EB v Commissioner of Police, NSW Police [2007] NSWADT 303

CITATION: EB v Commissioner of Police, NSW Police [2007] NSWADT 303

DIVISION: General Division

APPLICANT EB PARTIES: RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 073092

HEARING DATES: 24 July 2007

SUBMISSIONS CLOSED: 24 July 2007

DATE OF DECISION: 21 December 2007

BEFORE: Higgins S - Judicial Member

CATCHWORDS: access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989

Cianfrano v Director-General Premier's Department [2007] 216 New South Wales University v Gerard Michael McGuirk [2006] NSWSC 162 Re Chandra & Minister for Immigration and Ethnic Affairs (1984) 6 ALM M257 CASES CITED: Humane Society International Inc. v National Parks and Wildlife Service [2000] NSWADT 133 at [21] Keriakes v State Rail Authority [2003] NSWADT 191Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 Re Atkinson & Public Transport Corporation (1992) 5 VAR 255 Waite v Hornsby Shire Council [2007] NSWADT 265 Saleam v Director General, Department of Community Services and Ors [2002] NSWADT 41

APPLICANT In person REPRESENTATION: RESPONDENT K Weiss, agent

ORDERS: The decision of the Commissioner is affirmed.

REASONS FOR DECISION Introduction 1 The applicant, EB, seeks review of a decision of the respondent Commissioner to refuse her access to a document that she had requested pursuant to the Freedom of Information Act 1989 ('the FOI Act'). The documents for which EB sought access to were the criminal history of her former father-in-law. The Commissioner identified one such document and refused EB access to that document on the grounds that it was an exempt document under cl.6 of Schedule 1 of the FOI Act. That clause relevantly provides as follows: 6. Documents affecting personal affairs 1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). 2) … 2 The applicant's name has been anonymised in these reasons for decision, following her request that her children not be identified in the published reasons. No objection was received from the Commissioner. Issues 3 EB does not dispute that the document for which she has sought access is a document that contains information concerning the personal affairs of her former father-in-law. Her father-in-law died in 1997 and she accepts that the exemption in cl.6 continues to apply notwithstanding his death. What is in issue is as follows: (a) whether disclosure of this document to EB would involve the unreasonable disclosure of the information contained in the document; and (b) in the alternative, if the tribunal finds that it would be an unreasonable disclosure, whether in the exercise of the tribunal's override discretion as set out in New South Wales University v Gerard Michael McGuirk [2006] NSWSC 162 should be exercised in favour of disclosure of the document. 4 The basis of EB's application was that the information she contended was relevant for the protection of her children and grandchildren from sexual assault. Unreasonable disclosure 5 In Re Chandra & Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the AAT considered what is regarded as being "unreasonable" in the context of the equivalent position of the Commonwealth Freedom of Information Act 1974 (Cth). At [51] the AAT said the following: [51] … Whether a disclosure is "unreasonable" requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough, what s.41 (the Commonwealth FOI Act exemption equivalent to cl.6] seeks to do is to provide a ground for consenting unreasonable invasion of the privacy of third parties. However, consistently with the stated object of the Act (see s.3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document. 6 This approach was adopted by the President in Saleam v Director General, Department of Community Services and Ors [2002] NSWADT 41, at [38]. His Honour went on to cite with approval, at [42], the following remarks of Lockhart J in Colakovski v Australian Telecommunications Corporation (1991) 13 AAR 261] at 270: 'What is "unreasonable" disclosure of information for purposes of s 41 (1) must have as its core, public interest considerations. The exemptions necessary for the protection of "personal affairs" (s 41) … are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal … affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned in ss 41 … are satisfied.' 7 In Humane Society International Inc. v National Parks and Wildlife Service [2000] NSWADT 133 at [21] Judicial Member Robinson rejected a submission that the tribunal should adopt a 'leaning' position to the interpretation of cl.6 of Schedule 1 of the FOI Act. This was also followed in Keriakes v State Rail Authority [2003] NSWADT 191 where the tribunal went on to say that assessing reasonableness involved the balancing of competing public interest without any pre-disposition towards openness or secrecy: see also Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111. 8 In Re Atkinson & Public Transport Corporation (1992) 5 VAR 255, the Victorian Administrative Appeals Tribunal set out factors which might be relevant to the question of whether disclosure of information concerning a person's personal affairs was 'unreasonable'. These are: the identity and nature of the parties; the nature of the information and the circumstances in which it was obtained; the currency and relevancy of the information, and the damage likely to be suffered by third parties consequent upon its release; the nature of the interest of the public; and the purpose for which the information is sought. 9 In Saleam (supra) at [46] and [48] the President also adopted the approach of the AAT in Re Green and Overseas Telecommunications Commission (1992) 28 ALD 655 as to the interest of the access applicant in being given access to the information requested. In these paragraphs, His Honour said as follows: 46. I agree with the approach adopted by the AAT in Re Green . The question of whether disclosure would result in the unreasonable disclosure of information concerning a person's personal affairs must be approached in a relatively abstract way. The nature and content of the information is the primary consideration. The wishes of the person to whom the information relates are relevant, though, not in my view, conclusive. The purpose of the third party can rarely, if ever, be given consideration. Ordinarily the motives or purpose of the access applicant have no relevance to the judgment required of an agency or the Tribunal (on review) in considering whether cl 6 should be invoked. The difficulty of according relevance to the third party's purpose is cogently explained in Re Green and well illustrated by the present case. 48. The FOI Act sets a standard which is to apply as between citizens and government. Decisions to grant access under FOI should, to use an American expression, ordinarily be facially neutral. The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. But some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9; and generally Cossins, Annotated Freedom of Information Act New South Wales (1997), 313. 10 In this application, there is a connection between the applicant and the information concerning the person about whom she has sought access. It is information which is not readily available and forms part of the Commissioner's record of the criminal history of the person concerned. The information is not current. It is information about her former husband (now deceased). And the son of her former husband has indicated to the Commissioner that he objects to the release of the information. This, on its own, will not necessarily be a determining factor in regard to the question of whether the disclosure would be unreasonable: see Dawson v Healthcare Complaints Commission [1999] NSWADT 57. 11 On the other hand there are the reasons given by EB as to why she seeks access to the documents. Those reasons being the protection of her children and her grandchildren from what she understood to be a risk of sexual assault. In my opinion these are not reasons which displace the public interest on which the 'personal affairs' exemption is based – i.e. the furtherance of the public interest that information of this kind is excepted from the general right of public access. A person's criminal history is accepted as affecting that person's personal affairs and a disclosure of that information to an FOI applicant pursuant to the FOI Act would be a disclosure to the world and therefore unreasonable. There is no evidence before the tribunal of actual risk to EB's children or grandchildren. Such risks are of course a matter for the relevant authorities to which EB has access. Override discretion 12 Even where a document is found by the tribunal to contain exempt matter as determined by the agency, in New South Wales University v Gerard Michael McGuirk [2006] NSWSC 1362 at [102] Nicholas J. held as follows: 102. In my opinion, s.63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. 13 Section 63 of the Administrative Decisions Tribunal Act 1974('the ADT Act') sets out the tribunal's power on review of a reviewable decision. This application is an application for review of such a decision. 14 At [103] Nicholas J. said that the correct position in regard to the tribunal's power on review of a reviewable decision of an agency under the FOI Act was as set out by the tribunal in Mangoplah Pastoral Co. Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [85], which was in the following terms: '85. Consistent with this jurisprudence, absent any special limitation on the Tribunal's review function in applications under the FOI Act, it has the function by reason of s.63 of ADT Act – indeed the duty – when reviewing a determination under ss.24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s.25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it." 15 This discretion to release an exempt document, as pointed out in Mangoplah and as accepted by Nicholas J. in McGuirk , arises under s.25(1)(a) of the FOI Act. His Honour described the discretion as an "overriding discretion", but did not go on and identify how that discretion is to be exercised: see at [104]. 16 I recently dealt with this overriding discretion, in Waite v Hornsby Shire Council [2007] NSWADT 265 at [43] to [60], in regard to the legal professional privilege exemption in cl.10 of Schedule 1 of the FOI Act. In that decision I also followed the approach of the President in Cianfrano v Director General Premiers Department [2007] NSWADT 216. In that decision at [24] His Honour said that the discretion should be exercised in accordance with the objects of the FOI Act. At [27] His Honour set out some factors which were relevant to the exercise of that discretion. These were: 27. Practical circumstances that might influence the Tribunal to exercise the discretion include: - whether the exempt matter was, by other means, in the public domain - whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant - the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity - the public interest in an informed debate on issues of significance to the community - whether there were adverse consequences for the proper administration of government, and their extent - whether any adverse consequence is remote or innocuous 17 In my opinion, there is no material before the tribunal which would justify the override discretion in this application. Having already considered the purpose for which EB has sought access to the information and the accepted public interest which is encapsulated in the cl.6 exemption it would be inconsistent, without some other compelling evidence, to find in the exercise of the overriding discretion that the public interest lay in the disclosure of this information. Conclusion 18 For the reasons set out above the tribunal finds that the decision of the Commissioner is the correct and preferred decision and should be affirmed.