Tunchon v Commissioner of Police, New South Wales Police Service - [2000] NSWADT 73

No judgment structure available for this case.

CITATION: Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73

DIVISION: General Division

PARTIES:
APPLICANT
Phillip James Tunchon
RESPONDENT
Commissioner of Police, New South Wales Police Service

FILE NUMBER: 003071

HEARING DATES: 22/05/00, 23/05/00

SUBMISSIONS CLOSED: 05/23/2000

DATE OF DECISION:
06/07/2000

BEFORE: Smith MB - Judicial Member

APPLICATION: access to documents - Freedom of Information Act - access to documents

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Re Bartl and Secretary, Department of Employment, Education
Training and Yoouth Affairs (1998) 28 AAR 140
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 23 AAR 142
Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93

REPRESENTATION: APPLICANT
A Hatcher, barrister
RESPONDENT
P Singleton, barrister

ORDERS: 1. The decision under review is affirmed.; 2. Subject to any further order of the Tribunal, the confidential exhibits 3 and 4 are not to be disclosed to any person and are to be returned pursuant to s 140 of the Administrative Decisions Tribunal Act 1997 (NSW) personally to the solicitor for the respondent, Mr Gary Doherty.

1 This case requires me to balance the public interest on whether secrecy should be lifted from an important Report obtained by the Commissioner of Police from independent management consultants which gave detailed advice on how he could restructure the Police Service’s “Human Resources Services” (“HRS”). This branch or “command” of the Service comprises numerous civilian employees and police officers who provide the Police Service with a very wide range of personnel services, including on policy, recruitment, promotions, industrial relations, workers’ compensation, health and welfare matters. The Commissioner has announced a commitment to implement sweeping changes by reference to this Report. Many changes have been completed and more are known to be under deliberation. However, the Commissioner has declined to make the Report public.

2 The applicant is an employee and past President of the Police Association. On 7 December 1999 he made a request “on behalf of the Police Association of NSW” under the Freedom of Information Act 1989 (NSW), seeing access to “Morgan & Banks Review Report and Recommendations relating to the Police Service Human Resource Command”.

3 On 17 December 1999 Inspector CL Langburne responded on behalf of the Police Commissioner, stating that he had identified “a document prepared by Morgan and Banks entitled Report to the New South Wales Police Service – Review of Human Resources and Development Command and its Functions.” He said:

Having considered the contents of the report and its current status, I have determined, this date, to refuse release in accordance with the provisions of Section 25(1)(a) of the Act on the ground of exemption provided at Clause 9(1) of Schedule 1 to the Act.”

4 On 11 February 2000 Inspector Langburne’s decision was affirmed on internal review by Mr M N Holmes. Mr Tunchon filed an application for review by this Tribunal on 15 March 2000, and the matter came on for hearing before me on 22 and 23 May 2000. Both parties were represented by counsel who exchanged helpful written and oral submissions.

5 Mr Tunchon gave evidence by way of a written statement and oral evidence presenting background material and illuminating what was described in the applicant’s submission as “the Association’s desire… to have a proper and open consultation process about change to Human Resources Services so that it can both assist the Police Service in implementing reform while at the same time attempting to ensure that its members are not disadvantaged as a result of the process. The provision of the Report will assist representatives of the Association to undertake discussions with the Police Service in an appropriately informed manner.” His evidence was largely uncontroversial, and I generally accept its factual correctness. I have also given substantial weight to his opinions, which were presented in a moderate and informed manner.

6 For the respondent, oral and written evidence was led from Dr Edwin Chadbourne, who was recruited by the Commissioner to fill the position of “Executive Director, Human Resource Service”. In that capacity, he reports directly to the Commissioner, including on the staged implementation of the Morgan & Banks Report. Dr Chadbourne has academic qualifications in human resources management, as well as significant experience in this area at a managerial level in the private sector. His expertise was not challenged by the applicant. While some of the opinions set out in his written statement are unpersuasive generalisations, I found Dr Chadbourne’s oral evidence both in public and confidential sessions to be impressive in its balance and objectivity. In reaching my ultimate conclusions I have given substantial weight to his expert opinions.

The claim for exemption

7 Under the FOI Act the Police Service is “a public authority” by reason of s 7(1)(d), and is therefore “an agency” as defined in s 6(1). Its documents are therefore subject to the right of access under s 16. Under s 18, applications are determined on its behalf by its “principal officer” as defined in s 6(1). The application of this provision is obscure, due to the absence of reference to the Commissioner as principal officer of the Police Service in Sch 1 to the Regulations and the awkwardness of fitting the Police Service into par (c)(iii) of the definition. However, I accept that the Police Commissioner is properly regarded as the Police Service’s “principal officer”. He would also seem to be the holder of “an office established for a public purpose by or under the provisions of a legislative instrument” within s 8(1)(a) so as, in his own right, also to be an “agency” since he is not listed in regulations made under s 8(2). Neither party made submissions on these or any other matter going to my jurisdiction to review the substance of Inspector Langburne’s decision.

8 The respondent relied upon cl 9 and 16(a)(v) in Sch 1 to the FOI Act to justify refusal of access. Since I have decided to uphold the decision by reference to the first of these, I do not need to address the second. Cl 9 provides:

9 Section 24 requires an agency to determine whether access to a document is to be given in response to an application under the Act, and s 25(1)(a) gives a discretion to refuse access “if it is an exempt document”. Qualifying this discretion is s 25(4), which provides:

10 Under cl 9, the whole of a document can come within the exemption if it “contains” matter answering the description in subcl (1) and provided that the whole document cannot be characterised as “merely consisting” of matter described in (2). The whole document is then to be classified as coming within the exemption, but a decision-maker must release a copy of the document “from which the exempt matter has been deleted” if this is “practicable” and “the applicant would wish to be given access to such a copy”.

11 In practical effect, three questions arise in the present matter which can be summarised: (i) does the Report contain advice obtained for the purpose of the decision-making functions of the Police Service or of the Commissioner of Police and which is not in their “policy documents” nor “factual or statistical material”; (ii) in relation to parts of the Report containing such advice would their disclosure be, on balance, contrary to the public interest; and (iii) is it practicable to delete parts of the report containing exempt matter so as to release the remainder?

12 The barest description of the Report, confirmed by my examination of the Report, shows that the Report satisfies the first question. I have no doubt that it contains non-factual advice on how the Commissioner could exercise his management functions in relation to the Human Resources branch of the Police Service, and was obtained to assist his statutory “decision-making functions” outlined below. Of its nature it is clearly not “merely” factual or statistical material, and there is no evidence suggesting that it merely consists of matter appearing in a “policy document” (see s 6(1)). This is not a case where I need to examine closely the language of cl 9(1)(a) and (2) before making these findings, and no submissions were put to me inviting such an exercise.

13 Of more difficulty is how I should decide whether disclosure of the Report, or parts of it, would “on balance, be contrary to the public interest”.

14 The potential breadth of documents able to be considered under cl 9 is apparent from the description in par (1)(a), and is illustrated by the title reference to “internal working documents”. Central to this class of documents are advising and deliberative documents which may influence or reflect the “thinking” of government decision-makers when performing a “decision-making function”. Yet the exemption is “neutral” on whether, by merely falling within the description in par (1)(a) read with subsection (2), such a document does or does not deserve to be kept secret. This is because par (1)(b) indicates that secrecy is only justified if disclosure of something in the particular document “would, on balance, be contrary to the public interest”.

15 It has been suggested that this public interest test is an “open” test, in the sense that the exemption does not itself raise any particular public interest favouring secrecy which is to be brought into the balance (c.f. Re Bartl and Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 28 AAR 140 at 148). However, I think it is of more assistance to understand the paragraph (b) test by reflecting on the objects of the exemption as indicated in the class of documents raised for consideration by paragraph (a). From this perspective paragraph (b) indicates the opinion of the legislature that “the public interest” requires that public openness should accompany or follow government decision-making in some cases, but that in other cases “the public interest” requires secrecy. The “neutrality” of this position, prevents approaching the exemption from any general assumption or presumption on the necessity of secrecy or openness of government deliberative documents. The inevitable construction is that the Act intends that choosing between these outcomes must depend upon an assessment of the effects of a present disclosure of the document in the particular circumstances in which the document was or will be used in its particular “decision-making” context.

16 In other words, I consider that the exemption requires me to identify the circumstances surrounding the particular decision-making, discover the role which has been or is to be played by the document in that decision-making, and consider the extent to which retaining secrecy for the document is at present necessary for “the proper administration of the Government” in that particular decision-making process (c.f. s 5(2)(b)).

17 This inevitably requires a “value judgment” as to the “public interest” on what level of openness should accompany or follow the particular decision-making process. Such judgments can be difficult to form and rationally to explain. For my part, I am assisted by parties informing my judgment by leading evidence on contemporary standards of openness from decision-makers and experts in the relevant field of decision-making.

18 The general tendency of the FOI Act to promote openness is given effect by recognising that disclosure will follow unless a positive satisfaction is reached that secrecy of the document is in the public interest, and that the agency has the onus to lead evidence persuading me to this conclusion (see s 61). I also accept the submission of the respondent that it is appropriate to make a decision balancing the public interest “with a general attitude favourable to the provision of the access claimed” and without being unduly “influenced by the conventions of secrecy and anonymity which permeated public administration in this country before the enactment of this Act” (citing s 5(3)(a) of the FOI Act and Kirby P in Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 627). However, I consider that these propositions should not in the context of cl 9(1)(b) be applied as if they established a presumption that “internal working documents” should generally be disclosed.

19 Recognising that the exemption requires me to focus on the decision-making context of the particular document without any presumption as to secrecy or openness should assist me to avoid giving undue emphasis to the general propositions which have in the past been proposed as aids to FOI decision-making on “internal working documents”. Although generalising on secrecy in relation to classes of deliberative documents is enticing and has added to our understanding of the exemption, experience has shown that generalisations can be distracting and that their revision is inevitable (c.f. the history of “the Howard factors” referred to in Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 23 AAR 142 at 156, and the discussion in Crossins: “Annotated Freedom of Information Act”, 1997 from [109.8] to [109.20]).

Balancing the public interest in the present case

20 The general managerial position of the Commissioner is described in the Police Service Act 1990 (NSW) as follows:

21 The Commissioner’s personnel powers are detailed in many further sections of the Act. For example, s 10 of the Act empowers the Commissioner to determine what are the “positions in the Police Service” and their classification and grade and to “establish, or abolish, or change the name of, any branch of other part of the Police Service” (s 10). Section 11 requires the Commissioner to designate which positions are to be held by police officers and not civilian administrative officers. Section 60 empowers him to transfer executive officers from one such position to another. In relation to non-executive positions, he has powers over appointment (s 64) and transfer (s 67), subject to elaborate provisions governing terms of office, promotions, etc. Under s 84 the Commissioner is “the employer of non-executive officers for the purposes of any proceedings relating to non-executive officers held before a competent tribunal having jurisdiction to deal with industrial matters.” Section 218 provides that “the Industrial Relations Act 1996 is not affected by anything in this Act.”

22 Dr Chadbourne’s written statement contains the following description of the Report:

23 In oral evidence, Dr Chadbourne, said that the Report had also been sent to the Minister of Police, and that he did not know the extent to which, if any, the Minister had revealed its contents to officers of his Department. The Department had, at least until recent times, been sent progress reports in relation to changes being made to HRS and had taken a “watching role”. The Department was aware of the present FOI proceedings, and did not wish to participate in them. Dr Chadbourne’s statement continued:

“7. The Report was commissioned and received by the Commissioner in the course of, and for the purpose of, his making decisions for and about the Police Service. Before the Commissioner commissioned the Report he had commenced deliberating upon reforms to the Police Service, including the restructuring of the Police Service. In particular, he had begun considering the reform and restructuring of the Human Resources and Development Command. These deliberations stemmed from the Commissioner’s responsibilities for the management of the Police Service and also from recommendations made in the Report of the Royal Commission into the New South Wales Police Service. At the time of commissioning, receiving and considering the Report, and since those times, the Commissioner was and has been engaged in these deliberations and was and has been making decisions on these matters. While some decisions have been taken and implemented, these deliberations and the taking of decisions on these matters are continuing.”

24 I accept this evidence. Dr Chadbourne further explained what had happened in his oral evidence. As I understood his evidence, although the Commissioner had decided that the Report would be “implemented” and instructed Dr Chadbourne to do this, and although this had been publicly announced, in effect the Commissioner had taken only an “in principle decision” or general commitment to explore the extent to which the Report’s recommendations could be put into effect in a staged manner. Each particular change had to be the subject of decision, either by Dr Chadbourne or by the Commissioner personally. The nature of particular changes proposed, the extent to which they did or did not adopt Morgan & Banks’ recommendations, the manner of their introduction and their timing depended on changing circumstances of which some were beyond the control of the Commissioner. These included budgetary, “people management”, and “political” (in a broad sense) considerations. In his view it could be said that about two thirds of the matters recommended in the Report had been “implemented”, but the remaining matters included many of the greatest sensitivity.

25 Dr Chadbourne gave a general description of his concerns as follows:

"21 The Report contains a number of analyses and recommendations which are still under consideration. Not all of the recommendations have been or will be accepted. The premature release of recommendations and proposals – particularly when decisions have not been finalised – often leads to unnecessary unrest and resistance. People can be upset by the recommendations and proposals and by the analyses which underpin the recommendations and proposals. Resistance can emerge to what may be only a vague scheme, or something less. People often fear recommendations even though they may not ultimately be adopted. By the time decisions are made on the basis of a report such as the Report (even assuming that the controversy had not adversely affected the decision) those decisions may not include the matters which had earlier caused fear, but resistance will often have built to a point from which it will continue regardless of the decisions actually made. Moreover, in the period between recommendation and decision the fear and resistance may disrupt and undermine effective work.”

26 In his confidential written and oral evidence Dr Chadbourne was able to give real substance to this concern by pointing to particular passages in the Report, and by illustrating some instances where the Commissioner’s future decision-making concerned recommended reforms of particularly delicacy. I cannot set out that evidence here, but am satisfied that there are real grounds for a concern that the Commissioner’s continuing process of decision-making could be seriously impaired by a premature release of the Report. I am satisfied that the release of many of its general passages as well as its specific recommendations would, inevitably, alter the human and political context in which future decisions would be made. Some of those alterations would be irreversible in terms of the reactions and actions of the persons affected, and would produce circumstances hostile (or more hostile) to the changes under consideration. I have no difficulty accepting that, as a result, the Commissioner would find himself unable to implement some of the reforms at all or to the extent he otherwise would consider to be in the interests of the Police Service and of the public generally. This would include desirable reforms less drastic than or different from those reforms recommended in the Report, which, as Dr Chadbourne said, contains a number of recommendations which “are just not feasible” or “are not sensible nor durable”.

27 On this finding, there is, in my opinion, a clear public interest in continuing the secrecy surrounding some of the contents of the Report, at least until after the time when the Commissioner is able to make such further decisions as would be prejudiced by its premature release. I consider that on the evidence before me this time has not yet been reached.

28 A number of countervailing considerations are raised on the evidence before me, and these can be expressed in a variety of ways. I would identify the most substantial countervailing public interest in the desirable role of the Police Association and other employee representatives in being able to represent their particular and general membership in negotiations with the Commissioner which will give them a reasonable opportunity to ensure that reforms to personnel rights are implemented with the minimum necessary interference with existing entitlements.

29 The Report presents both general background and philosophy on reforming HRS and also quite precise recommendations on particular parts of HRS. Even where there is consultation on particular proposals, without being able to read the Report the people affected and their representatives are left with an incomplete picture of the Commissioner’s “thinking”, and the effectiveness of their involvement in particular consultations is thereby diminished. I accept that as a consequence an element of public interest thereby suffers. The extent of the diminution is unquantifiable, and much depends upon how much of the Report and the Commissioner’s general and particular thinking is revealed in the course of consultations on particular reforms.

30 The Association’s concern was expressed in a letter to Dr Chadbourne sent on 30 November 1999:

“The bottom line for the Association is that any proposed changes in HR practice or structure must result in an improved level of service delivery to our membership. We will not support any cost cutting measures that do not achieve that end, nor will we accept a mere “rearrangement of the deck-chairs”. Whatever program is implemented must be subject to adequate levels of funding. The HR function has received a great deal of criticism in recent years, to the least from this Association and the Royal Commission. We, as the organisation representing the front line service providers, have a vested interest in seeing an improved HR function emerge from these proposals.”

31 I accept Mr Tunchon’s opinion that the Association’s effective involvement in deliberations on HRS reform has been, and is being, diminished by its ignorance of the Report’s recommendations to the Commissioner.

32 Moreover, the Association’s concern has been exacerbated by reason of public reference by the Commissioner and Dr Chadbourne to the report and to the Commissioner’s decision “to implement” it. To outsiders, this has elevated the importance of the Report in the Commissioner’s process of change to HRS, and has given rise to disquiet among the membership of the Association and beyond.

33 The Commissioner informed the Association of the Report at a meeting with the Association on 10 June 1999, and told them that he intended to engage a “change agent” to implement the recommendations raised in the Report. Dr Chadbourne was so engaged in September 1999, and he met Association representatives in November and December 1999. The existence of the Report seems to have been at the forefront of his presentation. One of his slides said:

“HUMAN RESOURCES STRATEGIC CHANGE PROGRAM

* SHORTCOMINGS OF HRS …are well known and don’t need re-stating. M & B Report summarises them well, but no real surprises.”

34 Other slides indicated that the Commissioner was considering decentralising HR functions, restructuring workplace injury management, “re-alignment” of some functions and transfer to areas of best fit, “outsourcing” of worker’s compensation, medical and counselling services, “civilianisation” of most of HRS, and restructuring the organisation of HRS.

35 Illustrating a growing disquiet among Association members was evidence, led by counsel for the Commissioner, of a recent biennial conference of the Police Association at which Dr Chadbourne’s attempt to allay fears received a hostile and suspicious reception from many delegates. As a result of this conference, I was informed that the Association had demanded the suspension of the “current strategic change programme” while it is considered by a “tripartite” committee representing the Minister, the Commissioner and the Association. I was informed that the Commissioner has not agreed to suspend his programme, but has agreed to “tripartite discussions”. Particulars of the anticipated structure or content of these discussions was left unexplored in the evidence before me.

36 Counsel for the Commissioner led evidence of these events to attempt to persuade me in the context of a claim for exemption under cl 16(1)(v) of the reality of an “industrial relations” aspect to HRS reform, in which the Commissioner would suffer “a substantial adverse effect on (his) conduct of industrial relations” if the Report were released. I was far from persuaded as to such a conclusion. To the contrary, I was left with an impression that the release of the Report might clear the air in relation to general disquiet and might improve “industrial relations”: at least to the extent that they concern the Commissioner’s relationship with the executive of the Police Association. I therefore consider that this evidence tends to give weight to the public interest in some disclosure at this point of time.

37 However, as I have concluded above, the release of the Report to the public under the FOI Act at this time would also seriously affect the Commissioner’s flexibility in his future deliberations on what changes to propose and determine in relation to those parts of the Report’s recommendations which he has not yet addressed. In effect, he would be pushed into premature decision-making in order to attempt to de-fuse hostile, mischievous or ignorant reactions to the contents of the Report by people within and outside the Association and the Police Service. If this happened, I accept Dr Chadbourne’s opinions that the Commissioner’s range of choices would be significantly diminished and his decision-making would be significantly impaired.

38 Apart from the countervailing considerations which I have sketched above, I have taken into account all the evidence and submissions presented to me. Attempting the balance required by the Act, I have concluded that “the public interest” referred to in cl 9(1)(b) comes out in favour of allowing the Commissioner to continue his current process of reform unhampered, at the present time, by the effects of access being given to the Report under the FOI Act. In other words, I have concluded that the document is, at present, an exempt document under cl 9 and that the correct and preferable decision under s 24 and 25(1)(a) is that access should be refused. I have fully addressed all relevant aspects of the public interest in the course of deciding the exemption, and no ground separately arises for a discretionary overriding of the exemption (c.f. Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [90])

39 This conclusion is very much related to the present circumstances as revealed in evidence. It is quite possible that the balance of public interest may swing in favour of disclosure in the future, even in the near future, depending on how events unfold. Given the Commissioner’s publicly announced commitment to “implement” the Report, an appropriate accountability in relation to that commitment may well require the public disclosure of the Report at the stage where the Commissioner has finalised his process of decision-making or has reached such a stage where continuing secrecy cannot be justified.

40 Further, I note that, contrary to the sweeping submissions of counsel for the Commissioner, my conclusion in this case is not based on any general principle of overriding secrecy in relation to confidentially obtained advice to chief executives from management consultants on restructuring public agencies. My conclusion on the final “balance” in this case has been significantly influenced by some particularly special, even unique, circumstances attending this Report. They include the background of the Royal Commission into the Police Service and the appointment of the present Commissioner from outside that Service. These have lent weight to a public interest in allowing reforms to the Police Service to be implemented by the Commissioner with minimal interference, and in giving significant weight to the Commissioner’s opinions on the appropriate level of disclosure and consultation. Other considerations arise from an examination of the Report itself, including its particular form, wording, and content and the qualifications of its authors. Aspects of all of these things point to the sensitivity of the public release of the present document, and to the reasonableness of waiting for further decision-making by the Commissioner.

41 I have taken into account other considerations pressed by applicant as favouring disclosure of the Report. However, in my assessment they are neutral or of lesser significance than the considerations discussed above. Deserving particular mention were submissions to the effect:

That the decision-maker is not a collective body, but is a person who should not be swayed by adverse responses to release of the Report. Although I accept that the Commissioner should be able to counter and resist many hostile responses from release of the Report, as indicated above, I consider that he is likely to be diverted into making decisions prematurely and less radically than would otherwise be in the public interest.
That the Association had established a record of responsible and beneficial involvement in other areas of reform of the Police Service, particularly during “round table discussions” with the Royal Commission and during subsequent discussions on implementing the Commission’s recommendations by way of a “statement of intent”. I accept this history, and I am ready to assume that the Association may be less able to perform a constructive role in relation to HRS reforms without access to the Report. However, there are significant differences between the processes followed in relation to the Royal Commission recommendations and the present process of detailed decision-making by the Commissioner on the structure of HRS. Moreover, although this consideration might encourage the Commissioner to release the report on a confidential basis to officers of the Association in the course of his consultations with those people, it was not submitted that I had power to direct release on a confined or conditional basis or should do this. In reaching my present decision, I must proceed on the basis that if the report is released to Mr Tunchon under the FOI Act then it must be released to the world. In such circumstances, the Association’s record of co-operation does not overcome my concerns that release would impede the Commissioner’s decision-making.
That the Association is entitled to be consulted on restructuring Human Resources Services by reason of the Industrial Relations Act and the procedure for dispute resolution provided in cl 11 of the current Non-commissioned Police Officers Award. I accept that the Commissioner may be bound to advert to the Association’s interests in the course of his decision-making affecting the employment of Association members, and that he may be compelled to participate in discussions with the Association. I have taken this into account, but do not consider that it is decisive in my decision on the balance of public interest concerning release under the FOI Act. If access to the Report by the Association becomes a particular concern in an industrial dispute, then it can be further addressed in the course of procedures for resolving that dispute. The evidence before me from Dr Chadbourne and Mr Tunchon suggests that such a dispute does not at present exist, and, in particular, is not a present element in salary negotiations.
That s 59A of the FOI Act would prevent my taking into account factors which might otherwise lead me to refuse access. I had interesting discussion with counsel as to the proper construction of this provision. Among its problematic aspects is the meaning of the reference to “the Government” in paragraph (a) [it seems directed at the elected, politically responsible executive government, but a much broader definition is provided in s 6(2)(a)], and the significance of limiting par (b) to misunderstandings by “the applicant”. Ultimately, I have decided that I need not examine the provision closely, since I consider that, on any view of its ambit, the considerations discussed above which have been decisive in my mind do not include considerations rendered impermissible by s 59A.

Release with deletions?

42 I have given serious consideration to the application of s 25(4) of the FOI Act. This requires me to consider whether any parts of the Report are not “exempt matter”, and, if so, whether it was practicable to release these in a form which the applicant would wish to have. I explored both of these aspects with Dr Chadbourne in his confidential session, on the basis that if I considered that release with deletions should occur I would remit the matter with directions pursuant to ss 63(3)(d) or 65(1) of the Administrative Decisions Tribunal Act 1997 (NSW) to allow the precise deletions to be worked out. However, on reflection I have accepted the submission of the respondent that the whole of the report should be regarded as “advice” coming within cl 9(1)(a), and that “on balance” the disclosure of almost all of the report would be contrary to the public interest. Parts of the report dealing with general background and recommendations have a similar sensitivity to those parts making particular recommendations for changes which have not yet been “implemented”. Excising these sensitive parts would leave a bowdlerised Report in relation to most of which I still could not be confident that disclosure would not impede the Commissioner’s decision-making by reason of speculations arising from the location and context of the deletions. Ultimately, I was left with few passages that I could identify with confidence as being innocuous and therefore not “exempt matter”. I have concluded that Mr Tunchon and his Association would have no sensible wish to have access to these alone, so that s 25(4) does not apply.

43 I therefore have affirmed the decision under review.

44 The copy of the Report provided to the Tribunal should continue to be kept in a secure location, and should be returned only to Mr Doherty.

Actions

Download as PDF Download as Word Document

Citations

Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73

Most Recent Citation

Daycorp Pty Ltd v Parnell [2011] SADC 191

Cases Citing This Decision

12

Gilligan and Australian Securities and Investments Commission [2011] AATA 104

Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (No 2) [2005] NSWADTAP 33

Cianfrano v NSW Ombudsman [2007] NSWADT 273

Cases Cited

2

Statutory Material Cited

1

Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 200

Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93

CITATION:	Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73
DIVISION:	General Division
PARTIES:	APPLICANT Phillip James Tunchon RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003071
HEARING DATES:	22/05/00, 23/05/00
SUBMISSIONS CLOSED:	05/23/2000
DATE OF DECISION:	06/07/2000
BEFORE:	Smith MB - Judicial Member
APPLICATION:	access to documents - Freedom of Information Act - access to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Re Bartl and Secretary, Department of Employment, Education Training and Yoouth Affairs (1998) 28 AAR 140 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 23 AAR 142 Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93
REPRESENTATION:	APPLICANT A Hatcher, barrister RESPONDENT P Singleton, barrister
ORDERS:	1. The decision under review is affirmed.; 2. Subject to any further order of the Tribunal, the confidential exhibits 3 and 4 are not to be disclosed to any person and are to be returned pursuant to s 140 of the Administrative Decisions Tribunal Act 1997 (NSW) personally to the solicitor for the respondent, Mr Gary Doherty.