CITATION: Parsons v Baulkham Hills Shire Council [2008] NSWADT 188 DIVISION: General Division APPLICANT David John Parsons PARTIES: RESPONDENT Baulkham Hills Shire Council FILE NUMBER: 073247 HEARING DATES: 28 February 2008 SUBMISSIONS CLOSED: 28 February 2008 DATE OF DECISION: 27 June 2008 BEFORE: Wilson R - Judicial Member CATCHWORDS: Freedom of Information Act - access to documents - refusal MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 CASES CITED: N/A APPLICANT In person REPRESENTATION: RESPONDENT M Pearce, solicitor ORDERS: The decision under review is set aside and in substitution therefore the Tribunal orders that the applicant be granted access to the documents the subject of these proceedings (being those documents contained in exhibit R4). REASONS FOR DECISION 1 The applicant has commenced these proceedings to review a refusal by the respondent to grant access to certain documents under the Freedom of Information Act (NSW) 1989. No jurisdictional issues have been argued. Although at one stage during the course of preparing the matter for hearing it appeared that an issue concerning the scope of the original application for access to documents could have given rise to a jurisdictional question, this did not eventuate in the long run. In essence this issue was whether the applicant's original application under the Act sought access only to documents that were "internal" to the respondent. The applicant said that he will pursue this issue by taking further steps, should he wish to do so, independently of these proceedings. The parties agreed that this issue could be ignored here. 2 The respondent has filed, but not served, 14 documents over which exemption is currently claimed. These several documents became confidential exhibit R4 in the proceedings. The respondent advised that 3 of these 14 documents have in fact been provided to the applicant in the course of other proceedings in another place (documents numbered 2, 12 and 13 in exhibit R4 as identified in the respondents submissions, exhibit R3). The only exemption claimed is clause 9 of Schedule 1 to the Act. These documents will be exempt if they satisfy the several elements required by clause 9, provided that disclosure, on balance, would be contrary to the public interest. 3 A review of the documents in exhibit R4 shows clearly what their nature is. They each contain matter which, if disclosed, would thereby disclose either opinions, advices or recommendations prepared in the course of the exercise of powers conferred upon the respondent or in the course of the exercise of duties that the respondent is required to perform. Some of the documents record consultations simpliciter. Whilst it is true that some parts of these documents do no more than record factual enquiries, this does not detract from this conclusion as the factual enquiries form the basis for the opinion, recommendation or consultation, as the case may be, recorded in the documents. Consequently, enquiry at this stage is directed towards determining whether disclosure of the matter contained in the documents would, on balance, be contrary to the public interest. The submissions of the parties went primarily to this point. 4 Whether a document contains an opinion, advice or recommendation, and whether it relates to the public functions of an agency, are established by the nature of the document and what it records and, of course, will not change across time. However, whether disclosure of the matter would, on balance, be contrary to the public interest is a question that may well be answered differently at different times. As circumstances change, or as a public agency's functions are carried out and pass from one stage to another, the answer to this question may well change with the considerations that are left behind or which come to the fore. 5 Although the question of whether disclosure, on balance, would be contrary to the public interest involves a balancing of competing public interest considerations, it is not a purely discretionary power. If the Tribunal finds that on balance disclosure would be contrary to the public interest it necessarily follows that the exemption is made out. If the opposite conclusion is reached then the exemption is not made out. Also, if the Tribunal, on the evidence before it, cannot be satisfied that disclosure would, on balance, be contrary to the public interest then the respondent's claim for the application of this exemption must fail. These matters are of course quite distinct from the overall discretionary power that the Tribunal is vested with to grant access to a document even if it be an exempt document. 6 The relevant circumstances are set out in the affidavit of Peter John Doyle sworn 21 November 2007 (exhibit R1) and also in the documents over which exemption is claimed (exhibit R4). Investigations by Council officers ascertained that certain clearing works had been done on the applicant's land and that no approval had issued permitting such works to be done. Subsequently, the respondent issued a penalty notice on 15 June 2007 followed by a Court attendance notice which alleged the commission of an offence. These documents are annexed to Mr Parson's affidavit. The applicant is defending this prosecution. It is quite clear that the documents in exhibit R4, over which exemption is claimed, are related to the investigations and subsequent issue of the two notices just mentioned. 7 On this evidence the respondent contends that it would be contrary to the public interest to disclose these several documents. The respondent accepts that there is a significant public interest in the disclosure of documents by reason of openness and accountability (exhibit R3, submissions paragraphs 29 and 30) but argues that this may be outweighed, in appropriate circumstances, by the presence of any adverse effects that disclosure might have on the workings and functions of an agency (exhibit R3 paragraph 32). As a general proposition this must be correct. Further, the respondent does not suggest that the analysis to be undertaken starts with any presumption, one way or the other. In the Tribunal's view this must be correct as well: the analysis involves a balancing exercise to determine which of the competing considerations outweighs the other and thus to determine whether disclosure is contrary to the public interest. 8 The respondent puts two considerations into the scales (exhibit R3 paragraphs 35 and 36). The first is that disclosure of the documents would impede the respondent in its duties as a regulating and prosecuting authority. The second is that the applicant's interest in gaining access to these documents is a "personal" one and, as such, is different to, and of lesser weight than, the public interest of a "right to know" with which the principles of accessibility and accountability are concerned. Although this second consideration should perhaps be seen as an argument reducing the weight of one of the considerations the applicant would seek to rely upon, this does not affect the point being made by the respondent here. 9 The respondent has not adduced any evidence suggesting why disclosure would impede its functions and it has not articulated any impediments in its submissions. At one level, it is perhaps not necessary to do so. Without any evidence it is still possible to see how the respondent's functions could well be impeded if during the investigation phase, or at any time when it is gathering evidence and obtaining advice in order to determine whether an offence has been committed and whether a prosecution could or should be commenced, if its working documents were not kept confidential. However, once an offender had been identified, the evidence gathered and a prosecution has been launched the circumstances change significantly: from this time onwards it is not possible, in the absence of evidence in point, to formulate any foreseeable consequences that could impede the agency's functions with respect to the case on hand. Equally, in the absence of specific evidence it is not possible to formulate any potential consequences that could impede the agency's functions in later matters. Thus, without any evidence to guide the analysis the other way, once a prosecution is launched the agency's internal working documents would, more likely than not, lose their need for confidentiality. 10 The circumstances at hand do not really suggest that releasing the documents would amount to a premature release of working papers which contain tentative views and recommendations which could impede the final decision making process. Here the decision has been made to prosecute and the proceedings are well under way. 11 The applicant submitted that he wished to see these documents for the purposes of meeting the case that is being put against him in the prosecution proceedings. One point he makes is that his premises were entered by Council officers when gathering evidence and these documents may give him grounds to argue that such entry was illegal. If so, this could impact on the admissibility of evidence in the prosecution proceedings. Also, it is implicit in his oral submissions that these documents may reveal flaws in the prosecution case and may provide him with information upon which he could cross-examine Council officers who give evidence against him. Clearly, it is in the interests of justice that a defendant have full opportunity to prepare his case in defence of prosecution proceedings like the ones that have been commenced against him. 12 The respondent argues that the applicant may seek and obtain the same documents by way of subpoena. This is in fact true: but there are differences. When issuing a subpoena only documents relevant to the proceedings may be sought and a party must specify the documents that are being sought to a sufficient degree. Also the party must not engage in an exercise that is no more than a fishing expedition, as it is commonly called. By proceeding under the Freedom of Information Act 1989 the applicant has a wider scope for seeking documents and may rely upon the duty imposed on an agency to search for and consider documents falling within the scope of the application for access. Still, the point is well made that the applicant has an alternative way of obtaining the documents. However, on reflection, it can be seen that this tells both ways. 13 The respondent also submits that qua prosecutor it has, in any event, provided the applicant with all the documents that it has which contain any information which is relevant to guilt or innocence. Such documents have been provided with the Brief of Evidence that has been served in the prosecution proceedings in such a way that the respondent has satisfied its duty (as a prosecutor) to act fairly. The applicant's answer to this is simply that he would like to see this for himself. 14 The respondent's arguments in reply to the applicant's submission certainly do reduce the extent of the limitations that the applicant will experience should he not be granted access to the documents in the proceedings in the Tribunal. 15 However, at the end of the day there is still a need (of some significance) for the applicant to prepare his defence, which in part could be facilitated by disclosure of the subject working documents. On the other side, the Tribunal is unable to discern any impediment that could accrue to the respondent, whether by way of factual inference or pure reasoning from the circumstances, should the documents be disclosed to the applicant. Consequently, the Tribunal is not satisfied that granting access of these documents to the applicant would, on balance, be contrary to the public interest. 16 It follows that the documents in exhibit R4 are not exempt documents within clause 9. Access should be therefore granted and the Tribunal so orders. Orders The decision under review is set aside and in substitution therefore the Tribunal orders that the applicant be granted access to the documents the subject of these proceedings (being those documents contained in exhibit R4). 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.