Sullivan v Department of Corrective Services [2006] NSWADT 76

CITATION: Sullivan v Department of Corrective Services [2006] NSWADT 76

DIVISION: General Division

APPLICANT PARTIES: Xavier Sullivan RESPONDENT Department of Corrective Services

FILE NUMBER: 053391

HEARING DATES: 1/02/2006

SUBMISSIONS CLOSED: 02/01/2006

DATE OF DECISION: 03/14/2006

BEFORE: Wilson R - Judicial Member

CATCHWORDS: access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - law enforcement & public safety

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Freedom of Information Act 1989

APPLICANT In person REPRESENTATION: RESPONDENT T Anderson, barrister

ORDERS: The decision of the Respondent is affirmed

REASONS FOR DECISION 1 The Applicant has brought these proceedings to the Tribunal seeking a review of a decision made by the Respondent to refuse access to documents that the Applicant had sought under the provisions of the Freedom of Information Act 1989. No jurisdictional issues have been raised for consideration and the hearing was conducted entirely in the Applicant's presence, there being no occasion arising requiring privacy to protect documents over which exemption is claimed from premature disclosure. The issues and factual matters are of short compass. 2 The Applicant is employed by the Respondent, and has been so employed at all material times. On or about 04 August 2004 the Respondent required the Applicant, in his capacity as an employee, to participate in a procedure that involved taking samples of the Applicant's body fluid for the purpose of testing the fluid for illicit drug and steroid traces. The Applicant participated in this procedure. 3 At the time that these events took place the Applicant formed the view that his testing was not just a matter of routine and random testing; rather, the Applicant believed that he had been selected for testing for some specific reason. He described the test as being a "target test", the import of which is quite clear. Consequently, he sought access to documents held by the Respondent which would reveal the reason why he had been specifically selected; a natural and reasonable step to take in the circumstances. His application followed the usual course and resulted finally in the Respondent refusing access to a single document, albeit a document consisting of 53 folios. This document is in evidence (Exhibit R1), but the Applicant has not perused it and will not have the opportunity to do so unless a decision is made to grant access to it. This fact of course limits his ability to formulate and put forward informed submissions, although this is tempered to some degree by the responsibility of the Respondent to establish that the document is in fact an exempt one. 4 Documentary materials were adduced by both parties and received in evidence. Acting Assistant Commissioner Kelly, the deponent of an affidavit received in evidence, was cross-examined by the Applicant. Exhibit R1 however, contains the evidence that is of primary importance in deciding this matter although, as the Respondent submits, due regard must be had to the other exhibits and the testimony of Assistant Commissioner Kelly and the opinion that he proffers as to whether this exhibit is an exempt document. 5 Exhibit R1 was treated by the parties, and spoken of, as if it were a single document. Of course the Applicant, who has not seen this exhibit, was simply following the Respondent's lead on this point. In fact Exhibit R1 is made up of 53 folios; 10 of which make up what may be described as the principal document with the remaining 43 being an annexure thereto. The information set forth in the principal document is in part derived from the annexure. In a sense it is correct to regard Exhibit R1 as but a single document, given the way in which they are interrelated, but for the purpose of these proceedings, they must be regarded as two documents. The reason for this is that the only exemption relied upon by the respondent is clause 4(1)(b) of the First Schedule to the Freedom of Information Act 1989 and this requires ascertaining, inter alia, the source of documents in issue. The principal document and the annexure do not have the same source and therefore must be considered separately. 6 The document in Exhibit R1 referred to as the annexure was created first in time. The circumstances whereby it came into being and the source of the information contained therein are clearly revealed by the document itself. The principal document was created later in time and it also shows the circumstances of its creation. Part of the information that it contains is clearly derived from the annexure; in fact it reproduces the information contained in the annexure to a significant degree although is does also contain information derived from sources other than the annexure. However, it should be noted that the exemption under consideration does not direct attention to simply whether the document contains information from a confidential source, but rather whether the document contains matter the disclosure of which could (reasonably be expected to) enable the existence or identity of a confidential source of information to be ascertained. The exemption therefore directs attention to an entity, repository or thing that may properly be regarded as a "confidential source of information" and asks whether matter in a document would show the existence of or identify such a source. 7 The Respondent argues that if the annexure document is disclosed the matter that it contains will enable a reader to ascertain both the existence and the identity of a "source". This is clearly so. However, the critical question is whether that "source" is in fact a source of confidential information. If a particular source was supplying information on a confidential basis at the time that the question is asked, and that information related to the enforcement or administration of the law, then clearly clause 4(1)(b) would be satisfied. However, the evidence before the Tribunal does not go this far. The evidence does clearly show that the "source" involved here (which is identified by matters contained in the annexure document) has, on a past occasion, been the source of information that was given in circumstances of confidence and which related to the enforcement and the administration of the law. This is established by the information contained in the annexure document itself. There is no evidence though that this "source" has been the source of similar information on any other occasion or is the source of information being presently supplied. Despite this, the proper construction of clause 4(1)(b) requires a finding that the evidence in this matter is sufficient to establish that the "source" under consideration is in fact a confidential source of information, albeit information that was supplied on one occasion in the past, and therefore the annexure document falls within clause 4(1)(b). 8 As the annexure document is an exempt document the provisions of s.25(4) of the Freedom of Information Act 1989 come into play and consideration must be given to whether it is practicable to delete exempt matter from the document and thereby give access to it (with deletions). It is a little difficult to strictly apply this provision where clause 4(1)(b) applies as the document does not really contain exempt matter; rather the document is exempt because the matter in it, whether exempt or not, will enable a "source" to be ascertained. However, s.25(4) is wide enough so that it may be applied where all that is possible is to delete the matter in the document that enables the existence and the identity of the "source" to be ascertained. 9 In relation to the annexure document though it is not reasonably practicable to effect suitable deletions as to do so would mean that very little would remain in the document. Even if matter was removed so that the identity of the source was not possible, the very nature and form of the document itself would reveal the type of "source" that supplied the information. Consequently the deletions would need to be so extensive that the exercise would not be practicable, in the sense that the document as finally released would be uninformative to any reader. In addition, it is clear that the Applicant is seeking the document for the purpose of ascertaining why and how he became, as he believes he did, the subject of a target test. The deletions that would need to be effected would produce a document that could not advance his enquiry in this regard. Consequently, he would not wish to be given access to such a copy (see s.25(4)(b) of the Act). Section 25 therefore does not prohibit denying access to the annexure document. 10 The principal document is a little more complex. The matter contained in this document reveals the existence of, and the identity of, a number of repositories of information. As this document contains matter which would show the existence of, and the identity of, a "source" that is identical to the one shown by the matter in the annexure document then, for the reasons stated above, the principal document must necessarily fall within clause 4(1)(b). Consequently, it is an exempt document by reason of this alone. 11 There is no evidence before the Tribunal relating to the other sources of information that are spoken of in the principal document that would take the Tribunal's deliberations beyond mere speculation, and to make findings on this basis is not permissible, and certainly not wise. It would be open to the Tribunal to remit this document back to the Respondent for further consideration in relation to the application of clause 4(1)(b) to these other sources, and also to consider whether other grounds of exemption under the Act may have application. However, this is not the correct and preferable decision to make in the circumstances. The reason for this is that the deletions that would necessarily have to be made by reason of the findings set forth in paragraph 10 above would necessarily mean that the principal document (with such deletions, and irrespective of any additional deletions that might be made upon re-consideration) would not advance the Applicant's enquiry into why he was selected for testing in any way at all. Consequently, he would not wish to have a copy of the principal document with such deletions. Section 25 then is not a bar to refusing access. 12 For these reasons Exhibit R1 is an exempt document and the provisions of s.25 of the Act are not a bar to refusing access, and the Tribunal so finds. ORDERS The decision of the Respondent is affirmed. The Exhibits may be returned after the appeal period expires and the Parties may approach the Registry for this purpose.