.  The matter was heard on 14 October 2010.  Mr Stephens represented himself.  Ms Dennis appeared for the respondent.  All of the evidence in the matter was tendered by consent, including a number of affidavits.

   History

2. The history of the matter is conveniently set out in a series of affidavits of Senior Sergeant Gentgall of SAPOL.

3. In summary, Mr Stephens lodged an application with SAPOL pursuant to s 13 of the Freedom of Information Act 1991 (“the Act”) on 31 January 2010 (“the FOI application”).  The FOI application sought “a copy of all transcripts, recordings and support materials relating to report number 10/Q49456 21/07/09”.  Report number 10/Q49456 is a report which was made to SAPOL by Mr Stephens in 2009, relating to events which occurred in 1978/1979 and 1983, 1984 or 1985.  Following the FOI application, four documents were identified as relating to the report the subject of the application.  Document 1 was the Police Incident Report including the investigation diary.  Document 2 was the statement of the complainant (ie, the appellant in this matter).  Document 3 was a document described as “Background information” and document 4 was “letter dated 9/8/2009 including background information”.  On 26 February 2010, SAPOL’s response to the application was sent to Mr Stephens.  The four documents located were described.  The determination that two of those documents could be released in full, and two could be released in part, was made and communicated.

4. Mr Stephens lodged an application for internal review dated 23 March 2010. The internal review took place, and the outcome of that review was communicated to Mr Stephens by letter dated 1 April 2010. On the internal review, the original decision was confirmed in part and varied in part. Mr Stephens subsequently sought a further internal review, but, following a conversation with Senior Sergeant Gentgall in relation to the matter, Mr Stephens filed the appeal the subject of this matter in this Court, pursuant to s 40 of the Act. The fee paid by him in relation to his second application for internal review was refunded by SAPOL.

5. On 20 August 2010, Senior Sergeant Gentgall made a further determination in relation to the FOI application, pursuant to s 19(2a) of the Act. That determination gave access to most of document 1 and document 2. Exemption continued to be claimed in relation to a portion of those documents pursuant to clause 6(1) of Schedule 1 of the Act, which provides:

   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).

6. In addition, it was determined that the exemption in clause 6(2) of Schedule 1 of the Act also applied. Clause 6(2) of Schedule 1 of the Act provides:

   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.

7. Those parts of the documents in relation to which the exemption continues to be claimed are the words which would disclose the identity of the persons in relation to whom Mr Stephens made a report to SAPOL in 2009. The Act provides, in s 40(2)(a), for an appeal to this Court in relation to a determination by an agency following an internal review.

   Grounds of Appeal

8. Mr Stephens tendered a considerable volume of material in support of his appeal.  I have read and considered all of that material.  Mr Stephens also made oral submissions.  I have distilled from that material and those submissions the basis for Mr Stephens’ appeal.

   1.Mr Stephens does not consider that the exemptions are applicable to the material for which exemption is claimed.

   I reject this ground of appeal. I determine that those portions of documents 1 and 2 which would identify the persons against whom allegations were made in report number 10/Q49456 are exempt pursuant to clauses 6(1) and 6(2) of Schedule 1 of the Act.

   2.Mr Stephens complained that three different versions of page 2 of the PIR Investigation Diary were “unreasonably determined and administered by SAPOL FOI Unit”. The different versions arose from the determinations made in relation to the FOI application, which are outlined above. They are fully explained in the affidavit of SAPOL’s Service Finance Officer and are not in any way contrary to the Act.

   3.Mr Stephens complained of what he described as “SAPOL FOI Units obstructive administration practices”, namely the use of bullet points instead of numbers and letters, the use of double sided pages and “the inaccurate recording of information”. The Act provides for access to documents in specified circumstances. It does not provide for an applicant to dictate the form in which information should be recorded and provided by an agency. The Act provides in s 30 for a person to apply for the amendment of records in certain circumstances. No such application has been made to SAPOL. It appears from the documents that Mr Stephens is concerned to provide more information regarding the events the subject of his 2009 report to SAPOL, which is not a matter to be dealt with under the Act.

   4.Mr Stephens complains of the return of the fee paid by him in relation to his second application for internal review. This ground must fail. Mr Stephens was not entitled to seek a second internal review under the Act.

   5.Mr Stephens asserted that there had been some dishonesty in the processing of his FOI application by SAPOL.  There is no evidence before me to support this assertion, and I reject it accordingly.

   6.Mr Stephens complained that he could not understand some of the codes and terms in the documents disclosed to him. The Act provides for access to documents in specified circumstances. It does not impose any obligation upon an agency to interpret documents for an applicant. This ground of appeal must fail. In any event, the evidence before me shows that several offers to provide assistance to Mr Stephens with the interpretation of the documents were made by and on behalf of SAPOL.

   7.Mr Stephens, in his outline of argument, said:

   12.    SAPOL FOI Unit is being used as a bureaucratic shield by SAPOL.  Shielding police corruption and misconduct.  SAPOL is therefore abusing FOI Parliamentary Bills of Governance [sic].

   There is no evidence before me to support this ground of appeal, and I reject it.

   8.Mr Stephens complained that a piece written by him and entitled “A Fight”, was not disclosed to him by SAPOL in response to the FOI Application.  I am satisfied on the basis of the affidavit evidence before me that SAPOL was not in possession of that document at the relevant time and therefore could not disclose it.

   9.Mr Stephens complained that he was not provided with a copy of the forwarding minute, (called a PD129) used by SAPOL to record the movement of documents.  That document was provided to him at the hearing.

   10.Mr Stephens complained that he was treated inappropriately in the course of the processing of his FOI application, having regard to a disability.  There was no evidence before me that Mr Stephens was treated inappropriately in the processing of his FOI application, and I reject this ground of appeal.

9. Mr Stephens filed an interlocutory application in which he sought orders against a medical clinic which is not a party to this appeal.  That application does not relate to the subject matter of this appeal, and the application is refused.

10. Many of Mr Stephens’ complaints in this appeal are not truly grounds of appeal in relation to the decision concerning his FOI application.  In any event, I find that none of the grounds of appeal have been made out.  The appeal will be dismissed.