CITATION: Cerminara -v- Commissioner of Police, New South Wales Police Service Anor [2001] NSWADT 95 revised - 16/07/2001 DIVISION: General Division FIRST RESPONDENT PARTIES: Commissioner of Police, New South Wales Police Service SECOND RESPONDENT Minister Administering the Freedom of Information Act 1989 FILE NUMBER: 003237 HEARING DATES: 27/2/01 SUBMISSIONS CLOSED: 02/27/2001 DATE OF DECISION: 06/06/2001 BEFORE: Robinson MA - Judicial Member APPLICATION: access to documents - law enforcement & public safety MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 Kennedy -v- Commissioner of Police [2001] NSWADT 39 Humane Society International Inc. -v- National Parks & Wildlife Service [2000] NSWADT 133 Rittau -v- Commissioner of Police [2000] NSWADT 186 CASES CITED: Maugher v General Manager of Wingecarribee Shire Council [1999] NSWADT 35 Taylor v Chief Inspector RSPCA [1999] NSWADT 23 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Ekermawi -v- Commissioner of Police [2001] NSWADT 27 APPLICANT In person REPRESENTATION: FIRST RESPONDENT J Tunks, solicitor SECOND RESPONDENT C Ludlow, solicitor ORDERS: 1. The decision under review is affirmed. 1 This is an application for review of a reviewable decision made under the Freedom of Information Act 1989 ("FOI Act") refusing the applicant access to eight documents concerning or relating to the applicant and complied by members of the NSW Police Service at Albury, NSW. The applicant is a long-time resident of Albury. The applicant had made a number of earlier attempts to obtain the subject documents from the agency. 2 The second respondent was joined pursuant to section 57 of the FOI Act due to reliance by the agency on the "restricted documents" ground of exemption in Schedule 1 of the FOI Act: clause 4(1) (documents affecting law enforcement and public safety). The second respondent has not participated on the merits of the application and has made written submissions on some of the legal issues that might arise. In future cases involving the restricted documents exemption, I consider the second respondent should normally be joined only if a separate application is made by the review applicant specifically pursuant to sub-section 57(1) of the FOI Act (see: Kennedy -v- Commissioner of Police [2001] NSWADT 39 at [39] and [41]). It should be noted that at no point in the proceedings did the applicant make any separate application pursuant to section 57(1) of the FOI Act. 3 This is an unusual FOI matter in that, firstly, in its written decisions, the agency has not spelled out for the applicant the precise grounds of the exemption relied upon by reference to any one or more of the 9 sub-paragraphs of clause 4(1). Instead, a global claim for exemption is made and the agency relies on section 28(3) of the FOI Act in arguing that to disclose which sub-paragraphs of clause 4(1) apply would, in this particular case, expose to the applicant the nature of the subject documents and the identity of the informants, if any. That is apparently a significant matter the agency desires to keep confidential. Secondly, the subject documents sought in these proceedings were already the subject of a determination refusing access under the FOI Act made by the Judge Mahoney in the District Court of NSW at Albury on 9 September 1997. 4 In spite of a number of past FOI applications having been made by the applicant and determined by the first respondent, the active parties are agreed that the original FOI application the subject of the present proceedings is that dated 6 March 2000. It was determined on 26 April 2000 by the relevant officer of the agency to refuse access and an internal review application was made. It was determined on 30 May 2000. At planning meetings held by the active parties before me last year, it was decided that due to uncertainty regarding the past FOI requests of the applicant and the reasoning of the determinations then made, that upon clarification by the applicant of the scope of his FOI application, the agency would issue a fresh notice determination stating its reasons more fully. That determination was made on 11 September 2000 by Inspector Robert Koopman of the agency (Exhibit 1) ("the decision under review"). 5 The decision under review sets out two findings of fact. They were that the subject documents contain confidential information and that the information contained in the documents is relevant to the "issue of public safety". The agency read an affidavit of Inspector Koopman sworn 8 November 2000 which was admitted into evidence unopposed by the applicant. The eight documents are described generally as various "information reports" and COPS events (recorded on the "Computerised Operational Policing System") and one profile. No document has a date attributed to it. Inspector Koopman's evidence as to the reasons for his decision is as follows: "(a)The material sought contained confidential information and related to issues of law enforcement and public safety. (b) Clause 4 of schedule 1 of the FOI Act provides for the exemption of material which relates to law enforcement and public safety matters. (c) In accordance with section 28(3) of the Act, I determined not to identify the particular paragraphs under clause 4, nor identify or describe any of the details contained within the documents subject of the application, as to do so would have, in my opinion, made the notice an exempt document. (d) That Police Service records are maintained under a scheme of confidentiality and whilst documents may otherwise be assessed under the FOI Act, the protection afforded material obtained in confidence precludes release of the documents sought. (e) That release of the information requested would breach the confidentiality and trust placed with the Police Service. (f) That police effectiveness would be reduced through loss of community confidence if it became publicly known that the Police Service was required to release information such as that sought by [the applicant] and that accordingly, the public interest was balanced in favour of non-disclosure. (g) That Judge Mahoney, when an earlier FOI determination was appealed by [the applicant] to the District Court, stated in respect of the same material: It seems to me having read the confidential statement that the interests of the good order and proper policing of this community would be best served by my upholding the Police Department's claim to refuse access to this information to [the applicant, and furthermore I am satisfied that the proper policing of this community, and the good order of this community, would be positively disadvantaged by the disclosure of the information contained in the confidential statement prepared by Inspector Langburn." 6 Inspector Koopman went on to make a number of statements in the nature of submissions as to the importance of preserving confidential police intelligence, preserving the trust of the public in maintaining their anonymity and ensuring confidences are preserved, the potential risk to the safety of confidential sources of information who are disclosed and an unusual submission that the very fact that the Police may deny disclosure of a document or deny its existence is a factor to be weighed in favour of refusing relief as " uncertainty amongst potential offenders is a vital deterrent strategy to the Service " (Exhibit 1, par 24). 7 Also read was an affidavit of Inspector Koopman sworn 23 February 2001 setting out extracted portions of the applicant's internet website styled "Corruption and Injustice in Autsralia" in which he criticises or disparages many Australians and institutions of the State and, in particular, serving members of the Albury Local Area Command of the Police Service. The Inspector believes there is a very strong likelihood that any information that may be released to the applicant under the FOI Act will end up posted to the said website. 8 Inspector Koopman was cross examined by the applicant. However, in the absence of the applicant knowing anything of the nature of or contents of the subject documents, I do not consider the cross-examination revealed anything of substance that assisted the applicant in these proceedings. 9 The first respondent also tendered a "confidential statement" of Inspector Koopman, confidential submissions of the legal representative of the agency, Mr Tunks, and a copy of the subject documents (together, Confidential Exhibit 3) which I received into evidence and directed they remain confidential until further order. The applicant did not see these documents. At the hearing, the first respondent made a successful application for the Tribunal to receive evidence and submissions in the absence of the applicant. During that brief session, the Tribunal was taken through the confidential evidence and the submissions and the particular sub-paragraphs of clause 4(1) that were said to relate to each of the subject documents were identified to me. 10 I have read carefully and considered the material in Exhibit 3. In fairness to the applicant, the version of Mr Tunks' written submissions that was not confidential and that was given to the applicant identified the paragraphs of clause 4(1) that were relied upon by the agency, namely, clauses 4(1)(b), (c) & (e). Those clauses provide: " Documents affecting law enforcement and public safety (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, or (c) to endanger the life or physical safety of any person, or … (e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), …" 11 Accordingly, for the first time, the applicant discovered the basis of the first respondent's claim for alleged exemption of the subject documents. 12 Having read these documents, I am not in a position to state what they are or what they relate to without disclosing the very matter to which the exemptions appear to relate. It is sufficient for present purposes for me to say that I am surprised to see him pursuing the discovery of the said material in circumstances when a learned Judge of the District Court has already refused access. The evidence does not appear to me to disclose that any relevant fact or circumstance has changed since then. 13 At the hearing, the applicant tendered an affidavit he swore dated 16 November 2000 which was not objected to by the first respondent, and relied upon written submissions dated the same day. Also tendered (exhibit B) was a bundle of newspaper clippings relating to aspects of various examples of alleged police corruption or negligence and from which I gained little assistance. 14 The applicant essentially asserts that he is innocent of any wrongdoing and until an incident occurred in, presumably, about 1995 or 1996, he never had any problems with the police in Albury. He said he "slapped a person on the side of the head" who he believed had supplied his de-facto spouse (and the mother of his then two small children) with illegal drugs. From then he says he was subjected unfairly to apprehended violence orders and unwarranted police attention. He says he considers the FOI documents all stem from that incident. 15 He also asserts that he would very much like to hold the police accountable by making the subject reports and entries public knowledge and, as he told me in oral submissions, he was interested to see and to "verify" the said information. In other words, it seems to me that the applicant, if he is granted release of the documents, will actively attempt to follow up the information contained therein in order to verify it. He believes it is all fabricated and any allegations were maliciously made. 16 As for why the decision of the District Court of 9 September 1997 should not be considered and applied, the applicant says that the Court was not then aware that one of the alleged authors of the subject documents, a police officer, was "under a cloud" and was the subject of an investigation for alleged bad conduct. While it might be reasonable for the applicant to adopt this view from his perspective, I consider, having now read the subject documents, that this new information makes no difference to my ultimate decision in this matter and, to the extent that it is relevant, it would not have made any difference to the decision of Judge Mahoney on 9 September 1997. 17 In my determination, the subject documents each plainly contain matter which could reasonably be expected to enable the existence or identity of confidential sources of information to be ascertained in relation to the enforcement or administration of the criminal law and to endanger the life or physical safety of persons identified (in the subject documents) and which might well prejudice the effectiveness of lawful methods or procedures for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law. 18 I consider that the expression "could reasonably be expected", when used in the opening words of clause 4(1) means reasonableness in all of the circumstances of the particular case (cf: Humane Society International Inc. -v- National Parks & Wildlife Service [2000] NSWADT 133 at [23] relating to the personal affairs exemption). In this regard, the applicant's motive might well be relevant. However, the documents here are claimed to be restricted documents under the Act. The Tribunal has recently had cause to consider the issue of restricted documents in Rittau -v- Commissioner of Police [2000] NSWADT 186 at [39] to [42] and Kennedy -v- Commissioner of Police [2001] NSWADT 39. The claimed exemptions here are in a special category marked as having particular sensitivity to government. 19 I consider from the terms of the subject documents and the evidence of Inspector Koopman that the relevant information in the documents was plainly confidential and related to potentially criminal matters. The fact that no criminal charges were brought on this occasion or these occasions is not the point. I accept the evidence that the material might well become useful to the police in the future and to deprive it of its utility by release to the world might prejudice the effectiveness of future lawful investigations. 20 As to whether the material contained in the subject documents is false information and was maliciously made, I have only the applicants assertions that this is so. The first respondent has not attempted to verify the information in evidence before me. However, in this particular case, I do not consider that the first respondent is required to in the absence of specific evidence that the police acted to the applicant's detriment based solely on the subject information (cf: Maugher v General Manager of Wingecarribee Shire Council [1999] NSWADT 35 at [47]). Even if the subject documents did contain such information, it would not necessarily render it reasonable for the documents to be released under the Act ( ibid , at [45] and, generally, Taylor v Chief Inspector RSPCA [1999] NSWADT 23). The Section 25(1) of the FOI Act Discretion 21 I now turn to consider whether the Tribunal should release the subject documents in any event as a matter of the Tribunal's discretion in section 25(1) of the FOI Act (see, Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85]). 22 I consider that the matters the Tribunal would ordinarily consider as going to the exercise of the discretion here have already been taken into account in the Tribunal's consideration of the exemption in clause 4(1) in the present case. While I consider that the fact that the subject documents are found to be restricted documents weighs heavily against their release as a matter of discretion, I also consider that the said documents are reasonably necessary for the further administration of the law in NSW ( Rittau's case at [67] and [68]). Accordingly, I do not consider that the documents should be released as a matter of the section 25(1) discretion. In addition, I consider the whole of the documents to be exempt and it is not appropriate to have exempt matter deleted from the documents in accordance with section 24(4) of the FOI Act. 23 The second respondent made detailed written submissions dated 22 November 2000 and 27 December 2000 arguing, inter alia , that the Tribunal's decisions in Mangoplah and Rittau were wrongly decided and they should not be followed. Having regard to the findings I have made in this matter, it is unnecessary for me to address these submissions on this occasion. I note that the Tribunal's recent decisions in Ekermawi -v- Commissioner of Police [2001] NSWADT 27 and Kennedy -v- Commissioner of Police [2001] NSWADT 39 address many of the issues raised in these submissions and I do not need to consider them any further in this matter. 24 It is determined that the decision under review 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.