CITATION: Lees v Commissioner of Police, New South Wales Police Service & Anor [2003] NSWADT 215 DIVISION: General Division APPLICANT Dennis Lees PARTIES: FIRST RESPONDENT Commissioner of Police, New South Wales Police Service SECOND RESPONDENT Premier (as Minister administering the Freedom of Information Act 1989) FILE NUMBER: 033033 HEARING DATES: 09/09/2003 SUBMISSIONS CLOSED: 09/09/2003 DATE OF DECISION: 09/09/2003 BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: access to documents - law enforcement & public safety MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 BY v Director General, Attorney General's Department [2002] NSWADT 79 CASES CITED: Watkins v Chief Executive, Roads and Traffic Authority [2001] NSWADT 11 Department of Health v Jephcott (1985) 8 FCR 85 McEniery and Medical Board of Queensland [1994] QICmr 2 (28 February 1994); (1994) 1 QAR 349 APPLICANT REPRESENTATION: In person RESPONDENT D Paterson, solicitor ORDERS: The agency's decision is affirmed. REASONS FOR DECISION 1 Mr Lees, the applicant in these proceedings, has applied to the Tribunal for a review of a decision of the Commissioner of Police (the Commissioner) under the Freedom of Information Act 1989 (FOI Act). The decision was to refuse Mr Lees access to parts of several documents. The Minister administering the FOI Act is also a party to these proceedings but chose not to appear or be heard. 2 Background On 23 October 2002, the Firearms Registry wrote to Mr Lees advising him that they had "received information regarding your suitability to continue to hold a firearms licence. Information received at the NSW Firearms Registry indicates that you may be suffering from Paranoia Schizophrenia (sic). It is also alleged that you may have a drug and alcohol problem." The letter went on to request that Mr Lees see a psychiatrist in order to obtain a confidential medical assessment. The Registry stated that they would assess the report and decide whether to take any action in relation to his firearms licence. Meanwhile Mr Lees licence was suspended. The medical report was obtained and because it concluded that Mr Lees did not have any mental condition which would have the potential to put public safety at risk if he used a firearm, the suspension was revoked and no further action taken. 3 On 25 October 2002 Mr Lees applied under the FOI Act for the following documents: All material held by the Firearms Registry at Murwillumbah relating to the "Notice of Suspension of Firearms Licence" dated 18 October 2002 in relation to Dennis Lees. The suspension was authorised by the Review and Assessment Unit, Firearms Registry, NSW Police. Copy attached. In particular the complaints that were received by the Review and Assessment Unit, used to commence the "Notice of Suspension." The Commissioner's delegate responded on 13 November 2002 advising that access was granted in full to certain documents and that access had been denied in full or in part to other documents. The documents to which access was denied either in full or in part, are as follows: 1. Report by Manager, Review & Assessment, Firearms Registry dated 18 October 2002 to Sector Supervisor Jindabyne – access denied in part 2. Notes concerning suspension notice – access denied in part 3. Letter from complainant – access denied in full The deleted material relates to information including the name, address and other "confidential" information in the documents which could lead to the identity of the author of the complaint being revealed. Exemption was claimed pursuant to Cl 4(1)(b) of the FOI Act. Mr Lees requested an internal review which was completed on 6 December 2002. The internal review affirmed the original decision. The crux of Mr Lees' submission is that he suspects that the person who made the complaint is one or both of his neighbours with whom he has been in dispute since the early 1990s. According to Mr Lees, his neighbours continually and vexatiously complain about him and he is determined that is should stop. He expressed a fear that further letters may be written to the Firearms Registry along the same lines as the letter of complaint. He also expressed the view that police officers should have made some basic inquiries before assuming that he may have a mental illness. Legislative scheme 4 One of the objects of the FOI Act, as set out in s 5(1)(a), is to "extend, as far as possible, the rights of the public to obtain access to information held by the Government." This object is achieved, in part, "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." (See s 5(2)(b)). The burden of proof lies on the agency or Minister to establish that the determination is justified. (See s 61.) 5 Section 25(1) and (3) of the FOI Act, contain provisions allowing an agency to refuse access to an exempt document. An agency must refuse access to a restricted document that is the subject of a Ministerial certificate. (1) An agency may refuse access to a document: (a) if it is an exempt document, (3) An agency shall refuse access to a restricted document that is the subject of a Ministerial certificate. 6 Restricted documents are defined in s 6 of the FOI Act to mean "a document referred to in any one or more of the provisions of Part 1 of Schedule 1." Part 1 of Schedule 1 contains provisions relating to cabinet documents (Clause 1), executive council documents (Clause 2) and document affecting law enforcement and public safety (Clause 4). Clause 3 has been repealed. 7 Sub-section (4) of s 25 requires an agency to provide access to a restricted document if it is practicable to give access to the document with the exempt material deleted. That sub-section states that: (4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate): (a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy. 8 Section 59 of the FOI Act allows the Minister to sign a certificate stating that a specified document is a restricted document. Such a certificate is taken to be conclusive evidence that the document is a restricted. The documents in dispute in these proceedings are not subject to a Ministerial certificate. 9 Section 53(1) allows a person who is aggrieved by a determination of an agency, to apply to the Tribunal for a review of the decision. 10 In these proceedings, the agency is claiming, among other things, that the documents in dispute are "restricted documents" under Cl 4 of Part 1 to Schedule 1. The only provision of the FOI Act which relates to "restricted documents" where no Ministerial certificate has been issued, is s 57 which states that: (1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate. (2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of: (a) the public, and (b) the review applicant, and (c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative. (3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it. (4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application. (5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter. (6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings. In BY -v- Director General, Attorney General's Department [2002] NSWADT 79 the Tribunal concluded that: a) Section 57 is applicable to any application for review that seeks review of an agency claim that a document is a restricted document (save for those determinations where a Ministerial certificate has been issued pursuant to s 59 to which ss 58A, B and C are applicable). (b) As provided by s 57(6) the Administering Minister is entitled to participate as a party in respect of the review of a claim of the kind referred to in Answer (a). (c) If the Tribunal finds that there are reasonable grounds for the claim, its jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision. Contrary to the agency's submission which relied on the earlier decision of Watkins v Chief Executive v Roads and Traffic Authority [2001] NSWADT 11, I intend to adopt the approach taken by the Tribunal in BY -v- Director General, Attorney General's Department. Consequently, the initial question is whether there are reasonable grounds for the claim that the documents (or parts of the documents) are exempt from production under Cl 4(1)(b). Although s 57 only requires that there be reasonable grounds for the claim, I have found that the agency has made out its claim under s 4(1)(b) on the merits. Consequently, my findings relate to the merits, not just to the question of whether there are reasonable grounds for the claim. Consideration of exemption The exemption relied on is Cl 4(1)(b). That clause states that: (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: (b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, None of the exceptions in Clause 4(2) apply to the circumstances of this case. Firstly the documents must relate to the enforcement or administration of the law. The information concerns Mr Lees' fitness to retain a firearms licence under the Firearms Act 1986. In those circumstances I find that each of the three documents relates to the enforcement or administration of the law. Secondly, disclosure could reasonably be expected to enable the existence or identity of any confidential source of information to be ascertained. Having inspected the documents in their entirety, there is no doubt that disclosure could reasonably be expected to enable the identity of a source of information to be ascertained. The final question is whether that source of information is "confidential" and whether there is any exception for information which is inaccurate, mistaken, deliberately false, malicious or vexatious. In Department of Health v Jephcott (1985) 8 FCR 85 (Forster, Keely and Davies JJ) the Full Court of the Federal Court held that in respect of the Commonwealth equivalent of the NSW clause, namely, section 37(1)(b) of the Commonwealth FOI Act, a "confidential source" is one where the information provided from that source was given with an express or implied pledge of confidentiality - see: Forster J at 89 and Keely J at 90. I find that the source of the information is confidential having regard to the nature of the information, and the practice of the agency in relation to the receipt of confidential information. Mr Lees submission is that the documents fit into the category of being malicious or vexatious and consequently should not be protected. Regardless of any policy reasons which would support this argument, both the plain meaning of the words in Cl 4(1)(b) and the weight of authority is against Mr Lees submission. Clause 4(1)(b) contains no qualification in relation to the kind of information which is covered. Confidential information does not cease to be confidential information if it is incorrect or made with a malicious motive. Furthermore, unlike several other exemptions in the FOI Act, there is no public interest qualification in Cl 4(1)(b). The weight of authority supports the plain meaning of s 4(1)(b). It has been accepted by Muirhead J of the Federal Court of Australia in McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 and by the Victorian AAT in Re Richardson and Commissioner for Corporate Affairs (1987) 2 VAR 51 at p.52-53 that the Commonwealth and Victorian equivalents of Cl 4(2)(b) of the NSW FOI Act are not concerned with whether the confidential source of information supplies information which is false or erroneous. (See also Re Gold and Australian Federal Police (1994) 37 ALD 168 (Commonwealth AAT). Similarly, in Queensland, the Queensland Information Commissioner has consistently rejected the kinds of submission that Mr Lees is making in this case while recognising the public policy arguments behind those submissions. In McEniery and Medical Board of Queensland [1994] QICmr 2 (28 February 1994); (1994) 1 QAR 349 the Commissioner said, at [62]: Arguably, the public policy considerations underlying this rule of law are insufficiently sensitive to the plight of a person who is falsely accused by a person able to hide behind a shield of anonymity, and the rule of law is insufficiently flexible to provide a more sensitive balance to the competing public interests that need to be adjusted in such situations. To be falsely accused can occasion very real trauma for the accused person and his or her family, financial loss (through unnecessary expenditure on legal representation, or time lost from a business or employment) plus general stress, anxiety and inconvenience. The public interest in ensuring the free flow of information to investigative and regulatory authorities may well require that this unfortunate consequence must be tolerated where an informer honestly but mistakenly believes that information concerning a person requires investigation by the relevant authorities. Does the appropriate balance of public interest, however, really require that the informer who knowingly supplies false information should be permitted to hide behind the shield of anonymity? Not only does such conduct have severe and unwarranted consequences for the person improperly informed against, but it occasions a waste of scarce public resources when they are devoted by the police or the relevant regulatory authority to an unnecessary investigation. Having discussed the public policy consideration the Queensland Commissioner went on to conclude at [64] that the equivalent provisions in Queensland "presently admit of no exceptions for situations of the kind just discussed." This Tribunal has adopted a similar approach. In Taylor v Chief Inspector, RSPCA [1999] ADT 23, the Tribunal noted at [9] that the complaint was considered by the RSPCA to have been unfounded or frivolous and was made in the context of a neighbour dispute. Nevertheless the Tribunal upheld the chief inspector's decision to protect the identity of the informant from disclosure. Similarly in Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35 the Tribunal accepted the agency's assessment that the complaint in that case was not made in circumstances where the informer knew it to be false. Having concluded that s 4(1)(b) applies even where the confidential information is false, malicious or vexatious, I have not taken into account the evidence Mr Lees tendered in an attempt to prove that this was the case. While I appreciate Mr Lees' concerns about his relationship with his neighbours, the law does not allow me to take into account the motivation of an informant in determining whether that information comes within the exception in Cl 4(1)(b). I have also considered, consistently with s 25(4)(a) whether access should be given to a copy of the documents from which the exempt matter has been deleted. I am satisfied that there is no other information in any of the three documents which could be released to Mr Lees. Having concluded that the agency has proven each element of Cl 4(1)(b) I affirm its decision. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.