UC v Commissioner of Police, NSW Police

[2005] NSWADT 272

CITATION:	UC v Commissioner of Police, NSW Police [2005] NSWADT 272
DIVISION:	General Division
PARTIES:	APPLICANT UC RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053020
HEARING DATES:	14/07/2005
SUBMISSIONS CLOSED:	07/14/2005
DATE OF DECISION:	11/30/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	access to documents - personal affairs - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 Commissioner of Police -v- District Court of NSW (1993) 31 NSWLR 606 Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 H -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 202 Re James & ORS and the Australian National University (1984) 6 ALD 687 Rouvinetis -v- Director General, Department of Housing [2001] NSWADT 155 Sankey v Whittam (1978) 142 CLR 1
REPRESENTATION:	APPLICANT In person RESPONDENT R Burdick, Solicitor
ORDERS:	1.The determination under review is affirmed insofar as it relates to the determination to release documents either in full or subject to deletions with the exception of the determination insofar it relates to the Harbourside LAC Complaints Management meeting report, dated 5/5/2004 and the North Sydney Council customer request, dated 16/2/2004. The determination under review is set aside insofar as it relates to those documents; 2.In place of that part of the determination I make the fresh determination that to the Harbourside LAC Complaints Management meeting report, dated 5/5/2004 should be released in full and the North Sydney Council customer request, dated 16/2/2004 should be released in full with the exception that the tenant’s telephone numbers should be deleted.

1 This is a review application under section 53 of the Freedom of Information Act 1989 (“the FOI Act”). The Applicant’s name is not identified in these reasons to protect her confidentiality. In these reasons the Applicant is referred to as UC. The respondent is referred to as the agency.

2 UC applied under section 17 of the FOI Act seeking the following documents:

"All documentation, reports, file notes, electronic records etc generated or taken into consideration in any way relating to my complaint dated 7 April 2004 concerning Constable Robb (Harbourside police)"

3 The complaint concerning Constable Robb that gave rise to the FOI request arose after Constable Robb and another police officer attended an incident involving UC and a tenant in regard to plumbing work being undertaken at a property owned by UC (“the property”). UC’s complaint raised a number of issues. These included:

Constable Robb was discourteous, disrespectful and constantly shouted at UC;

Constable Robb failed to explain why she had entered the property;

Constable Robb failed to listen to the facts of the law when UC attempted to explain them to her;

Constable Robb did not give a proper explanation why UC should leave the property;

Constable Robb's unnecessary use of violence;

Constable Robb's use of unreasonable, unnecessary and unlawful direction;

Constable Robb's direction for UC not to go into the street or the lane later in the evening;

Constable Robb's failure and/or inability to establish either the relevant facts or law;

Constable Robb's basis in particular describing UC’s tenant as a victim;

Constable Robb's action in preventing the plumber from cementing the pipe into position;

Constable Robb's action in ensuring that UC did not see the plumbing bill or know its details;

the provision of information to North Sydney Council concerning ability to handle a tenanted property;

the behaviour of the male constable who shone a torch in UC’s eyes for long periods and refused to move it; and

the updating of and the adding of additional detail to the incident report

4 Sergeant David Bailey conducted an investigation into UC’s complaint and he prepared a report in relation to the investigation. Sergeant Bailey also provided affidavit and oral evidence to the Tribunal.

Original Determination

5 The initial determination of UC’s FOI application was undertaken by Mr Maddox, a delegate of the Commissioner. Mr Maddox identified a number of documents as falling within the scope of UC’s FOI application. Access to some documents was granted and access to other documents was granted subject to deletions. The deletions were based on exemption clauses 6(1), 4(1)(e) and 13(b) of Schedule 1 of the FOI Act. The determination was as follows:

“a) To release in full, the following document with the exception of deletions pursuant to Sections 25 (1)(a) and 25 (4)(a) of the Act on the ground of the exemption listed at Clause 6(1) of Schedule 1 to the Act:

Sgt D Bailey's report, dated 22/7/2004 (2 pages).

Harbourside LAC Complaints Management meeting report, dated 1/6/2004 (1 page).

Sgt D Bailey's report, dated 31/5/2004 (2 pages).

Harbourside LAC Complaints Management meeting report, dated 5/5/2004 (2 pages).

Your letter to Commander Sweeney, dated 7/4/2004 (21 pages).

Photo with a title attachment "A" (1 page).

North Sydney Council customer request, dated 16/2/2004 (1 page).

Event Summary E19793423, dated 14/2/2004 (5 pages).

b) To release in full, the following document with exception of deletions pursuant to Section 25 (1)(a) and 25 (4)(a) of the Act on the ground of the exemption listed at Clauses 4(l)(e) and 13(b) of Schedule 1 to the Act:

Sgt D Bailey's report, dated 7/7/2004 (3 pages).

c) To release in full without deletions:

Your letter dated 31/8/2004 (2 pages).

Harbourside LAC Complaints Management Team report, dated 24/8/2004 (2 pages).

Sgt A Compton’s report, dated 22/8/2004 (3 pages).

Copy of Harbourside LAC memorandum, dated 5/8/2004 (1 page).

Harbourside LAC Complaints Management Team report, dated 4/8/2004 (1 page).

Copy of Superintendent J Sweeney's letter to yourself, dated 5/8/2004 (1 page).

Your letter, dated 29/7/2004 (2 pages).

Sgt D Bailey's report, dated 25/7/2004 (1 page).

Copy of Harbourside LAC memorandum, dated 1/7/2004 (1 page).

Harbourside LAC Complaints Management meeting report, dated 30/6/2004 (1 page).

Your letter, dated 21/6/2004 (1 page).

Copy of Superintendent J Sweeney's letter to yourself, dated 3/6/2004 (I page).

Copy of Harbourside LAC memorandum, dated 10/5/2004 (1 page).

Copy of Superintendent J Sweeney's letter to yourself, dated 7/5/2004 (1 page).

6 UC sought an internal review of the original determination by Mr Maddox. In her application she asserted that she has been refused access to part of a document; exemption clauses 6(1), 13(b) and 4(1)(e) are not relevant to her complaint about a police officer; the name of "the police complainant" has been deleted when UC was present at the incident; complaints about police officers should be conducted in a completely transparent manner and UC had considerable concerns about the process used in relation to her complaint.

7 Following completion of the internal review, the original determination was varied as follows:

“I am prepared to vary the determination of Mr Maddox as follows:

a) by revealing the names of employees of NSW Police where those employees were acting in an official capacity (on page 1 of the report of Sgt Bailey dated 22 July 2004, page 2 of the Complaints Management Meeting report dated 5 May 2004, the North Sydney Council Customer Request, page 18 of the applicant's letter of 7 April 2004 and page 2 of the report of Sgt Bailey dated 7 July 2004

b) by allowing access to a complete copy of Event entry number E19793423, subject to the deletion of personal information such as the names, addresses and telephone numbers of persons other than the applicant

c) by allowing access to details of commonplace methods adopted by Police when investigating possible contraventions of the law as disclosed on page 2 of the report of Sgt Bailey dated 7 July 2004.”

8 UC was not satisfied with this determination and sought an external review by the Tribunal. At the commencement of the hearing UC made an application for me to step down for perception of bias. I considered that there was no basis for this application and accordingly I refused the application and proceeded to hear the matter. I reserved my decision following the hearing.

Relevant Legislation:

9 Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified. In determining an application for review the Tribunal is to decide what the correct and preferable decision is having regard to the material before it and for that purpose may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. The Tribunal is to have regard to any relevant Government policy in force at the time the reviewable decision was made and may have regard to any other policy applied by the administrator in relation to the matter concerned.

10 The issues in this application are whether the grounds on which the agency has refused access to the documents that UC requested have been made out. That is, whether the agency can establish that the exemption on which it has refused access to each document in fact applies. It needs to be determined whether the documents that UC sought are exempt documents within Schedule 1 of the FOI Act; and if the documents are exempt documents whether it is practicable to give access to copies from which exempt matter has been removed.

11 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government the legally enforceable right to be given access to documents held by the Government, is subject only to such restrictions as are reasonably necessary for the proper administration of the Government the discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information.

12 Clause 4(1)(e) of Schedule 1 of the FOI Act provides:

4(1) A document is an exempt document if it contains matter the disclosure of which could reasonably by expected:

(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law).

13 Clause 6 of Schedule 1 of the FOI Act provides as follows:

6(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

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

14 Clause 13(b) of Schedule 1 of the FOI Act provides as follows:

13 A document is an exempt document:

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence; and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency; and

(iii) would, on balance, be contrary to the public interest.

15 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. Subsection 25(1) of the FOI Act allows an agency to refuse access to an exempt document in certain circumstances, including where a document is an "exempt" document as defined in the FOI Act. Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that the applicant would wish to be given access to such a copy.

16 Section 31 of the FOI Act provides in part that an agency shall not give access to a document containing information concerning the personal affairs of any person (otherwise than to the person concerned) unless the agency has taken 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.

The agency’s case

17 The agency’s case is that each of the documents that are the subject of this application should only be released subject to deletions. The agency relies on the argument set out in the internal review decision and evidence provided before the Tribunal by Sergeant Bailey.

18 Sergeant Bailey’s evidence is principally concerned with the need to preserve the confidentiality of witnesses and informants is integral to maintaining the trust of the public in the operations of and conduct of the agency and police officers in general. He is of the view that the release of the deleted information would be a breach of the confidential relationship between the police and the informants who provided the information.

19 Sergeant Bailey is also of the view that breach of this confidential relationship could prejudice the future supply of such information to the police. Prejudice to the supply of confidential information to the police would damage the public interest in law enforcement, the provision of which is the chief function of this agency.

20 The agency has provided copies of all the documents that are in issue in both unedited form and with deletions.

UC’s case

21 This application arises out of the wish by UC to have access to the material held by the agency that relates to the handling of her complaint against Constable Robb. The essence of her case is that the investigative process should be transparent and she should be able to access these documents in order that she might be able to satisfy herself about the process that was undertaken.

22 UC contends that some of the information deleted from the documents is information already known to her and therefore there is no basis for asserting that the information ought not to be released. In effect, she contends that the exemptions claimed by the agency are not applicable.

23 UC submits that there is general public interest in the widest possible access to government-held information. The public interest in the transparency of the police investigative process requires that the documents sought should be released. In support of her submission she referred to guidelines produced by the Ombudsman’s office and the authorities referred to in those guidelines. In particular she referred to views expressed by the Administrative Appeals Tribunal Deputy President Hall in Re James & ORS and the Australian National University (1984) 6 ALD 687. Deputy President Hall stated at paragraph 88:

“The fact that Parliament has seen fit to confer upon every person a legally enforceable right to obtain access to a document of an agency or an official document of a minister, except where those documents are exempt documents, is to my mind a recognition by Parliament that there is a public interest in the rights of individuals to have access to documents - not only documents that may relate more broadly to the affairs of government, but also to documents that relate quite narrowly to the affairs of the individual who made the request."

24 UC referred to paragraph 5.12 of the Ombudsman’s guidelines which provides in part:

“5.12 While it is not possible to provide a comprehensive list of public interest considerations, in general terms it can be said that there is a public interest in the disclosure of documents:

…

(6) which allow or assist enquiry into possible deficiencies in the conduct of administration of public agencies or by public officials;

(7) which evidence or identify that an agency has or its staff have engaged in conduct which is illegal, unlawful, inappropriate, unfair or the like, or has or have acted maliciously or in bad faith;

…

(10) which relate to the affairs of the individual who made the request;

(11) which contain information which is incorrect;

(12) which contain comments that are gratuitous, unfairly subjective, irrelevant or the like;

(13) which show that information provided to or by the government is incomplete, incorrect, out of date or misleading, and would thus allow an application to be made for such information to be amended; and

(14) which show how an agency dealt with an applicant's complaint, and the outcome of that dealing.”

25 She says that the approach that should be adopted by agencies is to actively seek to minimise the amount of documentation for which exemption is claimed under the FOI Act. Further, the various exemptions provided in the FOI Act does not include protecting public officials from criticism. As stated by Gibbs ACJ in Sankey v Whittam (1978) 142 CLR 1, (1978) 21 ALR 505 at 527:

"Of course, the object of the protection is to ensure the proper working of government and not to protect ministers and other servants of the Crown from criticism, however intemperate and unfairly based"

26 The exemption provided in Clause 6 of Schedule 1 to the FOI Act is applicable where an applicant requests access to personal affairs information other than his/her own, in circumstances where disclosure would involve an unreasonable disclosure of the third party's personal affairs. "Personal affairs" is not defined in the FOI Act and is considered to be an inherently imprecise concept. Whether information can be defined as "personal affairs" is a question of fact in each case. Generally, it has been accepted that the term "personal affairs" means "matters of private concern to an individual".

27 In Perrins case Kirby P stated at page 625:

'In its context, the words "personal affairs" mean the composite collections of activities personal to the individual concerned.'

28 Whether a document contains information about the "personal affairs" of a person is a question of fact to be determined from the circumstances of each individual case: Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 at paragraph 31. The circumstances of the case will determine whether or not a person's name and other identifying characteristics are personal affairs for the purpose of clause 6 of Schedule 1 of the FOI Act. A distinction has been drawn in the authorities between persons who are carrying out their functions as officers of an agency (Perrins Case) and persons outside the agency (Gilling -v- General Manager, Hawkesbury CC [1999] NSWADT 43; Thompson -v- The Lord Howe Island Board [2003] NSWADT 193)

29 The agency asserts that several documents should only be released with specified information deleted. It contends that it is not in the public interest to release the documents in full, but that information that is personal information for the purpose of clause 6 of Schedule 1 of the FOI Act should be deleted. I have examined each of those documents and with the following exceptions, I agree with the agency’s view. I have formed the following views in relation to the remaining documents:

Harbourside LAC Complaints Management meeting report, dated 5/5/2004 (2 pages).

30 I do not agree with the view of the Commissioner’s delegate that the deleted information is personal affairs information that should be deleted. In my view, in the circumstances of this matter the tenant’s name is not personal information for the purpose of clause 6 of Schedule 1 of the FOI Act. Accordingly, this document should be released in full.

North Sydney Council customer request, dated 16/2/2004 (1 page).

31 I do not agree with the view of the Commissioner’s delegate that the deleted information is personal affairs information that should be deleted. In my view, in the circumstances of this matter the tenant’s name and, with the exception of the tenant’s telephone numbers other identifying characteristics are not personal information for the purpose of clause 6 of Schedule 1 of the FOI Act. The identifying characteristics of those individuals who were acting in an official capacity are not personal information for the purpose of clause 6 of Schedule 1 of the FOI Act. Accordingly, it is my view that this document should be released in full but with the tenant’s telephone numbers deleted. I have formed this view notwithstanding that North Sydney Council released the document to UC in an unedited form.

32 I agree with the agency’s arguments in relation to the application of clause 4(1)(e) of Schedule 1 of the FOI Act and I accept the evidence given by Sergeant Bailey. Clause 4(1)(e) provides that a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law. The exemption operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods: Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231.

33 For the exemption to apply, there is no need for an actual contravention of the law, since the exemption encompasses both actual and possible contraventions. The exemption is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law. The information contained in an exempt document might serve to disclose or confirm the lawful Police methods or procedures for preventing or detecting possible contraventions of the law.

34 The obvious purpose of the exemption in clause 13(b) of Schedule 1 of the FOI Act is to protect the free flow of information from private citizens and bodies to government in cases where a common law action for breach of confidence cannot be made out: H -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 202. The provider of information should be protected from any harm or detriment that would occur if certain information were disclosed, in circumstances where there is an express or implied obligation of confidence on the agency entrusted with the information.

35 In Rouvinetis -v- Director General, Department of Housing [2001] NSWADT 155 the Tribunal’s President dealt with an FOI application from an individual who had been the subject of complaints by others living in his neighbourhood. In addressing the issue of whether disclosure of certain documents would be contrary to the public interest the President stated at paragraphs 21 and 22 of the decision:

“21 If a document falls into the categories found in the internal working documents exemption, cl 9(1)(a), the exemption may only be invoked if disclosure ‘would, on balance, be contrary to the public interest.’ I consider that the public interest in the public housing context may include the need not to promote further tension or conflict between neighbours by disclosing the identity of complainants until such point as that may become unavoidable in order to obtain resolution.

22 A similar structure is found in the confidentiality exemption, cl 13. If the document falls into one of the listed categories, the same public interest test as for the internal working documents exemption applies. I see the same policy considerations as relevant.”

36 In my view, the circumstances of this case are comparable to the extent that by disclosing the identity of some of the complainants and informants could promote further tension or conflict between neighbours. In that case, I agree with Ms Burdick that it would be contrary to the public interest to disclose the identity of those complainants and informants whose identity has not yet been disclosed.

37 I also note that I agree with the agency’s view in relation to Event Summary E19793423. I am satisfied that the information that has been deleted is personal information for the purpose of clause 6 of Schedule 1 of the FOI Act. I have formed this view notwithstanding that UC asserts that she is aware of the details relating to the tenant.

38 I also agree with the agency’s determination in relation to the other documents that are the subject of this application and insofar as the determination under review relates to this document, I affirm the determination. I note that UC has been given access to copies of these documents from which the exempt matter has been deleted. Accordingly, the agency need take no further action in relation to these documents.

Orders

1. The determination under review is affirmed insofar as it relates to the determination to release documents either in full or subject to deletions with the exception of the determination insofar it relates to the Harbourside LAC Complaints Management meeting report, dated 5/5/2004 and the North Sydney Council customer request, dated 16/2/2004. The determination under review is set aside insofar as it relates to those documents.

2. In place of that part of the determination I make the fresh determination that to the Harbourside LAC Complaints Management meeting report, dated 5/5/2004 should be released in full and the North Sydney Council customer request, dated 16/2/2004 should be released in full with the exception that the tenant’s telephone numbers should be deleted.