Appeal Panel - Internal CITATION: Simring v Commissioner of Police, New South Wales Police (No.2) (GD) [2008] NSWADTAP 25 APPELLANT Gene Simring PARTIES: RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 069081 HEARING DATES: 24 April 2007 SUBMISSIONS CLOSED: 21 December 2007 DATE OF DECISION: 24 April 2008 BEFORE: Hennessy N - Magistrate (Deputy President); Molony P - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: Leave to extend to the merits MATTER FOR DECISION: Principal matter DECISION UNDER APPEAL: Simring v Commissioner of Police, New South Wales Police FILE NUMBER UNDER APPEAL: 053314 DATE OF DECISION UNDER APPEAL: 11/23/2006 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: Neary v The Treasurer, New South Wales [2002] NSWADT 261 University of New South Wales v McGuirk [2006] NSWSC 1362 APPELLANT In person REPRESENTATION: RESPONDENT W Pisani, solicitor ORDERS: The decision of New South Wales Police not to give access to the exempt documents is affirmed. REASONS FOR DECISION Background 1 Mr Simring applied to New South Wales Police for certain documents under the Freedom of Information Act 1989 (FOI Act). The documents he requested were "everything pertaining to myself in New South Wales Police files from 1989 to the present date including briefs, advices, memorandum, acknowledgements, interviews and statements." He was provided with several documents but eight documents were withheld because New South Wales Police regarded them as being covered by the exemption relating to personal information: FOI Act, Schedule 1, Clause 6. Seven of the withheld documents were statements from witnesses in relation to offences for which Mr Simring has been convicted. The eighth was a New South Wales Police record of an Event (Number E3640427). Mr Simring is currently in prison in Bathurst having been convicted of certain sexual assault offences. 2 Mr Simring applied to the Tribunal for a review of the decision not to give him access to the eight documents. In a covering letter to his application to the Tribunal, dated 8 September 2005, Mr Simring said that he required the documents to make submissions in relation to his pending appeal against conviction. He also said in his written submissions to the Tribunal that the correctness of his conviction "is the ultimate point in issue and the reason for this application." Tribunal's decision and the first appeal hearing 3 The Tribunal decided that the documents that were withheld were covered by the personal affairs exemption. That conclusion made it unnecessary for it to consider whether the documents were also exempt under Schedule 1, clause 13(b) (documents containing confidential material) and clause 4(1)(a) or (e) (documents affecting law enforcement and public safety). 4 Mr Simring appealed against the Tribunal's decision to the Appeal Panel. On 1 November 2007 the Appeal Panel handed down a decision, which concluded the Tribunal had not made an error of law. The Appeal Panel also decided to give leave for the appeal to be extended to the merits of the Tribunal's decision but only in relation to the question of whether access should be given to the disputed documents even though they are exempt documents. This issue is sometimes referred to as the "override discretion": Simring v Commissioner of Police, NSW Police [2007] NSWADTAP 63. The Appeal Panel decided to determine that issue itself rather than remit it to the Tribunal at first instance: ADT Act, section 113. The parties were directed to file and serve written submissions in relation to this question within 21 days. The Appeal Panel directed that the question be determined 'on the papers': ADT Act, section 76. Override discretion 5 After the Tribunal had handed down its decision, the Supreme Court decided that section 63 of the ADT Act provides the Tribunal with an "overriding" discretion "to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it": University of New South Wales v McGuirk [2006] NSWSC 1362 Nicholas J, at [102]. Previously, the view had been taken in several cases including Neary v The Treasurer, New South Wales [2002] NSWADT 261, that it was not open to applicants for review to seek an order that an agency release an otherwise exempt document. 6 Under section 16(1) of the FOI Act "[a] person has a legally enforceable right to be given access to an agency's documents in accordance with this Act." Following an application for access to documents, an agency must determine whether access to the document is to be given or refused, and any charge payable for dealing with the application: FOI Act, section 24. An agency may refuse access to a document if it is an exempt document: FOI Act, section 25(1)(a). An exempt document includes a document referred to in any one or more of the provisions of Schedule 1: FOI Act, section 6. The exemption for personal affairs states that: 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. 7 The Appeal Panel examined the nature and extent of the discretion in a previous decision, University of New South Wales v McGuirk (No.2) [2008] NSWADTAP 8 at [9] to [18]. We adopt that reasoning in this decision. The Appeal Panel concluded at [18], that: The FOI Act requires discretions be exercised, as far as possible, so as to facilitate the disclosure of information: section 5(3)(b). Consistently with the objects of the FOI Act , and the means by which those objects are to be achieved, it can be assumed that the exemptions were included because parliament considered that they were "reasonably necessary for the proper administration of the Government". In that sense, the balancing exercise between competing public interest considerations has already been undertaken. Nevertheless, a relevant consideration when exercising the discretion is whether there is a reason, particular to the circumstances of the case, for giving access to such documents. That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. In that sense, it may be described as special, overriding or strong: See Department of Premier and Cabinet v Hulls [1999] VSCA 117; Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55. Submissions 8 Mr Simring says that he has appealed to the Supreme Court against his conviction and he is waiting for a date for the hearing. He also said that granting access to the documents would strengthen public confidence in the administration of justice and help overturn his wrongful conviction. New South Wales Police submitted that the public interest considerations in keeping the documents confidential outweigh any individual rights of Mr Simring to obtain access to those documents. Conclusion 9 We have taken into account all the evidence (including the confidential evidence) before the Tribunal at first instance. The documents in dispute contain highly sensitive personal information in relation to people other than Mr Simring. The reason Mr Simring gives for seeking access to the documents is for use in an appeal against his conviction. There is clearly a public interest in enhancing the operation of the criminal justice system. However, the highly sensitive personal nature of the material and the lack of any mechanism to prevent Mr Simring from disclosing the material other than for the purpose of the appeal, persuades us that the information should not be disclosed. Orders The decision of New South Wales Police not to give access to the exempt documents is 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.