CITATION: RT v Commissioner of Police, NSW Police [2005] NSWADT 270 DIVISION: General Division APPLICANT PARTIES: RT RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 053129 HEARING DATES: 2/08/2005 SUBMISSIONS CLOSED: 08/02/2005 DATE OF DECISION: 11/29/2005 BEFORE: Montgomery S - Judicial Member APPLICATION: access to documents - personal affairs - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 A-G's Department v Cockcroft [1986] 64 ALR 97 Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 Commissioner of Police -v- District Court of NSW (1993) 31 NSWLR 606 Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 CASES CITED: H -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 202 News Corp Ltd v News Corp Ltd v National Companies and Securities Commission (1984) 5 FCR 88 Re Atkinson and Public Transport Corporation (1992) 5 VAR 255 re B and Brisbane North Regional Health Authority [1994] 1 QAR 279 Re Easdown and Director of Public Prosecutions (1987) 2 VAR 102 Sobh v Police Force of Victoria (1994) 1 VR 41 APPLICANT REPRESENTATION: V Pigott, agent RESPONDENT W Pisani, agent ORDERS: 1. The decision under review is affirmed insofar as it relates to the determination to release documents either in full or subject to deletions and insofar as it relates to the determination not to release the documents identified as 'Event E 9183258' and 'Information Report I 21636782'; 2. The decision under review is set aside insofar as it relates to the determination not to release the remaining documents that were identified as falling within the scope of the application. In place of that part of the determination I make the fresh determination that those documents should be released subject to the deletions indicated in these reasons REASONS FOR DECISION 1 This is a review application under section 53 of the Freedom of Information Act 1989 ("the FOI Act"). The Applicant's name is not identified in these reasons to protect his confidentiality. In these reasons the Applicant is referred to as RT. The respondent is referred to as the agency. 2 RT applied under section 17 of the FOI Act seeking the following documents: "A copy of all personal information help (sic) on me by the NSW Police. Such information to include but not exclusive, copies of all computer intelligence and event reports (COPs and CIDs), a copy of my criminal record, statements, memorandum, correspondence and in particular all documents associated with my application to be a private investigator." 3 The agency failed to determine the application within the 21 day period provided for under the FOI Act. Accordingly, pursuant to Section 24(2) of the FOI Act, the agency was deemed to have refused the application. RT then sought an internal review in relation to the deemed refusal. 4 In the review process the agency identified 24 documents as falling within the scope of the application. I am satisfied that the agency does not hold any other documents falling within the scope of the application. Those documents that were identified and the decision in relation to those documents was as follows: "It is my decision to not release the following documents pursuant to Section 25(1)(a) of the Act on the grounds of the exemptions listed at Clause 4(1)(a), 4(1)(e), Clause 6(1) and Clause 13(b): 1. Event E 9183258 (5 pages) This event wholly relates to the personal affairs of parties other than the applicant. (Applicant being a witness to a motor vehicle collision involving other parties.) 2. Information Report I 21636782 (2 pages) 3. Information Report I 21506454 (1 page) 4. Information Report I 72977195 (1 page) 5. Information Report I 42749101 (1 page) 6. Information Report I 21415570 (1 page) 7. Information Report I 24488485 (1 page) 8. Information Report I 23101463 (1 page) 9. Information Report I 23079765 (2 pages) 10. Information report 92/79/31 (1 page) 11. Information report 92/79/32 (1 page) It is my decision to release in full the following documents with the exception of deletions pursuant to Section 25(1)(a) and 25(4)(a) of the Act on the grounds of the exemptions listed at Clause 6(1): 1. Event Summary No. E 4725605 (1 page) 2. Event Summary No. E 1033593 (2 pages) 3. Event Summary No. E 325225 (1 page) 4. Event Summary No. E 5380844 (2 pages) 5. Event Summary No. E 6620670 (2 pages) It is my decision to release in full the following documents: 1. Event Summary No. E 13160726 (1 page) 2. Event Summary No. E 6219863 (2 pages) 3. Event Summary No. E 2093669 (1 page) 4. Event Summary No. E 1677347 (1 page) 5. Event Summary No. E 2135187 (1 page) 6 Event Summary No. E 469182 (2 pages) 7. Event Summary No. E 1803794 (2 pages) 8. Criminal History (3 pages)" 5 RT has applied to the Tribunal for a review of those parts of the decision which either refused access to the document in full or to granted access to the documents with certain information deleted. Applicable legislation 6 Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified. In determining an application for review the Tribunal is to decide what the correct and preferable decision is having regard to the material before it and for that purpose may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. The Tribunal is to have regard to any relevant Government policy in force at the time the reviewable decision was made and may have regard to any other policy applied by the administrator in relation to the matter concerned. 7 The issues in this application are whether the grounds on which the agency has refused access to the documents that RT requested have been made out. That is, whether the agency can establish that the exemption on which it has refused access to each document in fact applies. It needs to be determined whether the documents that RT sought are exempt documents within Schedule 1 of the FOI Act; and if the documents are exempt documents whether it is practicable to give access to copies from which exempt matter has been removed. 8 Section 5 of the FOI Act provides that: the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government the legally enforceable right to be given access to documents held by the Government, is subject only to such restrictions as are reasonably necessary for the proper administration of the Government the discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. 9 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. 10 Clause 4(1)(a) and (e) of Schedule 1 of the FOI Act provides as follows: " 4 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: (a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, 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 Clause 6 of Schedule 1 of the FOI Act provides as follows: " 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made." 12 Clause 13(b) of Schedule 1 of the FOI Act provides as follows: " 13 Documents containing confidential material A document is an exempt document: … (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." 13 Subsection 25(1) of the FOI Act allows an agency to refuse access to an exempt document in certain circumstances, including where a document is an "exempt" document as defined in the FOI Act. Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that RT would wish to be given access to such a copy. 14 Section 31 of the FOI Act provides in part that an agency shall not give access to a document containing information concerning the personal affairs of any person (otherwise than to the person concerned) unless the agency has taken steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1. The agency's case 15 The agency's case is that each of the documents sought is exempt from production either in part or as a whole. In relation to that category of documents where the agency agrees to release the documents subject to deletions, the deleted material is said to contain information concerning the personal affairs of persons other than RT and that the disclosure of that information would be unreasonable. 16 The agency relies on the argument set out in the internal review decision, confidential evidence provided before the Tribunal and on confidential submissions made to the Tribunal. RT's case 17 This application arises out of the wish by RT to have the issues examined by an independent assessor. As RT has no knowledge of the contents of the documents in question RT is not in a position to make any specific comments about the documents. Accordingly, RT's submissions relate to the approach to be taken in determining whether the documents are exempt for the purposes of the FOI Act. 18 With respect to clause 4(1)(a) of Schedule 1 of the FOI Act, RT referred to the matter of Sobh v Police Force of Victoria (1994) 1 VR 41 where Nathan J considered the Victorian equivalent of clause 4(1)(a) of Schedule 1 of the FOI Act and said at 324 "Prejudice is not a term of legal art. It means to impede or derogate from". 19 With respect to the expression "could reasonably be expected" applicant referred to the matter of News Corp Ltd v National Companies and Securities Commission (1984) 5 FCR 88. At 101 Woodward J interpreted the expression to mean that there must be some reasonable expectation of a particular effect occurring, as distinct from a mere possibility, risk or chance of occurrence. 20 RT submitted that the Tribunal is required to determine, on the basis of the material available, whether or not the expectation or prejudice or other detrimental effect is reasonable: (A-G's Department v Cockcroft [1986] 64 ALR 97 at 106; 10 FCR 180 at 190 per Bowen CJ and Beaumont J) as opposed to irrational, absurd or ridiculous. In addition, the full Federal Court has said that the words "could reasonably be expected" are only directed towards examining whether or not there is a reasonable basis for the effect that the exemption seeks to prevent, not whether or not there is a reasonable basis for the exemption. 21 It is further submitted that the Tribunal also needs to consider whether or not the documents refer to current, completed or dormant investigations. The case law suggests that it will be difficult for an agency to sustain a claim of prejudice in relation to investigations that have been clearly completed. 22 With respect to clause 4(1)(e) of Schedule 1 of the FOI Act, RT submitted that the Tribunal is required to determine whether or not there is a "reasonable" expectation that disclosure would prejudice their effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law. The onus here is on the agency to explain to the Tribunal the precise nature of the prejudice that could reasonably be expected. This decision needs to be made in light of the presumption in favour of disclosure under the FOI Act. 23 With respect to clause 6 of Schedule 1 of the FOI Act RT submitted that whether names and addresses constitute personal affairs depends on the context in which they appear. It is unlikely that the name of a police officer investigating a matter could be exempt. RT referred to the views of Kirby P in the matter of Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 ("Perrins case") and submits that "personal affairs" mean "the composite collection of activities personal to the individual concerned". 24 It is further submitted that before the exemption can apply the Tribunal is required to determine whether the disclosure would be 'unreasonable'. This will involve a consideration of all of the circumstances of the case and a balancing of relevant interests. This will involve a process similar to the assessment of the "public interest". RT refers to the matter of Re Atkinson and Public Transport Corporation (1992) 5 VAR 255. In that matter the Deputy President of the Victorian AAT identified the following factors which might be relevant to a determination of whether disclosure is reasonable: the identity and nature of the parties; the nature of the information and the circumstances in which it was obtained; the currency and relevancy of the information and the damage likely to be suffered by the third party consequent upon its release; the nature of the interest of the public; and the purpose for which the information is ought. 25 With respect to clause 13(b) of Schedule 1 of the FOI Act the Tribunal is required to determine whether or not disclosure could reasonably be expected to prejudice the future supply of such information. RT submitted that this does not necessarily depend on whether the informant could reasonably be expected to refuse to supply such information in the future. While that evidence is relevant, the Tribunal must answer a broader question, that is, whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of sources available or likely to be available to the agency. He relies on the decision of the Queensland Information Commissioner in matter of re B and Brisbane North Regional Health Authority [1994] 1 QAR 279. 26 RT submitted that the Tribunal must also find that disclosure would, on balance, be contrary to the public interest. One public interest consideration is that people who are accused of wrongdoing should be able to know who has complained about them and have a reasonable opportunity to respond to the substance of any complaint or to amend incorrect information. He refers to the decision of the Administrative Appeals Tribunal in Victoria in Re Easdown and Director of Public Prosecutions (1987) 2 VAR 102, where the Tribunal rejected arguments that the disclosure of a police report containing material obtained in interviews with various persons would be reasonably likely to impair the ability of the agency to obtain similar information in the future. The tribunal noted that: "While people may expect that police will not "gossip" about information supplied to them it is unrealistic to believe that those who provide information to police do not think it might ultimately become public through some formal process." Findings 27 The exemption provided in Clause 6 of Schedule 1 to the FOI Act is applicable where an applicant requests access to personal affairs information other than his/her own, in circumstances where disclosure would involve an unreasonable disclosure of the third party's personal affairs. "Personal affairs" is not defined in the FOI Act and is considered to be an inherently imprecise concept. Whether information can be defined as "personal affairs" is a question of fact in each case. Generally, it has been accepted that the term "personal affairs" means "matters of private concern to an individual". 28 In Perrins case Kirby P stated at page 625: 'In its context, the words "personal affairs" mean the composite collections of activities personal to the individual concerned.' 29 Whether a document contains information about the "personal affairs" of a person is a question of fact to be determined from the circumstances of each individual case: Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 ("Woods") at paragraph 31. The circumstances of the case will determine whether or not a person's name and other identifying characteristics are personal affairs for the purpose of clause 6 of Schedule 1 of the FOI Act. A distinction has been drawn in the authorities between persons who are carrying out their functions as officers of an agency (Perrins Case) and persons outside the agency (Gilling -v- General Manager, Hawkesbury CC [1999] NSWADT 43; Thompson -v- The Lord Howe Island Board [2003] NSWADT 193) 30 There are five documents that the agency asserts contain personal affairs information and should only be released with that information deleted. I have examined each of those documents and I agree with the agency's view. Insofar as the decision under review relates to those documents, I affirm the decision. I note that RT has been given access to a copy of these documents from which the exempt matter has been deleted. Accordingly, the agency need take no further action in relation to those documents. 31 The agency also asserts that the document referred to as 'Event E 9183258' also contains personal affairs information and should not be released to RT. I have examined that document and agree with the agency's view. Accordingly, the agency need take no further action in relation to that document. 32 There are ten further documents that the agency asserts are exempt from production pursuant to Clause 4(1)(a), 4(1)(e), and Clause 13(b): 33 Clause 4(1)(a) of Schedule 1 to the FOI Act provides that a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the investigation of any contravention or possible contravention of the law. An agency is required to show that there is a reasonable, as opposed to an irrational, absurd or ridiculous expectation, that disclosure of a document could prejudice the investigation of any actual or possible contravention of the law. This will depend to some extent on whether the investigation is current, completed or dormant. 34 An investigation might be prejudiced if documents were disclosed that would reveal the activities being the subject of the investigation or which are not the subject of the investigation, the nature and extent of the evidence which has been accumulated in relation to the investigation, the direction of the investigation, the disclosure of priorities of the investigation, the resources available to the investigators or the hypotheses of the investigation and the methods of investigation. 35 Clause 4(1)(e) of Schedule 1 of the FOI Act provides that a document is an exempt document if it contains matter the disclosure of which could reasonably be expected 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. The exemption operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods: Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231. 36 For the exemption to apply, there is no need for an actual contravention of the law, since the exemption encompasses both actual and possible contraventions. The exemption is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law. The information contained in an exempt document might serve to disclose or confirm the lawful Police methods or procedures for preventing or detecting possible contraventions of the law. 37 The obvious purpose of the exemption in clause 13(b) of Schedule 1 of the FOI Act is to protect the free flow of information from private citizens and bodies to government in cases where a common law action for breach of confidence cannot be made out: H -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 202. The provider of information should be protected from any harm or detriment that would occur if certain information were disclosed, in circumstances where there is an express or implied obligation of confidence on the agency entrusted with the information. Information Report I 21636782 38 After reviewing the documents that fall within this category, I am satisfied that the documents identified as 'Information Report I 21636782' contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 and ought not be released. Information Report I 21506454 39 I am satisfied that the documents identified as 'Information Report I 21506454' contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 however I am satisfied that the document can be released subject to deletions. The information that should be deleted is that contained between the words 'Intelligence Category' and the words 'Review date' and the information contained in the narrative part of the document between the words 'patrolling the LOC' and 'Police observed'. Information Report I 72977195 40 I am satisfied that the documents identified as 'Information Report I 72977195' contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 however I am satisfied that the document can be released subject to deletions. The information that should be deleted is: that contained between the words 'Intelligence Category' and the words 'Review date' the information contained in the narrative part of the document in the first paragraph under the heading 'FACTS' between the words 'above location' and 'Police sighted' the information contained in the narrative part of the document in the second paragraph under the heading 'FACTS' between the words 'behaviour' and 'The owner'. Information Report I 42749101 41 I am satisfied that the documents identified as 'Information Report I 42749101' contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 however I am satisfied that the document can be released subject to deletions. The information that should be deleted is: that contained between the words 'Intelligence Category' and the words 'Review date' all the information contained in the narrative part of the document following the words 'the night'. Information Report I 21415570 42 I am satisfied that the documents identified as 'Information Report I 21415570' contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 however I am satisfied that the document can be released subject to deletions. The information that should be deleted is: that contained between the words 'Intelligence Category' and the words 'Review date' all the information contained in the narrative part of the document adjacent to the heading 'Poi 1' between the words 'offences' and 'At 9.00pm'. Information Report I 24488485 43 I am satisfied that the documents identified as 'Information Report I 24488485' contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 however I am satisfied that the document can be released subject to deletions. The information that should be deleted is: that contained between the words 'Intelligence Category' and the words 'Review date' all the information contained in the final paragraph of the narrative part of the document following the words 'drivers seat'. Information Report I 23101463 44 I am satisfied that the documents identified as 'Information Report I 23101463' contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 however I am satisfied that the document can be released subject to deletions. The information that should be deleted is: that contained between the words 'Intelligence Category' and the words 'Review date' the information contained in the narrative part of the document in the first paragraph under the heading 'FACTS' following the words 'by the public'. Information Report I 23079765 45 I am satisfied that the documents identified as 'Information Report I 23079765' contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 however I am satisfied that the document can be released subject to deletions. The information that should be deleted is: that contained in the short title that contained between the words 'Intelligence Category' and the words 'Review date' that contained in the fifth paragraph and in the seventh paragraph in the narrative part of the document. the receiving party's details on page two of the document. Information report 92/79/31 46 I am satisfied that the documents identified as 'Information Report 92/79/31' contains matter that falls within the exemption provided by Clause 6 of Schedule 1 however I am satisfied that the document can be released subject to deletions. The information that should be deleted is all the information that identifies the informant. Information report 92/79/32 47 I am satisfied that the documents identified as 'Information Report I 92/79/31' contains matter that falls within the exemption provided by Clause 4(1)(e) of Schedule 1 however I am satisfied that the document can be released subject to deletions. The information that should be deleted is all the information that identifies the informant. Orders 1. The decision under review is affirmed insofar as it relates to the determination to release documents either in full or subject to deletions and insofar as it relates to the determination not to release the documents identified as 'Event E 9183258' and 'Information Report I 21636782'. 2. The decision under review is set aside insofar as it relates to the determination not to release the remaining documents that were identified as falling within the scope of the application. In place of that part of the determination I make the fresh determination that those documents should be released subject to the deletions indicated in these reasons. 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.