McGuirk v Commissioner of Police, NSW Police [2008] NSWADT 328

CITATION: McGuirk v Commissioner of Police, NSW Police [2008] NSWADT 328

DIVISION: General Division

APPLICANT (Gerard) Michael McGuirk PARTIES: RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 083094

HEARING DATES: 5 June 2008

SUBMISSIONS CLOSED: 5 June 2008

DATE OF DECISION: 8 December 2008

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Access to documents – available for purchase – document relating to a judicial function - Costs

Administrative Decisions Tribunal Act 1989 LEGISLATION CITED : Freedom of Information Act 1989 Criminal Procedure Regulation 2005 Local Courts (Criminal and Applications Procedure) Rule 2003

CASES CITED: Loughnan v Altman (1992) 39 FCR 90 University of NSW v McGuirk [2006] NSWSC 1362

APPLICANT In person REPRESENTATION: RESPONDENT S G Thompson, solicitor

ORDERS: 1. The decision of the Respondent is affirmed 2. Mr McGuirk's application for costs is dismissed.

REASONS FOR DECISION Introduction 1 This is a decision in which Mr McGuirk has sought review of a decision of the Commissioner of Police, NSW Police ('the respondent') made pursuant to the Freedom of Information Act 1989 ('the FOI Act'), in regard to Mr McGuirk's FOI request, received by the respondent on 31 December 2007. 2 There is only one aspect of the decision of the respondent, which is at issue in these proceedings. That aspect is Mr McGuirk's request for a copy of the: 'transcripts of proceedings involving the Applicant being heard at Burwood Local Court by the Police Prosecutor, Sergeant Hunt.' 3 The respondent had determined that the abovementioned transcripts were exempt, under section 25(1)(c) of the FOI Act as it was a document that was usually available for purchase. That is, Mr McGuirk was advised that should he wish to gain a copy of the transcripts, he should make an application directly to the Court for a copy of these documents and pay the appropriate fee. These proceedings and the hearing 4 At the commencement of the proceedings, there was some issue as to whether the respondent did or did not have a copy, or a clean copy, of all of the transcripts of the proceedings. There was no dispute that the respondent did, in fact have a copy of some of the transcripts; but these were said to have been marked by counsel, who appeared on behalf of the respondent at the relevant proceedings. 5 Dr Thompson, solicitor for the respondent, subsequently advised that the respondent had clean copies of the transcript for the 5 days in question. He also advised that the respondent pressed its entitlement to claim the exemption contained in section 25(1)(c) of the FOI Act and confirmed its decision to refuse Mr McGuirk access to these. 6 In support of its decision, the respondent filed a statement by the Registrar of the Local Court at Burwood, dated 24 April 2008, and a statement by the Director, Reporting Services Branch, dated 7 May 2008. Attached to each statement was a copy of a letter from Dr Thompson to Mr McGuirk dated 18 April 2008, informing him that the Commissioner had in his possession, custody or control, copies of the relevant transcript of the Burwood Local Court, for which he had sought access and confirming its decision to refuse him access to these. The relevant dates of the transcript was stated to be 8 December 2006 (pages 1-86), 16 April 2007 (pages 1-101), 17 April 2007 (pages 1-48), 18 April 2007 (pages 1-108), and 19 October 2007 (pages 1-33). 7 In her statement, the Registrar said that Mr McGuirk, as a party to the proceedings, was able to order the transcript from the Burwood Local Court Registry, pursuant to section 62 of the Local Courts (Criminal and Applications Procedure) Rule 2003. She went on to say that the Registry, through the Court Reporting Branch, would then supply a copy of the transcript to him, once he paid the prescribed fee. The fee she said was payable unless the Registrar waived that fee. She also pointed out that the fee payable was that which was prescribed by Item 8 in Part 1 of Schedule 3 of the Criminal Procedure Regulation 2005. 8 The Director gave similar evidence and stated that Mr McGuirk had already been supplied with a copy of the transcript for 19 October 2007 via his email address. A copy of that transcript was tendered into evidence by Mr McGuirk. 9 In his written submissions, filed and served prior to the hearing, Dr Thompson, on behalf of the respondent also relied on many other grounds for refusal including other exemptions in Schedule 1 of the FOI Act and provisions in other legislation. 10 At the hearing, Mr McGuirk was cross-examined by Dr Thompson in regard to the prosecution proceedings to which the transcript related and whether he had made any application for the transcript and how he came to have the transcript for 19 October 2007. In the course of that cross-examination Mr McGuirk acknowledged the following: the prosecution arose out of his arrest, on 12 August 2006, on a charge of criminal trespass on premises of a lady he knew; the transcript of the proceedings contained information of a sensitive personal nature of persons other than himself; the proceedings were ongoing; he had made no request for a copy of the transcript nor had he requested to view the transcript that was on the Court file; he was unaware of clause 62(1)(a) of the Local Courts (Criminal and Applications Procedure) Rule 2003 which entitled him to view the transcript that was held on the Court file; he had been provided with a copy of the transcript for 19 October 2007 as the presiding Magistrate had made an order for the transcript to be prepared for that day and that the parties were to be provided with a copy; the proceedings had been before the Magistrate on 18 occasions and the prosecution had not completed its evidence; he sought access to the transcripts for the purpose of the proceedings he had commenced in the Supreme Court seeking damages for his alleged unlawful arrest and detention to which the Local Court proceedings related, and the Local Court proceedings had been stayed pending the outcome of his claim in the Supreme Court, which was ongoing. Relevant Legislation 11 The FOI Act gives every person a legally enforceable right to be given access to an agency's documents: see sections 5(2)(b) and 16(1) FOI Act. That right however is subject to the provisions of the FOI Act. An agency is able to refuse access to a document that has been requested pursuant to the FOI Act on any of the grounds set out in section 25(1) and (3) of that Act, including the ground set out in paragraph 25(1)(a) and (c). 12 Paragraph 25(1)(a) concerns an exempt document which is a document that is referred to in Schedule 1 of the FOI Act or a document that contains matter relating to the functions in relation to which a body or office is, by virtue of section 9, exempt from the operation of the Act: see section 6 of the FOI Act. For the purpose of this application the relevant provision is clause 11(b) of Schedule 1. Clause 11 concerns documents relating to judicial functions and paragraph (b) expressly includes transcript of proceedings that are to being heard or are to be heard as documents that are exempt documents. 13 In its written submissions the respondent has relied on other grounds of exemption in Schedule 1 of the FOI Act and other provisions in other legislation. In my opinion some of these do not have any relevance to this application, or the respondent failed to provide material to support them (e.g. clause 17). I have not considered these exemptions or other provisions any further. There are, however some other exemptions that were claimed which arguably may have been relevant. For example, the clause 6 personal affairs exemption. However, in light of my findings it is unnecessary for me to consider these further. 14 Paragraph 25(1)(c) relevantly provides that the agency may refuse access to a document that 'is a document that is usually available for purchase'. 15 On review of its decision before the Tribunal the onus rests on the agency to satisfy the Tribunal that the grounds relied on for refusing access to the document requested is established and if established that the correct and preferred decision is to refuse the applicant access to the document: see section 61 of the FOI Act, section 63 of the Administrative Decisions Tribunal Act 1997 and University of NSW v McGuirk [2006] NSWSC 1362. Consideration 16 On the basis of the evidence filed by the respondent, I am satisfied that the transcripts Mr McGuirk has sought access to are documents that fall within the terms of paragraph 25(1)(c) and clause 11(b) of Schedule 1 of the FOI Act. Clause 11(b) is applicable as the proceedings are still pending before the Court. 17 Mr McGuirk has submitted that the exemption in clause 11 only applies where the FOI applicant seeks access to these documents from the Court. In my opinion, on its proper construction, this clause does not have such a restricted meaning. The exemption is based on the content of the document requested; not the agency from which it is requested. 18 It is noted that section 10 of the FOI Act expressly provides that the Act does not apply to the 'judicial functions' of a court or tribunal. That is, a court or tribunal, in relation to their respective 'judicial functions', is not an agency for the purposes of the FOI Act. The same applies to the holder of an office of the court or tribunal, in relation to the court's or tribunal's 'judicial functions'. The term 'judicial functions' is defined in section 6 to mean those functions of a court or tribunal which relate to the hearing or determination of proceedings. The transcripts for which Mr McGuirk seeks access clearly fall within this description and had Mr McGuirk sought access of these from the Court Registry, the Registry would not have been obliged to respond as it is not an agency for the purpose of the Act. If clause 11(b) were given the construction contended for by Mr McGuirk, it would have no operation in light of section 10 of the Act. 19 As mentioned above, the purpose of clause 11 is categorise documents, held by an agency other than a court or tribunal, that relate to the judicial functions of a court or tribunal, as exempt documents: see Anne Cossins Annotated Freedom of Information Act NSW (1997 the Law Book Co Ltd) at [111.1] to [111.5.5] and Loughnan v Altman (1992) 39 FCR 90. The clause is wider in operation to section 10 in that it includes documents held by an agency that contain matter intended for use in court or tribunal proceedings. 20 Mr McGuirk has also contended that paragraph 25(1)(c) of the FOI Act has no application to the transcripts as they are not 'usually available for purchase'. He argued that Parliament only intended this particular provision to apply to documents which a person could purchase in the 'ordinary course of commercial transactions'. He cited statutes as being an example, which were available to all members of the public who wished to purchase them. Transcripts of court proceedings on the other hand he said were only available for purchase by 'authorised persons'. 21 In my opinion, the express words of paragraph 25(1)(c) of the FOI Act do not support such a narrow construction. It does not say that in order to come within the terms of this paragraph the document must be one that is available for purchase by all members of the public who choose to purchase it. The purpose of this paragraph is to preserve those circumstances where an FOI applicant can obtain access to a document by purchasing it from a government agency. If this was not the case then all documents which are available for purchase from an agency would be sought under the FOI Act. Accordingly, in my opinion the paragraph must be read in the context of the application that is before the agency for determination and the initial question for the agency is whether the document sought by the FOI applicant is one that is usually available for the FOI applicant to purchase. The answer to that question in this application is yes, the transcript of the proceedings for which he has sought access is available to him to purchase. 22 On the basis of my findings, I am satisfied that the respondent has discharged its onus in establishing that the transcript is exempt under clause 11(b) of Schedule 1 of the FOI Act and that it falls within the terms of paragraph 25(1)(c) of the FOI Act. 23 However, the question is whether, notwithstanding the establishment of these grounds, the correct and preferred decision is to refuse Mr McGuirk access to the documents in question. This must be determined in accordance with the objectives of the FOI Act which are set out in section 5(1) and which includes 'extending as far as possible, the rights of the public to obtain access to information held by the Government'. Section 5(2) sets out the means by which Parliament intended this object to be achieved and relevantly provides as follows: '(2)(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public; and (b) conferring on each member of the public 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, and …' 24 Paragraph 5(2)(b) above is sometimes described as reflecting two competing public interests; the public interest in every member of the public being given a right to access of documents of Government, and the public interest in restricting access of a document so as to ensure the proper administration of Government. 25 In regard to transcripts of court and tribunal proceedings, Parliament by including the above express provisions in the FOI Act has indicated its view as to where the public interest lies in regard to these documents. That interest is to restrict access so as to protect the judicial functioning of the courts and tribunals (and the parties that appear in matters before them) and also for the proper administration of agencies. The question in this application is whether there are any circumstances which would alter this balance of the public interest to one where the public interest lies in the disclosure of the documents sought. In my opinion, there are no such circumstances. The proceedings are ongoing and Mr McGuirk has a right to access under the provisions of the Local Courts (Criminal and Applications Procedure) Rule 2003. It is a right he has not pursued, even to see if the fee could be waived. Nor has he examined the Court file to view the transcript. Nor has he given any reason why he has not done any of these. The fact that he would be entitled to a copy of the transcript if convicted of the offence and he appeals does not, in my opinion, alter the balance as to where the public interest lies at this time in the disclosure of the transcript pursuant to the FOI Act. 26 Accordingly, I find that the respondent's decision is the correct and preferred decision and should be affirmed. Other matters 27 In his written submissions Mr McGuirk asserted that, in dealing with his FOI request, the Commissioner had acted improperly by: (a) refusing access on the basis that the transcript was a document that was usually available for purchase under paragraph 25(c) of the FOI Act; (b) failing to exercise the statutory power conferred on NSW Police under paragraph 25(1)(a) of the FOI Act; and (c) and in the alternative, failing to exercise the power conferred on the NSW Police under paragraph 25(1)(a) for proper purposes and in good faith. 28 He goes on to state that 'a relevant fact in issue in these proceedings is the relative costs of compliance by the Commissioner with his obligations under the FOI Act with the cost of attempting to avoid these obligations'. He contends that the Tribunal is under a statutory obligation, under paragraph 73(5)(b) of the ADT Act to ascertain the relative costs of compliance and avoidance of the provisions of the FOI Act. Put simply his argument is that the cost to the Commissioner of proving him with a copy of the requested transcript is far less than what is being paid to have private solicitors represent him in this application for review. In my opinion, for the reasons already stated, an inquiry of the nature suggested by Mr McGuirk is of no relevance to this application. If it were then it would equally apply to all applications for review of decisions under the FOI Act. It would also be counter to the objectives of that Act. 29 Nor is there any material before the Tribunal that officer's of the respondent in dealing with Mr McGuirk's FOI request exercised, other than in good faith, their respective functions and obligations under the FOI Act. The fact that I disagree with all the contentions put forward by the respondent does not mean that these officers acted inappropriately in any way. Costs 30 Mr McGuirk made an application for costs and that these be paid on an indemnity basis. 31 The Tribunal's power to award costs is set out in section 88 of the ADT Act. It is a discretionary power that can only be exercised where the Tribunal is satisfied that there are 'special circumstances' warranting an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29]. 32 The principles that govern this power of the Tribunal are now well established and were set out in previous decisions of an application for review by Mr McGuirk: see McGuirk v Attorney General v Attorney General's Department [2007] NSWADT 138 at [44] and [45]. In that application it was the respondent who made an application for costs. 33 It is unnecessary to repeat these principles other than to state that the onus is on Mr McGuirk to establish that there are 'special circumstances' that warrant an order for costs, or in other words the conduct of the respondent in these proceedings has been such that they have disadvantaged Mr McGuirk and required him to incur unnecessary costs in prosecuting his application. 34 I have read and considered Mr McGuirk's written submissions and in my opinion they are not supported by the material before the Tribunal. Accordingly, I find that Mr McGuirk has failed to establish that the respondent has conducted itself in this application in a manner which gives rise to special circumstances warranting an order for costs under section 88 of the ADT Act. Orders For the reasons set out above the Tribunal orders: 1. The decision of the respondent is affirmed 2. Mr McGuirk's application for costs is dismissed.