Treglown v SA Police - [2011] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
TREGLOWN v SA POLICE
[2011] SADC 139
Judgment of His Honour Judge Herriman
20 December 2011
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS
Appeals from separate decisions of Police Complaints Authority and decision of SA Police Review Tribunal on review. Issues as to appropriate procedures under District Court Rules, whether burden of proof arises under Freedom of Information Act or District Court Act. General discussion of Freedom of Information Act and statutory background to appeals. Consideration of exemptions relating to ‘personal affairs’, ‘internal working documents’, ‘documents subject to legal professional privilege’, ‘documents containing confidential information’ and ‘documents concerning the operations of agencies’. Factual findings and consideration of ‘public interest’ questions. Appeal allowed in part.
Freedom of Information Act 1991 s 3, s 3A, s 4, s 12, s 19, s 20, s 26, s 40, s 48. Schedule 1 clauses 6(1) & (2), 9(1), 10(1), 13(1), 16(1); District Court Act 1991 s 42B, s 42E; District Court Rules 2006; District Court Administrative Appeal Rules 1992; Police Act 1998 s 6, s 11, s 37, s 38, s 39, s 42, s 47, s 52 ; Police Regulations 1999 Part 5; Police (Complaints and Disciplinary Proceedings) Act 1985 s 25, referred to.
Konieczka v South Australian Police [2006] SADC 134; Victoria Police v Marke (2008) 23 VR 223; The News Corp Ltd v NCSC (1984) 5 FCR 88; Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257; Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429; City of Unley v Warnecke [2004] SADC 48; Department of Social Security v Dyrenfurth (1988) 8 AAR 544; Bray v Workers Rehab & Comp Corp (1994) 62 SASR 218; Harris v ABC (1983) 50 ALR 551; Sankey v Whitlam (1978) 142 CLR 1; Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39; Pemberton and The University of Queeensland [1984] QICmr 32; Grant v Downs (1976) 135 CLR 674; Waterford v The Commonwealth (1987) 163 CLR 54; Ritz Hotel v Charles of the Ritz (No 4) (1987) 14 NSWLR 100; Re Proudfoot and HREOC (1992) 28 ALD 734; The Legal Practitioners Conduct Board v Wharff [2009] SADC 126; Corrs Pavey v Collector of Customs (1987) 74 ALR 428; O'Brien v Komesaroff (1982) 150 CLR 310; Coco v A N Clark (Engineers) Ltd [1969] RPC 41; Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163; Smith Kline & French v Cty Service (1991) 28 FCR 291; Thiess and The Department of Aviation (1986) 9 ALD 454, applied.
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606; Re Easdown v DPP (No 1) (1987) 2 VAR 102, distinguished.
Re Anderson and Australian Federal Police (1986) 11 ALD 355; Re Williams and Registrar of Federal Court of Australia (1985) 3 AAR 529; Young v Wicks (1986) 13 FCR 85; Conway v Rimmer [1968] AC 910; Science Research Council v Nassé [1980] AC 1028, considered.

TREGLOWN v SA POLICE
[2011] SADC 139
Introduction

The appellant is an officer of the respondent body (‘SAPOL’) and holds the rank of superintendent. He was the subject of two internal investigations by it and arising out of them are two separate appeals brought pursuant to s 40 of the Freedom of Information Act 1991 (‘FOI Act’ or ‘the Act’).
- the Atop investigation
The first investigation, code-named ‘Operation Atop’ (‘Atop’), commenced on 6 February 2004 and concluded with a report of SAPOL’s Internal Investigation Branch (‘IIB’) dated 9 November 2004. The investigation related to 23 allegations of what might loosely be termed bullying-type behaviour by the appellant towards SAPOL staff members. The report concluded that 16 of those allegations had been substantiated and seven of them unsubstantiated.
No disciplinary action was taken against the appellant arising out of those findings but at the commencement of Atop in February 2004 the appellant was temporarily transferred to other duties. Ultimately, on 19 July 2005, he was transferred by the Police Commissioner (‘the Commissioner’) to another position of equivalent status within SAPOL on the footing that, because of the nature of the allegations which had been made and/or proved, a return to his previous workplace would be counterproductive.
The appellant then sought to review the Commissioner’s decision before the Police Review Tribunal (‘PRT’). On 31 July 2006 the PRT found it was satisfied that the Commissioner’s decision to transfer him was not made with the intention of punishing him, hence that it was not in the nature of a punishment, and it accordingly dismissed his application.
On 4 July 2007 the appellant made application under the FOI Act for access to SAPOL records relating to Atop, the application effectively seeking all documentation in any way connected with that enquiry. In response, SAPOL sought payment of an advance deposit, holding the view that the time within which it might respond to the request was suspended pending payment of that deposit.
In reply, the appellant lodged an application for internal review, but SAPOL refused to undertake that, wrongly holding the view that the original application had not yet been determined because payment of the deposit had not yet been received.
The appellant then sought an external review of that decision from the Police Complaints Authority (‘PCA’) but that officer concluded that there was no decision he had jurisdiction to review.
That course of events was reviewed in proceedings before this Court and on 20 March 2008 Judge Robertson concluded that as time had run against the original freedom of information (‘FOI’) application, SAPOL ought be deemed to have refused it in toto. Likewise, it was found that the application for internal review had not been determined within an appropriate time and that therefore the original deemed refusal had been confirmed.
In those circumstances, this Court directed that the matter again be remitted to the PCA for determination upon external review. On 18 May 2009 the PCA affirmed the deemed refusal to supply any documentation.
The appellant now appeals that decision of the PCA pursuant to s 40(2)(c) of the FOI Act (‘the Atop appeal’).
- the Autoblast investigation
In the course of the Atop investigation, certain information came to light about possible financial irregularities involving the appellant. That information led to the initiation of a separate investigation, code-named ‘Operation Autoblast’ (‘Autoblast’), and a further report was completed on 11 August 2005. It found that none of the suspected irregularities had been established.
On 29 January 2008 the appellant applied under the FOI Act for access to all SAPOL records relating to Autoblast. SAPOL’s response to that request differed from its previous stance. It extended the time within which it could respond but replied on 31 March and 16 April 2008, refusing access to some documents and identifying others that would be released, whether in whole or in part.
On 29 August 2008 the appellant sought an internal review of those decisions. That review was completed on 13 February 2009 and some further documents, or parts of documents, were made available to him, but not all of them.
On 10 October 2008 the appellant lodged an appeal in this Court against that decision pursuant to s 40(2)(a) of the FOI Act.
- the Appeals
Each of the appeals thus comes before the Court by a differing path and the following issues arise with respect to each:
(1)The Atop appeal was commenced on 15 June 2009 and is therefore governed by the 2006 District Court Rules, whereas the Autoblast appeal was commenced on 10 October 2008 and thus appears to be governed by the District Court Administrative Appeal Rules (‘ADD Rules’), later, on 1 March 2009, repealed.
(2)Clearly, the burden of proof falling upon the respondent agency by virtue of s 48 of the FOI Act applies to the Autoblast appeal but does it apply to the Atop appeal, which is from a determination of the PCA? On its face, the PCA is an exempt agency.
(3)On what evidence ought this court proceed in entertaining each appeal?
(4)Whether those documents or parts of documents to which the respondent has refused access are exempt documents within the meaning of the Schedule of the FOI Act; in particular, whether they are:
(a)documents affecting personal affairs (clause 6(1) and (2));
(b)internal working documents (clause 9(1));
(c)documents subject to legal professional privilege (clause 10(1));
(d)documents containing confidential material (clause 13(1)(a) and (b));
(e)documents concerning the operations of agencies, and in particular the management or assessment by an agency related to personnel (clause 16(1)(a)(iii)).
It is common ground that the respondent may and indeed has, in the exercise of its powers under s 20(4) of the FOI Act, released to the appellant edited material but it otherwise maintains that its redactions and the remaining documents are covered by one or more of the above exemptions.
(5)Proper consideration of clauses 9, 13 and 16 requires discussion of the topic of public interest.
(6)Section 26 of the FOI Act prevents an agency from providing access to documentation concerning the personal affairs of any person without first obtaining the views of that person, and the consultation procedures adopted by the respondent under that section require consideration.
I propose to now isolate the legal issues which arose on the appeals and to discuss the evidence touching upon each of them.
Legal Issues
- Procedural Questions
As I have noted, the Autoblast appeal, having been commenced on 10 October 2008, is governed by the ADD Rules and any provisions of the 2006 District Court Civil Rules which the Court may seek to apply (c.f. Part VI, placitum VI-1(3)). Those rules were replaced by rules contained in Chs 12B and 13 of District Court Rules and the latter now apply to the Atop appeal.
Even so, I am not persuaded that anything turns on that distinction here. Whilst the powers set out in rule VI-G of ADD Rules appear on their face to be slightly more prescriptive than those of 6DCR 295, there are only marginal differences between them, none of any substance and the provisions of s 42E of the District Court Act 1991 (‘DCA’) (which were in operation when each appeal was lodged) provide, in any case, that the Court is not bound by the rules of evidence, that it may inform itself as it sees fit, and direct it to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’.
Accordingly, I will consider each appeal as if my powers for dealing with it are the same.
- the Burden of Proof
Section 48 of the FOI Act provides as follows:
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.
The term ‘agency’ is defined in s 4 of the Act and expressly ‘does not include an exempt agency’. An exempt agency is also defined within that section, as a body referred to in Schedule 2 of the Act, and one such body so referred to is the PCA. It must therefore follow that the reference to an agency in s 48 cannot include the PCA.
The respondent thus contended that, as the Atop appeal must be treated as one from a determination of the PCA, the burden of proof could not be that set out in s 48 and, in the absence of any other provision, s 42E(3) of the DCA applied. That sub-section provides as follows:
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.
There can be no doubt that such a provision would be subordinate to any provision in a special Act of Parliament, as indeed s 42B(1) provides:
This Subdivision applies in relation to the appellate jurisdiction conferred on the Court by another Act (the special Act) subject to the provisions of the special Act.
(see Konieczka v South Australian Police[1]).
[1] [2006] SADC 134
The appellant contended otherwise, arguing that the relevant determination had in fact been made by the respondent, an agency, albeit that it had been modified or varied by the PCA. The terms of its notice of appeal reflect that and are indeed confusing as they appeal from ‘the decision of an agency following an external review’.
There is a measure of perversity in that characterisation: the respondent has made no ‘decision … following (the) external review’, which was manifestly undertaken by the PCA on 18 May 2009. Further, if it were competent for the appellant to appeal against what became a statutorily deemed refusal by the respondent to provide particular documents, the appeal would be some two years out of time (whether from a deemed original decision or a deemed decision upon internal review) and no application or grounds for a time extension have been advanced.
In addition, the respondent argued, and with some force, that once an external review has taken place, as ultimately occurred here with the PCA decision of 18 May 2009, it would be perverse to call upon the original decision-maker by way of appeal to justify a position which might, in many cases, differ from that of the external reviewer.
As against that contention, however, it could be said for the appellant that, keeping in mind the provisions of s 42B(1) of the DCA, these proceedings ‘concern’ a determination made by an agency, namely SAPOL, notwithstanding that the appeal itself focuses upon an external review by PCA of that determination; that, after all, the agency remains a party to the appeal.
That argument fails, however, when the concluding words of s 48 are considered, because where a subsequent determination has been made by an exempt agency (PCA), it cannot be that a burden falls back upon SAPOL to justify its own determination: the chain of determinations has passed that point.
Further to that, there is a certain logic in concluding that s 48 is there to impose a heavy onus upon an agency in circumstances where there has been no external review by an exempt agency.
In all the circumstances and keeping in mind the provisions of s 42E of the DCA, I consider the proper approach on the merits is to have regard to what I consider as the plain statutory intention that the appeal be maintainable only from the most recent or immediate decision-maker, in this case the PCA, and accordingly to treat it as properly one from the decision of the PCA made on 18 May 2009.
I thus conclude that s 48 of the FOI Act cannot apply to the Atop appeal, that the onus created by that section does not on that appeal fall upon the respondent; instead the court must have regard to the cited provisions of s 42E(3) of the DCA.
As there is an inherent conflict in the application of those statutory provisions, I was invited to express my opinion on the Atop appeal based on the application of either section. I do not propose to do that. I cannot see how s 48 can apply to the Atop appeal and I propose to employ s 42E(3) in entertaining that appeal, albeit against the background of the provisions of sub-s 2(b):
(2) The Court, on an appeal—
…
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The provisions of s 48 will, however, be applicable to the Autoblast appeal.
- Reception of Evidence
There was some discussion at the hearing about the evidence upon which I should proceed and, plainly, that must include the material that was placed before the relevant decision-maker. I am not, however, confined to that and, indeed, s 42E of the DCA confers on me a discretion to allow such further evidence as I may choose: I may inform myself as I think fit but I must act as s 42E(2)(b) requires.
Here, I determined to receive into evidence an affidavit from the appellant himself (Exhibit A23) as well as affidavits from witnesses relevant to the respondent’s case. In addition, I also received, by consent, other documents, including various schedules of documents, a judgment of the PRT (Exhibit R26), a decision of Mr K J Prescott CM sitting in the Police Disciplinary Tribunal (‘PDT’) (Exhibit A2) and, for ease of reference, certain facilitating documents. I also heard oral evidence from the deponents Lock, Ralphs, Stevens, Scott and the appellant.
As well, I received an affidavit of Tracy McLeod Gentgall filed on 11 April 2010 (Exhibit R15) concerning consultations she had had with persons said to be affected by the provisions of s 26(3) of the FOI Act.
Section 26 provides as follows:
26—Documents affecting personal affairs
(1)This section applies to a document that contains information concerning the personal affairs of any person (whether living or dead).
(2)An agency must not give access under this Act to a document to which this section applies (except to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.
(3)If—
(a)—
(i)    an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given; and
(ii)     the views of the person concerned are that the document is an exempt document by virtue of clause 6 of Schedule 1; or
(b)after having taken reasonable steps to obtain the views of the person concerned—
(i)    the agency is unable to obtain the views of the person; and
(ii)     the agency determines that access to the document should be given,
the agency must—
(c)forthwith give written notice to the person concerned—
(i)    that the agency has determined that access to the document is to be given; and
(ii)     of the rights of review and appeal conferred by this Act in relation to the determination; and
(iii)    of the procedures to be followed for the purpose of exercising those rights; and
(d)defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of.
(4)If—
(a)an application is made to an agency for access to a document to which this section applies; and
(b)the document contains information of a medical or psychiatric nature concerning the applicant; and
(c)the agency is of the opinion that disclosure of the information to the applicant may have an adverse effect on the physical or mental health, or the emotional state, of the applicant; and
(d)the agency decides that access to the document is to be given,
it is sufficient compliance with this Act if access to the document is given to a registered medical practitioner nominated by the applicant.
(5)A reference in this section to the person concerned is, in the case of a deceased person, a reference to the personal representative of that person or, if there is no personal representative, the closest relative of that person of or above the age of 18 years.
Here, persons had made certain disclosures in the course of one or both of the investigations and it was contended by the respondent that these concerned their personal affairs and the purpose of the deponent’s dealings with them was to ascertain their views as to whether their disclosures were exempt under s 26 of the FOI Act.

The appellant expressed some reservations about my receipt of that document, but ultimately I elected to receive it as a confidential document as it appeared to me that a proper consideration of any articulated claim for exemption under s 26(2) of the FOI Act would likely involve reference to information and materials the disclosure of which might reveal the very information claimed to be exempt. It was not appropriate for the appellant to see any of the latter documents prior to my consideration of them, but that did not foreclose any ultimate right of access to them. Having then considered the format of that affidavit, I directed the respondent to provide a document identifying, by number only, each of the persons so affected and their verbatim comments relevant to the application of that section. That document became Exhibit R21.
The Affidavit and Oral Evidence
It is appropriate here that I discuss the evidence put before me and make findings with respect to it.
- Chief Inspector Lock
Chief Inspector Lock was for a time an inspector within the IIB and ultimately was tasked with heading the Atop investigation and, as further information was received and in conjunction with Audit Section, the Autoblast enquiry as well.
In his affidavit he stated that as an internal investigator, it had been reported to him that a significant number of members of the force had complained of inappropriate behaviour by the appellant and that up to 12 of them might be prepared to provide statements relating to ‘bullying-type behaviours’. He had concluded that such behaviour might offend the police force ‘Equity & Diversity Employee Management Manual’ (‘EDM’). I will speak of this manual later, but he went on to say such conduct might also involve a breach of the Code of Conduct (‘the Code’) established under the Police Act 1998 (‘Police Act’). I will return to that. Accordingly, IIB had become involved in discussions with Equity and Diversity Branch (‘EDB’) about the investigation and, in the event, he had proceeded with an IIB investigation, albeit that EDB had remained involved in it.
He did not himself attend at a management meeting at South Coast Local Service Area (‘SCLSA’) in February 2004, but representatives of IIB and EDB had and he had been informed of what transpired.
He went on in his affidavit to speak of the IIB case management system and how as the investigation proceeded, running sheets were prepared, action sheets and miscellaneous documents were generated, some 144 statements were taken from witnesses at the appellant’s then and previous command and reports were prepared. Some witnesses had come forward with their own prepared statements and others had asked to be interviewed. In all, 46 persons had made allegations of bullying behaviour by the appellant, 12 had provided positive statements supporting the appellant’s management style and 49 persons were neutral.
I should pause here to say that by reason of s 42E of the DCA, I elected to receive hearsay evidence in both affidavit and oral form from each of officers Lock, Ralphs and Stevens, but in so doing have had due regard to their respective levels of experience and seniority in the police force, insofar as these factors reflected upon their knowledge and experience of police matters, and, of course, to the cogency and weight of that evidence.
In his oral evidence Lock enlarged upon how it was decided, in consultation with EDB, that notwithstanding the power in the Police (Complaints and Disciplinary Proceedings) Act 1985 (‘PCDP Act’) (s 25) to compel witnesses to provide information, given the nature and sensitivity of the investigation no potential witness would be directed under that section to answer questions. They would instead be encouraged or persuaded to cooperate. It was further decided that assurances of confidentiality would be given to all potential witnesses to encourage reporting, albeit it was expected that all witnesses would be aware that, were the investigation to go to a court or tribunal, confidentiality could not be maintained.
Notwithstanding that position, he went on to say it had been reported to him that during the investigation some persons had remained reluctant to assist in providing statements or were otherwise slow in doing that, and that some required that they be formally interviewed in preference to providing their own statements. Further, he believed some had asked to be directed to answer questions, though he was not aware of a specific instance of that.
He agreed in cross-examination that when the appellant had ultimately been interviewed, he had been told that a Code breach was being investigated rather than an Equity and Diversity breach. I do not take that to have conveyed any assurance to the appellant that an Equity and Diversity grievance process would not be embarked upon if a breach of the Code were not proceeded with, nor, I am satisfied, would the appellant have so taken it. Further to that, Lock confirmed that the investigation had at no time ceased to be an Equity and Diversity issue.
He acknowledged that the grievance resolution process envisaged that copies of grievances might be distributed to the person complained of but said that that did not occur in this instance.
As to that matter, I note that paragraph 3.1 of R1, the EDM, provides as follows:
(C)opies should be kept to a minimum, with distribution limited to the person who believes they have been aggrieved, the respondent and the parties directly involved in the grievance resolution.
Whilst it is thus contemplated that a respondent will be provided with a copy of any grievance forms lodged, the manual plainly does not make its provision mandatory.
Finally, Lock conceded that the prospect of confidential material being disclosed would not have affected the content of any report he prepared during the course of an investigation.
- Chief Inspector Ralphs
Chief Inspector Ralphs spoke in his affidavit of attending the management meeting of the SCLSA on 5 February 2004, along with an EDB representative, at which gathering local service area staff of and above the rank of sergeant were present. He and the EDB representative went there, he said, to stress the importance of the Code and the EDM, to encourage openness in reporting by members and to request the dissemination of these messages to ranks below those attending. In the course of that meeting, he said, the topic of workplace bullying was touched upon and the name of the appellant was mentioned.
The EDB representative stated to the meeting that matters reported would be treated in a confidential manner but that any allegations of a serious nature and which resulted in judicial proceedings would necessarily be disclosed.
In his oral evidence, Ralphs went on to say that following that meeting, he drove to Thebarton Police Barracks on other business. As he was getting out of his car there, the appellant approached and spoke to him.
He asked if Ralphs was there to see him and Ralphs said no, he was there on other business. The appellant then said that he was aware IIB had attended the SCLSA meeting that day and that he had already seen a copy of an email from Chief Inspector Lusty about that meeting and workplace bullying.
The appellant then asked him if there was a list of names. Ralphs replied that the purpose of the South Coast meeting was to establish a process to determine the nature and extent of any Equity and Diversity misconduct by the appellant. The appellant then said ‘The hardest thing about being a superintendent is managing people’ and that at that time he had no people to manage.
The appellant then asked him about the timeline for the investigation and Ralph replied that it was difficult to say. At that point they were joined by a third party and the conversation ended.
Ralphs said in his oral evidence that he had felt uneasy about being approached in those circumstances and questioned about those matters and that he had wanted to avoid any conversation with the appellant about the investigation. He had thought the conversation was a significant one and he had made notes of it that day and then reported the contact to his superiors.
He was asked in cross-examination about having at that time been involved in an investigation into an alleged incident at the Police Club involving the appellant and whether he had then been asked to interview people about that matter. He said he could not remember whether that was so, although it later became an agreed fact that it was and that he had been asked to do that by a senior officer.
It was then put squarely to him that in the conversation at Thebarton the appellant had asked him whether Commander Cornish had requested him to interview people about the Police Club incident. He said he may have been asked that question but he could not recall it.
It was then put to him that he had been confused about the nature of the conversation at Thebarton and that, in asking him about a list of names, the appellant had in reality been asking about a list relevant to the Police Club incident and not a list relating to alleged bullying conduct. He rejected that proposition, saying the appellant’s question had been directed to the bullying matter, that he would have noted the fact if it had been about the Police Club enquiry. He further said he had not been confused about the appellant’s question as to how long the investigation would take; that is to say, he did not consider that that question had related to the Police Club matter.
He was then challenged that he had not said to the appellant that he had been at the South Coast meeting to establish a process to determine the nature and extent of any Equity and Diversity misconduct by the appellant, but he said that that was in his notes and they were contemporaneous. He was relying on their contents and not on his memory, but even so the approach by the appellant on that day had stood out in his memory.
It was put to him that the appellant had then said that Commander Cornish had told him there was a list of 100 people and that he had thought that that was ‘bullshit’. He said no such conversation was in his notes and he would have recorded that if it had been said.
He was asked again about his attendance at the South Coast meeting and, commenting on what had been said by the EDB officer, he said (T/S 214):
Confidentiality was obviously an important issue and one of the reasons why Equity and Diversity Branch attended in person was to reassure people … we needed people to come forward, you don’t resolve Equity and Diversity matters by coercing people, people must come forward, but the same time answered obvious questions. You know, is this going to remain confidential and she would have qualified that aspect.
He further said, at T/S 217:
Q.     You didn’t consider it necessary to direct people who were aware of breaching the code that they must report it.
A.     At that stage it was a fact-finding circumstance and when you look at the nature of Equity and Diversity matters, the decision was in the spirit of finding out what occurred, was not to coerce people to encourage people to come forward with information bearing in mind, you know, the quasi paramilitary organisation SAPOL is structured.
Q.     I do understand that, what I’m asking you is that you yourself, didn’t consider it necessary to direct those who were aware of breaching the code of conduct to come forward and report it, as they must do.
A.    At that time, that was not conveyed, no.
- Assistant Commissioner Stevens
Assistant Commissioner Stevens had deposed in his affidavit to a belief that members of SAPOL who had provided statements to investigators had expressed genuinely held concerns as to the potential impact upon them, both professionally and privately, of release of that material and, in particular, that some held ‘genuine perceptions as to the influence that the appellant may have on them as members of SAPOL and personally’.
He went on to say in his affidavit how the instigation and conduct of investigations concerning alleged misconduct by officers relies heavily on candid and fearless reporting, whether it involves reports of Equity and Diversity issues or breaches of the Code; that the prospect of subordinate officers being discouraged from reporting for fear of adverse managerial responses from senior personnel was to be avoided; that voluntary disclosure is encouraged, albeit that compulsive powers are available; that assurances of confidentiality are given by investigating officers, subject only to the requirements of disciplinary action; and that the prospect of open disclosure would have an adverse effect on investigation and management.
Further, he said, investigators had to feel free and uninhibited in expressing their opinions in reporting upon investigations.
Finally, he commented that the Atop and Autoblast investigations had been concluded, that ‘(N)o penal actions adverse to the interests of the appellant were taken as a consequence of those investigations’, nor were any contemplated in the future.
In his oral evidence, he made it plain that he had not been involved in either of the Atop or Autoblast investigations. He enlarged upon the need for investigators to be able to express frank and fearless opinions and how that ability might be compromised if those opinions were to be disclosed, the more so where the enquiry related to an internal police matter and not an external complaint.
In that context, he first spoke of a lesser concern about the disclosure of facts contained in investigators’ reports, but in re-examination made it plain that that lesser concern was as to the impact on the investigator of the disclosure of those facts and not as to the impact on the witness of making that disclosure.
He agreed that there was a positive obligation on officers to report suspected breaches of the Code and how an investigator has compulsive powers, but he allowed that confidentiality is only assured by virtue of General Order 8330 (‘GO 8330’). I will return to that. He went on to say that there was sometimes a fine line between conduct that breached the Code, resulting in a reporting obligation, and conduct that fell short of that but which otherwise breached the EDM.
His belief that the police force proceeds on the footing that a person affected by an investigation does not have a general or ongoing right to know the identity of the person who lodged the grievance, was based on the provisions of GO 8330.
He acknowledged that since the appellant’s transfer from SCLSA to Investigation Support Branch, he had not relieved in any position above his current rank.
- Senior Sergeant Scott
Senior Sergeant Scott had deposed in an affidavit to a conversation had with the appellant during the course of a seminar at the Adelaide Conference Centre in November 2004. He had not noted the contents of that conversation but said that the appellant had then approached him, that he had appeared to be angry that an investigation was then underway relating to allegations apparently made by members of SCLSA and that the appellant had said to him ‘I will return to South Coast if it’s the last thing I do and I have a few scores to settle’. He could not recall whether other persons were present when that was said. Some months afterwards, he had reported that conversation to the IIB but he had not made a formal statement about it until April 2011.
He then gave oral evidence and affirmed the contents of his affidavit. In cross-examination he agreed he had not noted that conversation and that he only had a vague recollection of it, but said that that remark had stuck in his mind. He agreed other officers could have then been present.
He was asked whether the appellant had then said to him ‘There’s already been a few people caught out saying lies’. He said he could not really remember that and could neither confirm nor deny it was said. It was then put to him that the appellant had not used the words that he had a ‘huge score to settle’. He did not disagree with that but in re-examination said he had no doubt in his mind that the effect of what had been said to him by the appellant was that he had scores to settle.
- the Appellant
There was then the appellant’s own evidence. In his affidavit he described the progress of each of the Atop and Autoblast enquiries and his FOI applications. He went on to say that he had had lengthy interviews about Atop, that he believed there were 17 allegations, that 22 persons had made them and that he knew who those persons were and the content of the allegations.
He went on, at [28]:
Any imputation of retribution or “getting even” with those members who may have provided information is without foundation.
He further said that he then had under his command or had otherwise dealt with numerous people who had previously served under him at SCLSA.
In his oral evidence, he went on to provide an account of the conversation that he had had with Chief Inspector Ralphs at Thebarton Police Barracks on 5 February 2004. He had by then become aware that Ralphs was interviewing people relating to the Police Club incident and he was curious to know whether Ralphs had completed those interviews because it was he who had asked Commander Cornish to have them done. The reason he had then asked Ralphs as to a time-frame for interviewing those people was because it was a matter that was important to him.
At the same time, he said, he was also aware that Ralphs had been at SCLSA that day, because he had seen the email sent out about it by Chief Inspector Lusty.
He then said that he did in fact ask Ralphs about a list of names of persons concerned in the bullying investigations because he had been told that there were over 100 of them and he was trying to establish whether that was true. He said Ralphs was uncomfortable and non-committal in dealing with that question.
He then agreed that he had had a conversation with Senior Sergeant Scott during the course of the seminar Scott had spoken about. He regarded Scott as a good person and good officer. When asked whether he had said to Scott: ‘I will return to South Coast if it’s the last thing I do and I have a few scores to settle’, he said ‘No, I have no recollection of saying that’, but he then went on (T/S 286):
I recall saying when it is all finished I expected to return there and that was consistent with my approach from when it all started. He queried – he made some comment in relation to that and I’d remarked that some people have already been caught out telling lies and it was my impression once the investigation was complete that I would be returning to South Coast.
He said there were other persons present so the conversation did not go further than that.
He was asked whether he was angry when he was speaking to Scott and he said he was ‘very disappointed’.
He denied ever uttering any of the threats of retribution that were aired in the unidentified extracts of witness responses referred to in the Gentgall affidavit (R15). He denied ever saying anything to anybody about what would happen to the people who had not supported him in the enquiries and about putting any information he obtained through FOI on the internet. He was then asked whether he intended any repercussions against any person and he responded (T/S 288):
A.     My view has always been, and it has not changed since day one, I have always said that if something did in actual fact happen and someone had a different impression as myself as to what was intended or meant, that is life and I can’t do anything about that. I have always maintained that if someone made up lies, which I know in that investigation there were, then I reserve the right to consider my position in respect of that and I have always maintained that to be the case.
Q.     Have you ever expressed what you might do with respect to anyone who has made a complaint against you.
A.     I am not in a position to make my mind up about anything because I don’t know except for what I was told in the interview, what it is that I am alleged to have done. As for this claim of victimisation and so forth, it is absolutely ludicrous and I am afraid our organisation doesn’t work like that and it could never happen.
He said that during the course of Atop he had asked for copies of the grievance forms (PD 351) but they had not been provided to him.

In cross-examination, he was first challenged as to why it was that he had permitted his counsel to put to Chief Superintendent Ralphs in cross-examination the proposition that during the conversation at Thebarton Barracks, he (Ralphs) had been confused in his mind about the appellant’s query about a list of one hundred names and that that question had in reality been about the Police Club matter.
The transcript proceeds (at 290-292):
Q.     Did you instruct your counsel to put that to Inspector Ralphs, to assert to him that he must have been mistaken.
A.     It was my impression he was mistaken.
Q.     You have given evidence in court today that you were told by Commander Cornish that there was a list of 100 names of people and that you did, in fact, ask Inspector Ralphs whether there was a list of 100 names and you said ‘I was trying to establish whether that was true or not’. Do you say Inspector Ralphs was mistaken in his evidence or not, because that seems to me to be entirely consistent with what Inspector Ralphs said.
A.     I don’t understand your question but I did ask Ralphs if there was a list of 100 names to test the veracity of what Cornish told me because it was implausible.
Q.     I put to you you were interested in knowing what persons were named on that list.
A.     If he had been prepared to tell me I would have been interested in who was on that list because I didn’t think the list existed.
Q.     He wasn’t prepared to tell you, was he.
A.     No.
Q.     You agree, if I put to you, that it would have been entirely inappropriate for him to tell you the names of those persons on that list, given that he was an inspector involved in the investigation in the early stages.
A.     I probably wouldn’t have pushed the point.
Q.     Do you agree with my question though, what’s your answer to my question.
A.     Inappropriate for him to tell me?
Q.     Yes.
A.     I would think so.
Q.     I put to you it was inappropriate for you to ask him, having regard to his position and your rank and the nature of the allegations that you heard about.
A.     That’s your opinion, that’s not the same as my opinion.
Q.     Would you accept, if I submit to the court, that it’s entirely appropriate persons who were interviewed to be concerned about your motivations, particularly if they are aware that you were, indeed, seeking at that early stage their identities.
A.     I don’t really understand your question but if I can explain why I asked that question. When Commander Cornish said there was 100 names that, to me, was implausible because I never had contact directly with 100 at South Coast LSA. I dealt with, as Paul said yesterday, with the management group. I dealt directly with the management group. There was also another issue in relation to work performance in the CIB area. I had been accused of abhorrent behaviour at the police club, I was also facing an inquiry that, supposedly, 100 people had come forward and said I was bullying them. I was more interested in trying to prepare some sort of response and if it, in fact, had included the CIB, if he said to me there are 100 names and they are in the CIB, I would have probably known who 10 of those people were because they were people who were subject to work performance.
Q.     I put to you that your reason for asking whether there was a lot of names was for that reason, you wanted to know who the person was who made complaints about you.
A.     No, that’s not right.
I found his evidence on that whole issue to be evasive.
He was then cross-examined about an email to staff at Communications Centre, where he had been in command in 2002 and which he had sent when he was transferring from there. It was in the following terms (T/S 293):
I would like to take the opportunity to say farewell. You do a great job. As to the remainder, I want to say to the 1% of you, yes, you exist in every group and while I have tried to develop you, impart leadership skills, you turned into a pessimistic selfish individual, lacking in the moral fortitude of real people. I must admit I have failed, I apologise.
He said that his reading of the email was that it was overall a positive one but the other parts of it had been written because of an unwholesome farewell card he had received from one unidentified staff member. He denied that the tone of that email reflected the respondent’s concern that witnesses in the Atop/Autoblast matters held genuine fears about the consequences of disclosure in this matter. He rejected that interpretation.
There was then this passage (T/S 295):
Q.     You have given some evidence today that you have always maintained that someone has made up lies, and you said in this court today that you reserve your rights in relation to those persons. I suggest to you that, notwithstanding the passage of time in relation to this investigation, you still believe that there are persons who have made up lies about you, is that correct.
A.     I know there were.
Q.     And you still hold in your mind some anger and resentment towards those persons, don’t you.
A.     Well, I have got three choices in relation to anyone who made up lies about me.
Q.     Let’s get back to my question. Do you still hold anger and resentment towards those persons who you believe and perceive have made up lies about you.
A.     To answer your question, I don’t believe it is right that people made up lies that subjected me to what I was subjected to. If something did in actual fact happen and they had a different perception than what I did I have no issue in relation to those people.
Q.     But you have called evidence before the Police Review Tribunal on your application confirming the transfer that you couldn’t bring yourself to forgive persons who made up lies about you. Do you agree that was the effect of your evidence before the Police Review Tribunal.
A.     Yes.
Q.     And I put to you that that is different to today.
A.     If you knew what put me through and my family and the impact it had on me – it ended my career in 2003 – I still resent people who maliciously made up lies just to impact my career and my person.
- Factual Findings
Arising out of the above evidence and the documents otherwise before me, I make the following findings:
1.As to the appellant:
1.1Having heard the evidence of Chief Inspector Ralphs and Senior Sergeant Scott as to conversations each had with the appellant, to the extent that the evidence of either of them was challenged by the appellant I should say that for reasons which follow, I prefer the evidence of each of them over that of the appellant.
1.2As to the Thebarton conversation, the appellant, through his counsel and in the appellant’s presence, first challenged Ralphs that insofar as the appellant had asked him about a list of witnesses, that question had not been in connection with the Atop investigation but rather it had related to the Police Club matter. It was squarely put to Ralphs that he had been confused about the direction of that question. Ralphs rejected that proposition.
Subsequently, the appellant gave evidence which at first appeared to suggest Ralphs had been mistaken about the thrust of that conversation, but he then moved towards supporting Ralphs’ account. That series of events and the confidence I had in Ralphs as a witness of truth shook my confidence in the appellant’s credibility.
1.3I find that on 5 February 2004 the appellant approached Chief Inspector Ralphs at Thebarton Police Barracks and asked whether there was a list of names of people concerned in an investigation which Ralphs was then conducting and that his query related to and was understood by Ralphs to relate to the matters under consideration in the Atop matter.
1.4   I further find that in the circumstances of the appellant’s then knowledge, that was an entirely inappropriate question to direct to Ralphs, that the appellant well knew it was and that his enquiry was designed to improperly solicit information from Ralphs as to the identities of people who had spoken to investigators about the matter.
1.5   I find that the appellant had a conversation with Senior Sergeant Scott in November 2004 at a seminar they had each attended and during the course of that conversation made a remark to Scott to the effect that he would be returning to SCLSA and that he had a few scores to settle there. Whilst Scott was otherwise an impressive witness, he did waver in cross-examination as to the precise words used. Even so, he affirmed that words to that same effect were indeed said and that the appellant displayed anger as he said them.
When challenged as to that conversation, the appellant said no, that he had no memory of such words being used. That was, I found, a less than convincing response.
1.6   When all that evidence is considered along with his further evidence in cross-examination which I have quoted extensively above, I find myself satisfied that at the time of those conversations and even when he gave evidence before me, the appellant remained angry and bitter about the conduct of persons within the force whom he believed had lied about his own conduct, that he was indeed minded to exact some retribution from them for it and that he reserved to himself the question of what he might do in that respect.
1.7   That same evidence also caused me to form an adverse view about his general credibility and reliability, and I find that one of his primary purposes in seeking access to the materials in issue here is to identify those persons whom he considers have wronged him so that he can then consider some form of retribution. In the face of that, his denial in his affidavit (at paragraph 28) of any intention to seek retribution does him little credit.
He did not himself proffer as a reason for seeking disclosure that he wished to review the procedural fairness accorded to him in the enquiries: that proposition came only from his counsel.
Whilst the motivation I have found might not be a particularly worthy one, it does not of itself constitute a reason for denying him access to the information he seeks. It is, however, a matter relevant to my consideration of particular aspects of the exemptions relied upon by the respondent, and in particular reasonableness and public interest, and I will discuss this question in due course.
2.     Generally:
2.1   That in connection with the Atop investigation, officers from IIB and EDB conferred at the outset and decided that:
·potential witnesses would not be directed under s 25 of the PCDP Act to answer questions and that instead a cooperative process of investigation would be embarked upon;
·they would attend at the SCLSA management meeting on 5 February 2004 and would tell attendees that they would not be so directed and that, unless it became necessary because of disciplinary proceedings, their disclosures to the enquiry and those of staff under them would be kept confidential.
2.2   That IIB and EDB personnel did attend that management meeting with senior members of the SCLSA of about the rank of sergeant and upwards, that a representative of EDB then informed attendees that they were investigating workplace bullying, that the appellant’s name was then mentioned and attendees were told that potential witnesses would not be ordered to answer questions and that any information disclosed would remain confidential unless it had to be revealed in disciplinary proceedings; that attendees were asked to disseminate that information to lower ranks.
2.3   That in the course of their investigations, IIB and EDB personnel advised potential witnesses:
2.3.1that they were not being directed under s 25 to answer questions. Even so, I am satisfied and find that some persons asked to be directed to answer questions. Whilst there is no evidence of a specific instance of that, nor as to the number of such requests, it is likely that with respect to at least some witnesses, that direction was given;
2.3.2that the information they provided would be kept confidential except insofar as it might have to be disclosed if there were court or tribunal proceedings.
2.4 That notwithstanding the provisions of s 38 of the Police Act obliging members to report suspected breaches of the Code, a number of persons who expressed grievances about the appellant’s conduct had not previously reported them under s 38. In that context, it is important to keep in mind:
·the potential for matters touched upon in a grievance not being so serious as to create an obligation under s 38;
·the trite observation that it can reasonably be expected that formal compliance with s 38 is less likely to occur where the member suspected of breach is of a significantly higher rank than that of the person holding the suspicion and the more so where the former occupies a position capable of influencing the latter’s career path.
2.5   That whilst in interviews with investigators the appellant was informed by them that he was being investigated for a breach of the Code, I am satisfied from his own knowledge of the Code and the EDM that he cannot but have been aware of the possibility that the investigation might not ultimately proceed as an alleged breach of the Code but rather as a grievance under the EDM or, indeed, that it might result in administrative action only. I note in particular that Lock in his affidavit deposed that the enquiry at no time ceased to be an Equity and Diversity enquiry.
2.6   That at no stage was the appellant provided with a copy of any PD 351, being a written grievance of a particular member affecting him. Whilst the EDM envisages that the subject of a complaint would ordinarily receive a copy of it, I am not satisfied that its provision was ever mandatory, the more so if the statement was elicited as part of a larger investigation into a potential breach of the Code.
2.7   That I accept the evidence of Assistant Commissioner Stevens, which I am satisfied he can, from his experience as an officer, his knowledge of police affairs and his status as Officer-in-Charge of Human Resource Services, properly give, and find:
2.7.1that ‘SAPOL conducts its human resource management on the basis that police officers are expected to act at all times in an ethical and professional manner, in keeping with the community standards expected of police and in line with SAPOL’s Code of Conduct’ (Affidavit paragraph 5b);
2.7.2that ‘The instigation and conduct of investigations concerning alleged misconduct by police officers relies heavily upon the candid and fearless reporting of alleged misconduct, including by other police officers …’ and that that ‘applies equally to reports of equity and diversity issues as well as to other alleged breaches of the Code of Conduct’ and that ‘minimisation and elimination of misbehaviour … depends upon the full and frank disclosure of such allegations (by) prompt, thorough and confidential investigation’ (Affidavit paragraph 5d);
2.7.3‘SAPOL conducts its human resource management on the basis that a culture of corrupt and inappropriate practices, including the development of potentially unsafe workplaces from an equity and diversity perspective, is more likely to develop where senior officers inappropriately exercise managerial powers, or are perceived to exercise powers, so as to dissuade (whether directly or indirectly) subordinate officers and staff from making allegations of misconduct’ (Affidavit paragraph 5e);
2.7.4 that voluntary provision of information to investigators is encouraged, albeit that coercive powers exist, and that assurances of confidentiality are provided subject to the requirements of formal hearings;
2.7.5that the possibility of open disclosure of information to others has the capacity to inhibit the extent of disclosure and, as well, to impact on the effectiveness of management and relationships within the police force;
2.7.6that to be effective, investigators must be frank and fearless in expressing their opinions and that the freedom to do that might be compromised, particularly in a command structure, were there a risk of those opinions being disclosed to others;
2.7.7that whilst members are expected to comply with s 38 of the Police Act and report suspected breaches of the Code, some do not for fear of the consequences of disclosure of their revelations. That observation accords with common sense;
2.7.8that the risk of disclosure to any person the subject of a complaint of investigatory material of any kind would impact adversely on the effectiveness of police internal investigations.
2.8I find that the level of confidentiality afforded by GO 8330 is not lost or diminished by reason of the fact that the conduct under investigation might also extend beyond that prescribed by the EDM to the point of being a breach or potential breach of the Code.
General Observations Concerning FOI Act
Section 3(1) of the Act provides that its objects are:
(a) to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and
(b) to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.
Subsection (2)(b) provides that the means by which it is intended those objects would be achieved include:
conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and …
It is to be noted that the words incorporated within the brackets were inserted by reason of a 2004 amendment to the Act.
Section 3A provides:
(1)             It is the intention of the Parliament—
(a)    that this Act should be interpreted and applied so as to further the objects of this Act; and
(b)    that a person or body exercising an administrative discretion conferred by this Act 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.
(2)    Agencies are to give effect to this Act in a way that—
(a)     assists members of the public and Members of Parliament to exercise rights given by this Act; and
(b)     ensures that applications under this Act are dealt with promptly and efficiently.
Section 12 provides:
A person has a legally enforceable right to be given access to an agency's documents
in accordance with this Act.
Section 19(2a) of the Act provides:
… nothing prevents an agency from making a determination to give access to a document on an application after the period within which it was required to deal with the application (and any such determination is to be taken to have been made under this Act).
Section 20 of the Act provides:
(1)     An agency may refuse access to a document—
(a)    if it is an exempt document; or
(b)     …
(2)     …
(4) If—
(a)     it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and
(b)     it appears to the relevant agency (either from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy,
the agency must not refuse to give access to the document to that limited extent.
I will deal with the exempt provisions separately.
Section 26 of the Act (supra) applies to a document that contains information concerning the personal affairs of a person and ‘personal affairs’ are defined in s 4 as including:
(a) financial affairs;
(b) criminal records;
(c) marital or other personal relationships;
(d) employment records;
(e) personal qualities or attributes,
…
Exemptions under FOI Act - Generally

Returning then to s 20(1)(a), exempt documents for the purposes of the Act are documents described as exempt in Schedule 1 and it is upon various provisions in that schedule that these disputes centred. I will discuss them in turn, but first make these observations.
There was some discussion at the hearing about the proposition that disclosure to the appellant of the materials sought was effectively disclosure to the world at large, that that was a matter relevant to my determination. I am prepared to accept that in some circumstances such a potential would be a relevant factor (Victoria Police v Marke[2]; Konieczka v South Australian Police, supra) in considering questions of reasonableness or public interest under Schedule 1 clauses 6, 9, 13 or 16; even so, I observe the following:
(1)Prima facie, the appellant has a right to non-exempt information and his reasons for wanting to exercise that right are ordinarily not to the point.
(2)I am not prepared to assume here that disclosure of material to the appellant is disclosure to the world at large. Of course, it has that potential but in the light of the disclosed Atop findings, there may well be reasons why the appellant would not want to further disseminate material he could access. Further, there is no evidence here of any intention on his part to so publish it (Victoria Police v Marke, supra, at 231 per Maxwell P).
(3)In any event, there is an inherent protection against the risk of such an event and it is contained within SAPOL General Order 8330 (GJS3 to Exhibit R18) at Chapter 3 dealing with confidentiality. The appellant, whilst a serving officer, remains subject to that particular order ensuring confidentiality ‘during and subsequent to the grievance resolution process’.
[2] (2008) 23 VR 223
A further consideration then arises from the number of documents in contest here. It is very large indeed and with respect to most of them, several exemption bases are advanced. In approaching my consideration of each claim, therefore, I have had to be sensitive to:
· the possibility that a document or part of it might not be exempt under one ground advanced but may be exempt under another;
· the fact that whilst material contained in a particular document might, on its face, not fall within a particular exemption, its disclosure, when accompanied by other disclosures of a like nature and the appellant’s asserted knowledge of particular matters, might in a cumulative way give rise to an exemption issue.
This latter approach, argued in Re Anderson and Australian Federal Police[3] as the mosaic effect, did not find particular favour there, but I prefer the approach adopted in The News Corp Ltd v NCSC[4], where Woodward J observed at 102:
The AAT accepted the evidence of the respondent's executive director that "the more information the applicants had about documents in the Commission's files, the greater the likelihood that there would be frustration" of the investigation. It also accepted his view that "even the apparently meagre information which any one of the lines" of the schedule "would afford could ... enable an applicant to achieve that frustration".
It was suggested, for the applicants, that it was hardly likely that each of over 6,000 documents would prejudice the investigation if disclosed. That is no doubt true, as also is the proposition that the mere presence of a document on an investigation file does not establish its sensitivity.
However, the AAT studied the summaries of the documents as they appeared in the schedule, and accepted the argument of the respondent that it was not possible to identify which pieces might fit into the applicants' jig-saw puzzle. In my view this was a valid argument and, if the Freedom of Information legislation is to remain workable, it must be open to a respondent, and to the AAT, to deal with large numbers of documents with a degree of generalisation appropriate to the case.
I believe that there was ample material before the AAT to justify the findings which it reached.
I intend to approach my determination in that way.
[3] (1986) 11 ALD 355
[4] (1984) 5 FCR 88
I further note that the respondent has, with respect to numerous documents, purported to act under s 20(4) of the FOI Act and release particular documents to the appellant, albeit with deletions in them with respect to material claimed to be exempt. I have considered those residual exemption claims and ruled upon them where appropriate.
Another topic requires special mention here and it is the appellant’s contention that he is aware in any event of the identities of 22 witnesses and the issues raised by each in their statements to investigators. Exhibit A3 was tendered in support of that claim. I have considered that document but am nonetheless satisfied that an exemption claim ought not be adjudged according to what the appellant knows or says he knows about it. It may be that some matters are considered to be so notorious as to not justify any exemption but that issue needs to be considered document by document. It can, of course, be expected that by virtue of his lengthy interviews with investigators, the appellant will have gained some knowledge of or suspicion as to the identities of persons spoken to by them and of what those persons spoke about, but any such knowledge does not make it notorious. It is not appropriate that I should say any more about the respondent’s material than that. Where, however, the appellant has engaged in correspondence with investigators and mentioned particular names to them, as has occurred a number of times here, I can see no basis for exempting those references.
Finally, the respondent contended, and I accept the proposition, that it is appropriate I should have regard to the statutory and regulatory framework governing the operations of serving police officers, as the appellant and main witnesses are, and particularly in the context of my consideration of the public interest.
Statutory and Regulatory Framework
– Police Act
As to that, I note that the primary source of power in policing operations is the Police Act 1998 (‘the Police Act’).
Under s 6, the Commissioner of Police is ‘responsible for the control and management’ of the police. Under s 11 the Commissioner may give general orders to subordinates.
Under s 37 the Governor may establish a Code of Conduct (‘the Code’) for police officers for the maintenance of professional standards and it may, amongst other things, proscribe ‘corrupt, improper or discreditable behaviour’ and deal with conduct between officers and standards of personal behaviour. Section 38 provides that an officer who becomes aware of circumstances in which it is reasonable to suspect a breach of the Code, must report that suspicion to the Commissioner. If the Commissioner so suspects, he/she may cause the matter to be investigated and may (s 39) bring a charge against the suspected offender. If the suspect is found guilty, the Commissioner has a broad array of powers, starting from termination of an officer’s appointment.
Under s 42, the Commissioner may determine that a suspected breach is ‘minor misconduct’ and may refer the matter for ‘informal inquiry’. If the allegation is proved, the officer may be dealt with by limited disciplinary measures.
Section 47 empowers the Commissioner at any time, and at his own discretion absolutely, to transfer an officer to a position of equivalent rank, albeit that the person so affected may initiate a grievance process.
By Schedule 1 of the Police Act, the PRT is established and is to be constituted by an appointed magistrate.
Section 52 provides that a member affected by such a transfer may apply to the PRT for a review of that decision if the member believes he or she is being punished for particular conduct.
- Police Regulations
Police Regulations 1999 made under the Police Act establish rank structures and seniority within the force and Part 5 (reg 11 and following) sets out the Code for the purposes of s 37 of the Police Act. The Code provides, inter alia:
11—Code of conduct
(1)For the purposes of section 37 of the Act, the provisions of this Part constitute a Code of Conduct for the maintenance of professional standards by employees.
(2)An employee who contravenes or fails to comply with a provision of this Part (or attempts, aids, abets, counsels or procures such a contravention or failure) is guilty of a breach of the Code.
12—Honesty and integrity
An employee must at all times act with honesty and integrity, whether in the course of his or her employment or otherwise.
13—Conduct prejudicial to S.A. Police
An employee must not, in the course of his or her employment or otherwise, behave in a manner that—
(a) reflects or is likely to reflect adversely on S.A. Police; or
(b) is prejudicial to good order and discipline in S.A. Police.
14—Performance of orders and duties
An employee must not, without good and sufficient cause, disobey a lawful order or fail to carry out a lawful order or a duty promptly and diligently.
15—Negligence
An employee must not be negligent in carrying out a lawful order or a duty.
16 …
17—Conduct towards public, employees in the department
An employee, in dealing with members of the public in the course of his or her employment, or in dealing at any time with employees in the department—
(a)must not unlawfully discriminate against any person; and
(b)must not behave in an oppressive, offensive, abusive or insulting manner;
(c)must be impartial and respectful.
18—Conflict of interest
An employee—
(a)must not knowingly place himself or herself in a position that creates or is likely to create a conflict of interest with his or her position as an employee; and
(b)must immediately report any such conflict (or likelihood of conflict) that arises to an officer senior to the employee.
19—Improperly obtaining benefit or advantage
An employee must not improperly obtain or seek to obtain a benefit or advantage for himself or herself or another person from his or her position as an employee.
20—Confidentiality of information
An employee must treat information obtained by S.A. Police (or by the employee by virtue of his or her employment) as confidential and must not—
(a)seek to obtain access to such information except in the proper execution of his or her duties; or
(b)improperly use or disclose such information.
Under reg 25 a charge may be brought against a member for any breach of the Code and if it is defended the matter will then be referred to the PDT.
- Police (Complaints and Disciplinary Proceedings) Act
The PCDP Act, which establishes the PCA and the PDT, directs the Commissioner to establish within the force a police IIB, sets out the powers of each and governs the manner in which each must operate.
The following sections are of note:
25—Investigations by internal investigation branch
…
(3)Subject to any directions of the Authority or the Commissioner, a member of the internal investigation branch may, for the purposes of the investigation, make inquiries and obtain information, property, documents or other records relevant to the investigation, as he or she thinks fit.
(3a)   Where a member of the internal investigation branch seeks information, property, documents or other records from a person under subsection (3), that person must not, if so directed in writing by the Authority, divulge or communicate to any other person the fact that the investigation is being or has been carried out or that he or she has been requested or required to provide information, property, documents or other records.
Maximum penalty: $2 500 or imprisonment for 6 months.
…
(5)    A member of the internal investigation branch may, for the purposes of the investigation, direct a designated officer to furnish information, produce property, a document or other record or answer a question, being information, property, a document or record or a question that is relevant to the investigation.
…
(8)    A designated officer who—
(a)without reasonable excuse, refuses or fails to furnish information, produce property, a document or other record or answer a question when so required under this section; or
(b)furnishes information or makes a statement to a member of the internal investigation branch knowing that it is false or misleading in a material particular,
may be dealt with under the Police Act 1998 or Protective Security Act 2007 (as the case requires) for breach of discipline.
(8a) A person other than a designated officer who furnishes information or makes a statement to a member of the internal investigation branch knowing that it is false or misleading in a material particular is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
- General Order 8330
Finally, by GO 8330 the Commissioner in 2000 published a document entitled ‘Equity & Diversity Employee Management Manual’ (‘EDM’) (Exhibit R1). It is important at the outset to identify the purpose of that document. It opens in this manner:
COMMISSIONER’S STATEMENT
GENERAL ORDER 8330
SAPOL is committed to ensuring a working environment in which individual differences are valued and respected, and in which all members of the public are treated with equal dignity. As an equal opportunity employer SAPOL recognises that achieving equal employment opportunity requires a work environment free of discrimination, harassment and bullying.
The maintenance of an effective working environment is critical for the safety of staff. High morale, effective team work, and responsive management styles are predicated on leadership in relation to equity and diversity.
SAPOL’s equity and diversity policy reflects the fact that positive workplace relationships can only come from the collaborative effort of all employees, with managers and supervisors having a key role in promoting this.
This is a special purpose manual and, although issued under a separate cover, it forms part of the General Duties Manual. Employees of SAPOL must comply with the instructions in the same manner as other general orders.
(my emphasis)
The document contains an index and proceeds:
INTRODUCTION
This manual has been developed as a practical guide to:
. the management of equity and diversity;
. the equity and diversity grievance resolution processes.
…
Although the policy addresses all legal requirements in relation to discrimination and harassment, it specifically elaborates on five key areas:
. sex discrimination and harassment
. sexual harassment
. sexuality discrimination and harassment
. race discrimination and harassment
. workplace bullying
…
What is important to note here is that the purpose of the order is twofold, namely, to lay down an equity and diversity policy (‘Policy’) and to establish a grievance resolution process. That process envisages two approaches, either formal or informal grievance resolution. If it is to be a formal resolution, it will be conducted internally by way of an informal enquiry (in the case of minor matters) or as a SAPOL investigation or otherwise externally, in which case it will be referred to the PCA or the Equal Opportunity Commission (EOC).
Generally, it will follow that conduct which breaches GO 8330 also offends the Code (supra) (necessarily reg 14 and probably regs 15 and 17). Indeed, the Policy Principles (in paragraph 2) aspire to consistency with the Code. Even so, it may occur that a charge for a breach of the Code will be laid under reg 25 of the Police Regulations without there having been any resort to the grievance resolution process.
The Policy then identifies five areas of compliance. The relevant one in examining Atop is that of ‘Workplace Bullying’:
4. INAPPROPRIATE WORKPLACE BEHAVIOUR
4.1 BULLYING
Introduction
SAPOL is committed to providing a working environment in which all employees are treated with dignity and respect and where bullying at work will not be tolerated.
The Occupational Health, Safety and Welfare (OHS&W) Act 1986 was amended in 2005 to include a definition on bullying and processes for the prevention and addressing of this behaviour, including organisational and individual obligations.
The grievance processes outlined within General Order 8330, Equity and Diversity Employee Management Manual for dealing with inappropriate behaviour such as bullying are consistent with the OHS&W Act 1986.
The manual then establishes a grievance resolution process which can be initiated by an employee:
GRIEVANCE RESOLUTION PROCESS
1.     INTRODUCTION
Where an employee feels offended, humiliated, or embarrassed as a result of another employee’s behaviour which is consistent with workplace:
. discrimination and/or
. harassment and/or
. bullying
the employee who believes they have been aggrieved may seek to resolve the grievance using one or more of the informal or formal grievance resolution processes.
…
2.     PRINCIPLES
The following principles apply to the grievance resolution process:
. All complaints/grievances will be regarded seriously.
. The person who believes they have been aggrieved and the respondent will be treated in accordance with natural justice principles.
. Confidentiality and discretion will govern all actions.
. All employees will be provided with equitable processes and outcomes in relation to grievance resolution.
.    The emphasis when dealing with inappropriate conduct of a minor nature should be on individual development, with the intention of improving professional standards, rather than on discipline and punishment.
. The person who believes they have been aggrieved will be provided with options at all stages and will be supported in making choices.
.    Persons who believe they have been aggrieved will be consulted to ensure their concerns are addressed and will be advised about the progress of the resolution process.
.    Victimisation of any party to the resolution process will not be tolerated and will be viewed as serious misconduct.
(my emphasis)
WHAT IS NATURAL JUSTICE?
Individuals have the right to:
.    be heard
.    have representation
.    not suffer victimisation
.    appeal/review
.    be regarded as innocent until proven otherwise
.    in most instances, know the name of aggrieved
.    be informed of these rights
3. CONFIDENTIALITY
Confidentiality must be maintained during and subsequent to the grievance resolution process by all involved, including the Equity Contact Officers and any other persons who may be supporting the person who believes they have been aggrieved or the respondent. The number of people involved in resolving a grievance should be kept to a minimum.
Any employee who is made aware of a grievance and who, without good reason, communicates the details of the grievance, or the identity of the person who believes they have been aggrieved or the respondent, to any other employee, may be subject to disciplinary action.
Written information, whether official files, records or private notes, will only be accessible to persons who are involved in or are directly responsible for the grievance resolution.
(my emphasis)
3.1Forms
All forms concerning workplace grievances must be handled with care to ensure confidentiality is maintained. The following applies when dealing with forms or additional information relating to grievances:
. they should be sent under confidential cover and marked confidential;
. they should not be transmitted by facsimile;
. they should not be left on photocopiers;
. they must be stored in a secure place;
. copies should be kept to a minimum, with distribution limited to the person who believes they have been aggrieved, the respondent and the parties directly involved in the grievance resolution.
Forms will be securely filed at Equity and Diversity Branch. Copies are not to be placed on any SAPOL or workplace personnel files unless formal disciplinary action has been taken.
4.   VICTIMISATION
Victimisation in relation to grievances or complaints is unlawful. Victimisation occurs if a person treats another less favourably because that other person:
.has lodged a complaint of discrimination, harassment or bullying;
.has provided evidence or information about a complaint;
.has maintained their right or the right of another person to lodge a complaint; or
.is suspected of acting on their rights under equal opportunity legislation.
5.   MANAGING THE GRIEVANCE RESOLUTION PROCESS
Each grievance must be resolved in accordance with the equity and diversity policy and having regard to all the circumstances. Where possible, SAPOL will promote informal resolution.
SAPOL will accept the grievance resolution option nominated by the person who believes they have been aggrieved, except when the behaviour has implications for:
.public safety, or
.the safety of other employees.
In these circumstances any decision not to pursue the nominated grievance resolution option must be fully considered. The implications that such a decision has on both the person who believes they have been aggrieved and SAPOL must be considered. In these circumstances you must consult the Manager, Equity and Diversity Branch.
Decisions on the most appropriate method of grievance resolution will be made with regard to the following:
.the feelings of the person who believes they have been aggrieved about the harm they have suffered and the most appropriate means of resolution;
.the seriousness or the complexity of the issues;
.the public interest requirement that the matter be formally investigated with a view to criminal or disciplinary proceedings;
.the personal embarrassment that would be suffered by the person who believes they have been aggrieved or any witness;
.the likely consequences that public disclosure would have on the ongoing employment of the person who believes they have been aggrieved or witnesses;
.the need SAPOL has to maintain the effectiveness of its workforce and to protect its employees from workplace hazards.
5.1Manager/Supervisor Responsibilities
Managers and supervisors who have a grievance brought to their attention have a legal duty to enquire into what has occurred. The manager or supervisor should speak with the person who believes they have been aggrieved and:
.    identify any employee concerns and determine whether they are consistent with the criteria in paragraph 5;
.     listen to the person, treating them with respect and dignity;
.     accept the truthfulness of the grievance, be reassuring and treat the grievance seriously;
.     discuss, support and assist the person to understand what behaviour does or does not constitute discrimination/harassment/bullying;
.     ensure the person is not made to feel guilty or responsible for the grievance;
.     keep the matter confidential and not discuss the grievance with anyone who is not involved in providing support, or in the grievance resolution process (it may be appropriate to advise the line manager, in confidence, of the issues but it is not necessary to name the individuals involved unless the matter is to be resolved formally);
.     reassure the person that they will be consulted in relation to steps taken to achieve resolution;
.     consider whether the person needs any further support or assistance, and arrange it if necessary;
.     inform the person of their rights in regard to informal/formal resolution options available, explain and discuss the options, ensuring they have a full understanding of the grievance resolution processes, and respect their choice of a course of action without attempting to influence them;
.     reassure the person that SAPOL will not tolerate victimisation;
.     ensure there is an agreed process for the person to notify the manager/supervisor of any subsequent victimisation.
These steps and any other relevant information should be documented.
(my emphasis)
…
8.   INTERNAL FORMAL GRIEVANCE RESOLUTION
A person who believes they have been aggrieved may, from the outset, or following an unsuccessful informal resolution, elect to:
.seek an informal inquiry (when the matter involves minor misconduct or inappropriate behaviour); or
.seek to have a matter formally investigated (as a SAPOL investigation under section 38 of the Police Act or an inquiry under section 58 of the Public Sector Management Act).
…
8.2SAPOL Investigation
When a person who believes they have been aggrieved speaks to a manager/supervisor about having a grievance investigated as a SAPOL investigation for misconduct under section 38 of the Police Act or section 58 of the Public Sector Management Act, the manager/supervisor will refer the matter to the Officer in Charge, Ethical Professional Standards Service.
The Officer in Charge, Ethical and Professional Standards Service will ensure:
. that the conduct complained about warrants investigation under section 38 of the Police Act or section 58 of the Public Sector Management Act;
.     the grievance is investigated by an investigator who is familiar with the legal requirements of workplace discrimination, harassment and bullying, and adjudicated by the Officer in Charge, Professional Conduct Branch;
.     the person who believes they have been aggrieved, and the Manager, Equity and Diversity Branch are regularly advised of the progress of the investigation and subsequent findings.
The person conducting the investigation should:
.     Invite the person who believes they have been aggrieved to have an Equity Contact Officer or other nominated person present during the interview process.
.     Advise the person who believes they have been aggrieved of the steps to be taken and procedures to be followed in the investigation.
.     Maintain the strictest privacy, confidentiality and fairness for all parties to the grievance.
.     Investigate the grievance with absolute impartiality and objectivity.
.     Keep the person who believes they have been aggrieved and the respondent regularly and fully informed of the progress of the grievance.
.     Keep full records of the enquiries made and the results of those enquiries.
.     Ensure notes are stored securely and confidentially and that access to the contents of the investigation file is restricted to authorised persons.
.     Give priority to the investigation to enable the matter to be finalised as soon as possible.
.     Set a time frame in which the investigation will be completed and be accountable for that time frame.
.     Continually review the investigation process to ensure it remains effective.
.     Regularly apprise the Equity and Diversity Branch of the progress of the matter.
.     Complete the RF 1067, Outcome of Workplace Discrimination, Harassment or Bullying Grievance, and forward it to Equity and Diversity Branch if the grievance is resolved through the SAPOL investigation.
(my emphasis)
Following an investigation under section 38 of the Police Act a member of SAPOL or a police cadet may, under section 39 of the Police Act, be charged with a breach of the Code of Conduct. A charge for a breach of the Code of Conduct will be dealt with in accordance with sections 39, 40 and 41 of the Police Act and part 6, Discipline, of the Police Regulations.

The disclosure of material which is notorious would not likely found an action for breach of confidence nor, for that matter, could it be expected that its release would prejudice the future supply of information or be contrary to the public interest.
The appellant here contended that a witness being an employee of the police force cannot unilaterally and conclusively impose an obligation of confidence upon disclosures made to his employer and I have no difficulty in accepting that proposition. Nor, in the face of the legislation, can an agreement between participating parties to keep information confidential of itself override the provisions of the FOI Act (Searle Australia Pty Ltd v Public Interest Advocacy Centre[27]. That does not mean that the circumstances whereby an employee imparts information to an employer might not be such as to found an action for breach of confidence so as to satisfy the clause 13(1)(a) test, but even so, I have reservations as to the applicability of that subclause which I will later touch upon.
[27] (1992) 108 ALR 163
The appellant argued that disclosure of the information sought here would not found an action for breach of confidence; that he is aware of the identities of many witnesses anyway; that it is public knowledge within his former command; that the material was not disclosed in circumstances giving rise to an obligation of confidence; that it was disclosed because of a duty of good faith as an employee and because of a statutory obligation under s 38 of the Police Act; that the existence of a duty of confidence would otherwise inhibit the respondent’s discharge of its statutory and public functions; that the information was not given in confidence, anyway, and had no quality of confidence and that it is unrealistic for informers to envisage that their disclosures would not become public by reason of potential disciplinary proceedings.
The appellant otherwise denied any intention to misuse the material, although I have found against him on that score.
The appellant properly argued that there was a public interest in the disclosure of information which has the potential to damage reputations; in ensuring the reasons for decisions are open, transparent, fair and made in accordance with natural justice; and in discouraging malicious and secret communications capable of injuring the reputations of fellow employees.
For its part, the respondent relied upon the evidence of the officers who gave evidence orally or by affidavit as to the circumstances in which information was obtained by investigators, upon the confidentiality promised to witnesses or otherwise inherent in the nature of the communications made by them (and I have made findings as to these matters), upon the specificity of the information and upon the likely impact, of disclosure of it, on the future supply of such information to police investigators, and, finally, on the public interest in it being kept confidential.
It further disputed that the information was common knowledge. On that topic and save for the appellant’s advances as to his own knowledge of the material in his affidavit A3, there was no evidence before me that the material sought was common knowledge, even within particular groups within the police force, and I disregard the appellant’s contention as to this. The respondent further urged the court to find, as indeed I have, that the appellant has threatened to misuse certain of that information.
I have already discussed the statutory provisions and GO 8330 relating to reporting and investigation of suspected breaches of the Code and the EDM and will not repeat them.
I do not take the respondent here to be placing significant reliance on subclause 13(1)(a), although it argued it. I have nonetheless considered whether any of the relevant documents contain matters the disclosure of which would found an action for breach of confidence.
The only class of material which might conceivably fall within that description is that which was provided to investigators under a promise of confidentiality by the various witnesses spoken to. Even so, as I have noted elsewhere, the promise of confidentiality was always understood to be a conditional one because of the prospect that the material might have to be disclosed if disciplinary proceedings were taken. I am thus not persuaded that the material was received in terms necessarily importing such an obligation.
As to clause 13(1)(b), I elsewhere discuss the topic of public interest but the question in subclause (i) of whether the disclosure of information obtained in confidence ‘might reasonably be expected to prejudice the future supply of such information … to an agency’ is a question of fact to be considered on the evidence.
Here, the appellant pointed to the statutory obligation of SAPOL employees to report suspected breaches of the Code and argued that they likely owed a corresponding duty simply as SAPOL employees. Hence, he said, the question of prejudice cannot be relevant.
He also referred to s 25(8) of the PCDP Act, which obliges a member to respond to questions and requests made by an authorised investigator.
The duty to report the suspected breach by him of the Code and to respond to the investigation was, he said, an absolute one, a breach of which might result in a disciplinary sanction; hence the disclosure of such material could never reasonably be expected to prejudice the future supply of such information, nor could it be contrary to the public interest.
That argument has some force but I am not persuaded it provides a complete answer to an exemption claim under clause 13(1)(b), and for these reasons:
(1)Whilst members of SAPOL are under an absolute duty to comply with the Code, the PCDP Act and the EDM, clause 13(b)(i) of the FOI Act still has some relevance because it may well be that, notwithstanding obligations to report breaches or answer questions about them, members might well be disposed to breach their obligations or be less than forthcoming in providing information in circumstances where they fear disclosure of the nature and extent of their opinions or of information they have provided in confidence, very much the more so in circumstances where the subject of that disclosure might be a senior officer with the power to influence the direction of their careers. So much is attested to in the evidence of Assistant Commissioner Stevens, which I accept, and I have little trouble in concluding that in a command structure, and particularly where there is a wide disparity in rank, the future supply of information of that kind would likely be prejudiced were it anticipated that it would be disclosed to the party reported upon.
(2)Further, as previously noted, there will on occasion be a fine distinction between conduct breaching the Code, which must be reported, and conduct falling short of that which might nonetheless amount to a breach of the EDM, but which is not compulsorily reportable.
(3)Whilst an officer providing information in the context of a suspected breach of the Code must expect that some or perhaps all of it might come to the attention of a senior officer affected by it, and indeed to the general public, such as might occur in a disciplinary or grievance hearing, it cannot follow that the prospect of that occurring must necessarily mean that the protection of clause 13(1)(b) exemption can never be available.
(4)I am further satisfied that it would not be in the public interest, given the critical role SAPOL plays in law and order in this State and the ever present threat of corruption, that the future supply of information relevant to internal investigations be limited or jeopardised in any way. I am further satisfied that that consideration applies not merely to the contents of disclosures made by particular witnesses, but in many instances as well to the identities of those persons.
The appellant relied upon Re Easdown v DPP (No 1)[28] in support of the argument that it is unrealistic for witnesses in an investigation to approach their provision of information on the footing that it might not become public information because formal proceedings might not be commenced, but I am not persuaded the case stands for such a broad proposition.
There, the enquiry into the receipt by public figures of private benefits was a public one, interviewees were likely to be called to give evidence, much of its fallout had already occurred, certain police officers had been disciplined, and it was all in the glare of considerable publicity.
The circumstances here were, as I see it, very different. Here there was an internal police enquiry (albeit with potentially wider public interest ramifications) which did not, as I apprehend it, attract general public interest and in which potential interviewees were told or expected, as I find, that their information would be treated confidentially unless formal proceedings were begun.
In the context of their respective positions in a command structure headed by the appellant, there were sound reasons for giving them such an assurance and for ultimately treating their disclosures as confidential in circumstances where the appellant was never punished.
Paragraph 3 of the EDM dealing with the Grievances Resolution Process requires that confidentiality be ‘maintained during and subsequent to the grievance resolution process by all involved’. It can thus be argued that the information provided by a witness has the quality of confidence and that where no disciplinary action is taken, it would be contrary to the public interest to disclose it, the more so in the context of a complaint against an officer of superior rank where, I am satisfied, the prospect of its ultimate disclosure might reasonably be expected to prejudice the future supply of such information by others.
[28] (1987) 2 VAR 102
None of the above is to reject the proposition advanced by the appellant that it is relevant, in determining whether a duty of confidence should be imposed, that the imposition of such a duty would inhibit or interfere with a government agency’s discharge of functions carried out for the benefit of the public (Smith Kline & French v Cty Service[29]). That is, of course, a relevant consideration and a matter of public interest.
[29] (1991) 28 FCR 291
As to the public interest question generally, I have taken account of the following matters:
·    the superior rank of the appellant and its disparity with the status of all witnesses;
·    the fact, relevant to Atop only, that adverse findings were made as to the conduct of the appellant in his dealings with inferiors, including in particular persons who did indeed supply information about him;
·    that the appellant has, as I have found, a general intention to exact retribution against those persons he considers have supplied false information about him;
·    that because of his high rank, he has the capacity, should he choose to exercise it, to influence their careers and, as well, the careers of those whom he may consider favoured him;
·    I am satisfied that the investigation was conducted on the footing that disclosures by participants to investigators would, so far as was possible, be kept confidential, that witnesses thus had a reasonable expectation, supported by the provisions of the EDM, that such would occur unless formal charges were brought;
·    the appellant has not been told of the names of aggrieved persons, albeit that he claims to be aware of identities of 22 persons who have made allegations against him;
·    that in the face of allegations put to him during the course of the Atop investigation, the appellant was at liberty to inform investigators at that time as to the identity of witnesses who would ‘assist or support his explanation’. There is nothing advanced by him to suggest he was not afforded that opportunity in 2004 but he seeks to raise it now;
·    his assertions in evidence that certain persons lied to investigators, in Atop at least, implies in the context of this submission that his desire is to reopen an enquiry concluded seven years ago, the results of which were confidential and which did not result in any punitive action against him. It is difficult to discern any public interest in that. Even less can there be public interest in reopening an enquiry which cleared him: Autoblast.
Those matters and my conclusion that statements were obtained with the assurance of confidentiality (subject to formal proceedings) lead me to conclude that disclosure of the material sought might be reasonably expected to prejudice the future supply of similar information to SAPOL and would, on balance, be contrary to the public interest. I therefore conclude, with respect to this ground, and keeping in mind the differing tests under the DCA and the FOI Act, that the documents listed in the schedules relating to clause 13(1)(b) ought be exempted from disclosure.
Where the respondent has released part of a document, my ruling here relates only to that part of it in respect of which exemption is claimed.
- Documents concerning operations of agencies (Schedule 1, Part 3, Clause 16(1))
The relevant parts of clause 16 provide as follows:
(1) A document is an exempt document if it contains matter the disclosure of which—
(a) could reasonably be expected—
(i) …
(ii) …
(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel; or
(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions; or
(v) to have a substantial adverse effect on the conduct of industrial relations by an agency; and
(b) would, on balance, be contrary to the public interest.
In the proper interpretation of that clause, due weight ought be given to the word ‘substantial’ and it should be interpreted as indicating a ‘degree of gravity’ (Harris v ABC supra) or an effect ‘that is “sufficiently serious or significant to cause concern to a properly informed reasonable person”’ (per Judge Boylan in Konieczka v South Australian Police (supra) following Thiess and The Department of Aviation[30]).
[30] (1986) 9 ALD 454
Here, said the appellant, disclosure of the material sought would not likely have any of the identified substantial adverse effects on SAPOL, because of the existence of the ongoing duty to report suspected breaches identified in s 38 of the Police Act. I have touched upon that same argument in dealing with clause 13 exemptions.
It appears to me that, objectively speaking and by its very nature, any disclosure of details of such a suspected breach will probably have the potential to have a substantial adverse effect on an agency’s management, personnel or functions anyway: the more pertinent question in most cases will be whether non-disclosure of that material will be contrary to the public interest.
The respondent argued that in the particular circumstances of this matter, it could reasonably be expected that the disclosure of the material sought here would have a substantial adverse effect on all of those matters because of the hierarchical nature of the police force and the more so because of the appellant’s superior rank; that it is very much in the public interest that the reporting of inappropriate managerial conduct by members be encouraged and that the risk of open disclosure of such reporting would induce, in inferiors, levels of apprehension, stress, anxiety and fears of victimisation about doing that, such that they might choose not to report or cooperate.
I have elsewhere discussed the question of public interest and those aspects of it to which I have referred have similar relevance in considering this exemption. In particular and in the context of the appellant’s apparent desire to exact retribution, it can be concluded that the prospect of such is a factor which would likely impact upon the future management and work performance of lower ranks called upon to assist in any internal police investigations, particularly where a senior officer is concerned.
It appears to me to follow that in many instances, if a document is exempt under clause 13(1)(b), in the nature of the SAPOL organisation it is likely to be exempt under both subclauses 16(1)(a)(iii) and (iv).
The maintenance of discipline within the police force must, in a great many instances, depend on the willingness of SAPOL members to fearlessly report breaches of the Code and the EDM and if the supply of such information is threatened by the prospect in every case of open disclosure of what is reported, it would seem to me to follow that routine disclosure will have a substantial adverse effect on the management and assessment of personnel, on the performance of the agency’s functions and potentially on its industrial relations.
Put another way, members of SAPOL, all statutory or disciplinary obligations aside, ought to feel free to be able to report suspected breaches of discipline without fear that their reports will routinely be disclosed to the person complained of, notwithstanding that no disciplinary proceedings are taken, and the more so where that person is of higher rank. Absent that sort of assurance, I am satisfied that a practice of general disclosure would have a substantial effect on the proper management and disciplining of SAPOL personnel and on their individual work performances. That would clearly be contrary to the public interest.
For those reasons and keeping in mind the differing tests under the DCA and the FOI Act, I have concluded that the documents listed in the annexed Atop and Autoblast schedules relating to clause 16(1) are exempt from disclosure.
Where the respondent has released part of a document, my ruling here relates only to that part of it in respect of which exemption is claimed.
Concluding Remarks
It follows from these conclusions that the documents or parts of them not held by me to be exempt fall to be disclosed and they are so identified in the attached schedule, save that certain documents require specific mention.
As to document 700, it is in part released but I am satisfied the deleted part ought not be exempted. As to document 715, it is not apparent on its face which part of it was redacted but, at all events, I find no exemption applies to it save as to any handwriting upon it. The latter comment also applies to documents 341 and 790.
A number of documents relate to a particular police operation conducted on 2 September 2002 and in respect of which the appellant has clearly been interviewed and put on notice. The circumstances of the operation and those involved in it are hardly to the point and ought attract no exemption. Similar remarks can be made about document 1073.
Otherwise, I do not consider that policy documents, seminar material and communications between the appellant and investigators, attract exemption.
The schedules referred to in my above reasons are then attached and the numbering of the documents in them corresponds with the numbering adopted by the respondent in Exhibits R5 and R11 under the heading ‘Document No.’.
Except where I have allowed an exemption claim with respect to a particular document or part of it, I find that the remaining documents or unexempted parts of them ought to be disclosed to the appellant. Those whole documents which I have not exempted are identified in the attached schedule of non‑exempt documents.
The appeal in Atop is thus in part allowed. The appeal in Autoblast is dismissed.
SCHEDULES
OPERATION ATOP – EXEMPT DOCUMENTS
Each exemption claim upheld is identified hereunder by its assigned document number. Where that number is marked with an asterisk, the exemption applies only to all handwriting, handwritten marks and existing redactions on the document.

Clause 6(1)

Clause 9(1)

Clause 10(1)

Clause 13 (1)(b)

Clause 16(1)

3 3

13 13

17

25 25 25

32 32 32 32

33

34

37

38 38 38

39 39

40 40 40

47 47

48 48

49 49 49

51 51

52 52

53 53

54 54

55 55

56 56

57 57

58 58

59 59

60 60

61 61

62 62

63 63

64 64

65 65

66 66

67 67

68 68

69 69

70 70

71 71

72 72

73 73

74 74

75 75

76 76

77 77

78 78

79 79

80 80

81 81

82 82

83 83

84 84

85 85

86 86

87 87

88 88

89 89

90 90

91 91

92 92

93 93

94 94

95 95

97 97 97

100 100 100

103 103

104 104

105 105

109 109

111 111

112 112

113 113

114 114

115 115

116 116

118 118

119 119

120 120

122 (cl 6(2))

125 125

126 126

129 129

148

151

164 164

165

166 166

167

185 185

186 186 186

187 187 187

188 188 188

191 191 191

192 192 192

193 193

194 194

195 195 195

196 196 196

197 197 197

198 198 198

199 199 199

200 200 200

201 201 201

202 202 202

203 203 203

204 204 204

205 205

206 206 206

207 207 207

208 208

210 210 210

211 211 211

213 213 213

214 214 214

215 215 215

216 216 216

217 217 217

218 218 218

219 219 219

220 220 220

221 221 221

222 222 222

223 223 223

225 225 225

226 226

227 227 227

228 228 228

254

263 263 263

264 264 264

265 265 265

278

285 285 285

288 288 288

289 289 289

290 290 290

294 294 294

296

297 297 297

299 299

300 300

302 302 302

303 303

305 305

306

307 307 307

313 313 313

314 314

315 315 315

316 316

317 317

318 318 318

319 319 319

320 320 320

321 321 321

322 322 322

323 323 323

324 324

325 325 325

327 327 327

328 328

329 329

336 336 336

337 337

340 340

341 * 341 *

342 342

344 344 344

345 345 345

347 347 347

349 349 349

353 353 353

355 355 355

356 356

357 357 357

359 359 359

360 360

361 361 361

362 362 362

364 364 364

365 365

366 366

367 367 367

368 368 368

369 369 369

370 370

371 371

372 372

373 373

388 388

390 390

397 397 397

401 401

404 404 404

406 406 406

407 407

411 411 411

412 412 412

414 414 414

415 415 415

417 417

418 418 418

419 419 419

422 422 422

431 431

433 433

435 435

436 436 436

446 446 446

447 447 447

448 448 448

449 449 449

450 450 450

451 451 451

452 452 452

454 454 454

455 455 455

456 456 456

457 457 457

458 458

459 459 459

460 460 460

461 461 461

462 462 462

463 463 463

464 464 464

466 466 466

467 467 467

468 468 468

470 470 470

471 471 471

472 472 472

473 473 473

474 474 474

475 475

476 476 476

477 477 477

478 478

479 479 479

480 480 480

481 481 481

482 482 482

483 483 483

485 485

486 486 486

487 487

488 488 488

489 489 489

490 490

491 491

492 492

493 493

494 494

495 495

496 496 496

497 497

498 498

499 499

500 500

501 501

502 502

503 503

504 504

505 505

506 506

507 507 507

508 508 508

509 509 509

510 510 510

511 511 511

512 512 512

513 513

514 514

515 515

516 516

517 517

518 518 518

519 519 519

520 520 520

521 521

522 522 522

524 524 524

525 525

527 527

529 529 529

531 531 531

537 537 537

538 538 538

539 539 539

540 540 540

541 541

542 542

543 543

544 544

545 545

546 546

547 547

548 548

549 549

550 550

551 551 551

552 552

553 553 553

554 554

555 555

556 556

557 557 557

558 558

559 559 559

560 560 560

561 561

562 562

563 563

566 566

568 568 568

569 569 569

570 570 570

571 571

572 572 572

573 573 573

574 574 574

576 576

578 578

579 579 579

581 581

582 582 582

583 583 583

584 584 584

585 585

587 587 587

588 588 588

589 589 589

591 591

592 592

593 593

594 594

595 595

596 596

602 602

603 603 603

612 612 612

614 614 614

616 616 616

617 617 617

618 618 618

620 620

623 623

626 626

627 627 627

629 629

631 631 631

634 634

635 635

636 636

640 640

641 641

642 642

643 643

644 644

645 645

646 646

647 647

648 648

649 649

650 650

651 651

652 652

653 653

655 655

656 656

657 657

661 661

662 662

663 663

664 664

665 665

666 666

667 667

668 668

669 669

672 672

675 675

676 676

677 677

678 678

679

680

695 695 695

696 696

701 701

702 702 702

703 703 703

710 710

713 713

714 714

715 *

716 716

718 718

719 719

720 720

721 721

722 722

723 723

726 726 726

727 727 727

728 728 728

729 729

731 731

740 740

741 741

742 742

743 743

744 744

745 745

746 746

747 747

748 748

749 749

750 750

751 751

752 752

753 753

754 754

755 755

756 756

757 757

758 758

759 759

760 760

761 761

762 762

763 763

764 764

765 765

766 766

767 767

768 768

769 769

770 770

771 771

772 772

773 773

774 774

775 775

776 776

777 777

778 778

779 779

780 780

781 781

782 782

783 783

784 784

785 785

786 786

790 *

791 791

792 792

793 793

794

807 807

808 808

809 809

810 810

811 811

812 812

816 816 816

817 817

820 820

821 821

822 822 822

823 823

824 824

825 825

826 826

827 827

829 829

830 830

831 831

832 832

833 833

834 834

835 835

836 836

837 837

838 838

839 839

840 840

841 841

843 843

844 844

845 845

846 846

847 847

848 848

849 849

850 850

851 851

852 852

853 853

855 855

856 856

857 857

858 858

859 859

861 861

862

863 863

864 864 864

866 866

868 868

869 869

870 870

871 871

872

873 873

877 877

878 878

879 879

880 880

881 881

882 882

883 883

884 884

886 886

887 887

888 888

889 889

890 890

891 891

892 892

893 893

895 895

896 896

897 897

899 899

902 902

903 903

905 905

906 906

907 907

908 908

909 909

910 910

911 911

912 912

913 913

914 914

916 916

917 917

918 918

919 919

920 920

921 921

922 922

923 923

924 924

925 925

926 926

927 927

928 928

932 932

933 933

934 934

935 935

937 937

938 938

939 939

940 940

941 941

942 942

943 943

944 944

945 945

946 946

947 947

948 948

949 949

950 950

951 951

952 952

953 953

954 954

955 955

956 956

957 957

958 958

959 959

960 960

962 962 962

963 963 963

964 964

965 965

967 967 967

968 968

970 970

971 971

973 973

979 979

980 980

981

982 982 982

983 983

984 984 984

986 986 986

987 987

988 988 988

989 989

990 990 990

991 991

992 992 992

993 993

994 994 994

995 995

996 996 996

997

998 998 998

999 999

1000 1000 1000

1001 1001 1001

1002 1002

1003 1003

1004 1004 1004

1005 1005

1006 1006 1006

1007 1007

1008 1008 1008

1009 1009

1010 1010

1011 1011 1011

1012 1012 1012

1013 1013

1014 1014 1014

1015 1015

1016 1016 1016

1017 1017

1018 1018

1019 1019 1019

1020 1020

1021 1021 1021

1022 1022

1023 1023 1023

1024 1024

1025 1025

1026 1026 1026

1027 1027

1028 1028 1028

1029 1029

1030 1030 1030

1031 1031

1032

1033 1033

1034 1034

1035 1035

1036 1036 1036

1037 1037

1038 1038 1038

1039 1039

1040 1040 1040

1041 1041 1041

1042 1042 1042

1043 1043

1044 1044 1044

1045 1045

1046 1046 1046

1047 1047

1048 1048 1048

1050 1050 1050

1051 1051

1052 1052

1053 1053

1054 1054 1054

1055 1055

1056 1056 1056

1057 1057

1058 1058

1059 1059 1059

1060 1060

1061 1061 1061

1062 1062

1063 1063 1063

1064 1064

1065 1065

1066 1066 1066

1067 1067

1068 1068

1069 1069

1070 1070

1071 1071

1072 1072

Clause 6(1)	Clause 9(1)	Clause 10(1)	Clause 13 (1)(b)	Clause 16(1)
3	3
13	13
17
25	25	25
32	32	32	32
33
34
37
38	38	38
39	39
40	40	40
47	47
48	48
49	49	49
51	51
52	52
53	53
54	54
55	55
56	56
57	57
58	58
59	59
60	60
61	61
62	62
63	63
64	64
65	65
66	66
67	67
68	68
69	69
70	70
71	71
72	72
73	73
74	74
75	75
76	76
77	77
78	78
79	79
80	80
81	81
82	82
83	83
84	84
85	85
86	86
87	87
88	88
89	89
90	90
91	91
92	92
93	93
94	94
95	95
97	97	97
100	100	100
103	103
104	104
105	105
109	109
111	111
112	112
113	113
114	114
115	115
116	116
118	118
119	119
120	120
122 (cl 6(2))
125	125
126	126
129	129
148
151
164	164
165
166	166
167
185	185
186	186	186
187	187	187
188	188	188
191	191	191
192	192	192
193	193
194	194
195	195	195
196	196	196
197	197	197
198	198	198
199	199	199
200	200	200
201	201	201
202	202	202
203	203	203
204	204	204
205	205
206	206	206
207	207	207
208	208
210	210	210
211	211	211
213	213	213
214	214	214
215	215	215
216	216	216
217	217	217
218	218	218
219	219	219
220	220	220
221	221	221
222	222	222
223	223	223
225	225	225
226	226
227	227	227
228	228	228
254
263	263	263
264	264	264
265	265	265
278
285	285	285
288	288	288
289	289	289
290	290	290
294	294	294
296
297	297	297
299	299
300	300
302	302	302
303	303
305	305
306
307	307	307
313	313	313
314	314
315	315	315
316	316
317	317
318	318	318
319	319	319
320	320	320
321	321	321
322	322	322
323	323	323
324	324
325	325	325
327	327	327
328	328
329	329
336	336	336
337	337
340	340
341 *	341 *
342	342
344	344	344
345	345	345
347	347	347
349	349	349
353	353	353
355	355	355
356	356
357	357	357
359	359	359
360	360
361	361	361
362	362	362
364	364	364
365	365
366	366
367	367	367
368	368	368
369	369	369
370	370
371	371
372	372
373	373
388	388
390	390
397	397	397
401	401
404	404	404
406	406	406
407	407
411	411	411
412	412	412
414	414	414
415	415	415
417	417
418	418	418
419	419	419
422	422	422
431	431
433	433
435	435
436	436	436
446	446	446
447	447	447
448	448	448
449	449	449
450	450	450
451	451	451
452	452	452
454	454	454
455	455	455
456	456	456
457	457	457
458	458
459	459	459
460	460	460
461	461	461
462	462	462
463	463	463
464	464	464
466	466	466
467	467	467
468	468	468
470	470	470
471	471	471
472	472	472
473	473	473
474	474	474
475	475
476	476	476
477	477	477
478	478
479	479	479
480	480	480
481	481	481
482	482	482
483	483	483
485	485
486	486	486
487	487
488	488	488
489	489	489
490	490
491	491
492	492
493	493
494	494
495	495
496	496	496
497	497
498	498
499	499
500	500
501	501
502	502
503	503
504	504
505	505
506	506
507	507	507
508	508	508
509	509	509
510	510	510
511	511	511
512	512	512
513	513
514	514
515	515
516	516
517	517
518	518	518
519	519	519
520	520	520
521	521
522	522	522
524	524	524
525	525
527	527
529	529	529
531	531	531
537	537	537
538	538	538
539	539	539
540	540	540
541	541
542	542
543	543
544	544
545	545
546	546
547	547
548	548
549	549
550	550
551	551	551
552	552
553	553	553
554	554
555	555
556	556
557	557	557
558	558
559	559	559
560	560	560
561	561
562	562
563	563
566	566
568	568	568
569	569	569
570	570	570
571	571
572	572	572
573	573	573
574	574	574
576	576
578	578
579	579	579
581	581
582	582	582
583	583	583
584	584	584
585	585
587	587	587
588	588	588
589	589	589
591	591
592	592
593	593
594	594
595	595
596	596
602	602
603	603	603
612	612	612
614	614	614
616	616	616
617	617	617
618	618	618
620	620
623	623
626	626
627	627	627
629	629
631	631	631
634	634
635	635
636	636
640	640
641	641
642	642
643	643
644	644
645	645
646	646
647	647
648	648
649	649
650	650
651	651
652	652
653	653
655	655
656	656
657	657
661	661
662	662
663	663
664	664
665	665
666	666
667	667
668	668
669	669
672	672
675	675
676	676
677	677
678	678
679
680
695	695	695
696	696
701	701
702	702	702
703	703	703
710	710
713	713
714	714
715 *
716	716
718	718
719	719
720	720
721	721
722	722
723	723
726	726	726
727	727	727
728	728	728
729	729
731	731
740	740
741	741
742	742
743	743
744	744
745	745
746	746
747	747
748	748
749	749
750	750
751	751
752	752
753	753
754	754
755	755
756	756
757	757
758	758
759	759
760	760
761	761
762	762
763	763
764	764
765	765
766	766
767	767
768	768
769	769
770	770
771	771
772	772
773	773
774	774
775	775
776	776
777	777
778	778
779	779
780	780
781	781
782	782
783	783
784	784
785	785
786	786
790 *
791	791
792	792
793	793
794
807	807
808	808
809	809
810	810
811	811
812	812
816	816	816
817	817
820	820
821	821
822	822	822
823	823
824	824
825	825
826	826
827	827
829	829
830	830
831	831
832	832
833	833
834	834
835	835
836	836
837	837
838	838
839	839
840	840
841	841
843	843
844	844
845	845
846	846
847	847
848	848
849	849
850	850
851	851
852	852
853	853
855	855
856	856
857	857
858	858

OPERATION ATOP – NON-EXEMPT DOCUMENTS
Each document is identified hereunder by its assigned document number.
130, 131, 229, 234, 235, 275, 276, 330, 331, 332, 333, 334, 339, 393, 398, 399, 400, 597, 598, 599, 601, 604, 613, 654, 658, 659, 660, 673, 674, 700, 717, 789, 900, 1073.
________________
OPERATION AUTOBLAST – EXEMPT DOCUMENTS
Each exemption claim upheld is identified hereunder by its assigned document number.

Clause 6(1)

Clause 6(2)

Clause 9(1)

Clause 16(1)

4

6 6

10 10

46 46

54

59

64

65 65

66

74 74

75 75

99 99

115

116 116

120 120

180 180

181 181

184 184

187 187

Clause 6(1)	Clause 6(2)	Clause 9(1)	Clause 16(1)
4
6	6
10	10
46	46
54
59
64
65	65
66
74	74
75	75
99	99
115
116	116
120	120
180	180
181	181
184	184
187	187

________________