CITATION: Cui v Leichhardt Council & Anor [2006] NSWADT 298 DIVISION: General Division APPLICANT Pei Yu Cui PARTIES: FIRST RESPONDENT Leichhardt Council SECOND RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 063006 HEARING DATES: 10 October 2006 SUBMISSIONS CLOSED: 10/10/2006 DATE OF DECISION: 10/16/2006 BEFORE: Handley R - Judicial Member CATCHWORDS: Access to documents – law enforcement & public safety, business affairs MATTER FOR DECISION: Principal Matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Re Scholes v Australian Federal Police (1996) 44 ALD 299 Mickelberg v Australian Federal Police (1984) 6 ALN N176 Kennedy v NSW Police [2001] NSWADT 39 Watkins v Chief Executive, Roads & Traffic Authority [2000] NSWADT 11 CASES CITED: Mangleson v Roads & Traffic Authority (NSW) [2005] NSWADT 269 Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28 Vincent Neary v State Rail Authority [1999] NSWADT 107 Stephanie Raethel v Director General, Department of Education and Training [1999] NSWADT 108 Re Saxon and Australian Maritime Safety Authority (Administrative Appeals Tribunal, 19 June 1995 unreported) Wittingslow Amusements Group v Environment Protection Authority (NSW Supreme Court, Powell J, unreported 23 April 1993) APPLICANT Dr V Wan, counsel REPRESENTATION: RESPONDENT G Georgakis, agent ORDERS: The decision under review is varied by ordering the release to the Applicant of the site plan for Balmain Police Station dated 25 May 1993 (drawing no N93/133-A01) 28 days after the date of this decision. The decision is otherwise affirmed. REASONS FOR DECISION Background 1 On 9 January 2006, Mr Cui applied to the Tribunal for the review of a decision made by an Executive Officer of Leichhardt Council on 14 November 2005 confirming a decision made by the Manager, Administration Services, of the Council on 26 September 2005 to refuse access to plans for Balmain Police Station. In his application, dated 19 September 2005, Mr Cui requested access to "Balmain Police Station plan map in 1989, for example, where is the reception, where is the question room and so on". Access was refused on the ground that the documents were exempt from release pursuant to Sch 1 of the Freedom of Information Act 1989 ('the FOI Act'), cl 4 (documents affecting law enforcement and security) and cl 7 (documents affecting business affairs). 2 The Executive Officer who conducted the internal review contacted the NSW Police to ascertain their view as to whether the documents were exempt documents by virtue of the cl 7 business affairs exemption. The NSW Police responded that the release of the plans for Balmain Police Station would have an unreasonable effect on the business affairs of the agency and, in the event that an application for access was lodged with the NSW Police, the documents would be considered exempt pursuant to the cl 4 law enforcement and public safety exemption. 3 With regard to the parties to these proceedings, it is, in my view, appropriate that I exercise the power in s 67(4) of the Administrative Decisions Tribunal Act 1997 to order that the Commissioner of Police, NSW Police be made a party to these proceedings because the interests of the Police are affected by the reviewable decision that is the subject of the appeal. While noting Mr Cui's objection to this joinder, it is clear that the Police have an interest in whether the plans of Balmain Police Station should be released to Mr Cui. The Relevant Law 4 Pursuant to s 16(1) of the FOI Act, "[a] person has a legally enforceable right to be given access to an agency's documents". However, s 25(1)(a) permits an agency to refuse access to a document if it is an "exempt document", the onus being on the agency to establish this. Section 25(4) 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 it appears to the agency that the FOI applicant would wish to be given access to such a copy. 5 Section 6(1) defines 'agency' as including a local authority or public office, and 'exempt document' as including a document referred to in any one or more of the provisions of Sch 1. The exempt documents in Sch 1 include, relevantly, those specified in cl 4 and cl 7, 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 (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 (d) to prejudice the fair trial of any person or the impartial adjudication of any 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), or (f) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety, or (g) to endanger the security of any building, structure or vehicle, or (h) to prejudice any system or procedure for the protection of persons or property, or (i) to facilitate the escape from lawful custody of any person. 7. Documents affecting business affairs (1) A document is an exempt document: (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made. 6 Section 32 of the FOI Act provides that an agency shall not give access to documents containing information concerning trade secrets, information that has a commercial value to any person, or information concerning the business, professional, commercial or financial affairs of any person, unless the agency has taken such 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 cl 7 of Sch 1. Clause 4: Submissions and Evidence 7 Dr Wan, for Mr Cui, opposed the joining of the Police as an interested party because Mr Cui is in conflict with the Police over convictions in 1991. Mr Cui provided an affidavit sworn on 25 August 2006. He said on 20 November 1989, he was charged at Balmain Police Station "with the offence of assault, amongst other things, against a policeman that took place in the Balmain Police Station itself". Mr Cui contends that he did not commit these offences and, although he defended himself, he was found guilty of the charges at Balmain Local Court on 27 February 1991. Mr Cui now intends to appeal against the decision in order to clear his name. 8 Mr Cui stated that during the Court proceedings in 1991, he was shown a map showing the layout of Balmain Police Station but, being familiar with the layout of the Station at the relevant time in 1989, realised it was different to that in 1989. He needs the correct information as to the layout for the purposes of his appeal. 9 Dr Wan said Mr Cui already has possession of a map of the Police Station from the Local Court hearing in 1991. He wishes to obtain access to the plans held by the Council in order to ascertain the age of the map he currently holds. The release of the plans held by the Council for this purpose will not pose any risk to the security of the building or of escape by persons in custody, and is not likely to increase the risk of prejudicing a fair trial nor lead to the commission of further offences. Mr Cui seeks access to the plans specifically for the purpose of litigation; denial of access will prejudice a fair trial and ultimately result in a denial of justice. Dr Wan submitted that it is in the public interest that material that casts doubt on the professionalism of Police action be open to public scrutiny: Re Scholes v Australian Federal Police (1996) 44 ALD 299, at 300. 10 Dr Wan submitted that given public knowledge of the building, the risk that release of the plans would harm public safety measures is insignificant. Moreover, given that the plans sought relate to the layout of the Police Station "more than 14 years ago", they should be of little risk to public safety now. Dr Wan submitted that the Police have "been absolutely vague" in delineating the risks posed by disclosure of the plans. Moreover, given that Mr Cui is a respectable businessman and has no conviction for dishonesty, there is no scope for the plans "falling into the wrong hands". Dr Wan submitted that the risk posed by release of the plans is so remote as to be totally innocuous. 11 Mr Georgakis, for the Council, relied on the grounds set out in the internal review decision letter dated 14 November 2005. This letter states relevantly: "The release of the documents would reveal the internal configuration of the Balmain Police Station, a building that may house holding cells for prisoners, safes used for holding evidence or exhibits as well as rooms use [sic] for other purposes. The release of information concerning the possible location of cells, evidence safes or other rooms may lead to the commission of a crime, prejudice a fair trial, endanger the security of the building or assist in the escape of a person from lawful custody." 12 Mr Pisani, for the Police, said that Balmain Police Station is a fully operational police station, staffed 24 hours a day on 7 days a week. The building adjoins Balmain Courthouse, which also houses court staff and where "list matters" are heard on Wednesdays and hearings on Thursdays. The adjacency of the buildings facilitates the transfer of persons in custody between the two complexes. Evidence is also held in the Station. Mr Pisani said Police are deployed on operations from the Police Station and investigators are based there. Other civilian staff and members of the public are present in the Station. 13 Mr Pisani submitted there are no provisions in the FOI Act to limit the way in which the material may be used if released. The plans, if released, would be released to the world at large. Thus, if the plans "fell into the wrong hands", there is a real risk that the matters referred to in cl 4(1) could be realised. Mr Pisani referred the Tribunal to the decision of the Administrative Appeals Tribunal (AAT) in Mickelberg v Australian Federal Police (1984) 6 ALN N176, where the AAT held, "in the public interest it is essential that law enforcement agencies have speedy, accurate and secure systems of communication, both within an agency and between agencies". 14 Mr Pisani also called confidential evidence and made submissions in closed session, in the absence of Mr Cui and his counsel and of Mr Georgakis, my having determined that it was necessary to do so pursuant to s 55(b) of the FOI Act. A summary of that evidence and submissions is contained in a Confidential Annexure to this Statement of Reasons. Clause 4: Discussion 15 I note that the words "reasonably be expected" in cl 4(1) are to be given their ordinary meaning - that is expectations that are reasonably based, as opposed to those that are irrational, absurd or ridiculous: Hennessy DP in Kennedy v NSW Police [2001] NSWADT 39 (at 63). I also note that the public interest test in cl 4(2)(b) is not relevant here because the plans to which access is sought by Mr Cui do not fall within the categories of document specified in cl 4(2)(a): Watkins v Chief Executive, Roads & Traffic Authority [2000] NSWADT 11, at par 20. 16 In my view, the subparagraph that is particularly relevant in this case is subpar (g) in relation to endangering the security of any building. Although the parties have addressed the other subparagraphs, subpar (g) seems to encompass the concerns of the Police, which, essentially, are for the security of Balmain Police Station. As Higgins JM noted in Mangleson v Roads and Traffic Authority (NSW) [2005] NSWADT 269, at par 28, the concerns expressed must be viewed objectively. She referred to the Appeal Panel's comments about subpar (c) and subpar (g) in Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28, at par 36: "We simply note that it is a very serious matter for an agency to invoke an exemption based on 'endangerment'. In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption (see s 61, burden of proof). Often the access applicant will be in no position, or a weak position, to produce any evidence in reply to the agency's opinion. The Tribunal must not simply adopt the agency's opinion; ...It does not follow that approaches that are found in traditional adversarial litigation (i.e. in the absence of any evidence to the contrary, the trier of fact should ordinarily make findings in terms of the uncontested relevant evidence) should be adopted in a merits review." 17 I note Mr Cui's evidence that he was shown a map of Balmain Police Station during the hearing of charges against him in Balmain Local Court on 27 February 1991. Having inspected the four architecturally drawn plans in issue, I note that the plans date from 1993 when alterations and additions to the building were proposed and, presumably, Council approval was sought for the plans. Given that Mr Cui already has a map of the Police Station provided to him during the Court proceedings in 1991 and is seeking access to a map of the building in 1989, the plans may not, in fact, assist him in determining the layout of the building at the time the offences were committed on 20 November 1989. The plans comprise a site plan, dated 25 May 1993 (drawing no N93/133-A01), showing the location of the police station in Balmain, a plan showing the proposed demolition of parts of the then existing building, and two plans showing the proposed works. The demolition plan and the proposed works plans show both the existing layout as of 1993 and the new layout on completion of the proposed works. The confidential evidence provided by the Police in closed session is that these plans accurately reveal the current layout of the building. 18 While recognising that reliance on an exemption based on endangerment is a serious matter, I am satisfied that the disclosure to Mr Cui of the three plans detailing the proposed demolition and new works could reasonably be expected to endanger the security of Balmain Police Station. Because of the character and operation of the Police Station, if the security of the Station is endangered, this could, for example, give rise to concerns for the physical safety of persons in the Police Station and/or facilitate the escape from lawful custody of persons held in the police station; it could also prejudice the effectiveness of police investigations into contraventions or possible contraventions of the law, or their pursuing the prosecution of those allegedly responsible for contraventions of the law by reason of endangering the security of the information or other material held on the premises. This view is reinforced by the confidential evidence and submissions. However, I am not satisfied that the site plan reveals the layout of the building nor that there is a reasonable expectation that the matters in subparagraphs (a) to (i) of cl 4(1) would occur if the site plan is disclosed to Mr Cui. He should, therefore, should be given access to this site plan. 19 While I note that Mr Cui seeks access to the plans for the purpose of proposed litigation, and his Counsel has assured me the plans will not fall "into the wrong hands", I am satisfied that the expectation of risk of endangering the security of the building is a reasonable one and that the three plans showing the layout of the Police Station to which access is sought were correctly determined by the Council to be "exempt" documents. Clause 7: Submissions and Evidence 20 The Council also submits that the documents to which access is sought are exempt documents by reason of the cl 7 business affairs exemption. The officer conducting the internal review said in her letter, dated 14 November 2005, explaining the reasons for her decision: "I have also formed the view the information does relate to the work (business affairs) of the NSW Police and that release of the information could reasonably be expected to adversely affect the work (those business affairs) of the NSW Police ..." 21 The reference here appears to be to cl 7(1)(c). Mr Georgakis sought to rely on the review officer's explanation at the hearing, and made no further submissions in this regard. Mr Pisani's submissions, on behalf of the NSW Police, were directed only to the cl 4 exemption. While challenging the exemption on the basis of cl 7, Mr Cui's Counsel made no further submissions in support of that challenge, apparently relying on his submissions in relation to cl 4. 22 Relevantly, for a document to be exempt under cl 7(1)(c), first, the document must contain information concerning the business, professional, commercial or financial affairs of any agency or other person and, second, relevantly, disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs. In Vincent Neary v State Rail Authority [1999] NSWADT 107, at par 35, the President of the Tribunal, O'Connor DCJ, emphasised that the Tribunal must adopt an objective approach in assessing what effect can reasonably be expected from the disclosure of the information, and the expectation must be more than a mere risk. 23 In Stephanie Raethel v Director General, Department of Education and Training [1999] NSWADT 108, at par 43, His Honour referred to the AAT decision in Re Saxon and Australian Maritime Safety Authority (19 June 1995 - unreported) where the Tribunal observed, at par 98, that the term "business, commercial or financial affairs" are "words of very wide application, and cover all the aspects, both fiscal and administrative, of an organisation or undertaking", adding that "I do not think they should be narrowly construed". His Honour, at par 47, then referred to the discussion of "business affairs" in the NSW Supreme Court decision in Wittingslow Amusements Group v Environment Protection Authority (Powell J, unreported 23 April 1993): "The ordinary understanding, I consider, of these terms is that they relate to the kind of information broadly identified by Powell J. In a school context, the terms might refer to such matters as the school's income and expenditure, the employment relationship with its teachers, the teaching program, discipline and fund-raising. A student's academic performance is an outcome to which the business conducted by the school may be a significant contributor. It does not, in my view, form part of the school's 'business affairs'." 24 I have not had the benefit of submissions from the parties in relation to the application of cl 7 to the documents at issue. Nevertheless, the three plans of Balmain Police Station (those relating to the proposed demolition and new works) are clearly relevant to the "business affairs" of the NSW Police in the sense of their performing policing activities and operating the Police Station. I accept that if the plans were released – for the reasons given in relation to cl 4 - this could reasonably be expected to have an unreasonable adverse effect on those affairs. Confidential Evidence and Submissions 25 Subject to suppression order 26 Subject to suppression order 27 Subject to suppression order 28 Subject to suppression order Decision 29 The decision under review is varied by ordering the release to the Applicant of the site plan for Balmain Police Station dated 25 May 1993 (drawing no N93/133-A01) 28 days after the date of this decision. The decision is otherwise 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.