CITATION: Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35 DIVISION: General APPLICANT: James Ernest Mauger RESPONDENT: The General Manager, Wingecarribee Shire Council FILE NUMBER: 993002 HEARING DATES: 02/25/1999 SUBMISSIONS CLOSED: 02/25/1999 DATE OF DECISION: 12 May 1999 K P O'Connor DCJ - President BEFORE: PRIMARY LEGISLATION: Freedom of Information Act 1989 APPLICATION: Review of refusal to grant access to documents - law enforcement exemption MATTER FOR DECISION: Principal matter Applicant: R Weaver of counse instructed by K Worthington REPRESENTATION: Respondent: B Bilinsky solicitor, B Bilinsky & Co ORDERS: 1. The decision of the agency is affirmed. 1 The matter for review is a decision by the Wingecarribee Shire Council ('the agency') to provide partial access to documents sought under the Freedom of Information Act 1989 . Two items of information were not disclosed: the name and address of an informant who passed on to a Council Environment Officer information received from a third person; and the reference to the third person. The information reported alleged conduct that, if true, involved a serious breach of laws enforced by the council relating to protection of the environment and clean water. The applicant is a farmer in the district, Mr James Ernest Mauger ('the applicant'), whose property, "Bell Farm" at Robertson, was said to be the location of the alleged conduct. 2 His application for review was made on 5 January 1999 under s.53 of the Freedom of Information Act 1989 ('the Act'). Section 53(1) provides that "[a] person who is aggrieved by a determination made by an agency … may apply to the Tribunal for a review of the determination". The applicant is a person aggrieved by a determination, as his original and internal review applications have been the subject of a determination that he be given partial access to a copy of a document with exempt matter deleted: see s.53(3)(a)(iii). 3 This review is affected by a degree of artificiality. Inadequacies in the procedures adopted by the agency when providing access by way of inspection to the relevant material led to the applicant ascertaining the name of the informant. 4 But the applicant remains desirous of obtaining that information officially from the respondent. Equally the respondent is unwilling to do that, because of its policy of protecting the identity of informants. Scheme of the Act 5 A person has a legally enforceable right to be given access to an agency's documents in accordance with the Act: s.16. 'Agency's document' is defined, as is 'agency' and 'document': s.6(1). An application may be made for access to an agency's document: s.17. The primary task of the agency is to determine whether access to the document is to be given or refused: s.24. The primary ground upon which an agency may exercise its discretion to refuse access to a document is that it is an 'exempt document': s.25(1). 'Exempt document' is defined: s.6(1). An agency has a duty to refuse access to a 'restricted document' (defined in s.6(1)) that is the subject of a Ministerial certificate: s.25(3). Moreover, an agency has a duty not to refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate) if it is practicable to give access to a copy of the document from which exempt matter has been deleted, and the applicant appears to want access in that form: s.25(4). 6 In the present case, a copy of a document containing the protected information was included in the material to which the applicant was given access, with the identity details of the informant and information regarding the third party being deleted on the ground that it constituted 'exempt matter'. 7 'Exempt matter' is defined in s.6(1) as meaning "matter by virtue of which a document is an exempt document". An 'exempt document' is defined in s.6(1), relevantly to this case, as "(a) document referred to in any one or more of the provisions of Schedule 1". Schedule 1 is headed "Exempt documents" and is divided into three parts, Part 1 - dealing with "Restricted documents", Part 2 - dealing with "Documents requiring consultation" and Part 3- "Other documents", the largest category which commences with the exemption relating to internal working documents. 8 In this case the exemption relied upon is cl.4 of Schedule 1 headed "Documents affecting law enforcement and public safety" ('the law enforcement exemption'). In particular the agency relied in its original decision of category (1)(b) of the exemption (confidential source of information). At hearing it also relied on three other categories of that exemption, being category (1)(a) (prejudice investigation generally), (c) (endanger life or physical safety of any person) and (e) (prejudice effectiveness of lawful method of investigation, etc.). 9 For convenience the whole of cl.4, the law enforcement exemption, is set out below: "4 Documents affecting law enforcement and public safety (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: (a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or (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 (c) to endanger the life or physical safety of any person, or (d) to prejudice the fair trial of any person or the impartial adjudication of any case, 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), or (f) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety, or (g) to endanger the security of any building, structure or vehicle, or (h) to prejudice any system or procedure for the protection of persons or property, or (i) to facilitate the escape from lawful custody of any person. (2) A document is not an exempt document by virtue of subclause (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 programme 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 programme 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." 10 For an agency to rely on this exemption it must first classify the document or information in issue as belonging to one of the general categories listed in sub-cl.(1); then ascertain whether it may be removed from the protection of sub-cl.(1) because it falls into one of the sub-categories listed in para (a) of sub-cl.(2). If the document or information falls into one of the sub-categories it only loses its status as an exempt document if the agency determines positively that "disclosure of the document would, on balance, be in the public interest" (para (b)). Circumstances 11 On 21 April 1998 the agency received a complaint, by telephone, from a resident of the town of Robertson advising that he had been contacted by a person who had seen 14 dead cows being pushed into a creek on the applicant's farm. The Council Environment Officer who received the call, Ms Sally Perry, filled out the Action Request form used by the Council in such circumstances. 12 This is a standard form which commences by recording whether the request for action has been received at the counter, by telephone or by letter. It then records various details including the name and address of the person requesting action, contains a box allowing for a location sketch to be drawn, and includes a box where the council officer indicates what action was taken. 13 The name and address of person requesting action (the informant) was deleted from the material disclosed. Identity details were also deleted from the section headed "Nature of Request", along with the reference to the third person. This section of the document as released read: " -------- informed me of complaint regarding dead cows at Mr Mauger's property in Fountaindale Road, Robertson. ------- had been told that ------------------------ had seen 14 dead cows been (sic) pushed into a creek running thru (sic) Mr Mauger's property." 14 On the same day Ms Perry carried out an inspection of the property, including in the area of several creeks. She recorded the action taken including follow-up enquiries as follows in the Action Request form, next to the heading "Action Taken or Recommended". This section of the document as released read: "I inspected the property on Tuesday 21 (afternoon) & walked along several creeks on the property & saw no dead cows. I rang ---- & told him, & he got back to me with further info - that the cows were near a stand of pine trees. I carried out a further inspection on Friday 24/4/98 & found no cows in creeks in the parts of the property I searched. Mr Mauger appeared on site to feed his cattle & asked me to leave the site & complained about my inspection." (The applicant has disputed the lawfulness of Ms Perry's entries onto the property, of which he was not notified in advance. That question is not relevant to this review.) 15 According to the applicant in a letter of complaint dated 15 May 1998 to the council, when he discovered Ms Perry entering his property on 24 April 1998, she explained her purpose but declined to divulge the name of the informant; and she told the applicant that she had not investigated the creeks in the property to their full extent. 16 The agency's response to Mr Mauger's letter included advice that it had a policy not to disclose the name of informants. 17 On 23 June 1998 the applicant made an application under the Act seeking an inspection of the whole of the agency's file. On 3 July 1998 the agency responded, agreeing to make the whole file available for inspection, subject only to withholding from the Action Request form, as noted above, the identity details of the informant and the reference to the source of the information given to the informant. The agency noted that it relied on cl.4(b) of Schedule 1 (reveal identity of confidential source). 18 The applicant attended the agency's premises to inspect the file. The form as disclosed did not have deleted the telephone number of the informant. He was also shown a copy of the form with liquid paper placed over the exempted information. The Ombudsman found that he was able to read the name of the informant as the liquid paper had not totally deleted the informant's name (letter to agency from Ombudsman, 19 November 1998, see Exhibit B). 19 Nonetheless the applicant continued to press for release under the Freedom of Information Act . On 17 July an internal review was requested by the applicant. On 27 August 1998 the agency advised that it had affirmed its decision following internal review. 20 In October 1998 the applicant sought external review by the Ombudsman (see generally Part 5 Div 1 of the Act). The Ombudsman concluded its investigation on 19 November 1998, advising the applicant that it considered that the Council's decision to exempt the part of the action request form which identified the maker of the complaint to be reasonable in the circumstances, and that such an approach was consistent with the public interest. 21 Personally at the preliminary directions hearing in January 1999 and through counsel at the main hearing in February 1999, the applicant expressed to the Tribunal his anger over an accusation which he saw as malicious and going to his integrity as a member of a farming family of long standing in the Moss Vale district. He indicated that he was considering suing the informant for defamation. 22 In his application for review he expressed his concern as follows: "I claim the decision by the General Manager, Wingecarribee Shire Council and the Ombudsman did not accurately assess the maliciousness of the information. It should have been obvious from the first inspection of our property that the whole story was a complete fabrication as the bodies of a number of cattle could not just disappear. Further the size of our property and lack of water in the creek at that time also ground cover meant that nothing could be hidden." 23 There have been other expressions of concern. For example in December 1998 in connection with controversy surrounding the adoption of the Robertson Local Environment Plan, he accused the person that he believes to be the informant of giving "false information" and the agency of "neglect of duty" in relying on the information. In his letter to the agency of 17 July 1998 requesting internal review of the refusal he referred to "this lewd attempt to defame us … aided and abetted by some Council staff". He also asserted that the situation involved "nothing short of some person or organisations conspiring to defame the Mauger family through devious accusation". 24 The Tribunal has examined the complete agency investigation file including the exempted material. 25 The agency filed an affidavit from Mr Walter Raymond Robinson, council officer, referring to agency policy of non-disclosure of identity of informants, and the various considerations on which it was based. 26 Mr Jeffrey Wright, its general manager, gave oral evidence in respect of agency policy and as to aspects of this case. He was cross-examined. 27 Mr Wright referred to his wide experience in senior positions in local, State and federal government, and his familiarity with the policy of not disclosing the identity of informants in relation to alleged breaches of the law. He referred to the important public interests served by providing citizens who report alleged breaches of law with a guarantee of confidentiality except with their consent. 28 The public interests as he saw them were: protection of informants from fears of reprisal, exposure to legal action, physical harm or harm to property; the desirability of encouraging the exercise of the public duty to see that the law is observed; and the desirability of enabling wrongs to be redressed without causing enmity. He noted that in several other councils in New South Wales that he had consulted similar policies applied. He noted the seriousness of the allegation which, if proven, would place the water catchment at risk. In this regard, a council officer in a report dated 27 April 1998 in the file produced to the Tribunal, referred to conduct of the type alleged as representing a serious threat to the health downstream of water users. 29 Mr Wright acknowledged that not all complaints received were genuine. He said that he was satisfied that this informant who was connected with a local pro-conservation group had been acting bona fide, and had not been acting frivolously. 30 In suppressing the identity of the informant, the respondent also had regard to the Guidelines issued by the New South Wales Ombudsman (2nd ed. July 1997) ('the Ombudsman's Guidelines'): see ch.7.1 (Access to Complaints by Third Parties - Local Councils, esp. paras. 7.1.5 - 7.1.9). 31 Mr Wright said that he had asked the informant to consider permitting his name to be released. The informant had undertaken to consider the request but later requested that it not be released. The informant had expressed concern over the aggressiveness of the applicant. Discussion 32 Law enforcement exemptions in substantially similar terms to the one in issue in this case are found in all Australian Freedom of Information (FOI) schemes: see generally Cossins, Annotated Freedom of Information Act New South Wales (1997) ('Cossins'); and there are numerous cases relating to informant confidentiality: see, e.g., Kyrou & Pizer (eds) Victorian Administrative Law (1985) para 2338/1. 33 The importance accorded by the Parliament to protecting from disclosure matter related to law enforcement and public safety is reflected in the attenuated treatment given to public interest considerations in the operation of the exemption. As noted above, the Act only expressly provides for the public interest to be considered where the law enforcement document falls into the sub-categories listed in cl.4(2)(a). Then the agency must be positively satisfied that "disclosure … would, on balance, be in the public interest": cl.4(2)(b). That approach contrasts with the role public interest considerations play in the relation to several of the exemptions contained in Parts 2 (documents requiring consultation) and 3 (other documents) of Schedule 1. In many of these instances, the agency must be positively satisfied that "disclosure … would, on balance, be contrary to the public interest" (see e.g. cl.5(b), cl.9). See generally Cossins, 43-44. 34 External review tribunals and commissioners in other jurisdictions have consistently supported an interpretation of the law enforcement exemption which protects the identity of informants. A convenient summary of the approach that has been adopted is provided by the Information Commissioner of Queensland in Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 at 371 - "The determination of whether the relevant information was supplied by the informant and received by the respondent on the implicit understanding that the informant's identity would remain confidential (and hence whether the informant qualifies as a confidential source of information …) requires a careful evaluation of all the relevant circumstances including, inter alia, the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer …, whether it could reasonably have been understood by the informant and the recipient that the appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential … ." 35 The Federal Court, dealing with the Commonwealth FOI Act, has upheld non-disclosure of informants' identity where the agency was satisfied that the allegation was false and the information provided had included malicious comment about the person who was the subject of the complaint: Re McKenzie and Department of Social Security (1986) 65 ALR 645 (Muirhead J.). See also Re Gold and Australian Federal Police (1994) 37 ALD 168 (Commonwealth AAT). 36 Cossins, 272-273 has questioned whether this degree of protection ought to be afforded under New South Wales given the emphasis accorded by the Court of Appeal to the intention of Parliament as expressed in the objects clause (s.5). Kirby P. observed in Commissioner of Police v District Court of New South Wales (commonly known as Perrin's case , being the name of the access applicant) (1993) 31 NSWLR 606 at 627: "I tend to favour the view that the Act, understood against its background and interpreted in conformity with the intention of parliament expressed in s.5, must be approached by decision-makers with a general attitude favourable to the provision of the access claimed. It is important that the decision-makers (and especially in tribunals and courts which set the standards) should not allow their approaches to be influenced by the conventions of secrecy and anonymity which permeated public administration in this country before the enactment of the Act and its equivalents." 37 Cossins observes (at 272-273) referring to the protection given to confidential informants by the law enforcement exemption, the principal matter in issue in this case: "[I]f the New South Wales exemption is interpreted in accord with the stated objectives of the Act …, there is scope for arguing that the public interest is best served by an interpretation of cl.4(1)(b) which protects the public interest in protecting informants, as opposed to those who merely seek to cause trouble." 38 Cossins' comments squarely raise the difficult issue of how to deal with unfounded complaints and complaints made knowing them to be false. 39 The Ombudsman's Guidelines, para 7.1.8, list various circumstances that are regarded as justifying disclosure of identity information. One is where "the complaint is clearly malicious or not made in good faith". 40 Unfounded Complaints : In Taylor v Chief Inspector, RSPCA [1999] ADT 23, the Tribunal referred to the level of unfounded complaints received by the RSPCA in respect of its law enforcement functions related to cruelty to animals. The Tribunal stated that the RSPCA in New South Wales receives about 17,000 complaints per year, of which about 90 per cent are made by telephone; and that "about 50 to 60 per cent turn out upon investigation to be unfounded or frivolous and these relate primarily to neighbour disputes": at para.33. 41 In that case the Tribunal noted that the complaint was considered by the RSPCA to have been unfounded or frivolous and was made in the context of a neighbour dispute: para.9. 42 Nonetheless the Tribunal upheld the chief inspector's decision to protect the identity of the informant from disclosure. 43 False or Malicious Complaints : Counsel for the respondent submitted that there is a genuine doubt as to the informant's good faith. His argument for permitting release primarily rested on the contention that the complaint was false. He said that the applicant had a right to defend his name. 44 The Tribunal has before it the deeply-felt concerns of the applicant and the assessment of Mr Wright in relation to this question. 45 It is critical that investigations be conducted in a confidential way until any charges are laid and evidence in support produced publicly. Up to that point those who give information to law enforcement authorities are entitled to assume the confidentiality of the process. Strict confidentiality during the investigative process offers protection both to witnesses and persons adversely implicated by allegations. Breaches of the confidentiality of the process can cause great harm to the reputations of those named and adversely affect the conduct of any legal proceedings. 46 The law contains sanctions in relation to false complaint. A charge of false complaint may be laid by the agency. The Ombudsman has commented that FOI disclosure may be appropriate: see para.39 above. 47 A Tribunal should ordinarily accept the judgment of the law enforcement agency as to the question of whether a complaint was made knowing it to be false, or maliciously, unless there is significant independent evidence to challenge its judgment. I accept the agency's assessment here that it does not regard this situation as involving a false complaint, in the sense of a complaint being made knowing it to be false. 48 As noted earlier, the Tribunal has had regard to the file material provided by the agency and has also taken note of Mr Wright's assessment. Mr Wright was careful to emphasise that while officers had not found any evidence to support the allegation, nor had they reached the further conclusion that it was false. Nor was the complaint considered to have been frivolous. Mr Wright noted that the informant was an activist who supported increased protection of the environment. In passing on the information he had received, Mr Wright considered that the informant was motivated by a concern to protect the environment. I accept the assessment of the agency that it was not false, in the sense of being made knowing it to be false, or malicious. 49 In relation to the criteria formulated by the Information Commissioner of Queensland, two matters are of particular relevance in this case. (1) Informant's Desire for Confidentiality : The informant has according to Mr Wright expressed the desire that his or her identity be kept confidential. (2) Risk of Retribution : There is a risk that disclosure will lead to retributive action. As noted earlier, the applicant has expressed the desire, once his understanding of the identity of the informant is confirmed, to take defamation proceedings. (I note that the interest in protecting complainants against reprisal is expressly recognised in the special context of 'whistleblower' legislaton: see Protected Disclosures Act 1994 , s.3(1)(b).) 50 Effect of Inadvertent Release : I agree with the view expressed by the Ombudsman's office in its letter of 19 November 1998 that inadvertent release should not be regarded as providing a ground for FOI release. The informant should not be exposed to detriment because of an omission on the part of the record-keeping agency. 51 In Re Gold and Australian Federal Police (1994) 37 ALD 168 (Commonwealth AAT), McDonald DP refers to a characteristic common to all FOI schemes, namely that they regulate disclosure "under this Act" (in New South Wales "in accordance with this Act", see s.16(1)). As McDonald DP notes at para 14: "Clearly, disclosure can occur other than "under this Act". But where disclosure is sought under the Act, and the circumstances coincide with the terms of the exemption, then the fact that the disclosure may have occurred elsewhere will not necessarily be relevant for purposes of reaching a decision to grant an exemption under the Act." 52 Conclusion : In the circumstances, I am satisfied that the respondent was entitled to rely on the exemption provided by cl.4(b) of Schedule 1 of the Act to protect the identity of the informant and the third party. Other Exemptions Relied Upon 53 In light of that conclusion it is not strictly necessary to examine the other categories of the exemption also raised at the hearing. 54 I refer first to category (c) of the exemption, which permits non-disclosure on the basis that release might "endanger the life or physical safety of any person". The applicant has expressed his concerns in vigorous language reflecting great indignation and personal affront. But there is no basis in the evidence before me for concluding that there is any realistic threat to the informant's physical safety or that of other persons. I have dealt with the question of the retributive action he has in mind in the specific context of dealing with the category (b) exemption. That proposed action is a lawful one. 55 As to category (e) I doubt whether the receipt of unsolicited tip-offs from the public can reasonably be regarded as a "method or procedure", in the sense of an organised strategy for solving or preventing crimes and other breaches of the law. In any case the degree of disclosure of the material in this case plainly reveals the way in which the information was received. 56 Category (a) is more relevant in that it refers to release causing "prejudice to the investigation of any … possible contravention of the law … whether generally or in a particular case". I see this category as setting a general standard in relation to which several of the categories which follow contain more specific illustrations. The identification of a confidential source may not prejudice the investigation of a particular case. This case is, I consider, such a case; it is acknowledged that the identity of the informant is, in fact, known, and the investigation has been concluded. Nonetheless the identification of the source may prejudice the ability to get information in the future. Determination 57 Pursuant to s.63(3) of the Administrative Decisions Tribunal Act 1997: The decision of the agency is affirmed. 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.