Trafford v SA Police - [2014] SADC 121

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
TRAFFORD v SA POLICE
[2014] SADC 121
Judgment of His Honour Judge Rice
4 July 2014
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS
Application to access portion of a Police Incident Report concerning a property owned by the appellant. Question whether the appellant should have access to names of witnesses and alleged offenders. Police investigations not completed.
Decision of Police Ombudsman confirmed.
Freedom of Information Act 1991 s 40(2)(c), Schedule 1 Clauses 4(1)(a), 4(2)(a)(i), 4(2)(b), 6(1) and 6(2); District Court Act 1991 ss 42E and 48, referred to.
O'Sullivan v Victoria Police (General) [2005] VCAT 532; Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, applied.

TRAFFORD v SA POLICE
[2014] SADC 121
Introduction

This is an appeal by Ms Trafford to this Court pursuant to s 40(2)(c) of the Freedom of Information Act 1991 (the FOI Act) against a determination of the Police Ombudsman made on 17 September 2013 concerning a freedom of information application made on 22 October 2012.
The Grounds of Appeal relate solely to a Police Incident Report 12/F61728 (PIR). The appellant only seeks the names of offenders and witnesses (relating to an incident detailed below). A redacted copy of the PIR was provided to the appellant with the initial determination of 15 November 2012. Following the Police Ombudsman’s external review, a further copy of the PIR, with fewer redactions, was provided to the appellant on 18 October 2013.
Although what the appellant now seeks access to is very limited in nature, I propose to say a little about how the application reached this point. A detailed examination of the steps is unnecessary.
The incident to which the PIR relates
The incident was property damage caused to a house property in Wicklow Street, Northfield at some time between 1 June 2011 and 22 November 2011. As I understand the position, the house forms part of the estate of the appellant’s deceased father. The appellant received a report from a police officer attached to the Holden Hill Police Station of the damage to the house by an offender or offenders whereby two windows were broken using a wooden plank. There also appears to have been a report of further damage.
As mentioned, by a determination dated 15 November 2012, a portion of the PIR was disclosed. The appellant then sought an internal review, the application stating:
I wish to proceed with legal action (criminal trespass, property damage). I would like to prosecute these offenders in court.
The internal review of 21 December 2012 confirmed the part release. The appellant then sought an external review. The determination of the Police Ombudsman on the external review was made on 17 September 2013.
Procedure on appeal
Pursuant to s 42E(3) of the District Court Act, the Court “…must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.”
That general provision must be read subject to the special provision in s 48 of the FOI Act:
In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.
South Australia Police are such an agency.
Remaining portion of PIR to which appellant seeks access
I refer again to the argument on the hearing of the appeal. The appellant said she gave a statement about the damage and another witness also gave a statement. That other witness is known to the appellant. She said his first name is “Jenno” and he is the next-door neighbour to the property the subject of the damage. The appellant submitted she wanted to know the last name of this person.
In addition to that, the appellant submitted that she wanted to know the names of the two alleged offenders. It seems from the submissions made on the appeal that the appellant seeks some form of restorative justice. She said she wanted a written statement of apology. The appellant made it plain she does not want any of the details of the history of the alleged offenders, she simply wants their names. She does not want their addresses. In fact, the appellant is dismayed that it was thought that she wanted more than that which was sought during the appeal. She has expressed the view that so much time has been spent on dealing with what she regards as irrelevant information.
Information about witness
The first portion of the document to which the appellant seeks access is information about a witness and the observations of that witness. As the Police Ombudsman, with respect, rightly observes, this information consists of the residential location of the witness and the observations about the identity of the offender/s. That information is clearly relevant to the investigation of the offence. Although there has been an investigation, no person has, as yet, been charged. I have no doubt that disclosure of that information could reasonably be expected to prejudice the investigation. As is well-known, police officers investigating the commission of an offence often put only limited information out in the public domain. They do not want to disclose details so that they can disregard false reports (because of lack of knowledge of detail and wrong detail) and not alert potential suspects as to precisely how much is known about a particular offence. The Police Ombudsman was correct in placing reliance upon clauses 4(2)(a)(i) and 4(2)(b) of Schedule 1 to the FOI Act.
Witnesses
The PIR identified three witnesses, the victim, the appellant (whose details have already been released) and a third person. I am now only concerned with that third witness.
The Police Ombudsman held that information about the third witness was exempt because its disclosure could prejudice further investigation and be contrary to the public interest. Again, reliance was placed on clauses 4(2)(a)(i) and 4(2)(b) of Schedule 1 to the FOI Act.
Suspect information
The Police Ombudsman held that this information should not be released because it contained untested allegations of criminal conduct and its disclosure would be unreasonable. Reliance was placed upon clause 6(2) of Schedule 1 of the FOI Act. In this regard, I respectfully adopt what was said at p 8 of that determination:
I consider any information about a suspect in this instance contains allegations or suggestions of criminal or other improper conduct on the part of a person, the truth of which has not been established by judicial process and the disclosure of which would be unreasonable and therefore comes within the ambit of clause 6(2) of schedule 1 to the FOI Act.
The nature of the information listed in relation to this issue is of a highly sensitive and personal nature. It is a view formed without the benefit of having heard all relevant evidence from the parties and any witnesses to the incident, including any evidence given in cross-examination of those parties and witnesses. In all the circumstances, I consider it unreasonable to release this information under the FOI Act.
The respondent, whilst agreeing with the Police Ombudsman’s reasons, also seeks to rely upon clauses 4(1)(a) and 6(1) of Schedule 1 to the FOI Act to prevent disclosure of witness information. Reliance was placed upon a decision of O’Sullivan v Victoria Police (General)[1]. That case in its turn dealt with a Full Court of the Supreme Court of Victoria decision of Department of Agriculture and Rural Affairs v Binnie[2]. I support the comments in O’Sullivan’s case.
[1] [2005] VCAT 532.
[2] [1989] VR 836.
As for the balance of the material in the PIR, it is not sought.
The decision of the Police Ombudsman is confirmed.