CITATION: Martin v Commissioner of Police, NSW Police Force [2008] NSWADT 246 DIVISION: General Division APPLICANT Pilar Martin PARTIES: RESPONDENT Commissioner Of Police, NSW Police Force FILE NUMBER: 083072 HEARING DATES: 25 July 2008 SUBMISSIONS CLOSED: 25 July 2008 DATE OF DECISION: 1 September 2008 BEFORE: Wilson R - Judicial Member CATCHWORDS: Freedom of Information Act - whether exempt documents to be granted to the applicant MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 APPLICANT In person REPRESENTATION: RESPONDENT V L Anderson, solicitor ORDERS: 1. The decision of the respondent under review is affirmed. REASONS FOR DECISION 1 The applicant has commenced these proceedings to review a refusal by the respondent to grant access to certain documents under the Freedom of Information Act (NSW) 1989. Pursuant to the original application to the respondent under the Act the applicant was granted access to a large number of documents without deletion. However, one document (the report) was released with the name of the author deleted. Access to this particular document, without deletions, is the only issue in these proceedings. 2 Whilst the application to the Tribunal sought review of the respondent's decision under the Act on internal review, the grounds set forth in the application were stated broadly and in terms that suggested that the Tribunal was being asked to review a somewhat broader issue, namely whether the contents of the report were untrue. At hearing the applicant sought to also seek review of the respondent's conduct in dealing with her allegations of assault by a third party and her subsequent allegations of improper treatment at the hands of officers in the respondent's service. The Tribunal declined to review these broader issues and confined the hearing to a review of the decision under the Freedom of Information Act 1989 only. This issue concerns the single document referred to above as the "report". The Tribunal has no jurisdiction in relation to the broader issues canvassed by the applicant in her application and at hearing. The applicant was made aware of this during the course of the hearing. 3 Documentary exhibits were tendered by the applicant during the course of the hearing and were marked with the prefix "A" (and an identifying number) to indicate that they were tendered by the applicant. Three documents tendered by the applicant were admitted (exhibits A1, A2 and A3) subject to relevance. Other documents were tendered by the applicant without objection and became exhibits A4 and A5. The respondent also tendered documentary exhibits which were marked either with the prefix "R" (to indicate exhibits copies of which were served upon the applicant) or the prefix "C" (to indicate that they were confidential exhibits copies of which had not been provided to the applicant). Exhibits R2 and R3 were also admitted subject to relevance. 4 Additional documents tendered were rejected upon the grounds of relevance. They remain with the file and are marked MFI A and MFI B. 5 No oral evidence was adduced at the hearing. However, during the course of argument the applicant asserted that she had two reasons for seeking the name of the author of the report. The first was so that she could make effective representation to governmental agencies in an endeavour to obtain redress for alleged falsities in the report and alleged mistreatment at the hands of officers in the service of the respondent. Secondly, she wished to provide the name of the author to her legal representative as to do so would assist litigation that she has on foot. The respondent accepted this factual assertion as to the applicant's subjective reasons as common ground. The many other factual assertions made by the applicant during the course of argument were not relevant to the issue for the Tribunal's determination and were not received as evidence, but simply as argument. Given this, the respondent did not seek to cross-examine the applicant. 6 Exhibits A1, A2 and A3 were received by the Tribunal, over the respondent's objection as to relevance, but only upon the basis that their relevance would be determined in due course. These three exhibits are not relevant to any issue before the Tribunal and should not be taken into account. The same applies to exhibits R2 and R3. These several exhibits do no more than confirm that the applicant has certain grievances, which she wishes to address and in relation to which the name of the author will assist. There is no need for such evidence given the common ground between the parties noted above as to why she seeks the name of the author of the report. These exhibits therefore add nothing to the case advanced by the parties: they are in effect superseded by the common ground. These exhibits therefore are formally rejected although they will remain marked as exhibits for the purposes of identification. The Tribunal of course will not take them into account in its deliberations. 7 The documents marked MFI A and MFI B were rejected for the same reasons. 8 The respondent pressed a number of grounds to establish the exempt nature of the report in issue. These grounds are set forth and argued in the respondent's written submissions (exhibit R1). The relevant evidence is contained in exhibit C1, a confidential exhibit which the applicant has not yet seen. A complete copy of the report is contained within this exhibit. 9 The applicant stated in submissions that she had attended a medical practitioner for treatment and became concerned about his behaviour. She reported this to the police who made enquiries into the allegation. The report in issue here was obtained by police as part of the investigation into her allegation. Whilst this information from the applicant was not evidence in itself, the facts of which she spoke as just stated are clearly confirmed by the materials in exhibit C1. These facts, together with the other materials in exhibit C1, leave no room for doubt that the exemption provided for by clause 4(1)(b) of Schedule 1 to the Act has application. The report contains matter which identifies the author of the report; the report was provided on a confidential basis so that the author clearly was a confidential source of information; and the report was obtained for the purposes of a police investigation, so there is a clear nexus with the enforcement and administration of the law. The other grounds of exemption pressed may well have application as well, but there is no need to determine this. 10 Even though the document be exempt, the respondent decided to grant access to it but with deletions appropriate to concealing the author's identity. This course was open to the respondent by way of excision of exempt material or pursuant to its discretion to grant access even in relation to an exempt document. 11 The Tribunal also has discretionary power to grant access to even an exempt document if to do so is the correct and preferable decision. The respondent argues that there are strong public interest reasons for the course that it adopted and submits that the Tribunal should exercise its discretion in the same way. The argument is essentially that when information is obtained by police from a confidential source during the course of an investigation that source should remain confidential, at least until the time comes when it has to be disclosed by operation of law, as, for example, where a prosecution is commenced. The right to access granted by the Freedom of Information Act 1989 is not in this class, as the existence of this particular exemption demonstrates. There must be, the respondent argues, a sound reason why the application of this exemption should be displaced. This argument must be correct as there is clearly a public interest in ensuring that the identity of sources of information remains confidential during the course of a police investigation, and even thereafter. However, this public interest is not absolute and there will be circumstances where the identity of even a confidential source must be revealed, as where the due administration of justice requires it. There may even be circumstances where the right to access information provided by the Freedom of Information Act 1989 itself may warrant revealing the identity of the confidential source. 12 Clearly though, everything depends upon the circumstances of the case at hand and the compelling nature of those circumstances. Here the applicant wishes to know the identity of the author so as to press others to investigate what she sees as a serious issue and to further her litigation. However the Tribunal does not see these circumstances as being of sufficient weight to compel it to grant access to the document so that she will be able to identify its author and hence pass this information on should she decide to do so. This is purely a matter of weight as the Tribunal is not satisfied that the author's identity is critical to the claims that the applicant wishes to advance. Put simply, the reasons advanced by the applicant are not compelling. 13 The Tribunal also notes that the applicant has been granted access to the body of the report and that there are other avenues whereby the information she seeks as to the author's identity may be sought, should it really be necessary to advance her interests effectively. These avenues are attended by restrictions which control the general disclosure of the author's identity beyond serving the immediate purpose at hand. The issue of a subpoena in the litigation now on foot in another place is an example of this. 14 Consequently, the Tribunal declines to grant access to the entire report and affirms the decision under review. 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.