Black v NSW Police Force [2008] NSWADT 177

CITATION: Black v NSW Police Force [2008] NSWADT 177

DIVISION: General Division

APPLICANT Phillip Ross Black PARTIES: RESPONDENT NSW Police Force

FILE NUMBER: 073246

HEARING DATES: 21 December 2007

SUBMISSIONS CLOSED: 26 February 2008

DATE OF DECISION: 19 June 2008

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Access to documents - confidential material

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Freedom of Information Act 1989, Schedule 1 exemptions

CASES CITED: N/A

APPLICANT In person REPRESENTATION: RESPONDENT R Bhalla, solicitor

ORDERS: 1. The document under review is an exempt document 2. Access to the document under review is refused.

REASONS FOR DECISION 1 These proceedings are brought by way of application under the Tribunal's enabling Act wherein the applicant seeks review of a determination made by the respondent under the Freedom of Information Act 1989 (NSW). The proceedings were heard on 21 December 2007 following which an extended timetable was allowed for the filing of written submissions. Submissions closed on 26 February 2008. 2 Following the applicant's initial request under the legislation, there being two subsequent internal reviews, the applicant was granted access to some of the documents falling within his request. The applicant's initial request sought a broad range of document (see exhibits R5 and R6). As not all documents were released after internal review, the applicant commenced these proceedings. During the course of preparation for hearing the issues were narrowed to the extent that there is now only a single document that the Tribunal needs to consider. This document is in evidence as a confidential exhibit. It is referred to in these reasons simply as "the document". No jurisdictional issues were raised by either party and the Tribunal has not otherwise discerned any. 3 The respondent's position is that the document falls within each of clauses 13(b), 4(1)(b) and 6(1) of Schedule 1 to the Act and therefore is exempt. The applicant disputes this and, in addition, argues that even if it be exempt he should never the less be granted access on discretionary grounds. 4 The factual matrix is almost common ground. At material times the applicant was a married man living separately from his wife. They had two adult children. The applicant's wife was undergoing medical treatment. The applicant held a firearms licence and had in his possession both firearms and ammunition. Police officers visited him on one occasion and asked him to surrender his firearms, which he did voluntarily (see exhibit A4, Event Sheet dated 23/12/05). After a period, his firearms were returned to him and no further action was taken by the respondent's officers. 5 The action taken by the police officers was clearly in execution of their duty. The applicant, as the holder of a firearms licence, would readily appreciate that enquiries may be made of him from time to time in relation to the licence (see exhibit R1). The document under review contained information that was part of the information which prompted these officers to take the action that they did. 6 The applicant has of course a quite natural desire to find out what this information was. He wishes to correct it if in fact some of the information is incorrect, even if only misleading. This is a reasonable position to take as he enjoys recreational activities involving his firearms and he would clearly wish to take whatever steps he can to ensure that he retains his licence for this purpose. He would also wish to correct any erroneous information touching upon his personal affairs in a more general way. 7 Clause 4(1)(b) of Schedule 1 to the Act provides that a document is an exempt document if it contains matter the disclosure of which could reasonably be expected 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. The document under review is clearly of this nature, as a perusal of it amply demonstrates. There is essentially no part of this document which does not contain matter of which this sub-clause speaks. To endeavour to edit this document so as to delete exempt matter would render the document non-sensical. 8 The Tribunal is an administrative body which functions independently of the parties in proceedings before it. Where possible it should set forth in its reasons for decision a full exposition of its reasoning process and the evidence upon which it has relied. However, it is also subject to the restraint imposed by section 55(a) of the Freedom of Information Act 1989. Consequently, there are cases where the Tribunal must be circumspect in setting out its reasons for decision. In such cases both an applicant and a respondent must place their trust in the Tribunal's independent status. This is one such case. Consequently, it is sufficient here to say that the information contained in the document satisfies the Tribunal, as matters of fact, that there is information in this document which would enable a reader to ascertain the existence and identity of a source of information which is a confidential source, that information having been obtained in confidence, and which relates to the enforcement and administration of laws properly falling within the powers of officers of police. 9 Even though the document be exempt, the discretionary power to grant access must still be considered. The relevant factors in favour of access being granted have been stated earlier in these reasons. The actions of the police officers directly affected the applicant and his interest in preserving his licence. Further, the applicant has a proper interest in knowing what is said about him in any documents maintained by a State agency and in having a proper opportunity to correct any error that is perceived. These private and public interest considerations would be readily accepted by all reasonable persons. 10 The respondent argues, on the other hand, that there are circumstances where it is necessary to keep secret information contained in agency files so as to ensure the efficiency of an agency's administration. This is no doubt true, but it will of course depend very much on the particular circumstances at hand. There may well be circumstances where preference would be given to granting access rather than preserving secrecy. Often balancing these competing interests may be a difficult task. 11 However, there is no such difficulty here. Of necessity, the operations of the police force in monitoring the operation of firearm laws should be facilitated rather than hindered to the extent that it is proper to do so. Information recorded against the name of a licence holder may be properly kept secret until the need to do so is spent or until there arises a pressing need for it to be released as, for example, where action is taken against the licence holder to cancel his licence. This stage has not been reached here: the police have investigated the applicant and have declined to take any further action. In the Tribunal's view the need to keep the information secret is not yet spent. The applicant is in the position where he enjoys the privilege of being a licence holder and he must accept the possibility that enquiries may be made about him from time to time. With the privilege comes the obligation. 12 Should the Tribunal in these circumstances grant access to the document the consequence would be to hinder the ability of the police force to monitor the operation of the State's firearm laws. This is not a desirable consequence, particularly given that there is no need, at this time, for the applicant to defend himself against any action seeking to cancel his licence. Consequently, on balance these discretionary considerations favour refusal to grant access, and the Tribunal so orders. 13 In light of the Tribunal's decision there is no need to consider the further grounds of exemption argued by the respondent. Orders 1. The document under review is an exempt document 2. Access to the document under review is refused.