Vella v Commissioner of Police, NSW Police Force
[2009] NSWADT 68
•31 March 2009
CITATION: Vella v Commissioner of Police, NSW Police Force [2009] NSWADT 68 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Michael Louis Vella
Commissioner of Police, NSW Police ForceFILE NUMBER: 083192 HEARING DATES: On the papers SUBMISSIONS CLOSED: 7 October 2008
DATE OF DECISION:
31 March 2009BEFORE: Higgins S - Judicial Member CATCHWORDS: Access to documents – confidential material – documents concerning operations of an agency LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Department of Education and Training v Mullet and Randazzo (No. 2) [2002] NSWADTAP 29
Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13
Keriakes v State Rail Authority of NSW [2003] NSWADT 191
McGuinness v Bathurst Regional Council [2005] NSWADT 152
re B and Brisbane North Regional Health Authority ((1994) 1 QAR 279 at 341)
University of New South Wales v McGuirk [2006] NSWSC 1362
Dezfouli v Justice Health [2006] NSWADT 274REPRESENTATION: APPLICANT
RESPONDENT
In person
R Saunders, agentORDERS: 1The Commissioner’s decision to refuse Mr Vella access to the documents containing information the Commissioner obtained from a neighbour and employer is affirmed
2The Commissioners decision to refuse Mr Vella access to the deletions in the PSARC panel’s record of interview (i.e. minutes of the Assessment Review Committee) is set aside and in substitution thereof a decision that Mr Vella be granted access to these deletions within 28 days of this decision.
Introduction
1 This is an application by Michael Vella (‘Mr Vella’) seeking review of a decision of a delegate of the Commissioner of Police, NSW Police (‘the Commissioner’) to refuse him access to documents that he had requested pursuant to the Freedom of Information Act 1989 (‘the FOI Act’).
2 After being informed that his application to join the New South Wales Police, on or about 20 March 2008, Mr Vella sought access to the following documents:
- ‘1. Copies of statements and information supplied to you by my neighbours.
2. Copies of statements and information supplied to you by my employer.
3. Copies of adverse information obtained by Inspector Anthony Malone associated with procedural background checks.
4. Copies of minutes of the meeting held by the Professional Suitability Assessment Review Committee on 12 November 2007.’
3 A delegate of the Commissioner determined Mr Vella’s access application on 8 April 2008. The delegate construed Mr Vella’s FOI request to include all documents contained in his recruitment file. More than 45 documents were identified in this file and the delegate determined to grant Mr Vella access to some documents and also refused him access to other documents on the basis that these documents contained information that was exempt under one of more of the provisions in Schedule 1 of the FOI Act.
4 Mr Vella sought internal review of the delegate’s decision. In that internal review request Mr Vella said he was dissatisfied as he had been provided with documents that he did not request and was not provided with the documents he did request.
5 In the internal review determination, another delegate of the Commissioner determined that the Commissioner held 4 documents relevant to Mr Vella’s FOI request (i.e. one document for each of the abovementioned items). In regard to the report of Inspector Malone the delegate determined to release the document in full.
6 In regard to the document containing information supplied by a neighbour and that supplied by Mr Vella’s employer the delegate determined to refuse Mr Vella access to these on the basis they were exempt under clause 13(b) of Schedule 1 of the FOI Act (i.e. documents containing confidential material).
7 In regard to the minutes of the Assessment Review Committee, the delegate determined that part of the document contained information that was exempt under clause 16(a)(iv) of Schedule 1 of the FOI Act (i.e. was information concerning the operation of NSW Police and its disclosure could reasonably be expected to have a substantial adverse affect on the effective performance by the agency of its functions). However, in accordance with section 25(4) of the FOI Act the delegate determined to grant Mr Vella access to a copy of that document with the exempt information deleted.
8 Mr Vella has sought review of the delegate’s decision to refuse him access to the document containing information supplied by his neighbour and his employer and also the information that was deleted from the Assessment Review Committee minutes.
9 At the planning meeting the parties consented to the matter being dealt with on the papers. Both parties filed and served written submissions and the Commissioner provided the Tribunal, on a confidential basis, with a copy of the exempt documents. The Commissioner also relied on an affidavit sworn by Inspector Anthony Malone on 5 September 2008.
The issues
10 The issues in this application are as follows:
- (a) whether the documents containing the information from Mr Vella’s neighbour and his employer are exempt under clause 13(b) of Schedule 1 of the FOI Act;
- (b) whether the information in the deletion to the minutes of the Assessment Review Committee is exempt under clause16(a)(iv) of Schedule 1 of the FOI Act , and
- (b) if the documents in (a) and the deletions in (b) above are found to be exempt whether the decision to refuse Mr Vella access to these documents and deletion is the correct and preferred decision: see section 63 of the Administrative Decisions Tribunal Act 1997 , section 25(1)(a) of the FOI Act and University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] and [103].
11 It is not disputed that the onus is on the Commissioner to establish that the internal review determination (i.e. decision) in regard to the refusal of access was justified: see section 61 of the FOI Act.
Documents containing information from Mr Vella’s neighbour and his employer (Items 1 and 2) – exempt under clause 13(b) (confidential information)
12 In order for the Tribunal to find that the documents in question are exempt under clause 13(b) the Commissioner must establish the following:
(i) the disclosure of the documents would disclose information obtained in confidence; and
(ii) the disclosure of this information could reasonably be expected to prejudice the future supply of such information to the Commissioner; and
(iii) the disclosure would, on balance, be contrary to the public interest.
13 It is well established that in order for an agency to satisfy the Tribunal that information was obtained in confidence (see (i) above), it is not necessary to show that there was an express obligation or understanding that the information was given in confidence. It is sufficient for this to be implied from the circumstances in which the information was obtained or given.
14 It is also well accepted that clause 13(b)(ii) (see (ii) above) requires the Tribunal (and the agency) to engage in a relatively abstract analysis. That is, it must ask whether, as a matter of reasonable expectation, material of the kind for which exemption is claimed would, if released, prejudice the supply of information of the same kind to the government agency in the future: see Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 at [58] and re B and Brisbane North Regional Health Authority ((1994) 1 QAR 279 at 341). This requires the Tribunal to characterise the nature of the information sought to be protected in this application, to identify the extent to which material of this kind can only be obtained, or can only reasonably be obtained, by confidential communication and the extent to which guarantees of confidentiality may be necessary.
15 And finally, clause 13(b)(iii) (see (iii) above) is a separate public interest test in which the Tribunal (and an agency) is required to balance the public interest considerations for and against disclosure and be satisfied that the factors against disclosure outweigh those in favour of disclosure: see Keriakes v State Rail Authority of NSW [2003] NSWADT 191 at [38]. Or to put it in another way, a balancing of the public interest in favour of disclosure, namely promoting accountability and transparency of governmental operations (see section 5 of the FOI Act), and the public interest in not disclosing information obtained in confidence so as prejudice the agency in fulfilling its functions and obligations in the future.
16 In his affidavit, Inspector Malone, the General Manager of the Recruitment Branch of the New South Wales Police Force, gave a brief description of the recruitment process. He said that after a successful academic assessment by Charles Sturt University, persons seeking employment with NSW Police complete a pro-forma professional suitability application kit. That kit contains a declaration that applicants are required to sign and which authorises the Recruitment Branch to conduct a professional suitability assessment of the applicant. This assessment includes, but it is not limited to, conducting employment checks and conducting field base interviews with relatives, friends and/or neighbours of the applicant. Inspector Malone went on to say that information obtained from employers etc. is collected on the basis of the Recruitment Branch giving the employer etc. an undertaking that their identity and the information they provide will remain confidential to the extent reasonably possible and practical. He said ‘a guarantee of confidentiality is crucial in obtaining a free flow of relevant information. This is a critical part of the recruitment process.’
17 Inspector Malone then said that in his opinion, if confidential information provided by employers etc. were to be released to applicants seeking to join the NSW Police then the Recruitment Branch would see a decrease in the amount and/or accuracy of the information that is supplied. This he said would lead to an increased risk of the NSW Police employing recruits that would be unsuitable to perform the duties of a police officer.
18 The documents in issue in this application are pro-forma documents which have been completed by Mr Vella’s neighbour (a pro-forma Field Based Interview form) and or employer (a pro-forma Employment Check form). Mr Vella does not appear to seek access of the identity of those who completed the forms. His main interest is in what was said about him by these people. He contended that he was entitled to this information on the grounds of procedural fairness.
19 As mentioned above, this is not the test in regard to access of documents under the FOI Act.
20 In this application the pro-forma Field Based Interview form states at the top of the form ‘THIS INFORMATION IS STRICTLY CONFIDENTIAL AND WILL NOT BE DISCLOSED TO THE APPLICANT’. The pro-form Employment Check form has the words ‘IN CONFIDENCE’ at the top of the form and a statement at the bottom of the form to the effect that the information ‘WILL BE TREATED IN CONFIDENCE’.
21 On the basis of these descriptions on the pro-forma forms and the evidence of Inspector Malone, I am satisfied that the information in the documents for which Mr Vella has been refused access under clause 13(b) is information that was obtained in confidence.
22 I am also satisfied that the disclosure of these documents could be reasonably expected to prejudice the future supply of information of this type. That is, I am satisfied that as a matter of reasonable expectation, information of this particular kind for the purposes of assessing the suitability of applicants seeking to join the NSW Police would, if released, prejudice the supply of similar information to the NSW Police Recruitment Branch in the future. It is difficult to imagine neighbours and employers providing adverse information about an applicant to join the NSW Police without an undertaking that the information would be kept confidential. And where this information is given in confidence then disclosure of this information can reasonably be expected to prejudice the supply of such information in the future.
23 I am also satisfied that disclosure of these documents would, on balance, be contrary to the public interest. In my opinion, for the purpose of recruiting the most suitable persons for the NSW Police, the public interest lies on the non-disclosure of information of this kind. As I have mentioned it is this public interest and not the interest of Mr Vella which is relevant. And it is in the public interest that the Commissioner obtain any adverse comments a person may have about an applicant for the NSW Police.
Assessment Review Committee minutes (Item 4) - exempt under clause 16(a)(iv)
24 The minutes of the Assessment Review Committee is a one page pro-forma document concerning Mr Vella. It is headed ‘PROFESSIONAL SUITABLITY INTERVIEW/PAPER ASSESSMENT’. In this case the words ‘PAPER ASSESSMENT’ has been crossed out and there are two deletions at the bottom of this document. The bottom deletion relates to the members of the panel who conducted the professional suitability interview with Mr Vella.
25 As mentioned above the deletions have been made on the grounds that they contain information falling within clause 16(a)(iv) of Schedule 1 of the FOI Act.
26 In order for this exemption to apply, the Commissioner must establish that the deletions contain information that:
(a) could reasonably be expected to have a substantial adverse effect on the effective performance by the Commissioner of its functions; and
(b) would, on balance, be contrary to the public interest.
27 In McGuinness v Bathurst Regional Council [2005] NSWADT 152 at [21] Deputy President Magistrate Hennessy said:
‘When considering the exemptions in Clause 16 the focus must be on the future effect on a function of the agency, not on the effect of disclosure in the present controversy. ( Director General, Department of Education & Training -v- Mullett & anor (GD) [2002] NSWADTAP 13 revised - 11/06/2002 at [62] to [64] and [84].) “Substantial adverse effect” is a higher test than mere “prejudice”. ( Re James and Australian National University (1984) 6 ALD 687.) The effect must be sufficiently serious to cause concern to a properly informed reasonable person. ( Re Thies and Dept of Aviation (1986) 9 ALD 454.)’
28 See also Department of Education and Training v Mullet and Randazzo (No. 2) [2002] NSWADTAP 29 at [97].
29 In his affidavit, Inspector Malone explained that where negative issues arose from the background check of an applicant seeking to join the NSW Police, that applicant may be required to appear before the Professional Suitability Assessment and Review Committee (‘PSARC’) for further assessment as to his/her suitability. The PSARC panel he said was comprised of three senior police officers who were independent of the NSW Police Recruitment Unit and they would conduct an interview with the person concerned to assess their suitability for employment as a police officer. He went on to say that it was his belief that it was important that the notes taken or reports created by the PSARC during such an interview should remain confidential as disclosure of this information would result in the panel members being less likely to make frank and comprehensive observation of those interviewed by them. This in turn he asserted would result in undermining the purpose of the PSARC panel in the recruitment process and also potentially lead to an increased risk of the Commissioner employing recruits that were unsuitable for employment as police officers.
30 It is not clear from the material provided whether Inspector Malone had been informed that Mr Vella was provided with a copy of the majority of the PSARC panel’s notes of its interview with Mr Vella and that only a portion was deleted.
31 Notwithstanding this the submissions made by the Commissioner were along the same lines as the evidence given by Inspector Malone.
32 Mr Vella submitted that the disclosure of the entire notes of the PSARC panel could not have a substantial adverse effect on the effective performance of the PSARC panel or the effective performance of the functions of the Recruitment Branch. Any adverse effect he contended could be achieved by deleting the names of the officers who had in fact participated as panel members.
33 In my opinion the information contained in this document falls into a completely different class to that which is contained in the other documents the subject of this application. The first difference is that it is the PSARC panel’s record of its interview with Mr Vella. From the material that has been disclosed, it is an interview that was conducted by telephone. It is also a record that was made by officers employed by the NSW Police and it was prepared in the course of their ordinary duties. To suggest that these officers would be reluctant to make a full and frank record of its interview and its deliberations is difficult to understand.
34 The clause 16(a)(iv) exemption is not in my opinion directed towards protecting from disclosure information of the type contained in the PSARC panel’s record of an interview of a particular applicant seeking to join the NSW Police. As pointed out by the Deputy President in McGuiness (supra) it is directed towards the ‘effect’ a disclosure would have in the way the NSW Police operates. In this application, on the information provided by the Commissioner, I am not satisfied that the disclosure of the deletions in the PSARC panel would have the necessary effect on the operations of the NSW Police Service in recruiting its officers. The information in the first deletion is clearly personal information which is exempt under clause 6 of Schedule 1 of the FOI Act. However, that exemption does not apply to information concerning the FOI applicant.
35 In the event I am incorrect in my finding in regard to the ‘effect’ the disclosure would have on the ‘effective performance’ of the Commissioner’s functions, I am nevertheless not satisfied that in this application that the balance of the public interest lies in the non disclosure of this and the other deleted material. As I have mentioned the first deletion is information concerning Mr Vella. In my opinion the public interest lies in Mr Vella being granted access to this deletion.
36 In regard to the other deletion it is difficult to see how this would fall within the clause 16 exemption. Mr Vella was presumably informed who the members of the panel were as the document indicates he was interviewed by one or more of them. Nor is there any material before the Tribunal as to why disclosure of the names of the panel members would have an adverse effect, let alone substantial adverse effect, on the effective performance of the panel’s functions or the Commissioner’s functions in recruiting suitable officers.
37 The Commissioner also relied on the decision of the Tribunal in Dezfouli v Justice Health [2006] NSWADT 274 at [37] in which the Tribunal found that documents containing the names of the nursing staff of the respondent who cared for the applicant and other forensic patients at the Long Bay Prison Hospital were exempt under clause 16(a)(i)(iv) because disclosure could reasonably be expected to result in those staff being less likely to make comprehensive and accurate notes of their observations of patients.
38 In my opinion the facts in that application differ substantially to those in this application. In Dezfouli the applicant, remained a patient at Long Bay Forensic Hospital and he was receiving ongoing care from the nursing staff in question. That is not a situation that applies in this application.
39 Accordingly, the Commissioner has failed to satisfy the Tribunal that the deletions in the PSARC panel’s record of its interview (minutes of the Assessment Review Committee) with Mr Vella is exempt.
Is the decision of the Commissioner the correct and preferred decision?
40 In light of my findings that the deletions to the document that is the PSARC panel’s record of its interview (minutes of the Assessment Review Committee) with Mr Vella are not exempt, I find that the decision of the Commissioner’s delegate to refuse Mr Vella access to these is not the correct and preferred decision and should be set aside and in substitution thereof a decision that Mr Vella be granted access to those deletions.
41 In regard to the other documents which I have found to be exempt, I am required to apply the principles set out by Nicholas J in University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] and [103].
42 In that decision, Nicholas J held that section 63 of the ADT Act vested the Tribunal with a discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it. This discretion arises by reason of section 25(1)(a) of the FOI Act which confers a discretion on an agency to provide access to a document notwithstanding that the document is an exempt document. The discretion should of course be exercised in accordance with the objectives of the FOI Act which has public interest considerations at its core.
43 In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds justifying the exercise of the override discretion to grant access to a document that is found to be exempt. At [27] the President set out some of the factors relevant to the exercise of the discretion as follows:
- whether the exempt matter was, by other means, in the public domain,
- whether the circumstances that have made the exempt matters sensitive at the time it was refused remain current or significant,
- the nature of the Government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity,
- the public interest in an informal debate on issues of significance to the community,
- whether there were adverse consequences for the proper administration of government, and their extent,
- whether any adverse consequence is remote or innocuous
44 I have considered the abovementioned factors in regard to the exemptions claimed by the Commissioner and in my opinion, the correct and preferred decision is to refuse Mr Vella access to the two documents that have been found to be exempt under clause 13(b). There is no evidence that this information is otherwise in the public domain. The information was obtained in confidence and is of a sensitive nature which the people concerned are unlikely to agree to be disclosed. There is otherwise no material before the Tribunal which would justify granting access to the information contained in these documents. Accordingly the decision of the Commissioner’s delegate in regard to these documents should be affirmed.
Orders
The Tribunal orders:
1. The Commissioner’s decision to refuse Mr Vella access to the documents containing information the Commissioner obtained from a neighbour and employer is affirmed
2. The Commissioners decision to refuse Mr Vella access to the deletions in the PSARC panel’s record of interview (i.e. minutes of the Assessment Review Committee) is set aside and in substitution thereof a decision that Mr Vella be granted access to these deletions within 28 days of this decision.
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