Appeal Panel - Internal CITATION: Ibrahim v Commissioner of Police, New South Wales Police [2004] NSWADTAP 8 APPELLANT PARTIES: John Ibrahim RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 039073 HEARING DATES: 5/02/2004 SUBMISSIONS CLOSED: 02/05/2004 DATE OF DECISION: 03/17/2004 Ibrahim v Commissioner of Police, NSW Police [2003] NSWADT 220 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Robinson MA - Judicial Member; CATCHWORDS: procedural fairness MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 023227 DATE OF DECISION UNDER APPEAL: 09/22/2003 Administrative Appeals Tribunal Act 1975 Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Vic) LEGISLATION CITED : Freedom of Information Act 1989 Freedom of Information Act 1992 (Qld) Freedom of Information Act 1992 (WA) Interpretation Act 1987 Victorian Civil and Administrative Tribunal Act 1998 Thorne & Ors v Victoria Police [1998] VCAT 499 (23 October 1998) Fletcher v FCT (1988) 84 ALR 295 CASES CITED: B and Brisbane North Regional Health Authority [1994] QICmr 1 (31 January 1994) (1994) 1 QAR 279 Kupr and Department of Primary Industries [1999] QICmr 6 (27 September 1999) (1999) 5 QAR 140 BGC (Australia) Pty Ltd v Fremantle Port Authority and Anor [2003] WASCA 250 (15 October 2003) Daniels Corporation International Pty Limited & Anor v Australian Competition and Consumer Commission (2002) 192 ALR 561 David Syme & Co Ltd v GMH Ltd [1984] 2 NSWLR 295 APPELLANT REPRESENTATION: S Donaldson, senior counsel RESPONDENT D Paterson, solicitor ORDERS: Appeal dismissed Introduction 1 This is an appeal by Mr Ibrahim (the appellant) against a decision of the Tribunal under the Freedom of Information Act 1989 (FOI Act). The appellant, described by the Commissioner of Police (the agency) as a "suspect", applied for access to certain documents that referred to him. In summary, those documents related to investigations in relation to his liquor licensing and/or gaming licensing operations during the period from 1 July 1990 to 14 March 2001. 2 In response to that application, the agency released two documents but neither confirmed nor denied that it held any further documents described in the appellant's application. The agency stated that if it did hold relevant documents they were exempt from disclosure. The precise terms of the agency's determination were as follows: a) to release the relevant part of the COPS event E903269110478 together with the report of Senior Constable Gleeson dated 19 November 2001. b) to exempt any other material that may be in existence pursuant to s 25(1)(a) on the grounds of exemption contained under clause 4 of schedule 1 to the Act. c) in accordance with the provisions of s 28(3) of the Act, not to describe in this determination the specific grounds of exemption under clause 4 nor the nature or extent of the material exempted under this provision. 3 In accordance with s 57(2) of the FOI Act, the Tribunal conducted parts of the hearing in public and parts in confidential session in the absence of the appellant and his lawyer. The Tribunal set aside the agency's decision and substituted a new decision which, in accordance with s 55(a) of the FOI Act, was not disclosed in the Tribunal's published reasons. The Tribunal ordered that the confidential orders and the confidential parts of its reasons remain suppressed "unless otherwise ordered following application made by a party after notice to the other party." Grounds of Appeal 4 There are four grounds of appeal. Firstly, the appellant submitted that the Tribunal should have insisted that the agency provide him with a schedule of the documents it held and the specific exemption and grounds on which it relied. Secondly, the Tribunal should not have excluded him and his lawyer from parts of the hearing. Thirdly, the Tribunal should have published its orders and reasons in full. Finally, the Tribunal should have given the appellant the opportunity to make an application for costs. Jurisdiction 5 The Appeal Panel has jurisdiction to hear this appeal pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 (ADT Act). In this case the appeal was on a question of law. The appellant did not ask the Appeal Panel for leave to extend the appeal to a review of the merits of the decision. Scheme of the FOI Act 6 The objects of the FOI Act are set out in s 5(1): (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. 7 Under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act, subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The agency must determine whether access is to be given or refused (s 24). One ground on which an agency may refuse to give access to a document is if it is an exempt document (s 25(1)(a)). However, under s 25(4), an agency must give an applicant access to a document from which exempt matter has been deleted if it appears that the applicant would wish to be given access to such a copy. 8 An exempt document is defined in s 6 to include "a document referred to in any one or more of the provisions of Schedule 1". In this case the agency relied on Cl 4 which exempts certain documents which affect law enforcement and public safety. Documents which fall within an exemption in Part 1 of Schedule 1 (which includes Cl 4) are "restricted documents." Section 57 of the FOI Act deals with the manner in which the Tribunal should review a decision that a document is a restricted document. At [18], the Tribunal applied a two step process in accordance with its reasoning in BY -v- Director General, Attorney General's Department [2002] NSWADT 79. If the Tribunal finds that there are reasonable grounds for the exemption, its jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision. This aspect of the Tribunal's reasoning was not challenged on appeal. 9 Section 61 of the FOI Act provides that the burden of establishing that a determination is justified lies on the agency. First ground: non-disclosure of schedule of documents and details of exemption claimed 10 Agency's approach. By referring in its Notice of Determination to "material that may be in existence" the agency was neither confirming nor denying that such material existed. The agency notified the appellant that it would not describe in its determination the specific grounds of exemption under Cl 4 or the nature or extent of the material it had exempted under that provision. The internal review determination affirmed the original decision but included two extra paragraphs elaborating on the reasons for the determination: I am not prepared to specify the extent of the material held in this agency in which the applicant is a suspect. Nevertheless, in general terms, and without specific reference to this application, I can advise that the effectiveness of any law enforcement agency depends heavily on information supplied from both internal and external sources. The totality of this material gathered by police in this State involves a great range of material and naturally includes unsubstantiated material and personal information. To make such information regarding police investigative methodologies publicly available would, in my opinion, have a substantial adverse effect on the ability of NSW Police to perform its primary role of detecting offenders and protecting public safety. 11 Appellant's submissions. The appellant did not dispute that the documents he requested may contain material that is exempt under Cl 4. However he maintained that the agency could not refuse to provide any information whatsoever about the nature and extent of the documents it held and the reasons for relying on the exemption. In particular the appellant contended that the Tribunal should have insisted that the agency provide a schedule describing the documents held and the grounds of objection in relation to each document. In his submission, the Tribunal's failure to do so amounts to a breach of the rules of procedural fairness. 12 Tribunal's approach. At [6] and [7] of its published reasons, after quoting the two paragraphs of the internal review decision set out above at [10], the Tribunal made the following comments about the agency's reliance on Cl 4: It will be seen that this paragraph points to the essence of the police case justifying non-disclosure: a concern not to have police investigative methodologies placed at risk. The ground of exemption in cl 4 most closely connected to that justification, cl 4(1)(e) provides that a document is an exempt document if it contains matter the disclosure of which 'could reasonably be expected: ... (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).' 13 The Tribunal went on to note, at [9] and [10], that: In the experience of the Tribunal it is rare for the agency to take such a blanket approach. Usually a schedule of documents is provided which acknowledges the number of documents the subject of a claim for exemption, and gives a broad description of their contents and the grounds of exemption relied upon. The consequence is that the applicant has filed his application for review dated 4 October 2002 without any knowledge of the type of case put by the agency in justification of its decision. 14 Appeal Panel's reasoning. Section 28(1) of the FOI Act requires an agency to give an applicant written notice of its determination. Under s 28(2)(e), if the determination is to the effect that access to a document is refused, the agency must specify: (i) the reasons for the refusal, and (ii) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based 15 Section 28(3) qualifies that obligation, as well as any obligation to provide a list or schedule of documents, by providing that: An agency is not required to include in a notice any matter that is of such a nature that its inclusion in the notice would cause the notice to be an exempt document. 16 Essentially the appellant's case is that the Tribunal should have overruled (or set aside) the agency's decision not to confirm or deny the existence of documents and not to notify him of the substance of their objection. Consequently, the initial issue is the extent of the Tribunal's jurisdiction, if any, to review a decision made under s 28(3) or to re-exercise the agency's power under that provision. 17 Section 38(1) of the ADT Act confers jurisdiction on the Tribunal to review "a decision" made by an administrator in the exercise of a function conferred or imposed by an Act or statutory rule if the Act or statutory rule grants the Tribunal jurisdiction to do so. The Tribunal's jurisdiction in relation to decisions made under the FOI Act comes from s 53 of that Act. So far as is relevant to these proceedings, s 53 states that: (1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination. . . . (3) For the purposes of this section, a person is aggrieved by a determination: (a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36—if the determination is to the effect that: (i) an agency or Minister refuses to give the person access to a document, or . . . (iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or . . . 18 In this case the appellant was aggrieved by the agency's determination made under s 24. The appellant had applied under s 17 for access to the agency's documents and the agency refused to give him access to documents, if they existed: s 53(3)(a)(i). A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination: s 53(1). 19 The first question is whether the words "the determination" in s 53(1) include the decision made under s 28(3) to limit the information in the Notice of Determination. In our view they do. Being aggrieved by an agency's decision is a pre-condition to an applicant being able to apply to the Tribunal for a review of "the determination". Once that pre-condition has been fulfilled, the Tribunal can review the entire determination, not just that part of the determination which triggered the Tribunal's jurisdiction. Support for that conclusion can be found in the Notice of Determination itself. The relevant section of the Notice is set out at [2] above. The Notice exempts material which may be in existence and refers specifically to s 28(3) as a justification for not describing the specific grounds of exemption under Cl 4 or the nature or extent of the material exempted under that provision. Even though it is the agency's determination under s 24 that is reviewable by the Tribunal, part of that determination is not to give the applicant certain information to which he would otherwise be entitled. 20 Even if a decision made under s 28(3) is not part of the determination itself, the Tribunal has jurisdiction to re-exercise the agency's power. That jurisdiction is derived from s 63(2) of the ADT Act which provides that for the purpose of reviewing a decision the Tribunal may ". . . exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision." The full text of s 63 is set out below: (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 21 The Victorian and Civil and Administrative Tribunal (VCAT) relied on a similar provision to s 63(2) of the ADT Act to hold that it had jurisdiction in relation to a comparable decision made by Victoria Police. In Thorne & Ors v Victoria Police [1998] VCAT 499 (23 October 1998) the VCAT examined s 27(2) of the Freedom of Information Act 1982 (Vic). Like s 28(3) of the New South Wales legislation, that provision qualifies the requirements in relation to the content of a notice of determination. It states that: (2) In a notice under sub-section (1), an agency or Minister-- (a) is not required to include any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document; (b) if the decision relates to a request for access to a document that is an exempt document under section 28 or 31 or that, if it existed, would be an exempt document under section 28 or 31, may state the decision in terms which neither confirm nor deny the existence of any document. 22 Pursuant to s 27(2)(b), Victoria Police neither confirmed nor denied the existence of documents requested by several applicants. The VCAT asked itself the preliminary question as to whether Victoria Police was entitled to rely on s 27(2)(b). It decided that it was not, and ordered that the agency provide "a schedule identifying each document the subject of the request of that applicant, specifying its date, author and a description of the document and specifying as to each document claimed to be exempt, the section or sections of the Freedom of Information Act 1982 relied upon." The VCAT's reasoning in relation to its jurisdiction, was that as the ability to neither confirm nor deny the existence of certain documents was a function or power of the agency the Tribunal could exercise that function pursuant to s 50(4) of the Freedom of Information Act 1982 (Vic). So far as is relevant, that provision states that: On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request . . . 23 The VCAT also has an equivalent power to that in s 63(2) of the ADT in s 51(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). 24 Section 63(2) of the ADT Act is derived from s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the relevant parts of which are that: For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision . . . 25 In Fletcher v FCT (1988) 84 ALR 295 at 305 - 306 the Federal Court explained the scope of s 43(1): As a matter of principle it must be correct . . . that the powers and discretions referred to by s 43(1) are the powers and discretions vested in the original decision-maker for the purposes of making the decision under review. They do not include any powers or discretions vested in the decision maker for some other purpose. 26 The power vested in an agency under s 28(3), to limit the amount of information it provides in support of a determination, is a power vested in the agency for the purpose of making the decision under review. It does not relate to some other purpose. Consequently, we take the view that the Tribunal may exercise or re-exercise that function. 27 However, the Tribunal is prohibited by s 55(a) of the FOI Act from disclosing to an applicant any exempt matter. That provision states that: In determining a review application, the Tribunal (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter 28 This provision modifies the general rule found in s 89(5) of the ADT Act which obliges the Tribunal to set out in its written reasons its factual findings, referring to the evidence or other material on which those findings were based, its understanding of the applicable law and its reasoning process. The effect of s 55(a) is that any material which the Tribunal finds to be exempt, cannot be disclosed in its reasons for decision or otherwise. Similarly, any material which the agency claims to be exempt, but which the Tribunal ultimately finds not to be exempt, must not be disclosed. That conclusion is based on the statutory interpretation of the provision and is consistent with the case law in other jurisdictions. 29 Firstly, as a matter of statutory construction, s 33 of the Interpretation Act 1987 obliges the Appeal Panel to take a "purposive" approach to statutory interpretation. This principle is expanded by s 5(3)(a) of the FOI Act which states that: (3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act 30 The objects of the FOI Act are set out at [6]. Although it is not an object of the FOI Act to prohibit publication of material over which an agency claims an exemption, the FOI Act acknowledges that an agency may deny access to documents to the extent that it is it is "reasonably necessary for the proper administration of Government": s 5(2)(b). In cases where the Tribunal ultimately disagrees with the agency's determination, the agency may wish to appeal against that decision. If the Tribunal discloses matter over which an exemption is claimed, then any appeal right in relation to that material is effectively nullified. 31 Commissioners and Courts in Queensland and Western Australian have interpreted equivalent provisions in their State's FOI legislation as applying to material which the agency claims to be exempt. Section 87(1) and (2) of the Freedom of Information Act 1992 (Qld) is in similar terms to s 55(a) and has been interpreted as requiring the Commissioner not to disclose in its reasons for decision material which the agency claims to be exempt. (B and Brisbane North Regional Health Authority [1994] QICmr 1 (31 January 1994); (1994) 1 QAR 279 at [11]; Kupr and Department of Primary Industries [1999] QICmr 6 (27 September 1999); (1999) 5 QAR 140 at [14]. 32 Section 74 of the Freedom of Information Act 1992 (WA) contains a similar provision to s 55(a). The Western Australian Supreme Court has interpreted that provision to include matter claimed by an agency to be exempt. BGC (Australia) Pty Ltd v Fremantle Port Authority and Anor [2003] WASCA 250 (15 October 2003). 33 The effect of s 55(a) is that even if the Tribunal ultimately disagrees with an agency's characterisation of matter as exempt, it is prevented from disclosing that matter to the applicant either in its reasons for decision or otherwise. This does not constitute a breach by the Tribunal of its obligation to afford the parties procedural fairness: s 73(2) of the ADT Act. In clear statutory language, s 55(a) qualifies an applicant's right to be apprised of the other party's case. (See Daniels Corporation International Pty Limited & Anor v Australian Competition and Consumer Commission (2002) 192 ALR 561 per Gleeson CJ Guadron, Gummow and Hayne JJ at [11].) 34 In view of the statutory scheme of the FOI Act and the interpretation of the relevant provisions outlined above, the Tribunal did not make any error in the manner it dealt with matter which the agency failed to disclose in the Notice of Determination and the Internal Review. Exclusion of appellant from hearing 35 The appellant's second ground of appeal was that the Tribunal erred in law by proceeding entirely in camera, apart from the opening and closing sessions. The fact that the agency relied on Cl 4 of Schedule 1 to the FOI Act means that it regarded any documents which may have been in existence as "restricted documents." (See [8] above). Section 57 governs the approach the Tribunal must take to such documents. In particular, s 57 (1) and (2) provide that: (1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate. (2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of: (a) the public, and (b) the review applicant, and (c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative. 36 Section 57(2) obliges the Tribunal to receive evidence and hear argument in the absence of the applicant if the agency makes such an application. The Tribunal has no discretion in that regard. The applicant's representative may also be excluded if "in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter." We have read the confidential and non-confidential transcripts of the proceedings and note that the appellant and his representative participated in certain parts of the proceedings and had every opportunity practicable to present evidence and/or submissions during that time. The scope and intent of s 57(2) is unambiguous. Its terms are a complete response to this ground of appeal. 37 These conclusions are consistent with those of the Supreme Court of Western Australia in BGC (Australia) Pty Ltd v Fremantle Port Authority and Anor [2003] WASCA 250 (15 October 2003). In relation to the corresponding provisions in the Western Australian FOI legislation (s 74 and s 90(2)), EM Heenan J made the following comments at [16]: The legislation expressly acknowledges that it may be necessary to receive evidence and hear argument in the absence of the public and any party or representative of the party in order to preserve the confidentiality of exempt matter (s 90(2)). By this means the legislation ensures that the objective terms and effect of matter which is asserted to be exempt from disclosure because of confidentiality may be examined by an officer quite independent of the agency asserting a claim to confidentiality, namely, the Information Commissioner and, on appeal, by a Judge of this Court. That this scrutiny and examination, in order to protect the confidentiality of the material if the claim is justified, must be conducted without disclosure to the applicant, its counsel or solicitors is one example of these rare instances in which a party to litigation is deprived of full access to all material documents. 38 Depriving an applicant of participating in proceedings pursuant to s 57(2) is not a denial of procedural fairness. As EM Heenan J said in the BGC Case, also at [16], "Justice is achieved and the law applied in these situations by an examination of the documents by an independent officer or court acting on settled principles." Confidential decision and orders 39 The appellant's final ground of appeal was that the Tribunal should have published its orders and reasons in full. The Tribunal's interpretation of its powers in relation to "restricted documents" was that if the Tribunal finds pursuant to s 57(4) that there are reasonable grounds for the exemption, its jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision. As we noted at [8] above, this aspect of the Tribunal's reasoning was not challenged on appeal. 40 Section 55(a) governs the situation where, as in this case, the Tribunal goes on to finally determine the review application. In determining a review application, the Tribunal, the Tribunal "is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter." We have discussed the meaning of that provision at [29] to [35] above. 41 It is a rare for a court or Tribunal to be justified in not disclosing its reasoning or its orders in full (David Syme & Co Ltd v GMH Ltd [1984] 2 NSWLR 295 per Street CH at 300 –301). The question is whether the Tribunal needed to write confidential reasons and make a partially confidential order to comply with s 55(a). For example, if the confidential orders required the agency to disclose a schedule of documents to the applicant, then by revealing that a schedule of documents existed, the Tribunal would be disclosing information which the agency claimed to be exempt. Although its ultimate finding might be that such a disclosure does not contain exempt matter, in order to preserve the agency's appeal rights, the Tribunal is prevented from publishing that information in its reasons for decision and its orders. 42 We have examined the confidential reasons and the confidential orders. Those orders disclose material which the agency claimed was exempt. At least until the appeal period against any such order has expired, s 55(a) prevents the disclosure of that information. The Tribunal gave the appellant the opportunity to apply for access to the confidential reasons and the confidential orders. The appellant has not taken advantage of that opportunity. Application for costs 43 The appellant's fourth ground of appeal was that the Tribunal erred in law by failing to give him the opportunity to make an application for costs. The appellant and his legal representative were present at the Tribunal hearing at both the beginning and the conclusion of the proceedings. There was ample opportunity to foreshadow or make an application for costs at the hearing. The appellant's failure is not an error of law on the Tribunal's part. Order 44 Appeal dismissed. 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.