CITATION: Optima Developments Pty Limited -v- General, Manager, Wyong Shire Council [2002] NSWADT 99 DIVISION: General Division APPLICANT PARTIES: Optima Developmemts Pty Limited REPONDENT General Manager, Wyong Shire Council FILE NUMBER: 023037 HEARING DATES: 05/06/2002 SUBMISSIONS CLOSED: 06/05/2002 DATE OF DECISION: 06/11/2002 BEFORE: Hennessy N (Deputy President) APPLICATION: access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - law enforcement & public safety MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Classification (Publications, Films and Computer Games) Enforcement Act 1995 Freedom of Information Act 1989 BY -v- Director General, Attorney General's Department [2002] NSWADT 79 CASES CITED: Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 APPLICANT REPRESENTATION: C Oliver, agent RESPONDENT J Battese, agent ORDERS: 1. The agency's decision to refuse access to the documents in dispute is affirmed; 2. All exempt material to be returned to J Battese representing the agency after twenty-eight days of the date of this decision if an appeal has not been filed. 1 Optima Pty Limited (Optima) applied to the Tribunal for a review of a decision by the General Manager, Wyong Shire Council (the agency) not to provide it with certain material in two documents under the Freedom of Information Act 1989 (FOI Act). The first document is a letter from a person (the informant) to the agency dated 1 February 2001 complaining about certain activities being carried on in Donaldson Street Wyong. (Document 1) The alleged activities are the sale or display of X-rated, unclassified and refused classification videotapes and DVDs. The second document is a letter from the agency to the informant dated 23 February 2001 thanking him or her for bringing the matter to their attention (Document 2). 2 Optima is a consultant engaged by the proprietors of the business "Nauti and Nice" where the alleged activities took place. The agency provided Optima with a copy of both Document 1 and Document 2 with the identifying details of the informant deleted. The ground on which the agency claimed that the deleted material is exempt is that it is a document affecting law enforcement under Cl 4(1)(b) of Schedule 1 to the FOI Act. 3 The agency wrote to the informant on 27 February 2002 advising that a planning meeting was scheduled for 10 April 2002. The letter stated that "At this stage, you are not deemed to be a party to this action. If you do wish to be represented you will need to seek the leave of the Tribunal. I suggest you seek legal advice in this respect." The informer did not communicate with the Tribunal and did not seek leave to appear either at the Planning Meeting or at the hearing. Jurisdiction 4 The Tribunal has jurisdiction to review the agency's decision to refuse access to a document or part of a document under s 53 of the FOI Act and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act). There was no dispute about the Tribunal's jurisdiction to review the agency's decision. 5 The agency submitted that the deleted parts of Documents 1 and 2 come within the law enforcement exemption in Clause 4 of Schedule 1 to the FOI Act. Consequently they are restricted documents. The most recent of the Tribunal's decisions on this question is BY -v- Director General, Attorney General's Department [2002] NSWADT 79. In that case the Tribunal decided that s 57 of the FOI Act is applicable to any application for review that seeks review of an agency claim that a document is a restricted document. As provided by s 57(6) the Premier is a party to proceedings concerning restricted documents. 6 In this case the Premier was not advised of the hearing and was not joined as a party. During the hearing I proposed that I should nevertheless consider the merits of the application under s 63 of the ADT Act. If I came to a provisional view that the deleted material is not part of a restricted document and should be released, then the hearing should be reconvened to allow the Premier to make submissions. Both parties agreed to this course. Relevant legislation 7 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 FOI Act s 5(2)(b).) The burden of proof lies on the agency or Minister to establish that the determination is justified. (See FOI Act s 61.) 8 Section 25(1) of the FOI Act allows an agency to refuse access to an exempt document. That sub-section states that: (1) An agency may refuse access to a document: (a) if it is an exempt document 9 So far as is relevant to these proceedings, an exempt document is defined in s 4 to mean "a document referred to in any one or more of the provisions of Schedule 1." The agency relied on the exemptions in Clause 4(1)(b) of Schedule 1. Clause 4(1)(b) 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. 10 Optima did not submit that any of the exceptions listed in Clause 4(2) apply in this case. 11 Section 25(4) of the FOI Act requires an agency to provide access to an exempt 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. Issues 12 In view of the exemptions relied on by the agency and the Tribunal's interpretation of the law in previous cases, (See Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93) the issues to be resolved in this case are as follows: 1. Do the documents relate to the enforcement or administration of the law? 2. Could disclosure of the deleted material reasonably be expected to enable the existence or identity of any confidential source of information to be ascertained? 3. If one or both documents contain exempt material, should the Tribunal nevertheless exercise its discretion to override the exemption and provide access? Evidence 13 No statements were tendered and no oral evidence was given in this case. Consequently I must rely on the documentary material on the file. That material consisted of Document 1 and Document 2, the agency's policy in relation to access to council records, correspondence between the agency and Optima and a letter from the informant to the agency dated 10 December 2001. 14 Document 1 is a letter from the informant addressed to the Mayor, Wyong Shire Council. The letter was also sent to the Local Area Commanders of Brisbane Water and Toukley Command, the NSW Police Commissioner, the Member for Gosford, the Member for Wyong and the Mayor of Gosford City Council. The majority of the content of the letter was released to Optima. The only material deleted was the name and address of the informant, the signature of the informant and two lines which would lead to the identity of the informant being disclosed. 15 The letter itself asked whether police are able to enforce laws prohibiting the display of X-rated, unclassified and refused classification videotapes and DVDs pursuant to section 6 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995. The letter went on to allege that this material is freely available for sale at all three of the "Nauti 'n' Nice Adult Mega Stores". The letter concluded with the following sentence: "As a matter of urgency I ask that the law be either enforced or ignored evenly, or replaced by one permitting the sale of this material in restricted premises such as complying adult stores." 16 Document 2 is a letter from the Mayor, Fay Brennan, to the informant thanking him or her for bringing the matter to her attention. The letter concluded that: "Council does not have the authority to intervene in the sale of such videos as this is a Police matter." 17 The agency tendered a letter from the informant to the agency dated 10 December 2001. That letter stated, in part, that: As my letter of February 1, 2001 was in connection with the repeated and continuing committing of a criminal offence, which is the subject of police investigation(s), and was addressed to many people other than the mayor of Wyong, I must insist that both the content of my letter and that of the mayor's response remain confidential. 18 Council's policy dealing with Access to Council Records states, in part, that: "The identify of complainants is not to be revealed externally other than when required by law or with the written consent of the complainant. In this respect, it should be noted that a document revealing the identity of a complainant might be released under the Freedom of Information Act, if not by Council, then upon a recommendation of the New South Wales Ombudsman or by direction of the District Court." 19 This policy has apparently not been updated since the Administrative Decisions Tribunal took over the jurisdiction previously exercised by the District Court under the FOI Act. Applicant's submissions 20 Optima noted in a letter to the Council dated 8 November 2001 that: "This request has been generated due to the nature of the allegations contained within the documents and the fact that they may be from a source in commercial opposition to our client's business and that they may need to take separate legal advice." 21 Optima submitted that Document 1 does not relate to the enforcement or administration of the law because it is a complaint about the operation rather than the enforcement of the law and requests an amendment to that law. Optima agreed that disclosure of the deleted information in both Documents 1 and 2 would identify the source of the information. Optima's final submission was that the informant is not a "confidential source of information" because Document 1 was not marked "confidential" or "without prejudice" and there was no mention in the letter that the matter should be kept confidential. Optima submitted that the fact that the letter was addressed to six other people or agencies indicates that the views and information of the author have been widely distributed and cannot have been intended to be communicated in confidence. Agency's submissions 22 The agency's submission was that both documents clearly relate to law enforcement even though the agency itself is not the agency which enforces the law in relation to the sale of X-rated films. The Council's policy on this question is clearly set out, although Mr Batesse conceded that members of the public may not be aware of that policy because it is not in any publicly available form. According to Mr Batesse, staff would have intended their dealings with the informant to have been confidential. 23 Mr Batesse was also satisfied, given the informant's letter of 10 December 2001, that he or she expected that their dealings would have been treated confidentially. Findings, reasons and decision 24 The first question is whether the documents relate to the enforcement or administration of the law. The agency has disclosed Document 1 to Optima with the informant's name and address and other identifying details deleted. Document 1 clearly alleges that there has been a breach of section 6 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 by various businesses in the area including businesses operated by Optima's client. It is not a requirement of Clause 4(1)(b) that the information contained in the document must relate to the enforcement or administration of the law. Consequently the informant's name and address contained in Document 2 meets the requirement that it is a document relating to the enforcement of the law. 25 The second question is whether disclosure could reasonably be expected to enable the existence or identity of any confidential source of information to be ascertained. There was no dispute that disclosure of the deleted material in each document would allow the identity of the informant to be ascertained. The only remaining question is whether the informant is a "confidential source of information." The fact that Document 1 was not marked "confidential" or "without prejudice" and that it did not state that the contents should be treated in confidence means that there was no express agreement relating to confidentiality at that time. 26 The Council's policy does not affect the question of whether the informant wrote to the agency on the implied understanding that their identity would not be disclosed. There was no evidence that the informant knew of or relied on that policy when the letter was written. 27 In Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 at 371 the Information Commissioner of Queensland listed the factors which, in his opinion, are relevant in determining whether the information was supplied on the implicit understanding that it would be kept confidential. The determination of whether the relevant information was supplied by the informant and received by the respondent on the implicit understanding that the informant's identity would remain confidential (and hence whether the informant qualifies as a confidential source of information ...) requires a careful evaluation of all the relevant circumstances including, inter alia, the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer ..., whether it could reasonably have been understood by the informant and the recipient that the appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential ... 28 The nature of the information conveyed in this case is allegations that certain businesses, including that operated by Optima's client, are committing offences by selling or publicly exhibiting X-rated or unclassified films or videos. The person providing this information stands in the position of an informer providing information which police or other relevant agencies may choose to investigate. The informant and the agency would have understood that appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source. 29 While the relationship of the informant to the person informed upon is relevant, I cannot discuss that relationship, if any, in these reasons as to do so may lead to the identity of that person. 30 The next factor listed in Re McEneiry and Medical Board of Queensland is whether there is any real risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed. In correspondence to the agency, Optima stated that their client would seek legal advice about whether he has any action against the informant if he could ascertain his or her identity. It would be a detriment to the informant if he or she was to have legal action brought against him or her as a result of making a complaint. 31 Finally, the fact that the informant subsequently insisted in a letter dated 10 December 2001, that the content of the letter and of the mayor's response "remain confidential" suggests that he or she intended that it be confidential when it was communicated. The fact that the informant sent the letter to six other people or agencies, does not mean that each of those communication was not given under an implied understanding of confidentiality. 32 On the basis of these factors and all the relevant material I am satisfied that despite the absence of any express agreement relating to confidentiality, the only inference that can reasonably be drawn, is that the informant supplied the information on the implied understanding that it would remain confidential. Accordingly, I find that Documents 1 and 2 contains details of a "confidential source of information," namely, the identity of the informant. 33 The final question is whether the Tribunal nevertheless exercise its discretion to override the exemption and provide access to either or both of the documents. The nature of the override discretion in relation to exempt material generally was discussed by the Tribunal in Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 at [90] and [91]: In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)). 34 In this case, having weighed up the factors for and against disclosure, I am satisfied that it is "reasonably necessary for the proper administration of the Government" that the identity of the informant not be disclosed. It is important in the circumstances of this case, that there be a free flow of confidential information in relation to the sale of X-rated and unclassified videos in alleged contravention of the Classification (Publications, Films and Computer Games) Enforcement Act 1995. That flow of information would be jeopardised if members of the public could not rely on their communications being kept confidential. Orders 1. The agency's decision to refuse access to the documents in dispute is affirmed. 2. All exempt material to be returned to J Battese representing the agency after twenty-eight days of the date of this decision if an appeal has not been filed. 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.