Appeal Panel - Internal CITATION: Gene Simring v Commissioner of Police, NSW Police [2007] NSWADTAP 63 APPELLANT PARTIES: Gene Simring RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 069081 HEARING DATES: 24 April 2007 SUBMISSIONS CLOSED: 28 May 2007 DATE OF DECISION: 1 November 2007 BEFORE: Hennessy N - Magistrate (Deputy President); Molony P - Judicial Member; Blake C - Non Judicial Member MATTER FOR DECISION: Principal Matter FILE NUMBER UNDER APPEAL: 053314 DATE OF DECISION UNDER APPEAL: 11/23/2006 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Edwards (Inspector of Taxes) v Bairstow and Another [1955] 3 All ER 48 Australian Gas Light Company v Valuer-General (1940) SR (NSW) 126 (1940) 57 WN (NSW) 53 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Ltd (1993) 43 FCR 280 CASES CITED: Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 139 K v K [2000] NSWSC 1052 S v S [2001] NSWSC 146 Re R [2000] NSWSC 886 University of New South Wales v McGuirk [2006] NSWSC 1362 Neary v The Treasurer, New South Wales [2002] NSWADT 261 In Person REPRESENTATION: W Pisani, solicitor ORDERS: 1. Leave is granted for the appeal to be extended to the merits of the Tribunal's decision but only on the question of whether access should be given to the disputed documents even though they are "exempt documents"; 2. Parties are directed to file and serve written submissions in relation to this question within 21 days of the date of these reasons. The Appeal Panel will determine the question 'on the papers' under s 76 of the Administrative Decisions Tribunal Act 1997/ REASONS FOR DECISION Introduction 1 Mr Simring applied to NSW Police for certain documents under the Freedom of Information Act 1989 (FOI Act). He was provided with several documents but others were withheld because NSW Police regarded them as exempt. Mr Simring says that there are more documents that fall within the scope of his request but NSW Police has failed to locate them. The Tribunal decided that the documents that were withheld were covered by the exemption in relation to the disclosure of information concerning someone's personal affairs: FOI Act, Schedule 1, Cl 6. The Tribunal also decided that NSW Police had conducted an adequate search for all the documents Mr Simring had requested. Mr Simring has appealed against the Tribunal's decision on a question of law and in relation to the merits of the Tribunal's decision. He has a right to appeal on a question of law but requires the Appeal Panel's leave before the appeal may extend to a review of the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997, s 113. 2 Mr Simring is currently in prison in Bathurst. There was nothing in the material which disclosed the precise offence or offences for which he has been convicted. The documents he requested under the FOI Act were "everything pertaining to myself in NSW Police files from 1989 to the present date including briefs, advices, memorandum, acknowledgements, interviews and statements." Mr Simring said that he was initially charged in 1990 and then again in 1997. In a covering letter to his application to the Tribunal, dated 8 September 2005, Mr Simring said that he required the documents for the formation and argument of 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." 3 The Tribunal's decision addressed two issues. First, whether the disputed documents were covered by the personal affairs exemption and secondly, whether NSW Police conducted an adequate search for the documents Mr Simring had requested. There were eight disputed documents which the Tribunal said were covered by the exemption. Seven were statements from witnesses and one was a NSW Police record of an Event (No E3640427). The Tribunal's conclusion that the documents were covered by the personal affairs exemption made it unnecessary 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 It became apparent during the appeal hearing that Mr Simring believed he had copies of most, if not all, the statements that had been relied on during his criminal trial. However he did not know whether the statements in question were tendered at the trial. The Appeal Panel asked Mr Simring to check the statements in his possession to see whether any of them match the description of the seven statements in dispute. In a letter dated 25 May 2007 to the Tribunal Mr Simring said that he has been trying to access his documents stored at the prison since early May 2007 but he has had no success. In those circumstances we will assume that the documents are not in his possession. 5 In response to the adequacy of search point, Sergeant Maddox searched the NSW Police subpoena section records and found that three subpoenas were served on the Commissioner of Police in relation to proceedings involving Mr Simring. They were all returnable at the Supreme Court on 8 December 2003. None of those documents could be located. Personal affairs exemption 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 Tribunal set out the meaning of the words "personal affairs" and noted that s 31 of the FOI Act requires the agency to take "such steps as are reasonably practicable" to consult any person whose personal affairs may be disclosed by providing access to a document. The Tribunal went on to find, at [24] that disclosure of each of the documents would involve the disclosure of personal information about persons other than the applicant. 8 The second limb of Clause 6 is that disclosure would be unreasonable. The Tribunal set out its reasons for concluding that disclosure would be unreasonable at [25] to [30]: 25 With regard to whether the disclosure of information would be unreasonable, in Martin v Commissioner of Police, NSW Police [2005] NSWADT 23, the Tribunal cited Saleam v Director General, Department of Community Services [2002] NSWADT 41, at paragraph 38, where the President followed the approach adopted by the Commonwealth Administrative Appeals Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, at paragraph 51: "Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was being obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance." 26 The Tribunal went on to state that the public interest recognised by the FOI Act in the disclosure of information in documentary form held by an agency must be balanced against the public interest in protecting the personal privacy of a third party. 27 Documents 2-8 are statements provided in the context of criminal proceedings against the applicant, and document B1 is an Event narrative. 28 Subject to suppression order 29 Documents B1-8 were prepared for the purpose of the investigation and subsequent prosecution of the applicant. The information contained in the documents is particularly sensitive. The proceedings against the applicant have been concluded. Having regard to the nature of the information contained in the documents and the limited purpose for which the information was provided, I am satisfied that disclosure of the information would be an intrusion into the personal privacy of persons identified in the documents which would not be outweighed by any public interest in access to information held by a government agency. I am satisfied that documents B1-8 are exempt under cl 6 because they contain matter the disclosure of which would involve an unreasonable disclosure of information concerning the personal affairs of persons other than the applicant. 30 This conclusion makes it unnecessary to decide whether the documents are also exempt under clauses 13(b) and 4(1)(a) and (e) of Schedule 1, and I make no findings in that regard. 9 We have also read paragraph 28 of the Tribunal's reasons, which is confidential. 10 Grounds of appeal. Mr Simring submitted that if the documents were used in relation to his prosecution, then he has a right to have access to them. He agreed that, as far as he was aware, there was no evidence before the Tribunal as to whether the documents were tendered at the trial. He also submitted that a complainant or witness for the prosecution must be held responsible for what they allege. He added that a defendant in criminal proceedings should be entitled to access, not only the polished version of evidence produced by the prosecution, but the details of what those people actually told the police. Mr Simring also suggested that the author of the documents expects to gain financial advantage from the proceedings. He did not provide any evidence on that point. None of these grounds raises a question of law. 11 Secondly, Mr Simring said that the Tribunal did not take into account a relevant factor, namely the "current relevance" of the disputed documents, when deciding whether disclosure was unreasonable. He has appealed his conviction to the Supreme Court and he is waiting for a date for the hearing. He said that the Tribunal wrongly assumed, at [29], that the proceedings against him had been concluded. According to Mr Simring this finding overlooks the fact that he is appealing against his conviction and that the documents are relevant to that appeal. It is apparent, based on the finding at [29], that the Tribunal Member was not aware that Mr Simring had appealed to the Supreme Court against his conviction. The only express reference to that fact was in the covering letter to Mr Simring's application to the Tribunal dated 8 September 2005. That letter stated that, "The above-mentioned documents are required for the formation and argument of my pending appeal against conviction." Mr Simring agrees that he did not mention the reason for requesting the documents at the hearing, but says that the Tribunal had his letter 8 September letter. 12 The Tribunal is not bound by the rules of evidence: ADT Act, s 73. Documents do not need to be formally tendered before the Tribunal may take them into account. Nevertheless, if a document, such as the 8 September letter, is not tendered or brought to the attention of the Tribunal during the hearing, the Tribunal will not have made an error of law by failing to take into account the content of that document. Extension to the merits 13 The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpreted s 67 of Guardianship Act 1987 which is the equivalent provision to s 67A in relation to appeals from Tribunal decisions to the Supreme Court. In K v K, Young J observed at [10] that "it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67", but went on to make a number of observations on this point: see para [10]-[15). After considering the relationship between the Court and the Tribunal, Young J observed at [15]: It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 14 Mr Simring's submission that a complainant or witness for the prosecution must be held responsible for what they allege does not raise a question of law. Neither does his assertion that a defendant in criminal proceedings should be entitled to access, not only the polished version of evidence produced by the prosecution, but to the details of what those people actually told the police. 15 We are not persuaded that either of these matters constitutes a sufficient basis to extend the appeal to the merits of the Tribunal's decision. Similarly, the Tribunal's failure to have regard to the letter of 8 September in relation to the 'current relevance' of the disputed documents is not a matter which justifies the appeal being extended. Current relevance was only one of several factors the Tribunal took into account when making its decision. Given the strength of the other factors, especially the sensitivity of the material, we are not persuaded that the Tribunal would have come to a different view had it known that Mr Simring had appealed against his conviction. Override discretion 16 After the Tribunal had handed down its decision, the Supreme Court decided that s 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 per 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. 17 Neither party submitted to the Appeal Panel that the Tribunal had erred by failing to consider whether to exercise the "override" discretion. However, given the decision in University of New South Wales v McGuirk [2006] NSWSC 1362 it is apparent, in hindsight, that it did make an error. We grant leave to extend the appeal to the merits of the Tribunal's decision on this issue and direct the parties to make written submissions on whether the override discretion should be exercised in this case, within 21 days of the date of this decision. The Appeal Panel will then determine that issue 'on the papers': ADT Act, s 76. Adequacy of search 18 Introduction. Mr Simring re-called that during the course of his trial he had seen two folders of documents which were produced by NSW Police pursuant to a subpoena. He said that he had not been given copies of those documents as a result of his FOI application. His submission to the Tribunal was that the documents in the folders were located when subpoenas were issued in 2003 and that even if those copies had been destroyed, the originals should be able to be found again. 19 Jurisdiction re adequacy of search. It is not in dispute that the Tribunal has jurisdiction to determine whether a failure by an agency to provide access to a document is the "correct and preferable" decision: ADT Act, s 63. The Tribunal noted at [16] that: In Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 the President of the Tribunal, O'Connor DCJ, held that where an applicant raises an argument that an agency has failed to locate relevant documents, and puts before the Tribunal some credible material or submissions which persuade the Tribunal that an arguable case exists, the Tribunal has jurisdiction to determine whether the agency has failed to address all documents in its possession. 20 Tribunal's findings . The Tribunal was satisfied that NSW Police had conducted an adequate search for the documents and that its failure to provide those documents was the correct decision. The Tribunal's findings of fact and conclusion appear at [17] and [18]: In his affidavit of 20 December 2005 Sergeant Maddox states that he was the co-ordinator of the Subpoena Section from February 2003 to February 2004, and co-ordinator of the FOI Unit from February 2004 to September 2005. Sergeant Maddox's written statements and oral evidence concerning the inquiries he, and others in the FOI unit, undertook in response to the applicant's request, were comprehensive. In cross-examination Sergeant Maddox stated that the information provided in the affidavit of 26 June 2006 was based on what was recorded on the Subpoena Section database. Sergeant Maddox's evidence addressed the deficiencies in the information recorded in the database. I accept Sergeant Maddox's evidence. Based on that evidence, I find that following receipt of the applicant's request for access under the FOI Act inquiries were made with the Rose Bay Local Area Command and the officer in charge of the arrest of the applicant, and that documents were obtained which were the subject of Sergeant Maddox's initial determination. Further inquiries were made with the Rose Bay Local Area Command, and the brief of the arrest and charging of the applicant was located and provided to the FOI unit. Those additional documents were considered as part of the internal review. A search of the Archives Unit was undertaken. Following the discussion at the initial Planning Meeting concerning the subpoenaed documents, Sergeant Maddox searched the Subpoena Section records, which disclosed that three subpoenas had been served on the respondent in 2003. The database indicated that these documents had been forwarded to Human Resources, Joint Investigation Team Kogarah, and Detective Annette Bell, respectively, and further inquiries were made. Those inquiries failed to reveal any further documents. In his affidavit of 26 June 2006 Sergeant Maddox concluded: I am unable to determine what documents were produced (if any) to the Supreme Court of New South Wales in response to Subpoena 'A', 'B' or 'C'. 18 I am satisfied that the search efforts made by the agency to locate documents falling within the terms of the applicant's request are reasonable in all the circumstances, and that the search it has undertaken was sufficient. While the applicant is understandably aggrieved that documents which were produced in 2003 have not been located in response to his request, I am satisfied that all reasonable steps have been taken within the limitations of the systems in place. 21 The records showed that the first subpoena was forwarded to the Human Resources area, the second was forwarded to the Joint Investigation Team at Kogarah and the third was forwarded to Detective Annette Bell. Sergeant Maddox's affidavit states that Human Resources had no record of ever receiving or complying with the first subpoena. Enquiries were made of the Joint Investigation Team at Kogarah who informed Sergeant Maddox that the subpoena related to a complaint involving other members of Mr Simring's family. He was told that those documents were no longer at Kogarah. Sergeant Maddox's evidence in relation to the third subpoena was that it had been handled by the Rose Bay Local Area Command. Sergeant Maddox concluded that he was unable to determine which documents, if any, were produced to the Supreme Court in response to any of the three subpoenas. 22 Grounds of appeal. In relation to the subpoenaed documents, Mr Simring made the point that Sergeant Maddox acknowledged that the procedures for dealing with subpoenaed material were inadequate. He said that while there was evidence from Sergeant Maddox as to the inquiries he had made to locate the documents there was no direct evidence from the people who actually conducted the searches in the Human Resources Unit, the Joint Investigation Team at Kogarah or from Detective Annette Bell. Mr Simring said that the Tribunal had made an error of law because ". . . the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal": Edwards (Inspector of Taxes) v Bairstow and Another [1955] 3 All ER 48 per Lord Radcliffe at 57. He went on to say that a finding of fact can only be disturbed if there is either no evidence to support its inference or if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences: Australian Gas Light Company v Valuer-General (1940) SR (NSW) 126; (1940) 57 WN (NSW) 53 per Jordan CJ. In his submission, the evidence was not capable of supporting the Tribunal's finding that there had been an adequate search. 23 Appeal Panel's conclusion. Mr Simring has not identified an error of law in the Tribunal's decision. The High Court has acknowledged that "no satisfactory test of universal application has yet been formulated" to distinguish questions of fact and questions of law: Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 394. However, the Full Federal Court attempted a classification of questions of law and questions of fact in Collector of Customs v Pozzolanic Enterprises Ltd (1993) 43 FCR 280 at 287: 1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. 24 In Haines v Leves (1987) 8 NSWLR 442, Kirby P described the Court's findings in Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 139 in the following terms: In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 the majority (Glass JA, with whom Samuels JA agreed) stressed that in appeals such as the present, the legislation does not allow the Court to correct errors of fact. It does not permit the Court to review even a finding of fact which is said to be perverse or contrary to the overwhelming weight of evidence or even against the evidence and the weight of the evidence. Nor may the Court review findings on the facts which are alleged to ignore the probative force of the evidence which is all one way, even if no reasonable person could have reached the decision made and even if the reasoning by which the Court arrived at its finding was demonstrably unsound. In all such circumstances, the Court concluded, no error of law would be shown to attract the jurisdiction of this Court. The findings and interpretation of the facts are matters reserved to the Tribunal below. Only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the applicable statute may this Court offer relief, within its remit on questions of law. 25 It is clear from Azzopardi and from the passage quoted above, that an allegation that a finding is "against the evidence and against the weight of the evidence" does not amount to a question of law. There was evidence to support the Tribunal's finding that there had been an adequate search. Consequently the Tribunal did not make an error of law in reaching that conclusion. Extension to the merits 26 Mr Simring applied for the Appeal Panel to extend the appeal to the merits of the Tribunal's decision that NSW Police did not hold any further documents because they had conducted an adequate search. He said that the evidence of Sergeant Maddox was not conclusive and that it is likely that if further searches were undertaken, the documents would be found. He found it difficult to accept Sergeant Maddox's evidence that when subpoenaed documents are returned, copies are shredded and originals returned to the area from where they came. He said that it would be difficult to tell whether documents were copies or originals so that it is likely that when the documents came back from the court they were returned. Alternatively, if the officers in the areas that the documents came from realised that their documents would be shredded, they would only ever produce copies. Consequently, the originals would still be with those areas. He suggested that other places to look would be the time allocation sheets of individual employees in each of the three bodies to which the subpoenas were apparently sent. He also suggested asking the compliance section manager of the NSW Supreme Court or consulting the courier or document exchange service in relation to deliveries to the NSW Supreme Court. 27 There was evidence before the Tribunal which was sufficient to satisfy it that NSW Police had conducted an adequate search for the documents. Even if more could have been done to look for the documents, that does not mean that the search was not adequate. There is nothing in the way the Tribunal went about its fact finding process which is so unorthodox or unfair that it justifies re-opening the case on its merits. Orders 1. Leave is granted for the appeal to be extended to the merits of the Tribunal's decision but only on the question of whether access should be given to the disputed documents even though they are "exempt documents". 2. Parties are directed to file and serve written submissions in relation to this question within 21 days of the date of these reasons. The Appeal Panel will determine the question 'on the papers' under s 76 of the Administrative Decisions Tribunal Act 1997. 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.