CITATION: Johnston v Commissioner of Police, NSW Police Force [2008] NSWADT 191 DIVISION: General Division APPLICANT Shirley Johnston PARTIES: RESPONDENT Commissioner of Police, NSW Police Force FILE NUMBER: 073228 HEARING DATES: 22 November 2007 SUBMISSIONS CLOSED: 10 March 2008 DATE OF DECISION: 7 July 2008 BEFORE: Higgins S - Judicial Member CATCHWORDS: Access to documents – documents affecting law enforcement and public safety MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 University of New South Wales v McGuirk [2006] NSWSC 1362 CASES CITED: McDonald v Director-General of Social Security (1984) 6 ALD 6 Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 APPLICANT P Johnston, agent REPRESENTATION: RESPONDENT C Weiss, agent ORDERS: The decision of the Commissioner is affirmed. REASONS FOR DECISION Introduction 1 Mr Johnston, as agent for his mother Shirley Johnston, has sought review of a decision of a delegate of the Commissioner of Police to refuse his mother's request for access to specified documents pursuant to The Freedom of Information Act 1989 ('the FOI Act'). 2 The request for access was also made by Mr Johnston on behalf of his mother. In the FOI request Mr Johnston requested access to the following documents: '1. A complete and unexpurgated copy of the ' Standard Operating Procedures ' referenced in the " Operators to Note " section on P38 of the Pro-Laser-III Infrared Lidar Training Workshop Manual which clearly states: " You are to refer to the ' Standard Operating procedures ' in relation to site selections and operations of Lidar" (Note: An incomplete copy of a Pro-Laser III Infrared Lidar Training Workshop Manual was eventually supplied in response to my previous overdue FOI applications that directly relates to traffic Infringement notice 5008483600 ) 2. A complete copy all documentation including but not limited to manuals from the Police Speed Enforcement Program that relates in any way to restrictions imposed on the operation of Radar/Lidar, including conditions which Radar/Lidar is allowed to be operated as well as conditions under which Radar/Lidar is not to be operated, that should have been observed in relation to the issuing of traffic Infringement penalty notice 5008483600. 3. A complete copy of all documents that relate to site management procedures (including OH&S) for the use of Radar/Lidar devices as used by Snr Const Selwood in relation to traffic Infringement notice 5008483600.' 3 The Commissioner did not respond to the FOI requests within the time prescribed under the Act, which meant that the Commissioner was deemed to have made a decision to refuse Mrs Johnston access to the documents sought (see Section 24(2) of the FOI Act ). The Commissioner did however make an internal review determination pursuant to Section 34 of the FOI Act . In that determination the Commissioner identified two documents which he held and which came within the terms of the FOI request. These documents were described as follows: Document 1: Standard Operating Procedures; Stationary Speed Enforcement – Lidar and Radar, dated March 2007 (9 pages). Document 2: Instructions for Site Assessment on Road Traffic Enforcement, dated March 2007 (11 pages). 4 The Commissioner determined to refuse access to these two Documents on the grounds that they were exempt under clause 4(1)(e) of Schedule 1 of the FOI Act (that is, they contain matter the disclosure of which could reasonably be expected to prejudice the effectiveness of any law enforcement method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law). 5 In regard to the second category of documents, the Commissioner determined that it held no documents coming within this category of documents. The hearing 6 The matter was heard on 22 November 2008. At this hearing the Commissioner relied on the evidence of Sergeant Ronald Charles Dorrough, who had sworn an affidavit on 25 September 2007 and who also gave oral evidence by telephone. 7 At the hearing the Commissioner also relied on an additional exemption as a basis for refusal to grant Mrs Johnston access to the documents that had been requested. That additional ground also came within the terms of the law enforcement and public safety exemption contained in clause 4 of Schedule 1 of the FOI Act. The particular exemption was that contained in paragraph 4(1)(f) which provides that a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety. 8 During the hearing Mr Johnston asserted that he had evidence which demonstrated that Document 1 – "The Standard Operating Procedures" had been distributed by the NSW Police Force to the Roads and Traffic Authority of New South Wales ('the RTA'). In light of this assertion and at the request of Mr Johnston I made orders setting out a timetable for Mr Johnston to file this evidence and for the Commissioner to reply thereto. Mr Johnston did file additional material which included additional submissions. The Commissioner responded to these and in that response the Commissioner identified a further document that had been located following discussions between Ms Weiss and Mr Johnston. The document in question was a document entitled 'Enhanced Enforcement Programme Guidelines version 4'. It was the Commissioner's contention that the document did not fall within the terms of Mrs Johnston's original FOI request. 9 On 10 March 2008, Mr Johnston filed further submissions in reply to those that had been received by the Commissioner. 10 For the purpose of this decision, I have considered this additional material together with all the material that was before me at the hearing of this matter in November 2007. Issues 11 Although a considerable amount of material has been filed, the matters in issue are relatively straight forward. These are: (a) has the Commissioner discharged his onus as set out in Section 61 of the FOI Act ? (b) in the event the Tribunal finds the documents are exempt, whether the Tribunal should exercise the override discretion, as identified in University of New South Wales v McGuirk [2006] NSWSC 1362, and grant Mrs Johnston access to the documents requested; (c) whether the document which was subsequently located by the Commissioner is a document falling within the terms of Ms Johnston's original request ('Document 3')? and (d) whether it is practicable to give Mrs Johnston access to a copy of the documents requested from which the exempt matter has been deleted? (see Section 25(4) of the FOI Act.) Has the Commissioner discharged his onus? The law 12 Section 61 of the FOI Act provides as follows: ' S61 Burden of Proof In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.' 13 It is well accepted that, as a general rule, a review by the Tribunal of a reviewable decision of an administrator is a review on the merits and neither party to the application for review bears a burden of proof (see McDonald v Director-General of Social Security (1984) 6 ALD 6). It is also accepted that this general position can be altered by Parliament. 14 Section 61 of the FOI Act is such a provision and the reasons for this are understandable as the information relevant to the decision the subject of review (example, the decision to refuse access to the documents requested) will not be known to or available to the applicant, who will be the person aggrieved by the decision (see Section 53(3) of the FOI Act). 15 This means that, if an agency wishes to have its decision affirmed, it is required to place before the Tribunal the material it asserts justifies its decision or determination. That material can be in various forms. An agency generally provides the Tribunal, on a confidential basis, with a copy of the documents for which access has been refused (see Section 55 of the FOI Act). An agency may also rely on affidavit evidence which explains the circumstances in which the document came into existence, or into the hands of the agency, or the basis on which it is being held by the agency and the consequences that may flow in the agency being able to perform its functions, if access to the document was granted. Where the affidavit refers to matters contained in the purported exempt document, the affidavit to the extent it contains such matter is also provided to the Tribunal on a confidential basis. 16 However, an agency is not limited to providing the Tribunal with material in a formal evidential sense as the Tribunal is not bound by the rules of evidence (see Section 73(2) and (3) of the Administrative Decisions Tribunal Act 1997). The same rules apply to an applicant. The Tribunal is required to have regard to all relevant material before it and to place the appropriate weight on the material in question. The evidence 17 A copy of Documents 1 and 2 were provided by the Commissioner to the Tribunal on a confidential basis. In addition to this the Commissioner relied on the evidence of Sergeant Dorrough, Senior Traffic Policy Advisor, Traffic Services Branch of NSW Police Force and written submissions of his agent, Ms Weiss. 18 In his evidence, Sergeant Dorrough said that he has been in his current position for ten years and prior to this he had worked as a traffic and highway patrol officer for a considerable period of time. In summary his evidence was to the following effect: (a) Documents 1 and 2 came into existence so as to provide detailed documented guidance to police in using the Lidar and Radar equipment so as to better ensure the safety of police officers and members of the public when the equipment was being used; (b) Documents 1 and 2 did not come into existence for public dissemination or for distribution to another agency such as the RTA; (c) if the Documents were released, the reader would be able to "circumvent police systems which in turn could be detrimental to police operations and so the safety of the general public"; (d) the release of the Documents "would also provide the general public with their knowledge that certain geographical characteristics may impede enforcement therefore increasing the possibility of drivers to exceed the speed limit and endangering other members of the public and police."; (e) the material in the Documents was of no relevance as to the accuracy of the equipment for the purposes of measuring speed of a vehicle and speed enforcement; and (f) release of the Documents would "allow members of the public to obtain methods used by police in preventing and detecting contraventions of the law." Consideration 19 Mr Johnston contends that the evidence of Sergeant Dorrough is no more than mere assertions of his own personal opinion. As mentioned above, he contended that Document 1 had been provided to the RTA. In support of this contention Mr Johnston provided a copy of the Memorandum of Understanding between the RTA and the NSW Police Force. In particular he referred to a paragraph on page 10 of the Memorandum which was part of a table that identifies what lay within the responsibility of the RTA, NSW Police Force and both parties jointly. The particular reference relied on by Mr Johnston was under the heading "Joint" and was in these terms: 'Promote the sharing of information, such as that held in databases, between each of the agencies (this will also avoid duplication of efforts). This should include ready access to operations plans, SOP's and the like.' 20 It is Mr Johnston's contention that the term "SOP" is a reference to standard operating procedures and it therefore includes those procedures which are set out in Document 1. 21 In my opinion the evidence of Sergeant Dorrough was not that of mere assertion. It was evidence of what he had direct knowledge of and experience in. Accordingly, there is no basis to question his evidence as to how and why Documents 1 and 2 came into existence and how they are used and disseminated. I have also had regard to the content of the documents, which are entirely consistent with the evidence given by Sergeant Dorrough. 22 Although I can understand Mr Johnson's argument in regard to the reference to "SOP's" in the Memorandum of Understanding, I do not believe that the paragraph to which he refers has any bearing on the standard operating procedures that is Document 1. 23 The Memorandum of Understanding is of general application in regard to the management of traffic incidents and the matters referred to in the table of the objectives and responsibilities in that Memorandum must be read in their proper context. Page 10 of the table concerns traffic management plans and the information that is to be shared in order to establish such plans. There is no mention of Lidar and Radar speed enforcement on this page or anywhere else in the document. This is because the Memorandum of Understanding is not directed to this. It is more general in nature in that it deals with the more affective and efficient management of traffic incidents as a whole. It also recognises that for the purposes of traffic management the RTA and the NSW Police Force each have their own responsibilities. Speed enforcement is clearly one falling within the responsibility of NSW Police Force. Once again this is consistent with what is contained on the front page of Document 1 and Document 2. These each expressly state that the document is restricted to use by NSW Police Force. Conclusion 24 Accordingly, on the basis of the evidence given by Sergeant Dorrough and material the Commissioner has placed before the Tribunal, I find that the Commissioner has discharged his onus as I am satisfied that Documents 1 and 2 contains information the disclosure of which could reasonably be expected: (e) prejudice the effectiveness of the methods and procedures used by NSW Police Force from detecting, investigating or dealing with a contravention of the speed traffic laws of NSW or (f) to prejudice the maintenance of law enforcement of any lawful method or procedure for protecting public safety. Override discretion 25 In University of New South Wales v McGuirk [2006] NSWSC 1362, Nicholas J held that Section 63 of the Administrative Decisions Tribunal Act 1997 vests the Tribunal with a discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it. This discretion arises by reason of section 25(1) of the FOI Act which confers a discretion on an agency to provide access to a document notwithstanding that the document is an exempt document. 26 In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds justifying the exercise of the override discretion to grant access to a document that is found to be exempt. At [27] the President set out some of the factors relevant to the exercise of the discretion as follows: - whether the exempt matter was, by other means, in the public domain, - whether the circumstances that have made the exempt matters 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 informal 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. 27 In my opinion, while a member of the public (including Mrs Johnston) may have an interest in what is contained in Documents 1 and 2, this interest is overridden by the public interest in the Documents not being disclosed as they are continuing to be used by the NSW Police Force in their enforcement of the speed traffic laws of NSW and disclosure thereof may prejudice the NSW Police Force performing their function of protecting public safety. Document 3 28 As indicated by the title of Document 3, it deals with "Guidelines" for enhanced enforcement programmes which arise from the Memorandum of Understanding between the RTA and NSW Police Force. In essence these "Guidelines" concern matters that need to be addressed when making an application for funding of such a program and who is responsible for what in regard to these applications. The Document does not have any relevance to "restrictions imposed on the operation of Radar/Lidar, including conditions which Radar/Lidar is allowed to be operated as well as conditions under which Radar/Lidar is not be operated, that should have been observed in relation to the issuing of traffic Infringement penalty notice 5008483600" as set out in item 2 of Mrs Johnston's request. Nor is it of any relevance to any of the other 2 items in Mrs Johnston's FOI request. 29 Accordingly, I agree with the Commissioner that Document 3 does not fall within Mrs Johnston's FOI request and it is therefore not a document in regard to which the Tribunal is required to make a determination for the purposes of reviewing the decision of the Commissioner that is the subject of review. Copy of documents with exempt matter deleted – Section 25(4) 30 Section 25(4) of the FOI Act provides that an agency is not to refuse access to an exempt document if it is practicable to give access to the document from which the exempt matter is deleted and it appears to the agency that the FOI applicant would be given access to such a copy. 31 Mr Johnston, on behalf of his mother, has requested such a copy of Document 1 and 2. 32 In my opinion, having regard to the content of these Documents, it is not practicable to give Mrs Johnston access to such a copy as the Documents almost in their entirety contain exempt matter. Conclusion 33 For the reasons set out above, in my opinion the decision of the Commissioner is the correct and preferred decision and should be affirmed. Orders The decision of the Commissioner is affirmed. 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.