Vranic v Director-General, Department of Community Services

[2001] NSWADT 129

CITATION:	Vranic -v- Director-General, Department of Community Services [2001] NSWADT 129
DIVISION:	General Division
PARTIES:	APPLICANT Ljubica Vranic RESPONDENT Director-General, Department of Community Services
FILE NUMBER:	003375
HEARING DATES:	14/03/2001
SUBMISSIONS CLOSED:	03/26/2001
DATE OF DECISION:	08/09/2001
BEFORE:	Britton A - Judicial Member
APPLICATION:	access to documents - adequacy of search - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - law enforcement & public safety
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Children (Care and Protection) Act 1987
CASES CITED:	Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Re Hancock and Department of Resources and Energy (1986) 10 ALN N65 McKenzie v Secretary to the Department of Social Security (1986) 65 ALR 645 Latham v Director General, Department of Community Services [2000] NSWADT 58 Ingram v General Manager, Sutherland Shire Council [2000] NSWADT 69 Maugher v General Manager, Wingecarribbee Shire Council [1999] NSWADT 35 Re McEneiry and Medical Board of Queensland (1994) 1 QAR Accident Compensation Commission v Croom [1991] 2 VR 322 Re Gold (1994) 37 ALD 168 Kennedy v Police Commissioner of NSW [2001] NSWADT 39 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Rittau v Commissioner of Police [2000] NSWADT 186 Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11
REPRESENTATION:	APPLICANT In person RESPONDENT J Korathota, solicitor
ORDERS:	1 The agency's decision to refuse access to the documents in dispute is affirmed; 2 All exempt material to be returned to J Korathota, solicitor for the agency within twenty eight days of the date of this decision

1 The applicant in this matter, Ljubica Vranic seeks review of a decision made by a delegate of the Director-General of the Department of Community Services refusing to grant access to documents requested by her under the Freedom of Information Act 1989 (the Act). Mrs Vranic seeks access to all documents relating to her family, and particularly documents relating to the alleged removal of her children by the police in about June 1994.

2 The issue for the Tribunal to determine is whether the Director- General's delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s63(1) of the Administrative Decisions Tribunal Act (NSW) 1997 (the Tribunal Act).

3 The Tribunal has jurisdiction to review this decision pursuant to s 38 of the Tribunal Act and s 53 of the Act.

History of Application before Agency and Tribunal

4 On 21 July 2000 the applicant applied to the Department of Community Services (DOCS) for all documents relating to the alleged removal by police of her children, in particular her daughter, Julijana, from her home in about June 1994.

5 By notice dated 26 September 2000 a delegate of the Director- General of DOCS advised the applicant of the decision to refuse to grant access in full to the documents requested by her (the original decision). That notice advised that an eleven-page file relevant to the application, had been identified. All but three documents from this file were released in full. Folios 1 and 2 were released with notifier details deleted. Subsequently these two folios were released in full. Access to Folio 3 was refused.

6 Mrs Vranic sought a review of that decision. By way of notice dated 10 November 2000 Mrs Vranic was advised that an internal review had been conducted and the original decision affirmed.

7 At a planning meeting held on 31 January 2001 before Deputy President Hennessy, Mrs Vranic insisted that some documents relevant to her application must be held by the Lismore DOCS office as she had had extensive dealings with that office throughout 1994, the time her children were allegedly removed from her care (the relevant period). Deputy President Hennessy directed that the respondent file evidence of due search and enquiry in respect of the applicant.

8 Subsequently the DOCS located a second (unregistered) file relevant to Mrs Vranic’s request (the Lismore file) and determined that all but one folio (Folio 3) from this file should be released in full. (Folio 3 is the same document to which Mrs Vranic was originally refused access). Mrs Vranic was advised of this by notice dated 12 February 2001.

Scheme of the Act

9 The objects of this Act set out in s 5, are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government; and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading.
10 Section 16 of the Act gives individuals a legally enforceable right to be given access to an agency’s documents in accordance with the Act.

11 An agency may refuse access to a document if it is an “exempt document”: s 25(1)(a) of the Act. Section 6(1) of the Act defines an “exempt document” to include a document referred to in Schedule 1. The agency has the burden of proving that their determination is justified: s 61 of the Act.

12 In this matter the key exemption relied upon by the respondent is Schedule 1, clause 4(1)(b) and Schedule 1 clause 12(1)

13 Schedule 1, clause 4 relevantly provides:

(1) A document is an exempt document if it contains matter, the disclosure of which could reasonably be expected:
(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law to be ascertained, or
(2) A document is not an exempt document by virtue of subclause (1):
(a) if it merely consists of:
(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or
(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or
(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and
(b) if disclosure of the document would, on balance, be in the public interest.
14 Section 25(4) of the FOI Act provides that:
An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether 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.
Preliminary Matter

15 Mrs Vranic maintains that documents in addition to those contained in the Lismore and Griffith file continue to be “held” by the respondent. She asserts that the respondent’s claim that no documents can be found is simply implausible. In support of this contention, Mrs Vranic points to the fact that following the January 2001 case conference a voluminous file was uncovered, despite the respondent’s earlier assurance that no such documents existed.

16 While the Department concedes that there were shortcomings in the original search for documents requested by Mrs Vranic, Ms Korathota submits that the evidence shows that following Deputy President Hennessy’s direction an exhaustive and comprehensive search has been conducted. Notwithstanding these renewed efforts, no further documents have been found.

17 The Act does not specifically address whether a decision by an agency to refuse documents on the ground they cannot be found is reviewable by the Tribunal. Nor does the Act grant the Tribunal express power to direct that a search for documents be undertaken, in circumstances where an agency claims no documents can be located. Mrs Vranic’s submission therefore raises two issues. First, whether the Tribunal has jurisdiction to review the respondent’s most recent decision not to grant access to documents on the ground that no such documents exist. Second, if so, whether the Tribunal’s power extends to a review of the adequacy of the search.

18 These issues were canvassed in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52. In that decision, Judicial Member Smith examined in detail the scheme of the FOI Act and concluded [at 18]:

“ … an application to the Tribunal under s 53(1) of the FOI Act can extend to seeking review of a determination under s 24 which refuses to give access to one or more documents described in an application under s 17 on the ground that such a document is not, or such documents are not, "held" by the agency by reason of their non-existence or otherwise.”
19 Further in that decision Judicial Member Smith stated that the Tribunal’s jurisdiction extended to examining an agency’s failure to identify and locate documents requested pursuant to the Act, citing with approval the test set out by the Administrative Appeals Tribunal in Re Hancock and Department of Resources and Energy (1986) 10 ALN N65: “the task before the Tribunal will be to decide whether the search undertaken was a sufficient one in all the circumstances.”

20 I intend to adopt that approach in this decision.

Evidence: Adequacy of Search

21 Ms Bothwell, the Department’s FOI Coordinator gave evidence concerning the steps taken by the DOCS to locate the documents requested by Mrs Vranic.

22 Ms Bothwell stated that following Mrs Vranic’s FOI application she searched the Department’s central computer records which contained a register of all files. That index, identified one relevant file, namely the Griffith file. Subsequently on 26 September 2000 this file was disclosed in part to Mrs Vranic.

23 According to Ms Bothwell, Mrs Vranic later advised that throughout the relevant period she had extensive dealings with DOCS’ Lismore Office. Consequently Ms Bothwell said she contacted that office and was advised that the Lismore office held no documents or any record concerning Mrs Vranic.

24 Ms Bothwell gave evidence that she then searched DOCS’ Central Record System for a second time and checked the Ministerial and Director General Data base. This search failed to identify any documents apart from those contained in the Griffith file.

25 Following the January case conference Ms Bothwell said she made renewed attempts to locate the requested documents and again contacted DOCS’ Lismore office and found that a new manager had been appointed. The new manager conducted a search and found a loose collection of documents relevant to Mrs Vranic’s request in the desk drawer of a DOCS officer. That file was unregistered and did not form part of that office’s formal records. According to Ms Bothwell this treatment of the documents breached relevant DOCS guidelines.

26 Ms Bothwell said she then instructed the DOCS’ Lismore area manager to conduct further searches of other offices in the Far North Coast region. According to Ms Bothwell these searches failed to uncover any further documents relevant to Ms Vranic’s request.

27 In February 2001 the Department wrote to the Lismore Local Court, Lismore Local Police and the FOI Unit of the NSW Police Force requesting any information relevant to Mrs Vranic’s allegation about the alleged removal of her daughters from her care. All three agencies advised they had no such information.

Findings and Conclusions: Adequacy of Search

28 I am satisfied on the evidence before me that the search undertaken by the respondent following Deputy President Hennessy’s direction was sufficient in the circumstances. I note that the DOCS has now searched not only its own records but also made enquiries of other relevant agencies. I further note that following the revelation of the unregistered file, Ms Bothwell has gone to considerable lengths to uncover further documents, including a broadcast email to all staff and a direct request to DOCS offices in the Far North coast region.

29 However while the evidence establishes that Ms Bothwell has made a genuine attempt to locate relevant documents, the existence of an informal and unregistered file held amongst the personal belongings of a Departmental officer raises serious concerns about the respondent’s record-keeping practices. It is self-evident that the objectives of the Act will be frustrated unless documents held by agencies covered by the Act are properly recorded and managed, not only by those charged with specific responsibility for matters pertaining to the administration of the Act, but by all employees and agents of the Department. Public accountability demands that individual officers exercise appropriate care and diligence to ensure that proper records are kept and maintained. Further it is incumbent on the Department to take all necessary steps to ensure that appropriate record keeping policies are in place and staff compliance with these policies is regularly monitored. Ms Bothwell advised the Tribunal that the Department is implementing measures to ensure that the Lismore file incident is not repeated.

Exemptions relied on by Agency
30 The Department contends that Folio 3 is an exempt document and accordingly it has discretion to refuse access. Specifically the Department contends that the document falls within the following provisions of Schedule 1 of the Act:
Clause 4(1) (b)- Law enforcement exemption: Protection of identity of an informant;
Clause 12(1)- Secrecy provisions exemption;
Clause 6(1): Personal affairs exemption;
Clause 13(a): Documents containing confidential material;
Clause 4(1) (b)- Law enforcement exemption: Protection of identity of an informant

31 Ms Korathota submits for the respondent that Folio 3 is an exempt document pursuant to Schedule 1, Clause 4(1) (b) of the Act. To rely on this exemption the Department must establish first, that the information contained in Folio 3 was supplied in confidence; second, that the information supplied relates to the enforcement or administration of the law; and third, that the disclosure of this information could reasonably be expected to enable the “existence or identity of any confidential source of information… to be ascertained” ( McKenzie v Secretary to the Department of Social Security (1986) 65 ALR 645; Latham v Director General, Department of Community Services [2000] NSWADT 58; Ingram -v- General Manager, Sutherland Shire Council [2000] NSWADT 69).

32 The first issue to be determined is whether the information was supplied in confidence. The Department does not contend that the person who provided the information contained in Folio 3 (the informant) provided it under an express agreement that the information was given in confidence and would not be disclosed. Rather, Ms Korathota submits that confidentiality must be implied from the circumstances, namely, the apparent reason the third party supplied the information; the nature of that information, and the circumstances in which it was conveyed to the Department.

33 In Maugher v General Manager, Wingecarribbee Shire Council [1999] NSWADT 35 the Tribunal considered in some detail the law enforcement exemption. In that decision, President K.P. O’Connor, DCJ discussed the operation of Schedule 1 clause 4 and concluded [at 34] that “External review tribunals and commissioners in other jurisdictions have consistently supported an interpretation of the law enforcement exemption which protects the identity of informants”

34 Further in that decision President O’Connor quoted with approval the following passage from Re McEneiry and Medical Board of Queensland (1994) 1 QAR at 371:

"The determination of whether the relevant information was supplied by the informant and received by the respondent on the implicit understanding that the informant's identity would remain confidential (and hence whether the informant qualifies as a confidential source of information ...) requires a careful evaluation of all the relevant circumstances including, inter alia, the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer, whether it could reasonably have been understood by the informant and the recipient that the appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential ... ."
35 The respondent tendered in evidence on a confidential basis, Folio 3 and an affidavit prepared by Ms Korathota dated 14 March 2001. Neither document was provided to the applicant. Section 55 of the Act provides that the Tribunal may consider evidence and submissions in the absence of the parties where this is necessary to prevent disclosure of matter claimed to be exempt.

36 On the basis of these documents and other relevant material I am satisfied that despite the absence of any express agreement relating to confidentiality, the only inference that can reasonably be drawn, is that the informant or informants supplied the information now contained in Folio 3 on the implied understanding that it would remain confidential. Accordingly, I find that Folio 3 contained details of a “confidential source of information,” namely, the identity of the informant.

37 I turn now to consider whether the information contained in Folio 3 relates to the enforcement or administration of the law. In other words, does Folio 3 “ have a connection with the criminal law or with the processes of upholding or enforcing civil law?”( Accident Compensation Commission v Croom [1991] 2 VR 322; Re Gold (1994) 37 ALD 168).

38 Ms Korathota submits that the information provided by the informant or informants was added to its records and used to determine whether proceedings under the Children (Care and Protection) Act 1987 (C (C&P) Act) should be commenced. That Act charges DOCS with statutory duties relating to the care and protection of children including a discretion in appropriate circumstances to commence proceedings to remove a child from care. In my view, a determination of that issue squarely relates to the enforcement or administration of the law. Accordingly the second element of clause 4(1)(b) is made out.

39 The third element of clause 4(1)(b) requires the respondent to establish that the disclosure of Folio 3 could reasonably be expected to enable the… identity of any confidential source of information… to be ascertained. From my inspection of Folio 3 I am placed in no doubt that the disclosure of this document in full would disclose of the identity of the informant or informants. The name or names feature prominently in the document.

40 Being satisfied that the three elements of clause 4(1)(b) it remains for me to determine whether Folio 3 falls within one of the exemptions set out in clause 4(2). That clause provides that a document is not an exempt document by virtue of clause 4(1) if it merely reveals that :

(i) … that the scope of a law enforcement investigation has exceeded the limits imposed by law, or
(ii) … a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iii)… the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iv) …report/s prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or
(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation
41 Where it is established that the document falls within one of these five categories the applicant is required to establish that the disclosure of that document would, on balance, be in the public interest: Schedule 1, clause 4(2)(b). There is no evidence before me to suggest that Folio 3 merely consists of information falling within one or more of the categories set out in Schedule 1, clause 4(2)(b).

42 Accordingly I find that Folio 3 is an exempt document pursuant to Schedule 1, clause 4 of the Act. As clause 4 falls within Part 1 of Schedule 1 it is also a restricted document, as defined in s 6 of the Act.

Restricted Documents

43 I turn now to consider the submissions advanced on behalf of the Premier regarding the consequences that flow from the Folio 3 being found by me to be a restricted document. In these proceedings the Premier has made detailed submissions on two issues. First, it is submitted that if one of the issues before the Tribunal is whether a document sought by an applicant is a restricted document, and the document is not the subject of a Ministerial certificate, the Tribunal must, pursuant to s 57 of the Act, on the application of the Minister administering the Act (at present, the Premier), grant him standing to adduce evidence and advance argument in relation to the question whether reasonable grounds exist for the claim. It is argued that the Premier, therefore, has standing in this matter.

44 Secondly, the Premier contends that, in relation to restricted documents, the Tribunal has no “over ride discretion” (as it has been called in other cases).

45 Both these issues have previously been argued, considered and decided by the Tribunal. In Kennedy v Police Commissioner of NSW [2001] NSW ADT 39 Deputy President Hennessy held that it was necessary for there to be a separate invocation of s 57 by the applicant before the Tribunal was enabled to deal with the question of whether or not there were reasonable grounds for the claim by the Minister or agency that a document was restricted under the Act. The Premier’s legal representative argues that that case was wrongly decided and that no separate application need be made under s 57 before he has standing.

46 Of greater significance, however, than the question of whether s 57 must be invoked separately is the issue of what follows from a finding by the Tribunal that there are reasonable grounds upon which a claim is made that the document is a restricted one. Does it mean, as argued by the Premier, that the Tribunal has no power to override the decision-maker’s discretion once a finding has been made that a document is exempt or restricted? Or does the Tribunal have a power under s 63 of the Tribunal Act to order the disclosure of an exempt or restricted document if it determines that is the “correct and preferable decision”.

47 In Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 the Tribunal held that it had power pursuant to s 63 of the Tribunal Act to review the decision of an agency to refuse access to an exempt document. That decision was followed in Rittau v Commissioner of Police [2000] NSWADT 186, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 and other cases. There has, however, been no examination of the issue by the Appeal Panel or in the Supreme Court.

48 The Premier submits that these cases were, on that point, wrongly decided and that they are distinguishable, in any case, because they dealt only with exempt rather than restricted documents. He submits that there is no discretion to override the decision-maker’s decision in relation to the refusal to release exempt documents, notwithstanding the provisions of s 63 of the Tribunal Act.

49 These are, obviously, live issues which have not been definitively resolved by a superior court. The decisions made previously in Kennedy and the other cases cited have persuasive force only for other members of the Tribunal. Nevertheless, given that the decisions in Mangoplah, Rittau and Watkins now stand together as a body, and are not mere isolated outbreaks of judicial activism, individual Tribunal members may be expected to give weight to them, and to attempt, if appropriate in the given case to do so, to ensure consistency of decision-making. Given that it is evident that the Premier or his legal representatives take a different view from those expressed by thus far by the Tribunal in a reasonably large-sized and growing body of case law on the issues in relation to which the Crown Solicitor has advanced argument, it was open to the Premier to have these matters resolved by the Supreme Court.

50 After a review of all the evidence I have however concluded that, whether or not the Premier has standing in these proceedings, and whether or not the Tribunal has an “over ride discretion” in relation to restricted and exempt documents, it is unnecessary for me to deal with those issues in order to arrive at the appropriate determination of Mrs Vranic’s application.

51 It is abundantly clear that the decision to deny the applicant access to the document(s), which would have identified the person(s) who complained to the Department, was the correct and preferable decision.

52 If for no other reason, it was correct because the source of the information given to the Department was given confidentially, and related to the enforcement and administration of child welfare legislation. [Schedule 1, clause 4(1)(b).]

53 This decision is akin to a claim of “public interest immunity” at common law in court proceedings. The state has a significant interest in ensuring that confidential information flows to law enforcement and administrative agencies. In relation to criminal law enforcement and child welfare law enforcement, informants will frequently require anonymity before they will divulge information of crucial importance to the authorities. Confidential informers are, almost by definition, persons who have the confidence of or insider knowledge about the person(s) concerning whom they are able to give information. If identified as the source of information to the authorities not only is their capacity to garner information likely to be diminished or destroyed, but they may face retribution, even serious violence.

54 Law enforcement and child protection agencies are dependent to a large degree upon the resources and assistance of the community to maintain the peace and to ensure the safety of individual members of the community. Were persons who are willing to give information confidentially to the authorities to become aware that such information was made available to the subjects themselves, it would inevitably lead to a drying-up of the flow of information to agencies. This in turn would lead to the jeopardising of the welfare of individuals and the community as a whole.

55 The mere fact that information is given does not, of itself, make it confidential. There must be an express or implied promise of confidentiality. As previously indicated, I infer from all the circumstances that it was on the basis of a pledge of confidentiality that the information concerning Mrs Vranic’s children was supplied to the Department.

56 This is a case where the public interest in maintaining the confidentiality of the informant’s identity outweighs the applicant’s personal interest in that information. For that reason, if for no other, the application must fail.

Section 25(4) of the Act

57 Section 25(4) of the Act provides that an agency may not refuse access to the document where (a) it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) it appears to the agency (whether 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.

58 In this case it would be reasonably practical to delete the exempt material from Folio 3. However, the practical effect of removing this material would be to effectively neuter Folio 3, leaving in its place a meaningless and incomprehensible document containing no material even remotely relevant to the applicant’s request. In these circumstances it is my view that the applicant would not wish to be given access to that copy.

59 In light of my findings that Folio 3 is an exempt document pursuant to Schedule 1, clause 4 (b) of the Act it is unnecessary for me to address the parties’ submissions in relation to the other three exemptions relied on by the respondent. Even if I were to agree with the applicant in respect of all other issues, it would make no difference to the ultimate conclusion that the Director-General’s decision ought to be affirmed on the ground outlined above.

Orders
1 The agency’s decision to refuse access to the documents in dispute is affirmed.

2 All exempt material to be returned to J Korathota, solicitor for the agency within twenty-eight days of the date of this decision