XZ v Commissioner of Police, New South Wales Police

[2008] NSWADT 106

Set aside by Appeal:

CITATION:	XZ v Commissioner of Police, New South Wales Police [2008] NSWADT 106
DIVISION:	General Division
PARTIES:	APPLICANT XZ RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	073096
HEARING DATES:	19 September 2007
SUBMISSIONS CLOSED:	15 November 2007
DATE OF DECISION:	9 April 2008
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	RT v Commissioner of Police NSW Police [2005] NSWADT 270 University of New South Wales v McGuirk [2006] NSWSC 1362
REPRESENTATION:	APPLICANT V Pigott, agent RESPONDENT R Bhalla, solicitor
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

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 policy documents (current and historical) kept by New South Wales Police that are related to the policing of homosexual "beats".

2. All policy documents (current and historical) kept by New South Wales Police that are related to the policing of heterosexual "beats" (aka "lovers lanes”)

3. In 123079765 Inspector Kevin Wilfred Dodds dated 26/09/2004 states:

'A check on the Intel system indicates that the POI has been involved in activity by sitting inside vehicles and masturbating whilst children attend and leave school Grounds".
I request that NSW Police provide me with a copy of all documents (on the Intel system and elsewhere) that indicate that I have been involved " in activity by sitting inside vehicles and masturbating whilst children attend and leave school grounds ".”
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’s delegate indicated that thorough and exhaustive searches were conducted within the agency to locate any documents that relate to and fall within the ambit of the requests. A number of documents were located. The following determination was made in relation to those documents:

1. To release in full the following documents:
a) Police operations at 'beats' policy, undated (1 page)

b) "Beats", dated 1 January 2002 (1 page)

c) Extract from the Commissioners Circular, "Offensive Behaviour at Beats", dated 25 September 1995 (2 pages)

2. To release in full the following documents with the exception of deletions pursuant to Section 25(1)(a) and 25(4)(a) of the Act on the grounds of the exemptions listed at Clause 4(1)(e):
a) Information report I 23079765

b) Information report I 42749101

3. To not release the following documents pursuant to Section 25(1)(a) of the Act on the grounds of the exemptions listed at 4(1)(e) of the Act:
a) Information report I 21636782
5 XZ has now applied for external review of that determination. The documents that are the subject of the application are Information report I 42749101 and Information report I 21636782.

Relevant Legislation

6 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.”

7 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.

8 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.

9 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),”

Information report I 21636782

10 The matter came before me for hearing on 19 September 2007. At that time the Commissioner submitted that the Tribunal has no jurisdiction to hear the application insofar as it relates to Information Report I 21636782 because that document was the subject of an earlier determination recorded as RT v Commissioner of Police, NSW Police [2005] NSWADT 270. Accordingly, he submits, an estoppel applied which prevented the Tribunal rehearing the issue. In RT v Commissioner of Police I made the following finding:

“Information Report I 21636782

38 After reviewing the documents that fall within this category, I am satisfied that the document identified as ‘Information Report I 21636782’ contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 and ought not be released.

11 The Commissioner says that the same cause of action applies in both RT v Commissioner of Police and the present matter. Each is an application for review of the decision not to release documents under the FOI Act. The separate applications threw up the same two documents, under the same legislation. The exemption claimed in relation to the document is the same in each case.

12 In any event, the Commissioner relies on the argument presented in the Internal Review determination. That was expressed in the following terms:

“Clause 4(1)(e) of Schedule 1 of the Act operates to protect methods for preventing, detecting, investigating or dealing with contraventions of the criminal law and revenue law. For the exemption to apply, there is no need for an actual contravention of the law, since the exemption encompasses both actual and possible contraventions. The exemption is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law.

The information contained in an exempt document might serve to disclose or confirm the lawful Police methods or procedures for preventing or detecting possible contraventions of the law. The basis for this exemption is public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods.”

13 Mr Pigott does not dispute that Information Report I 21636782 was the subject of the determination in RT v Commissioner of Police. However, he argued that the two applications do involve the same cause of action. He says that circumstances had changed since the earlier determination and as a consequence the Tribunal is not estopped from revisiting the application for release of the document. He says that there have been special circumstances that warrant reconsideration of whether the document should be released. He says that the special circumstances are that the applicant has been falsely profiled as a sexual offender in that he and the Tribunal are now aware of that. He argues that at the time of determining the earlier matter I was provided with information, which could have led me to believe that the applicant was a sexual offender. He says that information has now come to light, which was not available at that time that is, that the description of sexual offender is no longer applicable to the applicant. Mr Pigott argued that if I had been aware of the information that I am now aware of, it may have influenced my decision in RT v Commissioner of Police.

14 At the conclusion of the hearing on 19 September 2007 I rejected Mr Pigott’s argument and determined that Information Report I 21636782 should not be released. I agree with the Commissioner’s submission and I am satisfied that the document identified as ‘Information Report I 21636782’ contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 to the FOI Act.

15 I note that in University of New South Wales v McGuirk [2006] NSWSC 1362 Nicholas J concluded at [102], that the Tribunal has a 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”. In the circumstances of this matter I do not consider that an order that access be given to the documents is the correct and preferable decision. Accordingly, it is my view that the Commissioner’s decision to refuse access to Information Report I 21636782 is the correct and preferable decision.

16 Mr Pigott subsequently sought leave to have the matter reopened to allow him to make further submissions in relation to issued raised by the Commissioner at the hearing on 19 September 2007. This was on the basis that the applicant had insufficient opportunity to address submissions made by the Commissioner. The Commissioner opposed that application and it is refused. In my view the applicant had sufficient opportunity to addresses all the issues that were raised in regard to the matter to be determined. In any event, the issues relating to Information Report I 21636782 were determined on 19 September 2007. The issues that remained to be determined only relate to Information report I 42749101.

Information report I 42749101

17 The applicant seeks the release of the complete Information report I 42749101 without any deletions. The Commissioner opposes this request but was prepared to release the document with deletions that he says are warranted because the deleted material is exempt pursuant to clause 4(1)(e) of Schedule 1 to the FOI Act.

18 Nevertheless, at the hearing the parties entered into discussion in relation to the document. The Commissioner agreed to make amendments to the document and I made the decision to remit the matter for reconsideration by the Commissioner to allow the agreed amendments to be made. The matter was re-listed for a further Planning Meeting on 16 October 2007.

19 A further Planning Meeting was held on 16 November 2007 and at that time Mr Bhalla provided evidence that the Commissioner had made the amendment that had been agreed between the parties on 19 September 2007. I allowed the parties an opportunity to make any further submissions that they wished to make and reserved the matter for final determination.

20 I am satisfied that the Commissioner’s view that parts of the document are exempt pursuant to clause 4(1)(e) of Schedule 1 to the FOI Act is correct. Further, while I accept that the Tribunal could order that the document be released notwithstanding that the exemption applies, I do not consider that such an order should be made.

21 I do not agree with Mr Pigott’s argument that the document should be released in full. On the basis of the evidence presented to me I am satisfied that the Commissioner has made the amendment that had been agreed between the parties on 19 September 2007 and it is my view that the decision to release the document in the amended form is the correct and preferable decision. Accordingly, that decision should be affirmed.

Order

The decision under review is affirmed.