Zeitouneh v SA Police - [2015] SADC 34

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal: Appeal Under Freedom of Information Act)
ZEITOUNEH v SA POLICE
[2015] SADC 34
Decision of His Honour Chief Judge Muecke
10 March 2015
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS - OTHER STATES AND TERRITORIES
The Appellant unsuccessfully applied for employment with the Respondent SAPOL. Upon his application for documents under the Freedom of Information Act 1991 regarding the decision by SAPOL to decline his application for employment a number of documents were released by SAPOL but one was partially refused and two were refused in their entirety. After an internal review confirmed that decision the Appellant appealed to this court.
Held: The documents were exempt documents and their disclosure would be contrary to the public interest.

ZEITOUNEH v SA POLICE
[2015] SADC 34

This is an appeal under the Freedom of Information Act 1991 against a determination of the South Australia Police dated 7 May 2013.
Application for employment
By an application dated 30 September 2011, Malek Zeitouneh (the Appellant) made application for employment with South Australia Police (the Respondent). He gave his address as at the date of his application at Northbridge in Western Australia.
The Appellant indicated that he had not previously applied to join the South Australia Police or any other Police Service. He indicated that at that time he was operating a self-employed business. He indicated that he had previously been employed in Sydney. He indicated that he had spent about three years in Denmark, where he completed his secondary schooling and attended a business school in Copenhagen. He indicated that both his parents were born in Lebanon although both then lived in Bradbury, New South Wales where three of his siblings lived. Another sibling lived in Perth at the time of the Appellant’s application of 30 September 2011. At that date the Appellant was 27 years old.
By letter dated 19 December 2011 the Respondent advised the Appellant in the following terms:
I refer to your application received on 13 October 2011 for (employment) with the South Australia Police.
I write to advise that your application documentation and other related information have been reviewed as part of the selection process and I advise that your application is unsuccessful.
Due deliberation was given to all available information before the decision was made to decline your application.
By letter dated 17 October 2012 the Appellant wrote to the Respondent. He wrote in the following terms:
Re: Review of unsuccessful application
I refer to your letter dated 19 December 2011 in reference to my application as a Police Officer, I enclose a copy of that letter. I note that after several telephone conversations with the Recruiting Section in relation to your letter, the only information that has been provided to me for the reason behind this decision is that it is based on an ‘integrity issue’ or ‘association issue’. Much to my disbelief, I immediately advised the Recruiting Section that this must be a mistake. Even after my eager attempts to understand what these mystifying issues are, the Recruiting Section have insisted that no further elaboration can be provided and that I must conduct my own enquires(sic).
I hereby ask you for a review of my unsuccessful application as a result of my subsequent enquiries into this matter as I am certain that these ‘issues’ are made in error and I now have documentation to support my claim.
I would like to reiterate that I take great pride in being an honest and law-abiding member of society and advise that I have;
i)never been charged
ii)never been fingerprinted
iii)never faced court
iv)never been convicted
v)absolutely no criminal record or associations
As part of my intensive enquires (sic) I used every means available to me to identify what this ‘issue’ is. As such, I applied to the Information Access Unit (IAU) of the NSW Police Force to have any information on my record released to me. As a result IAU provided me with a letter (copy attached) stating that ‘no criminal record was found’. It’s worth notice that IAU also use the Computerised Operational Policing System (COPS) to carry out their search.
As a matter of certainty I also applied to the Criminal Records Section of the NSW Police Force asking them to release all information on my record, if any including associations, by conducting a national criminal history check. They replied advising that there is ‘no criminal record maintained’. (Copy of email attached).
Every Police unit and every Police force I have engaged including the West Australian Police have notified me that there is nothing on my record that would indicate any criminal association or activity. Furthermore, I have exhausted every known avenue available to me to verify to you what I already suspected to be totally incorrect and erroneous. Although it has been a stressful experience that has delayed my aspirations of becoming a Police Officer I remain determined to carry out a long and rewarding career in law enforcement.
Please review this matter and consider all the information presented.
By letter dated 30 October 2012 the Respondent advised the Appellant in these terms:
I write to advise you that your application documentation and other related information have been reviewed as part of the selection process and I advise that your application is unsuccessful.
Due deliberation was given to all available information before the decision was made to decline your application.
Applications for access to documents
By letter dated 22 January 2013 attorneys in Sydney wrote to the Respondent on behalf of their client, the Appellant. They referred to the Appellant’s application to become a police officer and they applied, on behalf of their client, to access certain documents under the Freedom of Information Act 1991 (the FOI Act). They applied, inter alia, to access all documents and information that were reviewed by the South Australia Police regarding the Appellant’s application and the decision to decline it. They also sought documents and information that were obtained by the Respondent from parties other than the Appellant, regarding his application to become a police officer.
By letter dated 2 April 2013 Senior Sergeant Tracy Gentgall, the Officer in Charge of the Freedom of Information Unit of the Respondent, wrote to the Appellant’s attorneys in Sydney. In her letter she set out a table describing 52 documents which the Respondent had located that were associated with the FOI application. She indicated that the Respondent would fully release all but three of those documents. The three exceptions were as follows.
9. SAPOL Recruit Application Assessment Summary dated 13 October 2011.
Partial release of this document only was granted. The reason given for refusing access to part of this document was that this document contained “opinions, advice and recommendations directly related to the decision making functions regarding SAPOL’s management of personnel. Disclosure may adversely affect the way in which SAPOL manages personnel”. Two particular parts of clause 9 of Schedule 1 of the FOI Act were relied on.
51. SAPOL State Intelligence Branch letter.
52. N.S.W. Police Intelligence Document.
Access to all of both these documents was refused. Several clauses of Schedule 1 of the FOI Act were said to be relied upon.
The reason or reasons for refusing access to each of these two documents was stated as follows:
51. The information contained within this document is held by the State Intelligence Branch of SAPOL.
52. Disclosure of such information may cause damage to relations between SAPOL and another States Police jurisdiction and may inhibit such arrangements being made in future.
The document is held by another Police jurisdiction and SAPOL is given access to the document with the proviso that the information or matter is communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of that State.
The information contains personal affairs of other parties and that disclosure of such is unreasonable – consent has not been supplied for the release of such information.
Disclosure of an internal working document is deemed to be unreasonable because the material contains opinions, advice and recommendations associated with recruiting and intelligence activities.
These documents contain information which relates to SAPOL’s operations and the management of SAPOL’s personnel. Release of such information may prejudice the maintenance of, or enforcement of, methods or procedures for protecting public safety. Disclosure of this information is also likely to have a substantial adverse effect on this and an interstate agency’s operations.
In her letter Senior Sergeant Gentgall advised the Appellant’s attorneys of the Appellant’s right of internal review in accordance with s29(1) of the FOI Act.
By Application dated 1 May 2013 the Appellant sought an Internal Review. He asked that the Respondent correspond with his Sydney attorneys. He stated in his application that the reason for his Application for Internal Review was contained in an enclosed letter from his Sydney attorneys to the Respondent, which letter was also dated 1 May 2013. That letter is as follows:
Freedom of Information – Internal Review on behalf of Malek Zeitouneh
We refer to Mr Malek Zeitouneh’s application under the Freedom of Information Act 1991 (SA) by way of letter dated 22 January 2013 and to the determination in response of Senior Sergeant Tracy Gentgall of South Australia Police dated 2 April 2013. We also refer to the Authority by Mr Zeitouneh dated 5 February 2013.
We continue to act for Mr Zeitouneh.
“Reasons for Review” are requested in the Application for Internal Review document attached. As insufficient space is permitted on that document, reasons required are stated hereunder.
Reasons for Review
Mr Zeitouneh submitted an application to become a Police Officer which was received on 13 October 2011 by South Australia Police (SAPOL). On 19 December 2011 Mr Zeitouneh was informed that his application was refused. Mr Zeitouneh was not initially given any reasons as to why his application was refused. Later, after a series of phone calls, Mr Zeitouneh was told that refusal was based on an ‘integrity’ or ‘association’ issue.
An application under the Freedom of Information Act 1991 (SA) (the Application) was made by way of letter dated 22 January 2013. Partial production of documents was made under a decision dated 2 April 2013. Documents not produced or partially produced seem to relate to information provided by NSW Police. In fact, the entry in the Recruit Application Assessment Summary (Document 8) states directly after an exempted section on 15 December 2011:
‘File reviewed unsuccessful letter to be prepared – letter to be very generic, no mention of intell to be made in letter.’
In light of the above, the reasons for review are as follows:
1.   Contrary to information provided by NSW Police
Upon receipt of the answer to the Freedom of Information Application, Mr Zeitouneh made an application to NSW Police to obtain information in regard to his criminal record, if any. A decision dated 3 August 2012 was received from NSW Police. No criminal record was found.
This firm contacted NSW Police in regard to the police clearances which were issued to Mr Zeitouneh in support of his application to become a Police Officer. We were told by a NSW Police Officer that she did not see any information on Mr Zeitouneh’s record which would have been adverse to his application to become a SAPOL Police Officer.
In light of the information not provided to Mr Zeitouneh in response to the Application, the decision of SAPOL is contrary to the information provided by NSW Police.
2.   Punishment without crime
The reality of Mr Zeitouneh’s situation is that, without any suggestion of fault on his behalf, he has been refused the opportunity to serve the community as a Police Officer.
Further, due to the ‘intell’ provided to SAPOL, Mr Zeitouneh may not be able to serve any Australian community in any position that will require checks to be made with state or federal police agencies.
Such a prohibition can only be seen as grave a consequence, especially when no crime has been committed and no reasons for this broad and crippling exclusion provided. It is in the public interest to see governmental agencies more transparent when wielding such power.
3.   Denial of natural justice
The decision which has been made to refuse Mr Zeitouneh access to documents or portions of documents integral to his application to become a Police Officer is in concert with the rejection of that application. The grave consequences of these united decisions (as noted in paragraph 2) and the manner in which they were made lead to the conclusion that natural justice has been denied to Mr Zeitouneh.
At the bare minimum of argument, there has been no opportunity for Mr Zeitouneh to present his case or answer and explain in regard to implied allegations of SAPOL which impugn his integrity. The principles of natural justice are deeply rooted in the common law and the public interest.
4.   Safety of Mr Zeitouneh and his family
From the information provided and obtained, it is clear SAPOL believe Mr Zeitouneh’s inclusion to the ranks of Police Officers is thought to endanger the integrity of SAPOL.
Mr Zeitouneh, however, has a clean record. It has also been made clear by the NSW Police to this firm that he has no information on his record which would be adverse to his application.
If it is thought that Mr Zeitouneh is associating with criminals, Mr Zeitouneh’s safety (and that of his family) may be at risk. Consequently, not providing the information to Mr Zeitouneh may be a risk to his and his family’s wellbeing.
It is surely in the public interest that information of this type be communicated to those at risk.
We look forward to your response.
By letter dated 7 May 2013 the Respondent’s Accredited FOI Officer (Internal Review) wrote to the Appellant’s attorneys. He wrote: ‘Having reviewed the file the original determination is confirmed. I am satisfied that the determination was made in line with the legislation and the information available. The basis upon which this determination is made is as outlined in the original determination letter’. The Appellant’s attorneys were advised of a right for a review by the Police Ombudsman or by the District Court of South Australia.
Appeal and open and confidential affidavits
By Notice of Appeal the Appellant appealed to this court pursuant to the FOI Act. He appealed against the part release only of document 9 and against the Appellant’s refusal to grant access to documents 51 and 52. Grounds of appeal were set out in the Notice of Appeal.
On 9 September 2013 the Respondent filed and later sought to rely on five affidavits. Three were served on the Respondent (the open affidavits). Two were not served. Those two were marked: “CONFIDENTIAL DO NOT OPEN FOR JUDGE ONLY” (the confidential affidavits).
Inspector Astrid Gustavson swore in an open affidavit that in September 2013 she was the manager of the Recruiting Section of the Respondent. Her role included having oversight of the entire SAPOL recruit selection process to ensure the selection process takes into account the Commissioner’s responsibilities under the Police Act, 1998 and Police Regulations, 1999. In particular, the Commissioner is responsible for ensuring that selection processes are based on a proper assessment of merit. The definition of “merit” for the purposes of personnel selection expressly includes “the extent to which each of the applicants has a record of good conduct and integrity ...”.
Inspector Gustavson indicates that SAPOL’s integrity (under the direction of the Commissioner) is inextricably linked to the ability to achieve SAPOL’s purpose, namely reassuring and protecting the community as defined by the Police Act, 1998. The process of recruitment “is necessarily thorough and in-depth, exploring all facets of the applicant, which includes ensuring they have the appropriate skills, abilities, aptitudes and knowledge to undertake the role of a general duties police officer.”
Inspector Gustavson was also responsible for ensuring that any applicant undergoes a thorough probity examination, to ensure that the applicant does not have any actual or perceived criminal associations or history that will adversely impact the integrity of SAPOL. This includes sending a written request to SAPOL’s State Intelligence Branch to conduct checks on all available intelligence holdings on an applicant. Inspector Gustavson said that information of this type is necessary to ensure the integrity of SAPOL is maintained in its recruiting process.
Inspector Gustavson states that she was advised that document 51 “is a document which was made available to the Recruiting Section by the State Intelligence Branch as a result of a request to that Branch for information in respect of the Appellant’s application for employment”. She states that document 52 “is a printout of information from a confidential database that holds information from other federal, state and territory law enforcement and other regulatory authorities. The printout was created by a staff member at the Records Release Unit after a request from Recruitment for information related to the appellant”.
Inspector Gustavson states that the “recruiting process is inherently confidential”. She stated further:
Recruiting Section handles large volumes of highly sensitive and confidential information through the recruitment process. In order to record this and other information, all Recruiting files have a ‘Recruiting Application Assessment Summary’ sheet, to enable the efficient flow of information. It is a snapshot of where the process is up to and is the mechanism to document what additional investigation is required. This document often details sensitive material and intelligence from various law enforcement agencies. The record of discussions, the synopsis of the highly sensitive and confidential information and other communication is used by the Manager, Recruiting Section to make a recommendation to the Manager, Human Resource Management Branch as to a person’s suitability for employment. This final decision rests with Manager, Human Resource Management Branch.
Inspector Gustavson stated that document 9 is an Application Assessment Summary sheet for the Appellant’s application. That document had been disclosed to the Appellant except for one entry. That entry relates to the information made available to the Recruiting Section set out in documents 51 and 52. Inspector Gustavson states:
The confidential nature of the information and associated endorsements made by Recruiting staff means that it is not in the public interest to disclose this entry made on this document. The potential negative impact of disclosing law enforcement intelligence holdings and identifying intelligence sources would have a significant impact on SAPOL’s ability to source this information and conduct and consider appropriate probity checks in the recruitment process. This would impact on SAPOL’s ability to ensure complies (sic) with it (sic) responsibility to maintain its integrity as required under the Police Act, 1998.
The integrity of SAPOL and the public’s confidence in that integrity is central to SAPOL being able to meet its legislative responsibilities.

Detective Superintendent Graham Goodwin swore in an open affidavit that in September 2013 he was the Officer in Charge of the State Intelligence Branch of the Respondent. He is responsible for the oversight of intelligence information accessed and collated from a variety of sources. His affidavit contains the following:
2.The purpose of SAPOL, as defined in section 5 of the Police Act 1998, is to reassure and protect the community in relation to crime and disorder by the provision of services to, amongst other things, uphold of the law, preserve the peace and the prevent of crime.
3.The public and the State of South Australia have an interest in the preservation of the peace and the prevention of crime.
4.In order to do this, the Commissioner of Police must establish systems for the obtaining, correlating and evaluating of intelligence material relevant to the prevention of crime and the apprehension of offenders.
5.The State Intelligence Branch (formerly known as the Bureau of Criminal Intelligence) consists of a number of sections which provide SAPOL with specialist criminal intelligence services. One of those services is an area referred to as Registry. The Registry conducts checks with other government agencies (including other law enforcement agencies) and is responsible for intelligence holdings. It acts as a repository of information within SAPOL, collating information from both areas within SAPOL and those external agencies with whom information is shared.
6.When an applicant seeks to become a sworn member of SAPOL, the Registry conducts probity checks on behalf of the Recruitment Section of SAPOL as part of the recruitment process.
7.Information and intelligence accessible by the Registry is not accessible to the general public. Access to information and intelligence is also governed by a number of factors which include but are not restricted to, legislation, work requirements within SAPOL, security classification of the documents and contents, agreements by partner agencies and authority to release intelligence.
8.The Registry has access to information and intelligence from other federal, state and territory law enforcement and other regulatory authorities. This information is made available to SAPOL on the condition that it remain the property of the authority that makes it available and that it not be disclosed to third parties without the consent of the authority to whom it belongs.
9.This information and intelligence is a vital resource in ensuring that SAPOL can effectively protect the community and investigate and enforce the law.
10.Information generally refers to all forms of information obtained, recorded or processed by police, including personal data and/or non-value added information. Intelligence is a term used to refer to information that has been subject to a defined evaluation and risk assessment process in order to assist with police decision‑making.
11.I have had regard to the documents referred to as Documents 51 and 52 for the purposes of the Appellant’s application under the Freedom of Information Act 1991.
12.Document 51 is a facsimile containing a response from the State Intelligence Branch to a request from the Recruitment branch for an assessment of information relating to the Appellant. This document was created by the State Intelligence Branch.
13.Document 52 is a print out of an entry obtained from the system by which SAPOL has access to information from other federal, state and territory law enforcement and other regulatory authorities. From an examination of this document it appears that the print out was produced by one of the few restricted SAPOL staff who had access to that system at the time it was produced. This person was not a State Intelligence Branch staff member.
14.The entry set out in document 52 is the entry that the State Intelligence Branch had regard to in creating document 51.
15.Document 52 includes intelligence submitted to the system by NSWPOL. Access to this document is restricted to Law Enforcement Officers around Australia. As the Document is owned by NSWPOL, any dissemination outside SAPOL requires approval from the originating organisation.
16.I am of the view that disclosure of this document without the consent of NSWPOL would affect the relationship between SAPOL and NSWPOL and impede cooperation between those authorities in the future.
17.Information is obtained from various sources. In some cases, the person providing the information does so on the basis that the information is confidential and they will remain anonymous. This is a well-established and important principle which is used by SAPOL and other law enforcement agencies to allow persons to provide full and frank information. It is my belief that the promise of anonymity and confidentiality allays the fear of criminal retaliation which otherwise discourages citizen involvement in reporting crime or providing information. In turn, by guaranteeing anonymity, Law Enforcement Agencies are able to obtain information which it might not otherwise obtain.
18.Disclosure of such information and the identity of informants would discourage such citizen cooperation and may impact upon the safety of those informants and the public generally.
Detective Superintendent Goodwin also swore a confidential affidavit.
Senior Sergeant Tracy Gentgall swore in an open affidavit that she was the Officer in Charge of the Respondent’s Freedom of Information Unit. In her affidavit she set out the history of the Appellant’s application for employment and his application under the FOI Act. She exhibited the relevant documents.
Senior Sergeant Gentgall refers to documents 51 and 52. She refers to having refused the Appellant access to those documents on the basis of certain clauses of Schedule 1 to the FOI Act, including clause 4(3). That clause provides that a “document is an exempt document if it is a document that was created by the former Bureau of Criminal Intelligence or has been created or is held by the State Intelligence Section of South Australia Police or any authority substituted for that body”.
Senior Sergeant Gentgall states that as a result of the information set out in the open affidavits of Inspector Gustavson and Superintendent Goodwin in respect of document 52 she is now of the view that that document does not fall within the exemption under clause 4(3) of Schedule 1 to the FOI Act.
Referring to paragraphs 8-9 and 15-18 in the open affidavit of Superintendent Goodwin Senior Sergeant Gentgall then states:
The information contained in these documents 52 and 51 comprises and relates to information that is made available to SAPOL on the condition that it remains the property of the authority that makes it available and is not disclosed without the consent of that agency. Information of this type is shared between the states on a confidential basis to assist with the effective investigation and prosecution of criminal behaviour and the protection of the public. I am aware that the New South Wales Government objects to the disclosure of documents 51 and 52. In light of the nature of this information and objections raised by the New South Wales Government, I have formed the view that disclosure of these documents would divulge information from a confidential intergovernmental communication and could reasonably be expected to cause damage to intergovernmental relations. As such I have formed the view that these documents fall within Clause 5 of Schedule 1 of the FOI Act.
It is imperative to the effective investigation and prosecution of criminal behaviour and the protection of the public, that information of this type continues to both be made available to law enforcement authorities from relevant informants and other sources and also that it can be shared between those authorities. It is also imperative to maintaining the integrity of SAPOL that information of this type continues to be available in assessing applicants to SAPOL to ensure that the integrity of these applicants can be properly considered. As such I have formed the view that it is not in the public interest for disclosure of these documents to be made and that the documents would thus be exempt under Clause 5 of Schedule 1 to the FOI Act.
Senior Sergeant Gentgall then refers to document 52 containing what she says is personal information of persons other than the Appellant. She says that given the nature of that document as noted above it is her view that it would be unreasonable to disclose this information and that her view is that “the relevant documents would be exempt under Clause 6 of Schedule 1 to the FOI Act.”
Senior Sergeant Gentgall then refers to the open affidavit of Inspector Gustavson and says that documents 51 and 52 are documents relating to the decision-making processes of the Respondent in respect of the Appellant’s application to it. She says she has formed the view that it is not in the public interest for disclosure of these documents to be made and they are also exempt under clause 9 of Schedule 1 to the FOI Act.
Senior Sergeant Gentgall then refers to documents 51 and 52 as being of a type “integral to the effective conduct of both SAPOL’s general operations and the recruitments process”. She states:
Due to the sensitivity of this information it will only continue to be made available to SAPOL where its confidentiality can be maintained. As such I have determined that disclosure of these documents could reasonably have a substantial adverse effect on both the assessment of SAPOL’s personnel and on the effective performance of SAPOL’s functions by SAPOL. For the reasons set out above I have formed the view that it is not in the public interest for disclosure of these documents to be made and that the relevant documents are exempt under Clauses 16(1)(a)(iii) and (iv) of Schedule 1 to the FOI Act.
Senior Sergeant Gentgall then refers to document 9. She refers to the part of that document to which she refused access as being “an entry that relates to (and discloses in part) the information ascertained from documents 51 and 52”. She states that the same considerations apply to this entry as applied to documents 51 and 52. She states that for the same reasons she has formed the view that it is not in the public interest for disclosure to be made of that part of document 9 and that it is thus exempt under clause 9 of Schedule 1 to the FOI Act.
Senior Sergeant Gentgall further states that she would now determine that this entry would involve disclosure (at least in part) of the sensitive and confidential information obtained from New South Wales, and accordingly would be exempt under clause 5 of Schedule 1 to the FOI Act for the reasons she relied on in respect of documents 51 and 52, set out in paragraphs 14 and 15 above.
Finally, in relation to document 9, Senior Sergeant Gentgall says that disclosure of that part to which access was refused “would have a substantial adverse effect on both the assessment of SAPOL’s personnel and the effective performance of SAPOL’s functions and that such disclosure would not be in the public interest for the reasons” she set out in paragraph 18 above when referring to documents 51 and 52, and therefore is exempt under clause 16 of Schedule 1 to the FOI Act.
Senior Sergeant Gentgall also swore a confidential affidavit.
The appeal came on and was heard before me on 9 December 2013.
The FOI Act
The objects of this Act are, consistently with the principle of the Executive Government’s responsibility to Parliament, to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies (s3(1)) of the FOI Act).
The means by which Parliament intended to achieve these objects are as follows (s3(2) of the FOI Act):
(a) ensuring that information concerning the operations of government … is readily available to members of the public …; and
(b) conferring on each member of the public … a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest … and the preservation of personal privacy …
It was the stated intention of the Parliament that the FOI Act should be interpreted and applied so as to further the objects of it; and that a person or body exercising an administrative discretion conferred by the Act exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals (s3A(1) of the FOI Act).
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 (s 12 of the FOI Act).
An agency may refuse access to a document if it is an exempt document (s 20(1)(a) of the FOI Act).
Access to a document may be given to a person under the FOI Act by giving that person a reasonable opportunity to inspect the document; or by giving the person a copy of the document (s 22(1)(a) and (b) of the FOI Act).
In any proceedings concerning a determination made under the FOI Act by an agency, the burden of establishing that the determination is justified lies on the agency (s 48 of the FOI Act).
Schedule 1 to the FOI Act sets out documents that are Exempt documents. There are 19 clauses in Schedule 1 to the FOI Act.
Clause 4 of Schedule 1 to the FOI Act provides, in sub-clause (3):
A document is an exempt document if it is a document that was created by the former Bureau of Criminal Intelligence or has been created or is held by the State Intelligence Section of South Australia Police or any authority substituted for that body.
Clause 5 of Schedule 1 to the FOI Act provides:
A document is an exempt document if it contains matter the disclosure of which could reasonably be expected to cause damage to intergovernmental relations or would divulge information from a confidential intergovernmental communication; and the disclosure of which would, on balance, be contrary to the public interest.
Clause 6 of Schedule 1 to the FOI Act provides, in sub-clauses (1) and (3):
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 (living or dead).
(Such a) document is not an exempt document ... merely because it contains information concerning the person by or on whose behalf an application for access to the document is made.
Clause 9 of Schedule 1 to the FOI Act provides, in sub-clause (1):
A document is an exempt document if it contains matter that relates to any opinion, advice or recommendation that has been obtained, prepared or recorded, or any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and the disclosure of which would, on balance, be contrary to the public interest.
Clause 16 of Schedule 1 to the FOI Act provides, in sub-clause (1)(a)(iii) and (iv):
A document is an exempt document if it contains matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel or to have a substantial adverse effect on the effective performance by an agency of the agency’s functions …; and would, on balance, be contrary to the public interest.
On this appeal the Respondent relies on the above clauses 4, 5, 6, 9 and 16 of Schedule 1 to the FOI Act.
It is seen that for the Respondent successfully to do so in respect of clauses 5, 9 and 16 it must establish that disclosure of an otherwise exempt document would, on balance, be contrary to the public interest. The Respondent need not meet such a requirement in respect of clauses 4 and 6 of Schedule 1 to the FOI Act.
I note that Schedule 2 to the FOI Act sets out agencies that are Exempt agencies. These are agencies exempt from the operation of the FOI Act. South Australia Police is an Exempt agency in relation to information compiled by the former Special Branch; or the former Operations Planning and Intelligence Unit; or the Operations Intelligence Section (or a body substituted for the Operations Intelligence Section); or the Anti‑Corruption Branch (or a body substituted for the Anti‑Corruption Branch).
Some general principles
The Appellant, in order to succeed on this appeal, bears an overall or general burden of establishing that there are cogent reasons for me to depart from the Respondent’s decisions to refuse partial access to document 9 and total access to documents 51 and 52 (s 42E(3) of the District Court Act 1991).
The Respondent, in order to successfully resist this appeal, bears a specific burden of establishing that its decisions are justified (s 48 of the FOI Act).
I do not consider the general burden on the Appellant or the specific burden on the Respondent to which I have just referred can or should be described as “heavy”, or indeed can or should be qualified or described in any particular way or by any particular term.
Whether the Appellant or the Respondent has discharged the burden upon him or it will depend upon a number of factors. These include the nature of the documents concerned, the nature of the information in the documents concerned, the circumstances in which the documents or some of them came into existence or into the Respondent’s possession, the reasons for the Respondent excluding access to the documents, and the fact that any disclosure of documents by the Respondent to the Appellant is disclosure to the whole world, as there are no limits or qualifications the Respondent could put on the Appellant as to the use he could make of documents released to him by the Respondent.
It was submitted on behalf of the Respondent that the FOI Act is only concerned with provisions for access to documents and any relevant ground for exempting access to a document and thereby, by implication, is not concerned with the motives or reasons that a person has in seeking its documents. I shall consider later questions of the Appellant’s motives or reasons for seeking the documents he seeks when dealing with the question of public interest and when balancing the interests in favour of disclosure and those against.
As to public interest I adopt, with gratitude and approval, the following paragraphs of the Respondent’s Outline of Argument:
40In Ipex Information Technology Pty Ltd v Department of Information Technology Services 192 LSJS 54, Judge Lunn noted that under clause 9(1)(b):
it is for the respondent to show on the balance of probabilities that the disclosure in question would be contrary to the public interest. This does not mean merely showing that there is something adverse to the public interest likely to flow form disclosure of the document, but that on balance the factors in the public interest against disclosure outweigh the factors in favour of disclosure.
41In applying the exemptions and assessing the public interest there is no presumption in favour of disclosure but rather the exemptions are to be applied and the interests weighed as stated in the Act and on their merits. Daycorp Pty Ltd v Parnell [2011] SADC 191; Ipex Information Technology Group Pty Ltd v Department of Information Technology Services (supra).
42In Re Howard and the Treasurer (1985) 7 ALD 626, Davies J identified a series of factors that are relevant to the assessment of the public interest. These factors, which continue to be considered by the courts, (See, for example, Ipex Information Technology Group Pty Ltd v Department of Information Technology Services (supra); Capone v South Australian Police Information Unit [2011] SADC 7) are as follows:
·       The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should be disclosed.
·       Disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest.
·       Disclosure which will inhibit frankness and candour in future predecisional communications is likely to be contrary to the public interest.
·       Disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not be to in the public interest.
·       Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.
43These factors are not prescriptive nor exhaustive, however and it recognised that it is necessary to consider these factors in light of the particular documents under consideration and the whole of the circumstances. (Daycorp Pty Ltd v Parnell (supra))
The confidential affidavits

I received two affidavits that were not served on the Appellant. They were from Detective Superintendent Goodwin and Senior Sergeant Gentgall.
Mr Britten-Jones, of Counsel for the Appellant, submitted strongly that the appeal should be allowed because the evidence in the open affidavits and the reasons of the Respondent have not established that the documents to which access has been refused are exempt documents as defined in any part of Schedule 1 to the FOI Act. He submitted that there was a lack of particularity in the open affidavits such that there is no foundation for the conclusions drawn that the documents excluded fall within the exemptions relied upon by the Respondent.
Ms Seal, of Counsel for the Respondent, acknowledged and to some extent accepted Mr Britton-Jones’ criticism as to the very general nature of the open affidavits and the evidence contained therein which was said to support the Respondent’s determinations. She acknowledged that in particular in respect of the Respondent’s reliance on clause 6 of Schedule 1 to the FOI Act. That acknowledgment, however, could also be made in respect of clause 5 of Schedule 1. She submitted that any deficiencies in the open affidavits were covered and dealt with in the confidential affidavits.
It is always very difficult for a person in the position of the Appellant to address matters that are contained or are said to be contained in material to which he has not had access. There may be thought to be a tension between the objects of the FOI Act to promote openness on the one hand, and preventing the Appellant to have access to material to which access has been refused on the other hand. This tension may be thought to be particularly acute where the Appellant has, as in this case, been told that the material to which he has been denied access is likely to relate to matters which raise “integrity” or “association” issues which led to the Respondent advising him that his application for employment with the Respondent was unsuccessful.
In a case such as this the Appellant’s position is compounded by the fact that he cannot challenge whether or not all the contents of documents 51 and 52 in particular give rise to them qualifying as exempt documents. The Appellant’s position is compounded still further by the fact that he does not know what is in the confidential affidavits that might add to or supplement the Respondent’s reasons for refusing him access to part of document 9 and all of documents 51 and 52.
The Respondent also faced challenges on this appeal as it must try to respond to the appeal without disclosing information or material that might ultimately be held to be exempt from disclosure for sound and compelling reasons.
There is no doubt that the FOI Act contemplates that in proceedings in this court evidence can be received and argument heard in the absence of the public and in the absence of the other party to the appeal. That is expressly provided for in respect of restricted documents in s 41 of the FOI Act.
Schedule I itself provides extensively for exempt documents not all of which are subject to a “contrary to the public interest” test.
There are other provisions in the FOI Act which have the effect of limiting the generality of the objects of the Act, either for the public good (eg Schedule 2 – Exempt agencies) or for the private good, including to protect rights to privacy.
The open affidavits
I refer again to the three documents the subject of this appeal and the evidence in the open affidavits that relates to them.
Document 9 is a two page document in a volume of exhibits to the open affidavit of Senior Sergeant Gentgall. It appears at pages 30 to 31 under tab TMG7 of that volume of exhibits. It is headed RECRUITING APPLICATION ASSESSMENT SUMMARY.
Inspector Gustavson states that document 9 is an Application Assessment Summary sheet for the Appellant’s application for employment with the Respondent. She states that the Recruiting Section of the Respondent handles large volumes of highly sensitive and confidential information through the recruitment process. In order to record this and other information all recruiting files have a Recruiting Application Assessment Summary sheet, to enable the efficient flow of information. This is a snapshot of where the process is up to and is the mechanism to document what additional investigation is required. This document often details sensitive material and intelligence from various law enforcement agencies.
Inspector Gustavson states that this document has been disclosed to the Appellant except for one entry. That is the entry which is dated 15 December 2011 which is blanked out on the second page of the summary. There is hand‑written in the blanked out area “TNG 10”. She states that that entry relates to information made available to the Recruiting Section which is contained in documents 51 and 52. She states that the entry contains confidential information the disclosure of which is not in the public interest.
Senior Sergeant Gentgall, in her open affidavit, states that the blanked‑out entry on document 9 relates to, and discloses in part, the information ascertained from documents 51 and 52. She states that for the same reasons she formed the view that it was not in the public interest for disclosure of documents 51 and 52 to be made she formed the view that it was not in the public interest for disclosure to be made of that part of document 9 which has been blanked out.
Senior Sergeant Gentgall states further that she was aware that the New South Wales Government objects to the disclosure of documents 51 and 52.
As to document 51 Inspector Gustavson states that she was advised that that document is a document which was made available to the Recruiting Section of the Respondent by the State Intelligence Branch as a result of a request to that Branch for information in respect of the Appellant’s application for employment with the Respondent.
Detective Superintendent Goodwin states that document 51 is a facsimile containing a response from the State Intelligence Branch to a request from the Recruitment branch for an assessment of information relating to the Appellant. This document was created by the State Intelligence Branch. He states that the State Intelligence Branch created document 51 from document 52.
As to document 52 Inspector Gustavson states that this document “is a printout of information from a confidential database that holds information from other federal, state and territory law enforcement and other regulatory authorities. The printout was created by a staff member at the Records Release Unit after a request from Recruitment for information relating to the Appellant”.
Senior Sergeant Gentgall states that the information in document 52 comprises and relates to information that is made available to SAPOL on the condition that it remains the property of the authority that makes it available and is not disclosed without the consent of that agency. Information of this type is shared between the States on a confidential basis to assist with the effective investigation and prosecution of criminal behaviour and the protection of the public. She states that she is aware that the NSW Government objects to the disclosure of document 52.
Senior Sergeant Gentgall then sets out in her open affidavit the reasons why she came to the conclusion that document 52 is an exempt document under clauses 5, 6, 9 and 16 of Schedule 1 to the FOI Act.
The clauses of Schedule 1 relied on by the Respondent
As a result of the evidence and a submission on behalf of the Appellant it is convenient for me to deal first with document 52. Counsel for the Appellant, rightly in my view, focussed his submissions on the appeal on document 52 as he stated in his written Summary of Argument that it “is apparent from the open affidavits that document 52 is the source document of the undisclosed information. Document 52 contains information which is then partly disclosed in documents 51 and 9”.
The evidence to which I have just referred is that evidence in the open affidavits upon which counsel for the Appellant submitted the above was apparent. I agree, and I find, that the evidence in the open affidavits establishes the fact that document 52 is the source of what is in documents 9 and 51. That is confirmed in the confidential affidavits.
If I find that the Appellant fails on his appeal in respect of document 52, I will inevitably find that he fails in his appeal in respect of documents 9 and 51, although document 51 falls into a different category to documents 9 and 52 because that document is alleged by the Respondent to be not only an exempt document by virtue of Part I of Schedule I to the FOI Act but to be also thereby a restricted document under the FOI Act. A restricted document is defined as meaning a document that is an exempt document by virtue of Part I of Schedule I to the FOI Act. Part I of Schedule I comprises four clauses. Clause 4(3) was relied on by the Respondent to submit that document 51 is an exempt document as it is said to be a document that was created by the State Intelligence Section of the Respondent or any authority substituted for that body.
The evidence in the open affidavits is that document 51 is a document created by the State Intelligence Branch of the Respondent. There was no suggestion that that was different from the State Intelligence Section of the Respondent. That being so, document 51 is an exempt document pursuant to clause 4(3) of Part I of Schedule I to the FOI Act. Accordingly, it is a restricted document under the Act.
At the hearing of the appeal I received two confidential affidavits which were not provided to the Appellant. Document 51 was exhibited to one of those confidential affidavits. I did not require that the Respondent produce the document in evidence before me (see s41(2) of the FOI Act), but it was.
I am completely satisfied on the open and confidential affidavit evidence that document 51 is a document created by the State Intelligence Section of the Respondent. Accordingly, it is an exempt document under clause 4(3) of Schedule I to the FOI Act. Public interest considerations do not apply to clause 4(3) of Schedule I.
Accordingly, on this ground alone, I would dismiss the appeal insofar as it relates to document 51.
I referred earlier to some of the evidence in the open affidavits as to what document 52 is, and what the deponents of them say as to the disclosure of document 52.
In summary, the evidence is that this document is a printout of information from a confidential database that holds information from other Federal, State and Territory law enforcement and other regulatory authorities. It includes intelligence submitted to the system by NSWPOL. Access to this document is restricted to law enforcement officers around Australia. As the document is owned by NSWPOL, any dissemination outside SAPOL requires approval from the originating organisation. Information of the type in document 52 is shared between the States on a confidential basis to assist with the effective investigation and prosecution of criminal behaviour and the protection of the public. The NSW Government objects to the disclosure of document 52. Document 52 contains personal information of persons other than the Appellant.
As to the contents of document 52 each of the deponents to the three open affidavits make certain statements as to the effect of disclosure of this document.
Inspector Gustavson states that the recruiting process in SAPOL is inherently confidential. She states that the confidential nature of the information in document 52 means that it is not in the public interest to disclose this document. She states that the potential negative impact of disclosing law enforcement intelligence holdings and identifying intelligence sources would have a significant impact on SAPOL’s ability to source this information and conduct and consider appropriate probity checks in the recruitment process. This would impact on SAPOL’s ability to ensure compliance with its responsibility to maintain its integrity as required under the Police Act, 1988. The integrity of SAPOL and the public’s confidence in that integrity is central to SAPOL being able to meet its legislative responsibilities.
Detective Superintendent Goodwin states that the purpose of SAPOL is to reassure and protect the community in relation to crime and disorder by the provision of services to, amongst other things, uphold the law, preserve the peace and prevent crime. In order to do this the Commissioner of Police must establish systems for the obtaining, correlating and evaluating of intelligence material relevant to the prevention of crime and the apprehension of offenders. He states that the State Intelligence Branch (formerly the Bureau of Criminal Intelligence) consists of a number of sections which provide SAPOL with specialist criminal intelligence services. One of those services is an area referred to as Registry. The Registry conducts checks with other government agencies (including other law enforcement agencies) and is responsible for intelligence holdings. It acts as a repository of information with SAPOL, collating information from both areas within SAPOL and those external agencies with whom information is shared.
Detective Superintendent Goodwin states that when someone seeks to become a sworn member of SAPOL the Registry conducts probity checks on behalf of the Recruitment Section of SAPOL as part of the recruitment process. He states that the Registry has access to information and intelligence from other Federal, State and Territory law enforcement and other regulatory authorities. This information is made available to SAPOL on the condition that it remain the property of the authority that makes it available and that it not be disclosed to third parties without the consent of the authority to whom it belongs. This information and intelligence is a vital resource in ensuring that SAPOL can effectively protect the community and investigate and enforce the law.
Detective Superintendent Goodwin states that document 52 includes intelligence submitted to the system by NSWPOL. Access to this document is restricted to law enforcement officers around Australia. As the document is owned by NSWPOL any dissemination outside SAPOL requires approval from the originating organisation. Disclosure of this document without the consent of NSWPOL would affect the relationship between SAPOL and NSWPOL and impede cooperation between those authorities in the future.
Detective Superintendent Goodwin states that information is obtained by police services from various sources and in some cases the person providing the information does so on the basis that the information is confidential and they will remain anonymous. This is a well-established and important principle which is used by SAPOL and other law enforcement agencies to allow persons to provide full and frank information. He states his belief that the promise of anonymity and confidentiality allays the fear of criminal retaliation which otherwise discourages citizen involvement in reporting crime and providing information. In turn, by guaranteeing anonymity, law enforcement agencies are able to obtain information which they might not otherwise obtain. Disclosure of such information and the identity of informants would discourage such citizen cooperation and may impact upon the safety of those informants and the public generally.
The Respondent submits that the evidence to which I have just referred establishes that document 52 is an exempt document pursuant to clauses 5, 6, 9 and 16 of Schedule 1 to the FOI Act.
It is submitted that document 52 is an exempt document pursuant to clause 5 as it contains matter the disclosure of which could reasonably be expected to cause damage to inter-governmental relations or would divulge information from a confidential inter-governmental communication.
I am satisfied and find that disclosure of all matter in document 52 could reasonably be expected to cause damage to inter-governmental relations, and in particular would cause damage to the relations between governmental agencies in New South Wales and South Australia, and in particular between the police forces of those two states. I do not confine this finding to relations between the two police forces because the relations between them are inextricably linked to the relations between the governments of New South Wales and South Australia generally. The evidence, which I accept, is that the New South Wales government objects to the disclosure of document 52 and I accept the evidence that disclosure of this document without the consent of NSWPOL would affect its relationship with SAPOL and would impede co‑operation between those two authorities in the future. I make the above findings on the basis of both the open affidavits and material in confidential affidavits.
Further, I am satisfied and find that disclosure of document 52 would divulge information from a confidential inter-governmental communication. I am satisfied and find that the contents of document 52 is from a confidential data base which holds information from Federal, State and Territory law enforcement authorities. I make these findings on the basis of the open affidavits, although material in the confidential affidavits add weight to these findings.
Clause 5 requires that before document 52 can be an exempt document it must also be one the disclosure of which would, on balance, be contrary to the public interest. I deal with the “contrary to the public interest” test later.
The Respondent submits that document 52 is an exempt document pursuant to clause 6 as it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead) other than the Appellant.
I am satisfied and find, even on the open affidavits but supported by material in the confidential affidavits, that people provide information to police forces across the country on the basis that the information is confidential and that they will remain anonymous. The promise of anonymity and confidentiality allays the fear of persons who provide information to police of retaliation from people or others that may be the subject of, or may relate to, the activities the subject of such information. By guaranteeing anonymity law enforcement agencies, including police forces, are able to obtain information which they might not otherwise obtain and will or may assist in people providing full and frank information for that purpose. I am satisfied on the evidence before me on the open and confidential affidavits that if that was undermined the activities of the police forces in this country would be seriously compromised and would, as a result, compromise and undermine the ability of police forces to protect the Australian community, to investigate, arrest and prosecute criminal offenders and activity, and thereby put at risk public safety and the effective operation of the core police function of law enforcement.
I am satisfied and find that the disclosure of document 52 would identify certain persons who have given information to police in New South Wales and the affairs of those persons. In my judgment the disclosure of document 52 would involve the unreasonable disclosure of that information. It would disclose information they would reasonably have expected to remain confidential and where their identity would remain anonymous, and expose them to potential risk.
Accordingly, I am satisfied and find that document 52 is an exempt document pursuant to clause 6 of Schedule 1 to the FOI Act. The “contrary to the public interest” test does not apply to clause 6.
The Respondent submits that document 52 is an exempt document pursuant to clause 9 as it contains matter that relates to an opinion, advice or recommendation that had been obtained, prepared or recorded in the course of, or for the purpose of, the decision-making functions of SAPOL, being in respect of the recruitment of employees to SAPOL, as required under the Police Act 1998.

I am satisfied and find on the evidence in the open affidavits that the Commissioner of Police is responsible for ensuring that the recruit selection processes of SAPOL are based on a proper assessment of merit. The definition of “merit” for the purposes of that selection expressly includes “the extent to which each of the applicants has a record of good conduct and integrity”. SAPOL has a responsibility for ensuring that any applicant undergoes a thorough probative examination to ensure that he or she does not have any actual or perceived criminal associations or history that will adversely impact the integrity of SAPOL. This includes sending a written request to SAPOL’s State Intelligence Branch to conduct checks on all available intelligence holdings on an applicant. Such information is necessary to ensure the integrity of SAPOL is maintained in its recruiting process.
I am satisfied and find that it is fundamental to the integrity of SAPOL and to the public’s confidence in that integrity that members of the police force in this State are recruited, so far as can reasonably be ensured, who have the appropriate skills, abilities, aptitudes and knowledge to undertake the role of a general duties police officer, and who have no actual or perceived criminal associations or history. This is not, of course, confined to having a “criminal record”, insofar as that expression means having been convicted of a criminal offence, or even to having been charged, fingerprinted or faced court. Having perceived criminal associations or history without a criminal conviction may, in certain circumstances, be worse or more detrimental to the integrity of SAPOL than having a sole criminal conviction for a relatively minor traffic or regulatory offence. A potential recruit who does, for example, have established criminal associations may well be compromised in fearlessly upholding or seeking to uphold the law, even where he or she does not intend or wish to be so compromised. Such a potential recruit may also, unintentionally or unwittingly, compromise the perceived integrity of SAPOL.
Clause 9 is subject to the “contrary to the public interest” test which I deal with later.
The Respondent submits that document 52 is an exempt document pursuant to clause 16 as it contains matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the management or assessment by SAPOL of its personnel and to have a substantial adverse effect on the effective performance by SAPOL of its functions.
During her submissions, Ms Seal submitted this:
… probably the key power of an agency or, in fact, any entity can have in managing its personnel is in deciding who becomes part of that personnel, who becomes within the class and who can’t. If one can’t control who is desirable to be a member of the personnel, one certainly can’t manage the personnel, that would have to have an effect on the management of the personnel.
I agree with that submission. I have already referred to some of the evidence before me in the open affidavits when I was referring to clause 9. In my view they have equal application in respect of clause 16.
Ms Seal submitted that the Respondent accepts that the test in clause 16 is high. She was referring to the word “substantial” where that is twice used in clause 16. That word defines what the adverse effect must be found to be.
I have no doubt, on the open affidavits alone, that disclosure of document 52 could reasonably be expected to have a substantial adverse effect on the management or assessment by SAPOL of its personnel, and to have a substantial adverse effect on the effective performance by SAPOL of its functions. I am satisfied and find on both the open and confidential affidavits that if document 52 is disclosed that will likely cause law enforcement agencies elsewhere in this country to reassess whether information of the type contained in document 52 is made available by them to a confidential database to which SAPOL has access. Information on such a database currently provided by other agencies is, and in my view must be, used by SAPOL in assessing its potential recruits and in preventing, investigating and prosecuting criminal activities.
I am satisfied and find that if SAPOL did not have access to the information in document 52, which I am satisfied would be reasonably likely if not inevitable if that document was disclosed to the Appellant, then that would have a substantially adverse effect on SAPOL’s recruitment processes and its policing functions generally.
Clause 16 is also subject to the “contrary to the public interest” test.
I have no doubt that the disclosure of document 52 in this case would be contrary to the public interest.
This case involves the police force in South Australia. It involves the potential recruitment of a police officer to serve as such in this State. It involves information that has been provided to SAPOL by the New South Wales police force in the context of law enforcement agencies throughout this country pooling their resources and intelligence for the benefit of each and for the benefit of communities throughout this country. The information necessarily involves information and intelligence gathered from a variety of sources including confidential sources. Disclosure of document 52 would compromise and likely cause such information to be denied to the South Australian Police Force.
In my judgment, those matters must over-ride any interests the Appellant has in knowing why his application to join the South Australian police force has been unsuccessful. I acknowledge that such an interest is not an unreasonable one in the circumstances. My view is that the public interest over-rides the Appellant’s private interest. I am satisfied and find on the public and confidential affidavits that disclosure of document 52 would be adverse to proper law enforcement in this State and would be contrary to the public interest.
Finally, I record my satisfaction that the information in the two confidential affidavits was appropriately kept confidential for security purposes and for reasons of confidentiality.
I would dismiss the appeal. I make no order as to costs.