XZ v Commissioner of Police

[2009] NSWADT 118

CITATION:	XZ v Commissioner of Police [2009] NSWADT 118
DIVISION:	General Division
PARTIES:	APPLICANT XZ RESPONDENT Commissioner of Police
FILE NUMBER:	063315
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	9 March 2009
DATE OF DECISION:	22 May 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - personal affairs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Freedom Of Information Act 1982 (Cwlth)
CASES CITED:	Director General, Department of Education and Training v Mullett and Randazzo (No. 2) [2002] NSWADTAP 29 Gales Holdings Pty Ltd v Tweed Shire Council (2005) NSWADT 168 Harris v Australian Broadcasting Corp (1983) 50 ALR 551 at 564; 5 ALD 545 at 556-7 McCabe v Electoral Commissioner, State Electoral Office (2003) NSWADT 24 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 News Corp Ltd v NCSC (1984) 5 FCR 88 Re Heaney and Public Service Board (1984) 6 ALD Re Hudson (1985) 63 ALR 257 Re James and Australian National University (1984) 6 ALD 687 Re Raymond John Mickelberg and Australian Federal Police [1984] AATA 425 Re Scholes v AFT (1996) at 331 Simpson v Director General, Department of Education and Training (2000) NSWADT 134 University of New South v McGuirk (no 2) [2008] NSWADTAP 8 University of New South Wales v McGuirk [2006] NSWSC 1362 XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2
REPRESENTATION:	APPLICANT V Pigott, agent RESPONDENT A Johnson, solicitor G Shirm, solicitor
ORDERS:	1. The decision under review is set aside 2. In place of the decision under review I make the fresh determination that the documents are to be released in full.

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 his confidentiality. In these reasons the Applicant is referred to as XZ. The Respondent is referred to as the Commissioner.

2 XZ applied under section 17 of the FOI Act seeking documents in the following terms:

1. All documents (in particular those on COPS, CIDS and those from Penrith and Lower Hunter LOC’s) which mention my name since my previous application dated 13 October 2004

2. Information report I 21636782

3. The following complete and amended (See Amendment Application dated 27 December 2005 and subsequent request for Internal Review Dated 31 January 2005) Information Reports:

1. Information Report I 21506454

2. Information Report I 72977195

3. Information Report I 42749101

4. Information Report I 21415570

5. Information Report I 24488485

6. Information Report I 23101463

7. Information Report I 23079765
Please note that I do not seek information which is exempt pursuant to Clause 6 of Schedule 1 of “the Act”

3 The Commissioner failed to determine the application within the 21-day period provided for under the FOI Act. Accordingly, pursuant to section 24(2) of the FOI Act, the Commissioner was deemed to have refused the application. XZ then sought an internal review in relation to the deemed refusal.

4 The Commissioner failed to determine the application for internal review within 14 days after it was received. An internal review that purported to be in respect of this application was made on 4 January 2007.

5 The Commissioner’s delegate identified 104 pages of documents that fell within the scope of the application. A copy of each of those documents has been provided to the Tribunal in the form released to XZ. The following determination was made in relation to those documents:

1. To release in full the documents at pages 13, 19-20, 48, 52-66, 83-88, 7780, 97-99, 100-102;

2. To release in full the documents at pages 10-12 with the exception of deletions to exempt material pursuant to Section 25(1)(a) and 25(4)(a) of the Act on the ground of the exemptions listed at Clause 4(1)(e) and 16(a)(iii) of Schedule 1 of the Act

3. To release in full the documents at pages 1-9, 49-51 and 91-94 with the exception of deletions to exempt material pursuant to Section 25(1)(a) and 25(4)(a) of the Act on the ground of the exemption listed at Clause 6(1) of Schedule 1;

4. To release in full the documents at pages 16-18 with the exception of deletions to exempt material pursuant to Section 25(1)(a) and 25(4)(a) of the Act on the ground of the exemptions listed at Clauses 6(1) and 16(a)(iii) of Schedule 1 of the Act;

5. To release in full the documents at pages 81-82 and 95-96 with the exception of deletions to exempt material pursuant to Section 25(1)(a) and 25(4)(a) of the Act on the ground of the exemption listed at Clause 4(1)(b) of Schedule 1 of the Act;

6. To refuse release of the documents at pages 21-47 pursuant to Section 25(1)(a) of the Act on the grounds of an exemptions listed at Clauses 9(1) and 4(1)(e) of Schedule 1 of the Act;

7. To refuse release of the documents at pages 67-76 pursuant to Section 25(1)(a) of the Act on the grounds of an exemption listed at Clause 6(1) of Schedule 1 of the Act; and

8. To refuse release of the documents at pages 89-90 and 103-104 pursuant to Section 25(1)(a) of the Act on the grounds of an exemptions listed at Clauses 4(1)(b) and 13(b) of Schedule 1 of the Act.

6 XZ applied to the Tribunal for external review of that determination. As a result of various applications subsequently made by XZ, a number of additional documents have been released. It is now common ground that this application is limited to the documents referred to in paragraphs [2] and [4] of the internal review determination i.e. pages 10-12 (“Document 1”) and pages 16-18 (“Document 2”). A copy of those documents, with the redacted portions highlighted, has been filed with the Tribunal.

Relevant Legislation

7 Section 5 of the FOI Act relevantly provides:

“5 Objects

(1) The objects of this Act 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.

(2) The means by which it is intended that these objects are to be achieved are:

(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and

(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(3) It is the intention of Parliament:

(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and

(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.”

8 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 Act.

9 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(4)(a) provides, in part, that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted.

10 Clauses 4(1) of Schedule 1 of the FOI Act provides in part:

“4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be 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),”

11 Clause 6(1) of Schedule 1 of the FOI Act provides:

6 Documents affecting personal affairs

(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.

12 Clause 16 of Schedule 1 of the FOI Act provides:

16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

…

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel, or

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency’s functions, or

... and

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

13 This matter is to be determined on the basis of the written material filed by the parties. The Commissioner relies on the reasons provided for the internal review determination and written submissions provided by Ms Johnson and Ms Shirm.

Document 1

14 The Commissioner’s delegate determined that Document 1 was partially exempt pursuant to clauses 4(1)(e) and 16(a)(iii) of Schedule 1 to the FOI Act and granted partial access pursuant to section 25(4)(a) of the FOI Act. Exemption is also now claimed under clause 16(a)(iv) of Schedule 1. Ms Johnson submitted:

13. For a document to be exempt under cl. 4(1)(e), the respondent must show that disclosure could reasonably be expect 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).

14. In Re Raymond John Mickelberg and Australian Federal Police [1984] AATA 425, dealt with an application for all documents held in relation to him. In upholding the agency's decision in claiming exemption over some of those documents, the AAT commented:

"...it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies' own documents or in the proceedings of a Tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them."
15. Members of the public may have a view about the way in which "beats" are policed in New South Wales, but they cannot be sure that those views are accurate unless they are confirmed by the agency's own documents.

16. It is plain from the face of the document that the edited portions of that document deal with policing strategies and thus the NSW Police's methods and procedures for policing "beats" and protecting the members of the community who frequent them. The document indicates when and how this policing is to take place. In his internal review decision dated 4 January 2007, Inspector Philippi said that the information is of a highly sensitive nature and of great value to operational police officers. Inspector Philippi says that the disclosure of this information may assist criminally minded individuals to evade detection, so that disclosure would have a negative impact on the Police's ability to effectively enforce the law. The document is therefore properly exempt under cl. 4(1)(e).

15 Ms Shirm provided additional submissions on behalf of the Commissioner in view of the Appeal Panel's decision in XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2 (“XZ v Commissioner of Police”). The Appeal Panel stated at paragraphs [21] – [24]:

“21 ... The exemption in clause 4(1)(e) undoubtedly covers the disclosure of the methods or procedures themselves as long as they are not commonplace or well known: Re Lawless and Secretary to Law Department (1985) 1 VAR 42; Re Russo and Australian Securities Commission (1992) 28 ALD 354 at 357. Ms Johnson conceded that the practice of obtaining information through informants whose identity remains confidential is so well known and routine that disclosure of that method or procedure could not reasonably be expected to prevent its effectiveness.

22 It is less clear whether the exemption covers disclosures which would indirectly prejudice the effectiveness of the methods or procedures. Ms Johnson’s submission was that the Crime Stoppers phone line is based on the principle that callers may remain confidential. She said if that principle is undermined by the disclosure of information that has been given anonymously, then the effectiveness of Crime Stoppers as a methodology could reasonably be expected to be prejudiced. There is no authority of which we are aware which directly supports that interpretation and there is some authority which contradicts it. In Re Anderson (1986) 11 ALD 355 at 365, the Administrative Appeals Tribunal said in relation to the comparable provisions in the Commonwealth Freedom of Information Act 1982 (Cth) that:

In my view, however, a document which discloses intelligence gathered by the police, but reveals nothing as to the source of that information or as to lawful police methods or procedures, is not within the potential scope of the exemption provided by s 37(1)(b) or s 37(2)(b). Claims of exemption under other provisions of the Act may, however, arise in such cases.
23 The Appeal Panel agreed with that interpretation in DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215, providing the following reasons at [53] – [55]:
53 In its original determination the agency relied on cl 4(1)(e) (prejudice methods of investigation). There were only brief submissions addressed to the point in the written submissions presented at hearing. It is plain on the face of the document as to the police operation within which the information was received. The contention seems to be that to disclose the identity of a source of information would ‘prejudice the effectiveness of [a] lawful method of investigation’ such as the one here.

54 In my view the categories of exemption set down in cl 4(1) should be read, ordinarily at least, as covering different aspects of policing and law enforcement functions. The exemption relevant to the protection of sources of information, therefore, is cl 4(1)(b) - that is clearly its subject matter. On the other hand cl 4(1)(f) is addressed to ‘methods’ or ‘procedures’ for preventing, detecting, investigating or dealing with crime or other possible contraventions of the law. Here the subject matter is in my view a different one – to do with protecting from exposure methods of investigation which if known to their targets would impede their usefulness. A typical instance is the use of covert surveillance. See generally Re Anderson (1986) 11 ALD 355.

55 In my view this exemption is not relevant to the present circumstances. The method of investigation employed in this case is a well known one that depends on wide publicity for its effectiveness.

24 We agree with this interpretation as it applies to clause 4(1)(e). It follows that the exemption in that clause does not apply to the document.”

16 Ms Shirm submits that the Appeal Panel's decision in XZ v Commissioner of Police can be distinguished from the present case on its facts. She submits that the Appeal Panel's view was that the disclosure of the document would only indirectly affect the methods or procedures, because the documents themselves did not disclose those methods or procedures. The present case is different from the situation in XZ v Commissioner of Police because, in the present case, the disclosure of the document would actually reveal the methodology.

17 As to whether the methodology is well known, the Commissioner submitted that the test is not whether the methods or procedures are well known to the applicant, but whether they are well known to the broader community. It is not enough that the applicant in this case may be aware of or suspect the methods and procedures used by the Commissioner in policing beats. Ms Shirm reiterates that the Tribunal should bear in mind that disclosure under the FOI Act is disclosure to the world at large or at least in circumstances where disclosure by XZ cannot be controlled.

18 With respect to the Commissioner’s assertion that Document 1 was partially exempt pursuant to clauses 16(a)(iii) and 16(a)(iv) of Schedule 1, Ms Johnson submitted:

17. The document is also exempt under cl. 16(a)(iii). The letter is addressed to the Ombudsman and written as part of the NSW Police's obligations to keep the Ombudsman informed about the way in which an investigation into a Part 8A complaint progresses: ss. 139, 143, 146, 150 152, 153, 154, 155 of the Police Act 1990. (For more detailed submissions on Part 8A see paras 24 and 25 below). The investigation of complaints is an important part of an agency's management of its personnel for the reasons set out in relation to document 2 below and the information is therefore exempt under cl. 16(a)(iii).

18. In addition, the information is appropriately exempted under cl. 16(a)(iv). The investigation of complaints by the NSW Police about police officers is an important aspect of the functions of the NSW Police. An effective liaison with the Ombudsman in relation to those complaints is a requirement of the Police Act and an essential part of ensuring public confidence in the NSW Police. The frank disclosure of police methodology and reasoning to the Ombudsman, of the kind edited out of document 1, facilitates the Ombudsman's oversight of the NSW Police's investigations. To disclose information of this kind would have a detrimental impact on the frank disclosures between the NSW Police and the Ombudsman, in a way which would have an adverse impact on the functions of the NSW Police. The disclosure would be contrary to the public interest because it would jeopardise the ability of the Police to effectively police "beats". It is also contrary to the public interest for the reasons set out at paras 24 to 27 below.

19. The respondent determined that this document was partially exempt pursuant to cl. 6(1) and 16(a)(iii) of Sch. 1 to the FOI Act and granted partial access pursuant to s. 25(4)(a) of the FOI Act. The respondent no longer relies on the exemption in cl. 6.

20. Clause 16(a)(iii) provides that a document is exempt if it could reasonably be expected that disclosure of that document would have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, and disclosure would, on balance, be contrary to the public interest.

21. The redacted portion of document 2 deals with the comments made by Snr Constables Dickson and Brown during the investigation conducted by Sgt Farmer. Inspector Philippi dealt with the respondent's claims for exemption under the heading "cl. 16(a)(iii)" of his internal review decision dated 4 January 2007.

22. Inspector Philippi says that the Police endeavour to try to resolve any identified issues through personnel management, which may include disciplinary action, under Part 9 of the Police Act. Inspector Philippi says that investigations are conducted in circumstances of utmost confidence where police officers are encouraged to speak frankly to investigators. This atmosphere of confidentiality is necessary to maintain the integrity of the investigatory process, particularly if an officer is called upon to comment on their superior officers or managers. It helps to ensure that officers give accurate information to those who investigate complaints. Inspector Philippi says that disclosure of the confidential statements would be likely to have a detrimental impact on the morale of individuals as well as diminish staff confidence in the confidentiality of complaint handling processes. Overall, this would diminish the effectiveness of the complaint handling process. There is therefore sufficient evidence to satisfy the Tribunal that the release of confidential material provided by police officers to the investigating officer would compromise these investigations.

Whether disclosure is otherwise warranted

19 Ms Johnson also provided written submissions with respect to whether the documents should be released in the public interest or for any other reason, notwithstanding the exemptions asserted. She submitted:

24. Inspector Philippi noted that complaints against police officers are dealt with in the context of Part 8A of the Police Act 1990 and the Ombudsman Act 1974. Section 122 of the Police Act provides that complaints, including complaints that a police officer has acted in a way which is unreasonable, unjust, oppressive or improperly discriminatory, are to be dealt with under Part 8A. The Commissioner must notify the Ombudsman when he receives a complaint of this kind and advise the Ombudsman if the complaint is to be investigated: s.139. The Ombudsman also has the power to monitor the investigation of complaints and ask that a complaint be further investigated: ss. 146 and 152. The involvement of the Ombudsman provides a substantial safe guard in relation to the investigation of police complaints and ensures that the public interest in the proper investigation of these complaints has already been given adequate protection.

25. Similarly, there is provision in the Police Act for the complainant to be informed of the progress of an investigation: s. 147. Once an investigation has been completed, the complainant must be given advice as to any action already taken, and as to the Commissioner's decision concerning any action to be taken: s. 150(b) of the Police Act. Thus, the applicant's own interest in knowing how the complaint was resolved has already been dealt with.

26. On the other hand, it is in the public interest that the Police are able to conduct the most effective investigations possible into any complaint made about police officers and their conduct. Inspector Philippi concluded that this ability would be compromised by the release of the edited material.

27. In circumstances where the bulk of the document has already been released and where the applicant knows of the outcome of the investigation, it is not in the public interest to interfere with the effectiveness of the Police's assessment and management of their own personnel.

20 Ms Johnson also provided written submissions with respect to whether the Tribunal’s discretion to release the documents should be exercised. She submitted:

28. In University of New South Wales v McGuirk [2006] NSWSC 1362, Nicholas J held that s. 63 of the Administrative Decisions Tribunal Act 1997 (the "ADT Act") provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it (at [102]).

29. ... The respondent respectfully submits that the Tribunal does not have any discretion to release exempt documents and that the decision in McGuirk is incorrect ... However, for practical purposes, the respondent will proceed on the basis that the Tribunal is presently bound by McGuirk.

30. In relation to the application of the residual discretion in University of New South v McGuirk (no 2) [2008] NSWADTAP 8 at [8] and [9] the Appeal Panel concluded that:

"The FOI Act requires discretions to be exercised, as far as possible, so as to facilitate the disclosure of information: Section 5(3)(b). Consistently with the objects of the FOI Act, and the means by which those objects are to be achieved, it can be assumed that the exemptions were included because parliament considered they were "reasonably necessary for the proper administration of Government". In that sense, the balancing exercise between competing public interest considerations has already been undertaken. Nevertheless, a relevant consideration when exercising the discretion is whether there is a reason, particular to the circumstances of the case, for giving access to such documents. That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of justice. In that sense, it must be described as special, overriding or strong: Department of Premier and Cabinet v Hulls [1999] VSCA 117; Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55." [emphasis added]
31. Here, there are no special, overriding or strong reasons to displace the assumption that the exemption is reasonably necessary for the proper administration of justice.

XZ’s case

21 XZ has sought a review of the Commissioner’s decision not to provide access to the complete documents. These documents relate to an internal affairs investigation into the conduct of several police officers initiated by XZ.

22 With respect to clause 4(1)(e) of Schedule 1 of the FOI Act, XZ submitted that the Tribunal is required to determine whether or not there is a "reasonable" expectation that disclosure would prejudice their effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law. The onus here is on the agency to explain to the Tribunal the precise nature of the prejudice that could reasonably be expected. This decision needs to be made in light of the presumption in favour of disclosure under the FOI Act.

23 Mr Pigott submits that the clause 4(1)(e) exemption applies not where a document identifies a method or procedure, but where it discloses one and where the disclosure would be reasonably likely to prejudice the effectiveness of the methods of procedures. As the Commonwealth AAT said in Re Scholes v AFT (1996) at 331:

" If the methods are methods which every reader of detective stories and every watcher of "Blue Heelers"; "Janus", "The Bill" and other police shows on TV knows all about, then the identification of the methods will disclose nothing and, further will have no effect on the effectiveness of those methods or procedures "

24 With respect to the Appeal Panel decision in XZ v Commissioner of Police, Mr Pigott submits that the evidence suggests that the methods and procedures employed by NSW Police to police beats are well and truly known to the Community. He argues that the decision in Re Raymond John Mickelberg and Australian Federal Police on which the Commissioner relies is an old decision and that community awareness of police methods for detecting, preventing and investigating contraventions of the law are now far more widespread and common place.

25 He argues that despite the views of Inspector Phillippi, the Tribunal must be satisfied that the disclosure of the information would “prejudice” the effectiveness of policing "beats" in NSW. As part of that investigation the Tribunal must be satisfied that the method or procedures described in the document would not already be common knowledge and openly available in the public domain. He asserts that considerable comment and research has been made by criminologists and gay activists since the 1960's into the methods and procedures used by Police in the "policing" of beats in NSW, other Australian States and in various overseas jurisdictions. In support of this assertion he lodged a Bibliography of articles and books in which this subject is discussed and also provided copies of ten articles written on the Australian position.

26 Mr Pigott also provided submissions with respect to the Commissioner’s contention that the withheld portions of the documents are exempt under subclauses 16(a)(iii) and (iv) of Schedule 1. He submits that for subclause 16(a)(iii) to operate the Commissioner must show firstly, that there will be a "substantial adverse effect on the management or assessment by the agency of the agency's personnel; secondly, that such an effect "could reasonably be expected" and thirdly that it would, on balance, be contrary to the public interest. Under subclause 16(a)(iv) it will be necessary for the Commissioner to show that there is a reasonable, as opposed to an irrational, absurd or ridiculous, expectation of a substantial adverse effect on the effective performance by the agency of its functions, if the particular documents are disclosed and that disclosure would be contrary to the public interest.

27 Under subclause 16(a)(iv) it will be necessary for the Tribunal to be satisfied that the documents actually pertain to the "effective performance" of the functions of NSW Police. There must be a relevant connection between the disclosure of the documents and an adverse effect on the agency's functions which can reasonably be expected to flow from disclosure. The focus for the Tribunal is thus the effect of disclosure on the agency's functions.

28 Mr Pigott submits that the words "substantial adverse effect" has been interpreted in a number of Commonwealth cases in regard to the Commonwealth Freedom of Information Act 1982. In Re Heaney and Public Service Board (1984) 6 ALD 310 at 321 the term "substantial" was held to mean "serious" or "significant" in which a value judgment would have to be made in the circumstances of each case. In Re James and Australian National University (1984) 6 ALD 687 it was considered to be "a higher test than mere prejudice".

29 In Re Hudson (1985) 63 ALR 257 the Federal Court observed that the term was of imprecise meaning and that it's meaning will vary according to the context in which it is used. In Re Thies and Dept of Aviation (1986) 9 ALD 454 it was said that "the effect must be sufficiently serious to cause concern to a properly informed reasonable person".

30 Mr Pigott referred to the following discussion of the meaning of the term “substantial adverse effect” by Beaumont J in Harris v Australian Broadcasting Corp (1983) 50 ALR 551 at 564; 5 ALD 545 at 556-7:

“Under s.40(b), exemption is given only if "a substantial adverse effect" of the kind there described can be established. In my opinion, no such inference should be drawn here. It is possible to imagine that disclosure of the reports at this stage could possibly embarrass those charged with supervising or reviewing the operations of the legal department of the Corporation. However, I am not persuaded that any such effect, even if adverse, could fairly be described as "substantial" in its impact (see Tillmanns Butcheries Pty. Ltd. v Australasian Meat Industries Employees' Union (1979) 27 A.L.R. 367 at pp. 374, 382). In my view, the insertion of a requirement that the adverse effect be "substantial" is an indication of the degree of gravity that must exist before this exemption can be made out. There is no such threat established on the material here. Indeed, the Corporation called no evidence on this or any other issue. Although evidence as to the apprehended position may not always be essential, it is difficult to draw an inference of the type urged by the applicant in these circumstances.”

31 In Director General, Department of Education and Training v Mullett and Randazzo (No. 2) [2002] NSWADTAP 29 at paragraph [97] the Tribunal’s Appeal Panel said that:

97 It will be seen that, again, the exemption in cl 16(a)(iii) focuses on systemic considerations. `Substantial adverse effect' involves a higher test than, for example, mere `prejudice' as referred to in (a)(i) and (ii): see 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; it must not be irrational or absurd: see Attorney General (Comm) v Cockcroft (1986) 64 ALR 97. We agree with the following comments in Australian Administrative Law (Butterworths, Australian Administrative Law Library, June 2002) at [741]:
`Prejudice or substantial adverse effect must arise from the disclosure of the particular information in the particular documents but also from the disclosure of documents of a particular kind. The vice of such disclosure lies in the breach of confidential properties, a breach which can for that reason lead to the cessation or diminution of the future flow of information to the agency in question: Department of Social Security v Dyrenfurth (1988) 15 ALD 232; 80 ALR 533; Re Fryar and Australian Federal Police (1988) 17 ALD 25.'

32 Mr Pigott points to that decision as supporting his submission that 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. He says that the Tribunal must assess the "substantial adverse effect" by reference to specific evidence related to these particular documents after examining the contents of the documents. It is therefore necessary for the Commissioner to provide evidence to substantiate its claim that the disclosure of this portion of the document would result in a substantial adverse effect “on the management or assessment by the agency of the agency's personnel" or on “on the effective performance by an agency of the agency’s functions”. In the absence of evidence to substantiate its claim in regard to either of the documents, it must be rejected.

33 Mr Pigott points to the decision in McCabe v Electoral Commissioner, State Electoral Office (2003) NSWADT 24, in which Deputy President Hennessy was not satisfied on the evidence and submissions that the agency had sufficiently discharged its onus in relation to the exemption at clause 16 (a)(iv) due to its failure to prove the "substantial adverse effect" on the performance of the agency. It was similarly held by Member Higgins in Gales Holdings Pty Ltd V Tweed Shire Council (2005) NSWADT 168.

34 Mr Pigott submits that the Tribunal must also consider the meaning of the phrase "could reasonably be expected" in its deliberations on this document. In News Corp Ltd v NCSC (1984) 5 FCR 88 at 101 per Woodward J the phrase "could reasonably be expected" was interpreted under the Commonwealth FOI Act to mean that "there must be some reasonable expectation of a particular effect occurring, as distinct from a mere possibility, risk or chance of occurrence". However, the meaning of the word "expected" should not be given too wide an interpretation given the presumption in favour of disclosure and the democratic objectives sought to be achieved in the Act: Attorney General (Comm) v Cockcroft per Sheppard J.

35 Mr Pigott submits that the Tribunal is required to determine whether or not the expectation is reasonable as opposed to irrational, absurd or ridiculous.

36 He submits that rather than attempt to hide Police disclosures to the Ombudsman, in a democracy the process of public complaint against Police should be open and transparent in order to safeguard against any suggestion of corrupt or discriminatory conduct.

37 Mr Pigott further submits that subclause 16(b) of Schedule 1 requires that the Commissioner must prove on balance that public interest concerns outweigh the needs of XZ for disclosure. Mr Pigott submits that these matters are elements of the exemption that must be satisfied separately. The exemption requires a positive finding that disclosure would be contrary to the public interest, in addition to the findings that the elements in subclauses 16(a)(iii) and (iv) of Schedule 1 are satisfied.

38 The Tribunal must consider public interest arguments in favour of disclosure and weight them against arguments in favour of non-disclosure. XZ asserts the following public interest factors to support his claim for disclosure:

a) the public interest in individuals receiving fair treatment in accordance with the law in their dealings with Government;

b) the public interest in members of the public being able to pursue and enforce their rights and interests in circumstances where the disclosure of information would facilitate that pubic interest;

c) the public interest in a person's right to know, where that right to know facilitates the democratic objective of enhancing the accountability, responsibility and openness of government;

d) the public interest in members of the public having access to information held by government which relates to their personal affairs;

e) the public interest in members of the community having the right to have access to information held by government in relation to their personal affairs, including the provision of mechanisms whereby they could ensure that such information was accurate, complete, up-to -date and not misleading;

f) the public interest to ensure that Police recording of complaints about citizens on COPS is accurate, complete, up-to-date and not misleading to ensure against the creation of false profiles on citizens;

g) the public interest to expose criminal conduct by Police personnel who knowingly or recklessly record false and misleading information on COPS;

h) the public interest to expose criminal conduct by civilians who knowingly or recklessly make false complaint about other citizens to Police; and

i) the public interest in wasting Police resources on fraudulent and worthless claims made by citizens against other citizens.

39 Mr Pigott further submits that there is a need for Ombudsman investigations into citizen complaints against Police to be transparent and open in order to avoid allegations of corruption and unprofessional conduct on the part of both the investigated and the investigators. He says that as the Office of the Ombudsman is a Government agency and the office of Ombudsman is a political appointment it is in the public interest that such transparency is crystal clear. He says that if Police are aware that their statements could be realized in full to citizens who have filed complaints against them it may encourage them to act professionally at all times in the conduct of their duties. He says that it is in the public interest for citizens to be aware of the effectiveness of the Police's assessment and management of their own personnel in order to improve public confidence in the honesty and ethical behaviour of both Police and the Police agency.

40 XZ further submits that:

a) as he is a member of a class of people who frequent ‘beats’, he has a right to know Government policy in relation to law enforcement of such places;

b) as a member of that class he has the right to ascertain if the policy is in accordance with the law;

c) as a member of that class he has the right to ascertain from those documents that he is being treated fairly and in a non-discriminatory manner by NSW Police;

d) as a member of that class he has the right to ensure that NSW Police have acted within their lawful authority in the creation of these documents;

e) as a member of that class he has the right to ensure the proper and due administration of criminal justice by NSW Police in the creation of those documents who as a public agency are accountable in law for their actions.

41 Mr Pigott submits that the use that XZ intends to make of any documents released, or the reasons for which he wishes to have documents released, are not relevant to the "public interest. He says that public interest considerations in favour of disclosure relate ‘to the fulfilment of the democratic objectives of the FOI Act to promote openness, accountability and responsibility of government’: Simpson v Director General, Department of Education and Training (2000) NSWADT 134 at paragraph [84]. He contends that these objectives are promoted through the transparency of government decision-making processes, even when such transparency involves the revelation of information embarrassing to, or critical of, the government agency concerned.

42 He points to comments by Deane and Toohey JJ in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, in dealing with material that might reveal criticisms of the conduct of government:

‘the traditions and standards of our society dictate a conclusion that, putting to one side times of war and civil unrest, the public interest is never, on balance, served by the suppression of well founded and relevant criticism of the legislative, executive or judicial organs of government or of the official conduct or fitness for office of those who constitute or staff them ... Suppression of such criticism of government and government officials removes an important safeguard of the legitimate claims of individuals to live peacefully and with dignity in an ordered and democratic society. Indeed, if that suppression be institutionalized, it constitutes a threat to the very existence of such a society in that it reduces the possibility of peaceful change and removes an essential restraint upon excess or misuse of governmental power.’

43 Mr Pigott submits that the evidence does not support the conclusion that disclosure of the information withheld from Document 1 would have a detrimental impact on the frank disclosure between NSW Police and the Ombudsman in a way which would have an adverse impact on the functions of the NSW Police or that it would jeopardize the ability of the Police to effectively police “beats”. He says that even if it did there is no evidence that it would in turn have a "substantial" adverse effect on the respondent performing its functions effectively. He submits that failure by Police to provide frank and honest answers to the Ombudsman during an investigation could result in a charge pursuant to part 10 of the Police Act 1990 and that to suggest that Police would not be prepared to speak frankly to investigators or that they would not give accurate information unless they can be assured of confidentiality is tantamount to suggesting that Police would either lie or refuse to carry out their lawful duties. As Police are under a legal obligation to give truthful evidence to their superiors, the Ombudsman and to Courts when acting as witnesses there should be no detrimental impact on their morale or diminishment in the complaint handling process.

44 As the only material before the Tribunal is that of mere assertions by Inspector Phillipi which are not supported by direct evidence and submissions based on those assertions, XZ submits that the Commissioner has not proven either clause 16(a)(iii) or clause 16(a)(iv).

45 XZ asserts that the public interest reasons he has provided in all his submissions are sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of justice: University of NSW v McGuirk (No 2) at paragrpahs [8] and [9] .

46 XZ requests that the Tribunal reject the arguments presented by the Commissioner and provide access to the requested documents.

Discussion

47 There are two documents that remain for consideration in this matter. The Commissioner has asserted that Document 1 is exempt pursuant to clauses 4(1)(e) and 16(a)(iii) and 16(a)(iv) of Schedule 1 to the FOI Act. The Commissioner has asserted that Document 2 is exempt pursuant to clause 16(a)(iii) of Schedule 1.

48 Pursuant to section 61 of the FOI Act, the burden of establishing that the determination is justified lies on the Commissioner.

49 I agree that the authorities to which Mr Pigott has referred provide an accurate account of the current state of the law in relation to these issues.

Document 1

50 In order to establish that Document 1 is exempt pursuant to clauses 4(1)(e) the Commissioner must prove that the disclosure of the withheld material 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.

51 In XZ v Commissioner of Police the Appeal Panel came to the conclusion that the exemption in clause 4(1)(e) covers the disclosure of the methods or procedures themselves as long as they are not commonplace or well known. Mr Pigott submits that the clause 4(1)(e) exemption applies not where a document identifies a method or procedure, but where it discloses one and where the disclosure would be reasonably likely to prejudice the effectiveness of the methods of procedures. I agree with that submission.

52 While I do not totally agree with the Commissioner’s description of the material that has been withheld from Document 1, I accept the Commissioner’s submission that the disclosure of Document 1 would reveal some aspects of the methods and procedures used by Police in the "policing" of beats in NSW.

53 I have considered the document in question and the material that is said to be exempt. I have considered the Commissioner’s submissions and note that those submissions are not supported by evidence of how prejudice might flow from release of the material.

54 Document 1 is almost four years old and there is no evidence to suggest that the method or procedure discussed is current or that it is more than an historical record of the procedure in place at that time. Even if the material reflects current policing methods or procedures, there is not sufficient evidence on which I could conclude that the release of the withheld material is likely 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’. In my view, the release of this particular material is unlikely to have that effect. It follows that the clause 4(1)(e) exemption does not apply.

55 Mr Pigott submits that the evidence suggests that the methods and procedures employed by NSW Police to police beats are well and truly known to the Community. I do not need to determine that issue, however I note that the material he has relied on suggests that there may be reasonable foundation for this submission.

56 For subclause 16(a)(iii) to operate the Commissioner must show firstly, that the disclosure of the documents will have a "substantial adverse effect on the management or assessment by the agency of the agency's personnel; secondly, that such an effect "could reasonably be expected" and thirdly that it would, on balance, be contrary to the public interest. Unless each of those elements is satisfied, the exemption will not apply. I agree with Mr Pigott’s submission that there must be a relevant connection between the disclosure of the withheld material and the adverse effect.

57 The Commissioner has not provided evidence to support the assertion that there would be any adverse effect resulting from the disclosure. As noted in Director General, Department of Education and Training v Mullett and Randazzo (No. 2), the effect must be “sufficiently serious to cause concern to a properly informed reasonable person … it must not be irrational or absurd”. In the absence of reasonable evidence to support the ass-ertions of an adverse effect, they remain merely assertions.

58 I note Mr Pigott’s submission that Police are under a legal obligation to give truthful evidence to their superiors, the Ombudsman and to Courts. I agree that it is unlikely that there would be an adverse effect on the management or assessment of the agency's personnel if this material were released.

59 Even if it could be inferred from the material before me that there might be some adverse effect resulting from the disclosure, I have insufficient material upon which to conclude that there would be a "substantial adverse effect” on the management or assessment by the agency of the agency's personnel.

60 It follows, in my view, that the clause 16(a)(iii) exemption does not apply.

61 Under subclause 16(a)(iv) it will be necessary for the Commissioner to show that there is a reasonable, as opposed to an irrational, absurd or ridiculous, expectation of a substantial adverse effect on the effective performance by the agency of its functions, if the particular documents are disclosed and that disclosure would be contrary to the public interest. The Commissioner has not provided evidence to support the assertion that there would be any adverse effect resulting from the disclosure.

62 Even if it could be inferred from the material before me that there might be some adverse effect resulting from the disclosure, I have insufficient material upon which to conclude that there would be a "substantial adverse effect” on the effective performance by the agency of the agency’s functions.

63 While it is unnecessary that I determine the issue, I note that I am persuaded by Mr Pigott’s submissions in relation to subclause 16(b) of Schedule 1. In my view, a positive finding that disclosure would be contrary to the public interest would be unlikely on the material that is available to me.

64 It follows in my view, that the clause 16(a)(iv) exemption does not apply.

Document 2

65 In order to establish that Document 2 is exempt pursuant to clause 16(a)(iii) of Schedule 1 the Commissioner must show firstly, that the disclosure of the documents will have a "substantial adverse effect on the management or assessment by the agency of the agency's personnel; secondly, that such an effect "could reasonably be expected" and thirdly that it would, on balance, be contrary to the public interest.

66 I agree with Mr Pigott’s submissions in relation to this asserted exemption. For the same reasons given in relation to Document 1, it is my view that Document 2 is not exempt pursuant to clause 16(a)(iii) of Schedule 1. While it is my view that it would be easier to infer that there might be some adverse effect resulting from the disclosure of Document 2 than would be the case with Document 1, I have insufficient material upon which to conclude that there would be a "substantial adverse effect” on the management or assessment by the agency of the agency's personnel.

67 It follows in my view that the clause 16(a)(iii) exemption does not apply to Document 2.

68 Accordingly, the decision to refuse access to the withheld material should be set aside and the documents should be released in full.

Orders

1. The decision under review is set aside.

2. In place of the decision under review I make the fresh determination that the documents are to be released in full.