Stiller v Commissioner of Police, NSW Police [2004] NSWADT 173

CITATION: Stiller v Commissioner of Police, NSW Police [2004] NSWADT 173 DIVISION: General Division APPLICANT PARTIES: Michael Stiller RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 033056 HEARING DATES: 05/03/2004 & 01/07/2004 SUBMISSIONS CLOSED: 07/01/2004 DATE OF DECISION: 08/19/2004

BEFORE: Robinson MA - Judicial Member APPLICATION: access to documents - confidential material - Freedom of Information Act - access to documents - confidential material MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 Police Service Act 1990 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 CASES CITED: Neary v The Treasurer, New South Wales [2002] NSWADT 261 McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 APPLICANT REPRESENTATION: In person RESPONDENT M Buchanan, solicitor ORDERS: The reviewable decision is affirmed.

REASONS FOR DECISION 1 This case concerns external review of a partial refusal of access to documents by the respondent agency under the Freedom of Information Act 1989 ("FOI Act"). 2 The applicant made an FOI application on 4 September 2002 to the respondent pursuant to section 17 of the FOI Act seeking "personal documents" relating to his application to join the NSW Police Service. Section 16 of that Act provides that person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. The respondent made a decision dated 11 October 2002 granting partial release of some of the documents caught by the application and refusing release of some documents. The respondent's officer relied on the policy of the Recruitment Branch of the respondent in not disclosing the results of background inquiries of police recruits and confidential information thereby obtained. Clause 13(b)(confidential information) of Schedule 1 to the FOI Act was relied on. The applicant sought, through his solicitor, to have the decision internally reviewed under the Act. The letter from his solicitor sought particular information about a knee injury and related medical information provided to the respondent by the applicant's former employer, Holiday Coast Security Supplies, where the applicant had recently worked as a security guard. 3 An officer of the respondent made a detailed internal review determination dated 7 January 2003 whereby he did not alter the decision of the original FOI officer. The applicant commenced these proceedings on 3 March 2003. 4 There were then held an unusually large number of planning meetings conducted at the Tribunal's hearing rooms. From time to time, the applicant was represented by a solicitor at those meetings. The applicant was exploring his future employment prospects with the respondent while at the same time the FOI documents sought were further discussed between the respondent's FOI unit and the Recruitment Branch officers. During that process, further documents were released to the applicant by the respondent under the Act. In addition, the Tribunal is informed that all documents relating to his knee injury while he was an employee of Holiday Coast Security Supplies were disclosed to him before the hearing. 5 On the first day of the hearing, after some initial submissions from the parties, the applicant formally conceded that the first two limbs of clause 13(b) of Schedule 1 of the FOI Act were satisfied in the present case and the only issue in dispute was the public interest test contained in clause 13(b)(iii). The exempt documents were examined by the Tribunal. The hearing was adjourned so as to allow the parties to put on further affidavit evidence. 6 On the second day of the hearing, the respondent read a number of affidavits. In an affidavit from Melissa Buchanan, solicitor for the respondent, sworn 17 February 2004, a schedule of the exempt documents was presented and evidence adduced that she had spoken to the persons who had provided the confidential information contained in the said documents and that they each indicated the information provided was confidential and was given on the basis that it be kept confidential by the respondent ("the informants"). An affidavit was read from Joseph Peter Mey sworn 9 February 2004. He was an Inspector of the respondent and manager of the Recruitment Branch of the respondent. He gave evidence concerning the role of the Recruitment Branch, the expectations of applicants for the Police Service and the undertakings that were given to the informants in the present case that their identity and the information supplied would remain confidential where reasonably possible and practical. He also said: "I believe it is vital that such information supplied in confidence be kept confidential. The release of information supplied in confidence would not only jeopardise the future free flow of employment related information amongst organisations, but may also place the "giving" organisation at risk should any adverse information supplied be released to a potential applicant. I am of the view that if confidential information provided by former or current employers or any other person who has information relevant to the applicant's employment history were released, we would see a decrease in the amount and/or type of information provided to New South Wales Police. This would then lead to an increased risk of New South Wales Police employing recruits that would be unsuitable for the type of employment." 7 Inspector Mey and Ms Buchanan were not cross-examined by the applicant. In addition, the respondent read an affidavit of Sergeant Darren Critchley, an officer attached to the Recruitment Branch sworn 31 March 2004. The affidavit set out the lengthy process by which the applicant made his application for employment to the respondent and the various internal appeals and reconsiderations that were undertaken. Generally speaking, if an applicant is considered to be unsuitable for employment as a police officer, the matter is referred to the Professional Suitability Assessment Review Committee ("PSARC") which is an internal panel of 3 members that makes a final determination as to the "professional suitability" of an applicant. The applicant, who had previously undertaken partial studies with the respondent at the Goulburn Police Academy (as it was then named) and who had withdrawn due to an altercation with a fellow recruit, held a status as "professionally suitable" for him to continue his training as a police officer. On 16 July 2002 confidential information about the applicant was provided to the Recruitment Branch (the disputed documents). That information included medical information concerning a knee injury that the applicant apparently sustained on 30 March 2002. The particular information caused a review of the applicant's suitability as he was required by the respondent expressly to inform the Recruitment Branch of anything that might affect his professional suitability status including, in particular, any medical conditions or injuries. For example, this was said expressly to the applicant by a letter from Sergeant Critchley to the applicant dated 5 July 2002 (exhibit 3). As a result of the information received from the informant, the applicant's status as professionally suitable was withdrawn and the applicant appealed to PSARC. The applicant appeared at a hearing before PSARC on 22 August 2002 and the withdrawal of his status was affirmed by the panel. Before the panel were the medical documents contained in the exempt documents, and, as it transpired in the oral evidence, all of the exempt documents which were contained in the applicant's recruitment file. 8 Attached to the affidavit of Sergeant Critchley was the handwritten assessment of each of the members of the panel. It does appear from a fair reading of those reasons that the applicant's failure to disclose his knee injury was a most significant factor, if not the most significant factor in their finding. 9 Sergeant Critchley gave oral evidence before the Tribunal. Before he did so, the legal representative for the respondent agreed to spell out in a generic fashion the nature of the exempt documents for the benefit of the applicant. It was said that the documents related to opinions as to the applicant's personality and/or character and other information provided by the informants. Sergeant Critchley then gave oral evidence in a confidential session of the Tribunal in the absence of the applicant. In that session, he provided the Tribunal with further details regarding the receipt of the exempt documents and how the respondent dealt with them internally. He said, and I am prepared to set this out in my determination, and I revoke my confidentiality order in relation to this aspect alone, that he did not follow up or investigate the information contained in the exempt documents that did not relate to the knee injury at all and that the panel did not rely on that information in making their determination. 10 After the applicant returned to the hearing room, the respondent agreed that the applicant could be informed that as a result of the information obtained in the confidential session, the applicant could be told that the exempt documents (exhibit 2) did not form a significant, if any, part of the respondent's decision-making process regarding the applicant's professional suitability. 11 The respondent also tendered a lengthy chronology and further documents (exhibit A) relating to the above matters, the detail of which it is not necessary for me to set out. 12 The applicant, a security guard, read his affidavit sworn 16 April 2004 and tendered his own lengthy chronology with further documents attached (exhibit A). The documents attached that emanate from the respondent show that the applicant's application for employment to the police service was from time to time considered by the respondent's officers to be a "borderline" application, a finding that the respondent fiercely contested. 13 The applicant also gave oral evidence before the Tribunal and was cross-examined. The essence of the applicant's evidence is that he considers that his former employers held a significant grudge against him at about the time the police received information on about 16 July 2002. He said he took legal action against his then employer in June 2002 for unpaid wages and officers of his former employer took our apprehended violence orders against his mother around that same time for her alleged interference at his work. He said that the principal of his employer made an oral threat to, in effect, sabotage his attempts to re-enter the police academy. He gave evidence about his hearing before the panel in August 2002. He was plainly not limited in what he could say to the members of that panel. He also gave evidence about his knee injury and he accepted that up until 25 July 2002 he did in fact have a knee injury. He said his knee still causes him some discomfort from time to time and he still wears a knee brace on occasions. The Legislation 14 Clause 13 of the FOI Act provides: " 13 Documents containing confidential material A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest." 15 As mentioned, clause 13(b)(i)&(ii) are agreed as applying in the present case and the Tribunal is not required to make any finding in that regard. The only issue in contention is the public interest. The Public Interest 16 The respondent relied on written submissions filed 18 February 2004 and oral submissions made at the hearing. Some oral submissions were made in a further brief confidential session in the absence of the applicant. 17 The respondent submitted that the Tribunal's approach to the public interest issue set out in McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 was the correct approach (especially at [22] & [28]). That is, that the rationale for the clause 13 exemption is to protect the flow of confidential information to government and its agencies which depend on such information in order to fulfil their specific functions. It was also said, that in determining whether the disclosure of a document received in confidence would on balance the contrary to the public interest, consideration must be given to all the circumstances in which the document was provided and whether its disclosure would be contrary to the public interest in having such information remain confidential. 18 The respondent argued that as the information contained in the exempt documents was unsolicited information given in circumstances of express confidentiality, that confidentiality order to be respected by the Tribunal and maintained in the present case, particularly given that the applicant accepts that disclosure would reasonably be expected to prejudice the future supply of such information to the police service in future cases. 19 It was submitted that police should be able to properly vet applicants to the police service and when information is received by or actively sought by the police, that activity ought not to be impeded in any way. The process existed so as to prevent exposure to the public of an unsuitable applicant. It was said that thorough checks are required of all police recruits and that the police ordinarily have access to and experience in dealing with significant amounts of sensitive and personal information and that there must be confidentiality in this process. It was also noted that under the Police Act 1990, the Commissioner must have confidence in all police officers at all times. It was also submitted that the applicant had no real need for this information (presumably this was because the information was not used by the respondent's decision makers in connection with the decision of the panel in August 2002) and that the informants should not be "punished" for providing confidential information about a police recruit. 20 The applicant submitted that members of the public should have access to government records that related to them. He said that information must be given to government agencies in good faith and that there was not good faith here. That submission was founded on the basis of the applicant's belief that the informants' identity was that of his former employer. He argued that it was in the public interest to allow persons to sue or proceed against those who give false information to government agencies. 21 The applicant argued that the respondent needed confidential information in relation to its operational matters and not in relation to its recruitment matters, which was an administrative function and was not related to police operations at all. He believes the information in the exempt material to be defamatory and strongly wishes to correct any mistakes in the said material. The applicant made a number of other submissions going to explain further details of his earlier experience at the police academy and his former employment as a security guard. Determination 22 I accept the submissions of the respondent in the present case on the public interest issue. 23 The rationale for the clause 13 exemption applied to the present case must be to protect the flow of confidential information to the NSW Police Service Recruitment Branch so that it may, unimpeded, recruit and retain officers of acceptable "professional suitability" and so that the confidence of the Commissioner of Police in his or her officers can be established and maintained. 24 The situation might be very different had it been established that the exempt documents were false or deliberately false and were provided to the agency out of spite or malice. None of that has been established in the present case. If it had been, it may be that the public interest would be found to be absent. This is not a case where an informer has knowingly "peddled falsehood to government" – Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 at [4] & [62]. 25 It is also significant that the respondent did not consider the information in the exempt documents in its decision making in any active fashion. The information was not even investigated by the respondent. The evidence disclosed that there were other, far more significant issues that troubled the respondent's officers and I am satisfied all of this was disclosed to the applicant by the respondent. 26 While the applicant's interest in seeing the exempt documents is very strong in that they concern him directly, on balance, I consider that the public interest in permitting the respondent agency to recruit new police officers unimpeded by having to disclose information received in confidence in this particular case outweighs the applicant's interest. 27 As to whether the Tribunal should release the exempt documents in any event as a matter of the Tribunal's discretion in section 25(1) of the Act (see, Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85], referred to there as the "override discretion"), I consider that to the extent that such a discretion may now be said to exist (Neary v The Treasurer, New South Wales [2002] NSWADT 261 at [67]), it is not appropriate in this case to release the exempt documents as all of the relevant considerations have been taken into account when considering the public interest issue. 28 The Tribunal determines that the reviewable decision is affirmed. The exhibits may be returned to the parties.