X v Director-General, Department of Community Services

[1999] NSWADT 141

CITATION:	X -v- Director- General, Department of Community Services [1999] NSWADT 141
DIVISION:	General
APPLICANT:	X
RESPONDENT:	Director-General, Department of Community Services
FILE NUMBER:	993062
HEARING DATES:
SUBMISSIONS CLOSED:	12/14/1999
DATE OF DECISION:	30 December 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Freedom of Information Act 1989
APPLICATION:	Review of decision to refuse access to documents (or part thereof) -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: In person Respondent: J Rowe, solicitor, Department of Community Services
ORDERS:	1.The decision under review - is affirmed in relation to the decision to refuse access to the deleted material contained in folios 1, 3 and 5 - and, otherwise, is set aside. 2. The agency is to give the applicant access to all documents in dispute other than the deleted material contained in folios 1, 3 and 5.

1 X (‘the applicant’) seeks review of a decision made under the Freedom of Information Act 1989 (‘the FOI Act’) by the Department of Community Services (the agency) to refuse him access to certain documents.

2 The documents are contained in a child protection file. The relate to two notifications, one from a member of the public in April 1997, the other from a police officer who attended an incident at the home of Mrs X and their children in April 1998, where X no longer resided. (X’s name is not used in this decision so as to protect the identity of his wife and children.)

3 The applicant’s request is for access to all documents contained in the child protection file. The decision under review was made following internal review on 28 May 1998 by Ms Linda Mallett, Area Manager, South West Sydney. On behalf of the agency, she granted access in full to 40 of the 56 folios in its file. Four folios were withheld in their entirety, all copies of Police Service communications. The remaining twelve folios comprised documents generated by the agency that were released subject to limited deletions.

4 The agency has released all information relating to its own officers’ interviews and their assessments of the allegations contained in the two notifications. All of the information withheld concerns information supplied by third parties. In two instances the agency has protected the identity of the third party but not the content of their communications (except in so far as that content might assist in identification). In the third case the content of the communications is protected but not identity.

History of Application before Agency and the Tribunal

5 The agency made its initial decision on 30 April 1998. At that time it only responded in relation to documents connected with the first notification. In the course of undertaking internal review, documents relating to the second notification were identified. As a result the decision on internal review, the decision under review, covered documents relevant to both notifications.

6 The applicant complained to the Ombudsman over these decisions. The Ombudsman reported to the applicant on its investigation by letter dated 28 January 1999. On 15 April 1999 the applicant lodged an application for review of the agency’s decision with the Tribunal. The agency filed written submissions in support of its decision on 1 June 1999.

7 The application was listed for hearing on 17 July 1999 before Deputy President Hennessy. The applicant objected to Hennessy DP sitting, because she had recently dealt with another matter to which he was a party in her capacity as Divisional Head of the Community Services Division of the Tribunal. Hennessy DP withdrew, and after consultation between the Registrar and the applicant and the agency, it was agreed to submit the matter to me for determination on the papers including documents received as exhibits at the hearing before Hennessy DP. That occurred on 17 August 1999.

8 In his application for review, and subsequent correspondence with the Tribunal the applicant has expressed concerns in relation to the impartiality of the officers in the agency who handled his FOI requests. These officers were also involved in the care and protection issues involving his children. These are matters going to the quality of administration of the FOI function, and were investigated by the Ombudsman’s office giving rise to a report to him and the agency in January 1999.

9 I do not propose to revisit that area of dispute between the applicant and the agency.

10 The concerns have been addressed by the Ombudsman, and go beyond the question of the applicability of the exemptions.

Role of Tribunal

11 The task for the Tribunal is to determine whether a decision the subject of review is the ‘correct and preferable’ one: Tribunal Act, s 63(1). First, it must satisfy itself that the exemption invoked by the agency is one that is applicable to the documents in dispute. Secondly, it must satisfy itself that the agency properly exercised its discretion conferred by s 25(1) of the FOI Act to invoke the exemption in the circumstances of the case. The Tribunal’s powers in relation to the decision under review are set out in s 63(3) of the Tribunal Act.

12 Agency discretion, and consequently Tribunal discretion, is limited in one respect. An agency is obliged to refuse access to a restricted document that is the subject of a Ministerial certificate: s 25(3). Restricted documents are those covered by Part 1 of Schedule 1 of the FOI Act, being Cabinet documents (cl 1), Executive Council documents (cl 2) and Documents affecting Law Enforcement and Public Safety (cl 4). One of these exemptions is invoked in this case, cl 4, but no Ministerial certificate has issued.

Exemptions Relied Upon

13 In its main submissions to the Tribunal the agency separated the documents to which access had been wholly denied from those to which access had been partly denied. This categorisation corresponded to the agency source of the document.

14 The four fully-withheld documents originated in the Police Service and related to the second notification. The agency relied on the exemptions contained in cl 4(1)(c) and cl 13(b) (information received in confidence) of the FOI Act.

15 All the other documents in issue originated in the agency. Three of the documents related to the first notification, while the remaining nine related to the second notification. In these instances the agency relied on cl 4(1)(b), cl 4(1)(h), cl 12 and cl 13(b).

16 In the case of the first notification, what was sought to be protected was information that might reveal the identity of an anonymous informant who is a member of the public. In the case of the second notification, there are two types of information that were deleted. The first related to the identity and work location of an informant who is known to be a police officer. The second related to the contents of a short statement made to the police by Mrs X (now separated) on the occasion of the incident involving X at the family home in April 1998.

Revision of Agency’s Position

17 In the course of preparing the reasons for decision it became apparent to the Tribunal from material lodged by X that in the case of the second notification he had been provided with the information sought to be protected.

18 This had occurred as a result of FOI applications made by him to the Police Service. The information released to him included the Police records showing the identity and work location of the police officer and the contents of his separated wife’s statement.

19 This situation was drawn to the attention of the agency at my request on 7 December 1999.

20 By reply dated 14 December 1999 from its solicitor the agency indicated that it had decided to release the documents referred to in this decision as folios 41, 42, 43 and 44 with the notifier details removed. Folio 41 is the New South Wales Police Service’s computer record on its COPS system containing the police report following attendance at the incident at the home of Mrs X and the children on 5 April 1998.

21 The net effect is that the agency is now willing to release Mrs X’s statement as it appears in that record, one generated by the New South Wales Police Service. However the agency maintains its position that Mrs X’s statement as it appears in folio 48 should be withheld. Folio 48 is the agency’s key document - the notification intake summary.

22 It also wishes to continue to protect the identity of the notifying officer, though it is plain that his identity can readily be discerned by comparing the full text of folio 41 as released to the applicant by the New South Wales Police Service, with the deleted text of folio 41 as released to him by the agency.

23 For convenience I will begin by dealing with the information in issue in relation to the first notification and then deal with the information in issue in relation to the second notification, dividing the Police Service documents from the agency documents.

Documents relating to the First Notification

24 These documents relate to an anonymous report received on 3 April 1997 making allegations against X. The information includes circumstantial information which might enable the notifier to be identified. That material has been deleted. The substance of these documents was made available.

25 In his submissions to the Tribunal the applicant says that he knows who the anonymous informant is. He says that he should be entitled to receive that information under the FOI Act because following a visit by agency officers to his home in May 1997 no further action was taken and because the report was malicious.

26 Clause 4(1)(b) - the Law enforcement Exemption: Protection of Identity of Informant: The Tribunal has indicated in earlier decisions that it is open to agencies responsible for enforcing the law to withhold information relating to the identity of informants: see, e.g., Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35.

27 Clause 4(1)(b) 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.”
28 The agency is responsible for investigating reports of alleged child abuse. Its function is one of the utmost importance for the protection and well-being of children. I accept its submission that it is vital to its effectiveness that it be able to assure anonymous informants that it will not reveal information that might assist in identifying the informant.

29 As explained in Mauger the mere fact that no further action is taken on a complaint is not enough to justify releasing the identity of an informant. Cases may not be pursued for a variety of reasons. In this case, the agency was unable by interview to obtain any confirmation of the information received. But the behaviour of the applicant and his wife at the time of the visit and as reflected in subsequent correspondence gave the agency some concern that they did not appreciate the nature of the agency’s role and may not have been candid.

30 In Mauger I also dealt with the question of the extent to which the exemption should apply in the case of false and malicious complaints. I endorsed the Ombudsman’s Guidelines to the effect malicious complaints should not be protected. I indicated that on the question of whether malice was present the Tribunal should be guided by the opinion of the agency. It was in the best position to judge the legitimacy or otherwise of the report or complaint. In this case, the agency did not form the view that the report was malicious.

31 I am satisfied that this case is one where the agency is entitled to rely on the exemption so as to withhold material which might assist in identifying the anonymous informant.

32 I am satisfied that the agency properly exercised its discretion to rely on the exemption conferred by cl 4(1)(b).

33 Other exemptions: I do not consider it necessary to go on to deal with the other exemptions invoked. (These exemptions, cl 4(h), cl 12(1) and cl 13(b) are examined below in the context of the information sought to be withheld in relation to the second notification.)

Documents relating to the Second Notification

34 Background: By the time of the second notification in April 1998, X and his wife were separated. The couple’s three daughters continued to live in the family home with their mother. The second notification occurred after police from Campbelltown Police Station attended at an incident on 5 April 1998 at the home. X had gone to the house. X was found to be behaving violently.

35 Some of these events were witnessed by the police. The violence described included an assault by the applicant on Mrs X and damage to household possessions (in particular a computer). Some occurred in front of the children. The notifier’s report indicates that the applicant was questioned, placed under arrest and conveyed to Campbelltown Police Station. A charge of assault occasioning actual bodily harm was raised. The charge was withdrawn on 29 July 1997 at Campbelltown Court ‘after representations made’ (see letter from Clerk of the Local Court to the applicant dated 22 June 1999).

36 Following the revision of its position on 14 December 1999 the agency now only seeks to withhold parts of folios 41, 42, 43 and 44.

37 As to folios 45, 46, 48, 49, 50, 51, 52, 54 and 56, the agency continues to wish to exempt the identifying information in relation to the notifying police officer and the statement by Mrs X contained in folio 48.

38 On the other hand the agency no longer opposes the release of the same text of Mrs X’s statement as it appears in the Police Service document, folio 41.

39 Folio 48 is the key document relating to the second notification. It is the official notification intake report. Only the references to the identity of the notifier and a statement of two sentences from Mrs X have been deleted. It is plain from the remainder, which is the bulk of the document, that the notification emanated from police attending the incident at the home on 5 April 1998. The agency’s submission reflects the understanding that the notifier was an attending police officer (see written submission filed 1 June 1999, para 3.1).

The Documents Originating from the Police Service

40 As noted earlier, folios 41, 42, 43 and 44 are New South Wales Police Service documents - folio 41 a COPS system entry, folio 42 a ‘Campbelltown Police Station’ fax cover sheet, folio 43 a form headed Police Notification of Suspected Child Abuse or Neglect and folio 44 a ‘NSW Police Service Campbelltown’ fax cover sheet.

41 Clause 4(1)(c) - Law Enforcement Exemption: Threat to Safety: The agency relies on clause 4(1)(c) which confers protection on information -

‘the disclosure of which could reasonably be expected: … to endanger the life or physical safety of any person’.

42 In para 1.4 of its submissions dated 10 August 1999, the agency stated -

‘Given the circumstances of actual violence towards his wife and threatened violence surrounding the second notification and the wish of the police notifier to be unidentified, the department decided that the police service documents should be exempt documents.’

43 No persuasive evidence was presented to demonstrate that X represented an ongoing threat to the life or physical safety of any person.

44 I am not satisfied that this exemption applies.

45 Clause 13(b) Confidential Information Exemption: The agency also relies on clause 13(b) which provides:

“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.”

46 The information to which this exemption is sought to be applied is the name and work location of the notifying police officer.

47 This exemption focuses on the ‘obtaining’ of the information. In its submissions the agency referred to the importance of its child abuse notification system, and the legislative safeguards which surround it, emphasising the confidential nature of the system. The information supplied by the police was provided in the performance of their public duties.

48 I am satisfied that the information, though given as a matter of public duty, can be classed as being ‘obtained in confidence’.

49 More problematic are the questions of whether disclosure of information of the kind in issue in this case would prejudice the future supply of such information and disclosure would, on balance, be contrary to the public interest.

50 I do not regard this as a case where future supply of information could be said to be at risk. The identity information is that of a police officer who attended the scene and was involved in the arrest. He is known necessarily to the applicant; as is the fact that he or one of the other attending officers made the notification. The work location information simply indicated the police station and district where he is based. This is usual information given by police officers. There was no evidence or material before me in relation to the Police Service’s attitude to the matter. I only had before me the assertions of the agency on the matter and its assertions as to the attitude of the officer in relation to release.

51 Given the degree of information already available to X, I am not satisfied that there is any real likelihood of prejudice to the future supply of notifications by police if, in this case, the identity of the notifier and related details that have been withheld are released.

52 In light of this conclusion it is not necessary to consider sub-paragraph (iii), the public interest test.

Agency Originated Records

53 Clause 4(1)(b) - Law Enforcement Exemption: Protection of Identity of Informant: As to cl 4(1)(b), cited in full at para 27, I am satisfied that the scheme reflected in s 22 of the Children (Care and Protection) Act 1987 (the Protection Act) in relation to child abuse notifications is one designed to support the confidentiality of notifications. One can readily envisage circumstances where a police notification would be made in confidence, for example, one made after an investigation or because of a surveillance operation.

54 In the present case the police attended the scene of an event and made a report in relation to the possibility that children were at risk. This report was made in the course of their ordinary work. It was supplied to an agency which handles all such reports on a confidential basis.

55 That is appropriate given the sensitivity of the allegations, the need to respect the privacy of all affected by the contents of the report and the need to ensure that any agency investigation can be conducted in a discreet way. I also note that s 22(8) of the Protection Act makes the report inadmissible as evidence, showing the level of immunity from disclosure that the Parliament wishes to foster.

56 But that is not sufficient to convert all those who lodge reports with a system that applies strict confidentiality to its operations into a “confidential source of information”. It remains necessary to ascertain whether in the circumstances the informant can be said to be a “confidential source of information”. See generally Department of Health v Jephcott (1985) 62 ALR 421 at 425 per Forster J.

57 In the present instance the officer attending the scene of an event has followed up his inquiries and investigation by having charges laid and making a report to a relevant authority.

58 There is only limited material before the Tribunal to suggest that the officer involved in this case was concerned to keep his identity confidential at the time he made the report; as to the need for persuasive evidence on this point, see Re Liddell (1989) 20 ALD 259. It is also the case that the agency has made it known, by releasing folio 48 and now by releasing most of folio 41, that the notification derived from the police attendance.

59 I am not satisfied that the police officer in these circumstances can be regarded as a ‘confidential source of information’ for the purposes of cl 4(1)(b).

60 So far as Mrs X’s statement recorded in folio 48 is concerned, I do not regard cl 4(1)(b) as applicable. Her identity is clearly known. She can not be regarded in the circumstances as a confidential source of information.

61 This exemption is not applicable in the circumstances to either category of information.

62 Clause 4(1)(h) - Law Enforcement Exemption: System or Procedure: Clause 4(1)(h) protects information the disclosure of which ‘could reasonably be expected … to prejudice any system or procedure for the protection of persons or property.’ Again I have no evidence before me as to what prejudicial effect is perceived to be likely to arise.

63 The release of the notifying police officer’s name and work location in the circumstances of this case is not, I consider, likely to prejudice the procedures for notification of children considered to be at risk of abuse.

64 Clause 12(1) - Secrecy Provisions Exemption: This exemption permits protection to be afforded to information that falls within the scope of an agency’s secrecy provisions. Clause 12 of Schedule 1 provides:

“(1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions.”

65 As noted earlier, child protection notification information is the subject of detailed regulation in by s 22 of the Protection Act.

66 Section 22 places a mandatory obligation to report on persons who have dealings with families and children by virtue of their profession. It is an offence for these persons to breach their duty. This is not such a case.

67 In this case the voluntary reporting elements of s 22 apply, and they have been referred to above. There are no offence provisions connected to failure to make a voluntary report. In this case the anonymous informant and the police officer belong to the voluntary reporting framework, though a police officer has a general duty to uphold the law from which duties flow.

68 More significantly, the agency also refers to s 115 of the Protection Act. Section 115 provides:

“115 Disclosure of information

A person who discloses any information obtained in connection with the administration or execution of this Act is guilty of an offence unless the disclosure is made:

(a) with the consent of the person from whom the information was obtained,

(b) in connection with the administration or execution of this Act,

(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings,

(d) in accordance with a requirement imposed under the Ombudsman Act 1974,

(e) with other lawful excuse.”

69 Commentators have noted that the New South Wales secrecy provisions exemption is wider in scope than the equivalent Commonwealth and Victorian provisions. The latter provisions limited the operation of the secrecy provisions exemption, but require that the offence provision identify specific information that is protected. Commentators have considered that the New South Wales secrecy provisions exemption is more protective: see e.g. Cossins, Annotated Freedom of Information Act New South Wales (1997) at [112.5]. These views were expressed prior to the enactment of the Tribunal Act and the repeal of the provision restricting the District Court’s powers on review, as to which see the Mangoplah case, cited later.

70 On the face of it s 115 applies to all the information obtained by the agency in connection with its child protection function. But as this case demonstrates, the agency does not apply this provision indiscriminately to all its records so as to preclude all release under the FOI Act. It has in this case been responsive and provided a significant degree of access to the information requested.

71 As noted earlier, its concern has been to protect the identity of its informants or sensitive information provided by an informant whose identity is known.

72 As the Tribunal stands in the shoes of the administrator in exercising its powers, it should have regard to s 115 but remain free to exercise the discretion given by s 25 of the FOI Act to release the documents even though they may contain exempt material.

73 I am satisfied that the Tribunal should perform its usual review function in FOI cases, of ascertaining what the correct and preferable decision in the circumstances. In that regard I adopt the reasoning of Mr Smith, Judicial Member in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85].

74 In the present case I am satisfied that the information sought to be protected is information that falls within the scope of s 115, and therefore it is open to the agency to invoke the exemption. But I am not satisfied that it should have exercised its discretion in the way it did in this case.

75 In the present case the level of information already available in the agency material released to the applicant is such that it can readily be inferred who the police informant was. Moreover the Police Service material released to him also makes for a ready inference. Therefore it is difficult to discern any adverse effect that could flow to the proper administration of government (as to which, see Mr Smith in Mangoplah at [90] and [91]) from release of this information in this case.

76 While non-disclosure of notifier identity information is critical to the effective operation of a child abuse notification scheme, it does not follow that the non-disclosure must occur in all cases.

77 Clause 13(b) - the Confidential Information Exemption: As to the police notifier identity information, I refer to my earlier discussion in relation to the information contained in the Police Service records. For the reasons given there, I do not regard this exemption as applicable.

78 Turning to Mrs X’s statement as recorded in folio 48. She gave her statement after being the victim of an assault. I am satisfied that it should be regarded as information given in confidence. I am also satisfied that disclosure of this kind of information could reasonably be expected to prejudice the future supply of such information to Police and, in turn, through notification procedures, to the agency.

79 The difficulty presented in this case arises from the third requirement that has to be satisfied before the exemption is invoked - the requirement that ‘disclosure would, on balance, be contrary to the public interest’. In this instance I am not satisfied that that would be the case. The statement has already been released to the applicant by the Police Service. Its contents are known to the applicant.

Conclusion

80 I am satisfied that the agency should not disclose, in relation to the first notification, the information relating to the anonymous informer who is an ordinary member of the public. In the case of the second notification, I am not satisfied that the information relating to the identity details of the notifying police officer should be refused. Nor am I satisfied that Mrs X’s statement should be refused.

Determination

81 The decision under review

- is affirmed in relation to the decision to refuse access to the deleted material contained in folios 1, 3 and 5

- and, otherwise, is set aside.

82 The agency is to give the applicant access to all documents in dispute other than the deleted material contained in folios 1, 3 and 5.