CITATION: H -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 202 DIVISION: General Division APPLICANT PARTIES: H RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003341 HEARING DATES: 15/05/2001, 20/06/2001 SUBMISSIONS CLOSED: 07/18/2001 DATE OF DECISION: 11/29/2001 BEFORE: Robinson MA - Judicial Member APPLICATION: access to documents - business affairs - access to documents - confidential material - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - confidential material - Summons - costs MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal (Interim) Rules 1998 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : District Court Rules 1973 Freedom of Information Act 1989 Administrative Decisions Tribunal (General) Regulation 1998 Interpretation Act 1987 Raethel v Director General, Department of Education and Training [1999] NSWADT 108 Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 CASES CITED: R v A and B [1999] NSWADTAP 2 Park v Commissioner of Police, New South Wales Police Service (EOD) [2000] NSWADTAP 4 Fainstein v University of A [2001] NSWADT 110 Air Pacific v Transport Workers Union of Australia (1993) 40 FCR 1 APPLICANT REPRESENTATION: K Andronos, barrister RESPONDENT J Tunks, solicitor ORDERS: 1 The decision under review is set aside and the applicant is granted access to the memorandum of Cable & Wireless Optus Limited dated 8 January 1998; 2 The application by Cable & Wireless Optus Limited for its costs in respect of the summons to produce documents issued 18 May 2001 is refused 1 This is an application for review of a reviewable decision made under the Freedom of Information Act 1989 ("FOI Act") refusing the applicant access to documents relating to her held by the respondent. The agency has claimed the following exemptions apply in Schedule 1 of the FOI Act: clause 7(1)(c) (business affairs) and clause 13(b) (confidential documents). 2 The applicant originally made an application for access to documents under the FOI Act on 3 April 2000 seeking documents from the Castle Hill police station concerning the "Optus inquiry with Seargent Peacock, Castle Hill Police Station, regarding information on myself [the applicant]". It is common ground that the reference to "Optus" is a reference to the telecommunications business of Cable & Wireless Optus Limited ("Optus"). On 8 May 2000 the respondent's determining officer wrote to the applicant advising her that relevant documents had been located and they were the subject of an internal investigation that had not been completed. Accordingly, access was formally refused on the basis of clause 4(1)(a) of Schedule 1 of the FOI Act (prejudice of investigations). 3 The applicant requested an internal review of the decision on 12 September 2000 and the respondent accepted this late request. In support of her internal review application the applicant stated, inter alia, that "the police 'illegally' access personal information about me and provided this information to Optus Communications". She also referred to an adverse decision she had received in the Fair Trading Tribunal in an action against Optus and she said the documentation sought in her FOI application is needed by her to assist in mounting a Supreme Court appeal against that Tribunal decision. 4 On 11 October 2000 the respondent's internal reviewer, the General Manager, made his determination refusing the applicant access to any of the documents and claiming the documents were exempt on the basis of clause 13(b) of Schedule 1 of the FOI Act (confidential documents). Two documents were identified as relevant. The first was described as a two page internal Optus confidential communication and the second document was styled a one page confidential memo to the Police Service. 5 In the review decision, the respondent's General Manager stated that the documents were received from Optus under an express understanding of confidence and contained intimate business affairs relating to Optus. It was determined that release of the documents could reasonably jeopardise the future supply of information from Optus to the Police Service on a confidential basis, that continuing relationship being important to the respondent's policing in the State and it would therefore be contrary to the public interest for the documents to be released. 6 After the applicant commenced these proceedings in the Tribunal on 24 October 2000, the second document was released to the her by the respondent. A copy of it was tendered by the respondent and became exhibit 3 in these proceedings. The whole of the two page Optus memorandum remains in dispute. 7 On 11 December 2000, the respondent filed a document styled "Amended Statement of Reasons" by which it sought to add the business affairs exemption, clause 7, to the exemption relied upon in refusing access to the disputed document. 8 At the hearing before the Tribunal on 15 May 2001, both parties appeared and were legally represented. Extended argument was heard relating to a summons to produce documents dated 2 May 2001 issued at the request of the applicant and addressed to Optus. Optus appeared at that hearing by way of a solicitor for the purpose of, inter alia, disputing the terms of the summons which it was said were too wide and caught the disputed document the subject of these proceedings (which Optus did not wish to be released to the applicant). The dispute as to this summons was resolved at that hearing and the applicant agreed to issue a fresh summons. The Tribunal was then asked to make a determination on costs regarding the issue of the fresh summons after argument relating to it was heard on 20 June 2001. 9 During the course of the first hearing day, the applicant's counsel tendered a copy of the disputed document. The Tribunal was informed that the documents had been handed to the applicant by the Fair Trading Tribunal or an officer of that Tribunal upon being tendered or delivered to the Tribunal by Optus in litigation once conducted between Optus and the applicant. The parties agreed at the hearing that the applicant was already in possession of a copy of the very document to which she was seeking access from the respondent in these proceedings. However, the copy tendered to the Tribunal (exhibit A) had been marked in various places with the obvious intention of hiding or covering most of the surnames of persons mentioned in the memorandum. In spite of those markings, all of the said surnames were readily apparent or discernable on the face of the document. 10 At the hearing on 20 June 2001, further evidence was tendered and two statements of Mr Mark Loves filed 15 January 2001 and 15 June 2001 were read. Mr Loves is the National Corporate Security Manager for Optus. He also gave oral evidence at the hearing and was cross-examined by counsel for the applicant. 11 The disputed document is a memo styled "MEMO - OPTUS CONFIDENTIAL" dated 8 January 1998. It was drafted by a Security Risk Analyst in the Security Services section of Optus and relates to the applicant as a mobile telephone account holder of Optus. The applicant had disputed a telephone account of $625 and had made a number of allegations concerning what she believed were instances of telephone interception by the Police Service of her mobile telephone. She also claimed to have assisted the Police Service in the past in relation to what were said by her to be serious crimes. The disputed document is essentially a report of the Optus internal investigation into that dispute and those allegations. The memorandum reveals that an officer of Optus telephoned a police officer at Castle Hill Police station regarding the applicant. That officer had received the telephone inquiry in January 1999 and he mistakenly understood that the Optus employee was co-operating with police in a police investigation of some kind. The Optus employee asked the police officer if the police were in receipt of a complaint by the applicant and whether the police were conducting an investigation. As a result of the inquiry, the police officer accessed the respondent's computer system for records relating to the applicant. He stated to the Optus employee that she was "on the system" (exhibit 2, paragraph 5) but there "appeared to be no telecommunications investigation involving [the applicant] in progress"(ibid). While the police officer did not state that the applicant was "adversely" known to the police, the Optus officer apparently took it that the applicant was known to the police "as a result of some previous conduct" (exhibit A) and used the information to found adverse conclusions about the applicant in the disputed document. Those conclusions were that the applicant's allegations (about telephone interceptions) appeared to be false, the applicant was attempting to avoid her liability to pay the account, the applicant was known to the police for her past conduct and therefore the matter should be referred to debt recovery (exhibit A). 12 Following a police internal investigation on the improper release of confidential information, the Castle Hill police officer was "managerially cautioned" by the respondent for wrongly releasing confidential information relating to the applicant. His statement dated 14 January 2001 concerning these incidents was tendered by the respondent during the hearing (exhibit 2). By its tender, the applicant became considerably more informed about the circumstances pertaining to the creation of the disputed document. 13 In his evidence, Mr Loves set out further details of the applicant's original allegations and the circumstances surrounding the creation of the disputed memorandum. He said that the applicant pursued her claims against Optus at a hearing before the Fair Trading Tribunal on 15 October 1999. He said: "During the hearing [Optus] provided a confidential investigation report to the Tribunal that was clearly marked "Memo Optus Confidential". This report was inadvertently released to [the applicant] by the Tribunal." 14 The Tribunal apparently dismissed the applicant's allegations and her compensation claim on the same day as the hearing. 15 In November 1999, Optus was advised that an internal investigation was being conducted into disciplinary charges against the Castle Hill police officer who wrongly gave out police-held information to the Optus employee in January that year. Optus delivered to the respondent a copy of the disputed memorandum in response to this investigation. On 23 March 2000 Optus wrote to the Police Service "re-iterating" its position that the document was provided commercially in confidence and should not be released by the police to anyone else (exhibit 3). Mr Loves stated: "[Optus] has extensive dealings with law enforcement and other Government Agencies under numerous acts of parliament and must be confident that this information is dealt with discretely and in compliance with statutory requirements. Any breach of this trust would seriously prejudice the free and voluntary flow of information ... at significant cost to public interest." 16 Notwithstanding that a copy of the subject document was already in the hands of the applicant, Mr Loves said that Optus still opposes the release of the document to her under the FOI Act because it was supplied by Optus to the Police Service on a confidential basis. Additionally, Mr Loves said: "...if this document were to be released, I would be extremely guarded in the future in regards to the supply of information to the Police Service and other Government Departments (both State and Federal) if such information were to be requested for a law enforcement purpose." And, "... if this document is released, any future request for access to any similar internally generated document by a law enforcement agency will be refused except where it involves the most serious of circumstances." 17 In his oral evidence, Mr Loves explained that he was not present at the Fair Trading Tribunal hearing on 15 October 1999 when the subject document was handed to the applicant by the Tribunal. However, he was aware that Optus presented the document to the Tribunal as evidence in order to assist its case in the course of that hearing. The Tribunal then gave it to the applicant. Although in his written evidence, Mr Loves had claimed that the document had been was placed into the hands of the applicant "inadvertetly" by the Fair Trading Tribunal, he gave no evidence as to the basis for this assertion, the document seemingly having been tendered in evidence before the Tribunal in the ordinary course. In any event, Optus became aware of the applicant's possession of the document and has apparently taken no action in order to have it delivered back by request, demand or by application to a tribunal or court. 18 According to Mr Loves, the information Optus provided to the police normally concerned criminal offences or police inquiries relating to criminal offences and telephone interception under the relevant legislation. He agreed the present matter was "quite unusual" in that the document had been given to the police in the particular context of an internal police investigation concerning a police disciplinary matter. 19 In addition to oral submissions made at the hearing, the respondent relied on written submissions dated 12 January 2001 and 19 June 2001 and the applicant relied on written submissions dated 20 June 2001. The Business Affairs Exemption 20 The respondent relied on clause 7(1)(c) of Schedule 1 of the FOI Act which relevantly provides: " Documents affecting business affairs (1) A document is an exempt document: ... (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." 21 The proper meaning of this part of the business affairs exemption was considered by the President of the Tribunal in Raethel -v- Director General, Department of Education and Training [1999] NSWADT 108 at [43] to [53]. The respondent bears the onus of satisfying the Tribunal that the respondent's decision is justified (section 61 of the FOI Act). It is not disputed that Optus is a "person" within the meaning of the clause (see, section 21 of the Interpretation Act 1987 (NSW)). 22 I must first determine whether release of the document to the applicant would disclose information of the relevant kind within the meaning of clause 7(1)(c)(i). On one view, it merely contains the results of an internal investigation relating to possible debt recovery action which, if it went ahead, may have been completed as at the time of the Tribunal hearing. It is conceivable that such information might relevantly concern the business affairs of Optus for the purposes of the FOI exemption. I am prepared, for present purposes, to accept that it does. The real question is whether disclosure could reasonably be expected to have an unreasonable adverse effect on these affairs or relevantly prejudice the future supply of such information. I am not satisfied that disclosure of the memorandum could in the present circumstances 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 the respondent. I find that the disputed document was tendered into evidence before the Fair Trading Tribunal. I am satisfied that the tender was not accepted by the Tribunal on a basis which required the Tribunal to withhold the document from the applicant. In any event, the document came into the hands of the applicant due to the conduct of Optus in the course of presenting its case before that Tribunal. 23 The primary thrust of the test set by clause 7(1)(b) is the identification of consequences that would ensue by the release or disclosure of "information" contained in a disputed document, as opposed to the fact of the document itself being in the hands of an agency. It is the contents of the document that matters for the purposes of applying the relevant test here. In the present case, the applicant is already fully aware of the contents and disclosure by the respondent cannot reasonably be said to have an adverse affect on the affairs of Optus nor is disclosure, at this point, reasonably expected to prejudice the future supply of information to the respondent. If there is any prejudice flowing to the respondent in relation to the applicant's access to the document, it has already occurred, not by reason of disclosure under the FOI Act, but by reason of prior disclosure due to Optus' conduct in the course of earlier civil proceedings in the Fair Trading Tribunal. Notwithstanding the evidence of Mr Loves, I am not persuaded that the test in clause 7(1)(c)(ii) is satisfied. The claim for exemption based on clause 7(1)(c) is rejected. The Confidential Material Exemption 24 The respondents also relied on clause 13(b) of Schedule 1 of the FOI Act. Clause 13 provides: " Documents containing confidential material A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (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." 25 The obvious purpose of the exemption in clause 13(b) 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. The exemption has been considered in numerous cases, including, in Bennett -v- Vice Chancellor, University of New England [2000] NSWADT 8 at [14] & [33]-[42]. 26 In the present case, even assuming, without deciding, that the subject memorandum was relevantly obtained in confidence and its disclosure might be reasonably expected to prejudice the future supply of such information to the respondent, I am not satisfied that it would be contrary to the public interest to withhold the document from the applicant in the particular and unusual circumstances here. The relevant factors in this regard are the actions leading to the creation of disputed document, the particular manner of it coming into the hands of the respondent and the fact that that the applicant already possesses a copy of it due to the use of the document in evidence by Optus in another Tribunal. The applicant was always able to discern the words in the document which had been ineffectively blocked out and she is now aware of further details relating to its creation by the tendering by the respondent of exhibit 2, the statement of the Castle Hill police officer, 27 In these particular circumstances it is not in the public interest to withhold the document under the clause 13(b). 28 Having found the exemptions not made out, I do not need to consider exercise of the Tribunal's discretion in section 25(1) of the FOI Act. 29 I determine the decision under review is set aside and the applicant is granted access to the Optus memorandum dated 8 January 1998. The Summons to Produce Documents Issued to Optus 30 As outlined earlier in these reasons, the applicant caused to be issued a second summons to produce documents issued 18 May 2001 addressed to Optus that was to be called on by counsel for the applicant at the second hearing day. On that day, a solicitor for Optus appeared and handed up a written application dated 20 June 2001 objecting to the production of the documents caught by the summons for reasons including the failure by the applicant to first pay Optus' reasonable costs of complying with the summons and the relevance of the said documents to the FOI proceedings. In the course of making that application, it transpired that the four documents caught by the summons comprised documents already in possession of the applicant as well as the very document the subject of the exemption claim in these proceedings. Upon Optus announcing that fact, the applicant, through her counsel, declared that the applicant no longer wished to call on the summons. Optus then made the present application for costs relating to its then compliance with the summons. 31 The evidence tendered by Optus in support of its application is the signed statement dated 19 June 2001 of Ms Nicol Kathryn Delbaere, the in-house counsel for Optus. That evidence is not contested. After amendment by the solicitor for Optus made at the hearing, the total claim by Optus for its reasonable costs of searching for, compiling and copying the relevant documents is $1,242.50. At the hearing, Optus made no application for its reasonable costs relating to the summons to produce documents issued 2 May 2001. The application only concerns the 18 May 2001 summons. 32 Upon service of the 18 May 2001 summons, the in-house solicitor for Optus wrote to the solicitors for the applicant stating that the $15 conduct money earlier tendered was insufficient to cover the costs of Optus in seeking to comply with the summons and sought an undertaking that the applicant would pay Optus' reasonable costs in the then stated amount of $1,262 as soon as possible. The solicitors for Optus replied by way of letter dated 14 June 2001 stating that the $15 conduct money tendered was sufficient and that the claim for costs was not reasonable and would not be paid. The applicant insisted on compliance with the summons and Optus was invited to make an application to the Tribunal if there was a proper claim for reasonable costs. 33 In addition to the Tribunal receiving Optus's written application, and the oral submissions made by its legal representative at the hearing, the applicant's solicitors filed written submissions on 16 July 2001 with leave. While Optus made no reference to the statutory powers of the Tribunal required to deal with the application, the applicant submitted that the Tribunal had no express statutory power to deal with such costs at all. In the alternative, the applicant submitted that the claimed costs were not reasonable. 34 The general issue of summonses to produce documents and questions relating the proper manner of compliance has been considered by the Tribunal in a number of cases, for example: in R v A and B [1999] NSWADTAP 2 at [32], Park -v- Commissioner of Police, New South Wales Police Service (EOD) [2000] NSWADTAP 4 and Fainstein -v- University of A [2001] NSWADT 110. However, the parties have not referred me to any Tribunal decisions in which a claim for reasonable costs has been made by a person or entity in receipt of a summons to produce documents. The Power To Issue A Summons To Produce Documents 35 The Tribunal has power to issue summonses pursuant to section 84 of the Administrative Decisions Tribunal Act 1997 ("ADT Act")which provides: " Issue of summons (1) A summons for the purposes of this Act may be issued by the Registrar: (a) on the application of a party to proceedings before the Tribunal, or (b) at the direction of the Tribunal. (2) Any such summons must be signed by the Registrar or as otherwise provided by the rules of the Tribunal. (3) Any such summons may require a person to do any one or more of the following: (a) attend and give evidence, (b) attend and produce documents or other things. (4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence. Maximum penalty: 100 penalty units. (5) A summons may be served within or outside the State." 36 The subject summons was a summons addressed to "The Directors, Cable and Wireless Optus Limited" in Sydney to attend and produce documents to the Tribunal. 37 Summonses issued by the Tribunal pursuant to section 84 of the ADT Act must be served before the date for service set out in the summons itself pursuant to rule 20(1) of the Administrative Decisions Tribunal (Interim) Rules 1998 ("ADT Rules"). Rule 20(2) of the said rules states: "(2) If a summons is issued at the request of a party to proceedings before the Tribunal, that party must, at the time the summons is served, cause to be paid or tendered to the person named in the summons a sum of money payable to the person in accordance with section 141 of the Act." 38 Section 141 of the ADT Act provides: " Allowances and expenses of witnesses (1) A person (other than a public servant) who is required to appear or give evidence before the Tribunal is entitled to be paid such allowances and expenses as are ascertained in accordance with a scale of allowances and expenses prescribed by the regulations. (2) Subject to subsection (3), the allowances and expenses are to be paid by the party at whose request a witness is summoned. (3) The Tribunal may order that the allowances and expenses of a witness referred to in subsection (2) be paid wholly or partly by the State out of money otherwise lawfully available." 39 Where section 141(1) of the ADT Act is applicable, the relevant regulation would seem to be regulation 7 of the Administrative Decisions Tribunal (General) Regulation 1998 which provides: " Witness allowances and expenses: sec 141 For the purposes of section 141(1) of the Act, the prescribed scale of allowances and expenses for witnesses required to appear or give evidence before the Tribunal is the scale of allowances for witnesses attending civil proceedings in the District Court." 40 The District Court Rules 1973 contain schedules that are amended from time to time styled "Scales of Allowances Paid to Witnesses". However, unaided by any submissions on the issue, it is not clear that any of these scales is directly applicable to the claims made here. Section 141(1) of the ADT Act applies to "witnesses" required to appear or give evidence before the Tribunal. Persons in receipt of a summons to produce documents are merely required to attend and produce the documents. It is not clear whether s 141(1) of the ADT Act seeks to draw a distinction between persons required to "appear" before the Tribunal and persons merely required to "attend" the Tribunal. In any event, formal attendance at the Tribunal is not the only means of complying with a summons to produce documents. The form of the summons to produce documents published by the Tribunal (and as appears in the subject summons) provides: "INSTEAD of attending, you may produce the documents and things described in the schedule to the Tribunal at Level 15, 111 Elizabeth Street, Sydney by hand or by post, provided that the documents are delivered not later than 24 hours before the date on which you are required to attend." 41 For present purposes, I do not need to determine the issue, as I am prepared to accept that the Tribunal does have power to decide the application. However, as a matter of discretion, I conclude that Optus should not have an award of its costs for the following reasons. The summons was issued on 18 May 2001. The significant majority of costs sought by Optus here relates to the period from 3 May 2001 to the date of the issue of the summons and relates to issues arising from the issue of the earlier summons, for which no costs claim is made. Optus was aware of these proceedings and declined the Tribunal's invitation for it to be joined as a party at the hearing on 15 May 2001. Optus' National Corporate Security Manager, Mr Loves, gave extensive written and oral evidence on behalf of the respondent agency. Through this witness, Optus continued to oppose the applicant's original FOI application. Therefore, Optus' role in the present proceedings was more in the nature of an active party than that of a disinterested third party upon whom a summons or subpoena to produce documents was served. Costs of parties are not ordinarily granted by the Tribunal in FOI cases in the absence of special circumstances (s 88 of the ADT Act). 42 Optus based its written application on Practice Note 7, published by the President of the Tribunal on 8 May 2001. The stated purpose of that Practice Note is to provide information to parties to matters before the Tribunal as to Tribunal practice in relation to issuing summonses. Paragraph 12 of that Practice Note states: " Payment of witness expenses The party requesting the summons must tender witness expenses at the time of service of the summons upon the person named. Where the person named is required to attend, the amount paid must be sufficient to meet that person's reasonable expenses of complying with the summons (eg travel costs, sustenance, out of pocket expenses). Any other expenses claimed by the person required to attend are to be negotiated directly with the party requesting the summons. Where the person named is required to produce only, the amount paid must be sufficient to obtain, reproduce (if necessary) and deliver the document to the Tribunal registry (or other venue)." 43 The summons to produce documents here required production of documents only and permitted delivery of the subject documents by hand or post. As at the time of the issuance of the second summons, Optus was already well aware of the issues in these proceedings and it had already identified the four relevant documents. The documents were not produced to the Tribunal and, ultimately, were not called upon. I consider the $15 already tendered by the applicant was sufficient for Optus to reproduce and deliver the four documents already identified to the Tribunal registry in the particular circumstances of this case. 44 In her written submissions, the applicant's legal representatives stated that at no time prior to the Tribunal hearing on 20 June 2001 had Optus or its solicitors advised the applicant or her solicitors as to the existence of or nature of the documents caught by the subpoena and that had Optus so advised the applicant, she would have indicated to Optus prior to the hearing that the summons to produce documents would not be called on at the hearing as the applicant already possessed the relevant documents caught by it. 45 As a practical matter, on the question of the proper scope of and compliance with summonses to produce documents, particularly when legal representatives are involved, the Tribunal ordinarily expects the person or entity served with a summons to produce documents to enter into discussions with the party who caused the summons to be issued concerning the scope of the summons and manner of its compliance if there are particular problems or issues with a view to having those problems or issues resolved without having to unnecessarily take up the Tribunal's time in seeking to agitate them. The position is the same in other tribunals and courts. For example, in Air Pacific v Transport Workers Union of Australia (1993) 40 FCR 1 at 8, the Federal Court of Australia stated: "I should say that the parties and the community would be better served if the legal advisers could, where a subpoena is said to be too wide, confer between themselves before agitating the matter in Court, as experience suggests that agreement can readily be reached as to satisfactory compliance without the need for the time of the court to be taken up and additional costs to be incurred." 46 In the present case, I determine that the Optus application for costs in respect of the summons to produce documents issued 18 May 2001 is refused. 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.