Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231

CITATION: Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 DIVISION: General Division APPLICANT PARTIES: Kenneth John Desmond RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 033157 HEARING DATES: 16/09/2003 SUBMISSIONS CLOSED: 09/16/2003 DATE OF DECISION: 10/14/2003

BEFORE: Higgins S - Judicial Member APPLICATION: access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - law enforcement & public safety MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT D Paterson, solicitor ORDERS: 1 The decision of the Commissioner to grant access to the report of Detective Inspector Lardner, dated 4 May 1998, subject to deletions, is affirmed; 2 The decision of the Commissioner to refuse Mr Desmond access to the remaining two pages of the Michael Egan report dated 12 May 1998, is affirmed ; 3 The decision of the Commissioner to grant Mr Desmond access to the Weekly Activity Reports subject to deletions is varied on the basis set out in these Reasons for Decision.

BACKGROUND 1 On 18 June 2003, Mr Desmond, the applicant, made an application to the Tribunal seeking review of a decision by a delegate of the Commissioner of Police ("the Commissioner") in respect of his determination as to access to documents requested by Mr Desmond under the Freedom of Information Act, 1989 ("FOI Act"). 2 Mr Desmond had made his request for access to documents on 8 May 2003. The Commissioner issued a notice of determination in respect of the request on 16 May 2003. On 21 May 2003, Mr Desmond requested an internal review of the determination. As the Commissioner failed to make an internal review determination within the prescribed fourteen days after he received Mr Desmond's request for internal review, Mr Desmond filed his application for review with the Tribunal pursuant to s.34(6) of the FOI Act. That sub-section deemed the Commissioner to have made a determination, under s.24 of the FOI Act, of refusing access to the documents which Mr Desmond had requested. 3 Notwithstanding the Commissioner's failure to make an internal review determination within the prescribed period, he did in fact make such a determination one day after Mr Desmond had filed his application with the Tribunal, on 19 June 2003. 4 Mr Desmond had requested access to seven categories of documents relating to an Internal Affairs – Investigations Unit file named "Operation Lublin". This operation was formed following a report, dated 4 May 1998, by Detective Inspector Lardner of the Internal Affairs – Investigations Unit of the Police Service ("Internal Affairs"). The report raised issues in respect of Mr Desmond's integrity. Mr Desmond at that time was an officer of the NSW Police Service. In January 1999, Mr Desmond lodged a complaint in respect of the manner in which the investigation was being conducted by Internal Affairs. He received no response to his complaint and in March 1999, the Internal Affairs investigation was taken over by the Police Integrity Commission ("PIC"). The PIC subsequently held a public hearing in respect of the allegations contained in Detective Inspector Lardner's report. Since then, Mr Desmond has sought documents held by the NSW Police Service that relate to Operation Lublin, and any other documents provided to or received from the PIC as a result of or arising from that investigation. He made an initial request, that is not the subject of these proceedings, pursuant to the FOI Act. Mr Desmond had sought review of the Commissioner's determination in respect of this initial request, but his application was withdrawn following a planning meeting. As a result of inspecting the documents he was given access to from this initial request, Mr Desmond made a further request for access to documents and it is this subsequent request that is the subject of this application. 5 It is the understanding of the Tribunal that the PIC investigation of Mr Desmond was finalised some time ago and that there is no ongoing investigation in respect of his conduct that was the subject of Detective Inspector Lardner's report. JURISDICTION 6 The Tribunal has jurisdiction to hear Mr Desmond's application by virtue of s.53(1), (3)(a)(i) and (III) of the FOI Act and s.38(1) of the Administrative Decisions Tribunal Act 1997. DOCUMENTS IN ISSUE 7 Prior to the hearing of the matter, Ms Patterson provided Mr Desmond with copies of some of the documents for which the Commissioner had determined that access be refused. This meant that the only documents which were at issue during the hearing were as follows: (a) Weekly investigation reports date d 2/02/99, 16/02/99, 22/02/99 and 26/01/99 . The Commissioner had determined to release these documents subject to deletions which he determined came within the terms of the exemption contained in Clause 4(1)(b) and (e) of Schedule 1 of the FOI Act. The Commissioner also relied on the fact that the deletions in these reports were similar to those that had been agreed to by Mr Desmond in respect of the weekly reports that were released to him following his initial request for documents. (b) Report of Detective Inspector W.J. Lardner dated 4 May 1998 (2 pages). The Commissioner had determined to release this report subject to some deletions. The deletions were in the background paragraph to the report and access to this information was refused on the grounds that the information came within the exemption contained in Clause 4(1)(b) of Schedule 1 of the FOI Act. This report had been released to Mr Desmond, with the same deletions, as a result of his initial request. A further copy of the report, with the same deletions was released to Mr Desmond as a result of his subsequent request under the FOI Act. Again the Commissioner relied on the fact that Mr Desmond had accepted such a determination at the Planning Meeting following his initial request. Again Mr Desmond seeks access to the deleted information. (c) Report dated 12 May 1998 by Michael Egan (3 pages). Ms Patterson provided Mr Desmond with one of the pages that were included in this report. That page was a letter, dated 12 May 1998, by Michael Egan to the PIC Liaison Officer. Access to the remaining parts of this document was refused on the grounds that they were exempt under Clause 4(1)(b) and (e) and Clause 20(d) of Schedule 1 of the FOI Act. At the hearing Ms Paterson, for the Commissioner, did not rely on Clause 20(d). Again, Mr Desmond has continued to seek access to these documents. RELEVANT LAW 8 The objectives of the FOI Act are set out in s.5(1) of the Act. One of the objects is to extend "as far as possible, the rights of the public to obtain access to information held by the Government, …". The means by which this object is to be achieved is set out in s.5(2)(b) of the FOI Act, which provides that each member of the public is to be conferred with a "…legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, …". That right of access is provided for in s.16 of the FOI Act and a government agency on whom a request for access to documents has been made is required to consider the application and give access to the documents being sought unless the government agency can establish that the document is an exempt document under one or more of the provisions contained in Schedule 1 of the FOI Act or any of the other grounds set out in s.25(1) of the Act. The onus lies on the government agency to establish that the exemption applies and that the denial of access is justified (see s.61, FOI Act). 9 S. 25(4) of the FOI Act 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 information has been deleted and it appears to the agency that the FOI applicant would wish to be given a copy of such a document. 10 Clause 4 of Schedule 1 of the FOI Act sets out the grounds of exemption where a document affects law enforcement and public safety. That clause, so far as it is relevant to this application, provides as follows: "4(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: … (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 … (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) …. (2) A document is not an exempt document by virtue of sub-clause (1): (a) if it merely consists of……. (i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or (ii) a document containing a general outline of the structure of a program adopted by an agency for dealing with any contravention or possible contravention of the law, or (iii) a report on the degree of success achieved in any program adopted by an agency for dealing with any contravention or possible contravention of the law, or (iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law) or (v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and (b) if disclosure of the document would, on balance, be in the public interest. (3) A document is an exempt document if it is a document that has been created by: (a) Information and Intelligence Centre of the Police Service or the former State Intelligence Group, or (b) the Protective Security Group of the Police Service, the former Special Branch of the Police Service of the former Bureau of Criminal Intelligence". 11 Section 55 of the FOI Act provides that the Tribunal, in determining a review application, "is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter" (see s.55(a)). In this regard the Tribunal is to receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative (see s.55(b)). HEARING 12 Mr Desmond did not adduce any evidence and relied primarily on oral submissions. The essence of the submissions were to the effect that the Tribunal should regard the documents as primarily containing personal information about him and not information relating to law enforcement. Additionally, he submitted that the information had been provided in other forums such as the PIC hearing, which was a public hearing. By way of example, Mr Desmond stated that if the information made reference to obtaining a statement from a particular named person then he is already aware of this fact from the PIC public hearing and other material that was released to him. Finally, he submitted that it was in the public interest for him to be given access to the documents so that he can provide all the relevant information to the Ombudsman. In this regard Mr Desmond informed the Tribunal that the Ombudsman had previously investigated his complaints regarding the respective investigations about his integrity and that the Ombudsman had stated that he would not further investigate the matter unless he is provided with additional material warranting such investigation. 13 Ms Patterson provided the Tribunal with a copy of the exempt material and made her submissions in regard to them, in the absence of Mr Desmond. In respect of this exempt material and the submissions made by Ms Patterson, the Tribunal made an order pursuant to s.75(2) of the ADT Act prohibiting the publication of the contents of this material and that the hearing in respect of this material be conducted in private. REASONS AND DECISION 14 The Tribunal's task is to determine from the material before it and the submissions made by the respective parties whether the exemption relied on by the Commissioner in refusing to grant access to the remaining 2 pages of the Egan Report and the information deleted in the remaining documents does in fact apply. The fact that Mr Desmond has previously not objected to deletions contained in documents previously produced to him, does not in the opinion of the Tribunal prevent him from now seeking a review of the Commissioner's decision in this regard. Had the Tribunal made a determination in this regard, then he would be estopped from seeking a further review of the Commissioner's decision. 15 As mentioned above the Commissioner has relied on the two exemptions contained in Clause 4(1)(b) and (e) of Schedule 1 of the FOI Act. The exemptions in these paragraphs both relate to law enforcement and there is no dispute that the material for which the Commissioner has claimed exemptions relate to the relevant aspect of law enforcement referred to in these paragraphs. 16 The exemption contained in Clause 4(1)(b) operates to protect the anonymity of people who supply information to the police or other government authorities for the purpose of their law enforcement functions. The basis of the exemption is a public interest in maintaining a flow of information from informants, as without such information the police and other government authorities would be severely hampered in detecting, investigating and prosecuting breaches of the law. The importance that Government has placed on protecting informers is reflected in the wide operation of this paragraph in that it operates to prevent disclosures of the identity of a confidential source of material and the existence of a confidential source of material. 17 The exemption contained in Clause 4(1)(e) operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law (see Re Anderson (1986)) 11 ALD 355 and cf. Re Russo (1992) 28 ALD 354). Again the basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory etc. methods. 18 Even if it is established that the disclosure of the exempt information comes within the terms of Clause 4(1)(b) and/or (e) of Schedule 1 of the FOI Act, it will not be exempt if it consists of a report of the investigation of Mr Desmond's integrity and it has previously been disclosed to him, or it is, on balance, otherwise in the public interest to disclose the information (Clause 4(2)(a)(v) and (b)). In respect of the latter public interest test it will be necessary to establish that, in the circumstances of a particular case, there is a persuasive reason, which in the public interest, over rides the public interest on which the exemptions are based. In this case, Mr Desmond has submitted that it is in the public interest that he be provided with the information so that he can continue to pursue his complaint to the Ombudsman. In the opinion of the Tribunal, this fact alone is not sufficient to over ride the public interest on which the exemption is based. While it may be argued that it is in the public interest for citizens to be provided with information that exposes unlawful or improper conduct by police and other enforcement agencies in respect of investigations concerning the citizen, there is no evidence before the Tribunal to suggest that this is the case in this application. Weely Activity Reports 19 I will firstly deal with the deletions to the weekly activity reports. 20 Having regard to the information contained in the other exempt material and the confidential submissions of Ms Patterson, on behalf of the Commissioner, the Tribunal is satisfied that the words deleted against the entry "RATIONALE" on each weekly activity report is information coming within Clause 4(1)(b) and (e) and is exempt. The Tribunal is also satisfied that this information has not previously been disclosed to Mr Desmond and as mentioned above there is no evidence to support a finding that the disclosure of the information is otherwise in the public interest. 21 In respect of the deleted information contained against the column "POTENTIAL OPPORTUNITIES" in each of the weekly activity reports, the Tribunal finds that whilst a disclosure of this information could reasonably be expected to enable the identity of a confidential source of information it is information that has already been disclosed to Mr Desmond either during the course of the PIC hearing. Accordingly, there is no basis on which the Commissioner can refuse access to this deleted information. 22 In respect of the deletions against the column "PROPOSED ACTIVITIES", in the opinion of the Tribunal this information does not identify any confidential sources of information or the existence of a confidential source of information. Nor has the Commissioner put any evidence before the Tribunal from which such a finding could be made. Accordingly, there is no basis for the Commissioner to refuse access to this information. 23 The Tribunal makes a similar finding in respect of the deletions against the heading "CRITICAL OUTCOMES" in the weekly report dated 16/02/99. That is, there is no basis for the Commissioner to refuse access to this information as it does not identify any confidential sources of information or the existence of a confidential source of information. 24 This leaves the deletions against the heading "CRITICAL OUTCOMES" in the weekly report dated 22/02/1999. In respect of the first and second deletion, the Tribunal makes a similar finding to that stated in paragraph 22 above. That is, the deleted information does not identify any confidential source of information. 25 In respect of the remaining deleted information, the Tribunal is satisfied that the disclosure of this information could reasonably be expected to enable the existence of a confidential source of information being ascertained and is exempt under Clause 4(1)(e) of Schedule 1 of the FOI Act. It is also satisfied that this information has not been disclosed to Mr Desmond. Nor is there any evidence to support a finding that the disclosure of the information is otherwise in the public interest. Report of Detective Inspector Lardner 26 Having regard to all of the exempt material placed before the Tribunal, and the confidential submissions of Ms Patterson, on behalf of the Commissioner, the Tribunal is satisfied that the deleted information in the report of Detective Inspector Lardner contains information that is exempt under Clause 4(1)(b) and (e) of Schedule 1 of the FOI Act. 27 The Tribunal also finds that this information has not previously been disclosed to Mr Desmond and as mentioned above there is no evidence to support a finding that the disclosure of the information is otherwise in the public interest. Report of Michael Egan dated 12 May 1998 (2 pages) 28 Having regard to the content of the remaining two pages that accompanied the letter of Michael Egan dated 12 May 1998, and the confidential submissions of Ms Patterson, on behalf of the Commissioner, the Tribunal is satisfied that the document contains information that is exempt under Clause 4(1)(b) and (e) of Schedule 1 of the FOI Act. The Tribunal also finds that this information has not previously been disclosed to Mr Desmond and as mentioned above there is no evidence to support a finding that the disclosure of the information is otherwise in the public interest. 29 Accordingly, for the reasons stated above the Tribunal is of the opinion that the Commissioner's determination in respect of the deletions in Detective Inspector Lardner's report dated 4 May 1998 and the remaining two pages of the Michael Egan report dated 12 May 1998 is the correct and preferred decision. 30 In respect of the deletions contained in the Weekly Activity Reports, the Tribunal is of the opinion that the Commissioner's decision is not the correct and preferred decision and should be varied as set out in these reasons. 31 The Tribunal orders: 1. The decision of the Commissioner to grant access to the report of Detective Inspector Lardner dated 4 May 1998, subject to deletions, is affirmed. 2. The decision of the Commissioner to refuse Mr Desmond access to the remaining two pages of the Michael Egan report, dated 12 May 1998, is affirmed. 3. The decision of the Commissioner to grant Mr Desmond access to the Weekly Activity Reports subject to deletions is varied on the basis set out in these Reasons for Decision.