CITATION: Murre (No. 2)-v-Commissioner of Police, New South Wales Police Service [2001] NSWADT 175 DIVISION: General Division APPLICANT Michael Anton Murre PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 013110 HEARING DATES: 10/10/2001 SUBMISSIONS CLOSED: 10/10/2001 DATE OF DECISION: 10/25/2001 BEFORE: Hennessy N (Deputy President) APPLICATION: access to documents - adequacy of search - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - law enforcement & public safety MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 Murre v Commissioner of Police, New South Wales Police Service [2001] NSW ADT CASES CITED: Kennedy -v- Commissioner of Police [2001] NSWADT 39 Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 APPLICANT REPRESENTATION: M Gerace, solicitor RESPONDENT J Klarica, barrister ORDERS: 1. The decision of the respondent to refuse that part of Mr Murre's request which relates to any further documents on the Operation Mashti file, any further documents relating to Mrs X and any further documents relating to a Person of Interest Profile, is affirmed.; 2. The decision of the respondent not to grant access to the four documents over which an exemption was claimed is affirmed. Introduction 1 This is the second decision of the Tribunal relating to an application by Mr Murre to the Commissioner of Police (the agency) for access to documents under the Freedom of Information Act 1989 (FOI Act). This decision should be read in conjunction with the first decision Murre v Commissioner of Police, New South Wales Police Service [2001] NSW ADT. 2 The Premier (as the Minister administering the FOI Act) was not invited to be a party to these proceedings. The absence of the Premier as a party is based on a previous decision of the Tribunal interpreting s 57 of the FOI Act (Kennedy -v- Commissioner of Police [2001] NSWADT 39). 3 Mr Murre's application to the Tribunal raises two questions. Firstly whether certain documents covered by his FOI request to the agency are exempt documents and should not be disclosed and second whether the agency has undertaken an adequate search for certain documents. 4 On the first day of hearing, 3 September 2001, the parties presented evidence and submissions in relation to two matters: the agency's determination that three intelligence information reports were exempt documents and whether the agency had conducted an adequate search for certain documents. Following the hearing, I reserved my decision in relation to access to the three intelligence information documents. I also adjourned the matter for further hearing, if necessary, in relation to any outstanding adequacy of search issues and access to any documents uncovered as a result of further searches. 5 I published preliminary reasons in paragraphs 15 to 22 of Murre v Commissioner of Police, New South Wales Police Service [2001] NSW ADT on the adequacy of search issues. On 7 September 2001, I made several directions in relation to further searches of "Operation Mashti" documents. These documents relate to the investigation of another person, Mr Moore, for alleged paedophile activities. I also found that an adequate search had not been conducted in relation to documents created or held by Kaylene Kreuzer relating to details of statements made by An informant. The agency was directed to produce any further documents falling within the scope of Mr Murre's application. 6 In response to those directions, the agency filed a confidential statement dated 13 September 2001 from Detective Sergeant Linkenbagh. That statement identified one further document in the Operation Mashti file over which an exemption was claimed. This document will be referred to as Document 4. 7 Following the Tribunal's directions, Mr Murre wrote to the Registrar on 20 September 2001 requesting an opportunity to present further submissions in relation to the disclosure of the three Information/Intelligence reports as well as the fourth document. Mr Murre also requested that the hearing be closed when presenting his submissions as his arguments "are forensically relevant to my defence at trial beginning on 5 November 2001." The Registry wrote back to Mr Murre on 20 September advising him that the hearing on 10 October 2001 was for the purpose of hearing evidence and submissions in relation to the Document 4. The letter also noted that I would hear any application about closed hearings at the commencement of those proceedings. 8 Mr Murre lodged further written submissions on 25 September 2001 and wrote to the Registrar again on 26 September 2001. That letter requested that consideration be given to "expanding the topic of the hearing listed for 10 October to cover the submissions noted above, thus covering adequacy of search, the three documents previously referred to as well as Document 4." Mr Murre also noted that he would like to call seven witnesses who he named in the letter. 9 At the hearing on 10 October 2001, Mr Murre was legally represented by Ms Gerace. Ms Gerace withdrew several of Mr Murre's submissions including any application to call further witnesses. Ms Gerace also made it clear that Mr Murre was not pursuing his claim so far as it alleged any inadequacy of search in relation to documents created or held by Kaylene Kreuzer relating to details of statements by An informant. 10 Ms Gerace did not press all of the evidence and submissions contained Mr Murre's letters to the Tribunal. In particular, she did not press his submissions about closing the Tribunal to hear his evidence and submissions. Adequacy of search 11 The outstanding "adequacy of search" issues can be identified as: · further documents on the Operation Mashti file; · memo to head master of Newington College; and · Person of Interest (POI) Profile. 12 Operation Mashti file . In relation to the Operation Mashti file, the only additional evidence lodged since the initial hearing was a confidential statement of DS Linkenbagh dated 13 September 2001. Mr Murre did not put any further evidence or submissions in relation to adequacy of search issues on that file. 13 Memo to head master. A memo allegedly from an administrator of Newington College to the head master of the College was tendered. That memo, dated 4/9/96 states, in part, that: After you had left last night, Mrs X (mother of Y, the boy associated with MU) phoned. She has been to the Child Protection Agency, and she needs to speak with you urgently, please. 14 Ms Gerace asked the Tribunal to draw an inference on the basis of this file note, firstly that Mrs X contacted the Child Protection Enforcement Agency (CPEA) and secondly that following that contact, documents would have been created which come with Mr Murre's FOI application. Mr Klarica for the agency submitted that no such inferences arise from the memo. 15 Person of Interest Profile. Ms Gerace submitted that the agency had not provided any Person of Interest Profile in relation to Mr Murre, which she said would be on the file. No evidence was adduced about the likelihood of the existence of such a document. The only information about the so-called Person of Interest Profile was a comment by Mr Murre that he was told that the police should have such a document. 16 The law about whether or not an agency has adequately searched for documents was developed in this Tribunal in the decision of Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52. In that decision Member Smith concluded at [8] that ". . .the power to make a determination that 'access to the document is ...to be refused', . . encompass(es) a refusal on the ground that a document or additional documents within the terms of the request cannot be identified or located . . ." Member Smith went on to say at [13] that: When reviewing the determination, the Tribunal must consider on the evidence before it whether the correct or preferable exercise of the s 24 power would be to refuse the request or part of it on the ground that a document, or additional documents, falling within its terms are not "held" by the agency. As with other grounds for refusing access, the onus is on the agency to justify such a conclusion (see s 61). 17 I agree with this analysis. Member Smith also discussed the Tribunal's role in determining "adequacy of search" applications. He said, at para 19, that: All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. 18 The evidence, based on further searches and the confidential statement of Detective Sergeant Linkenbagh, is that no further relevant documents are held by the agency on the Operation Mashti file. Applying the principles set out above, I affirm the agency's decision under s 24 to refuse that part of Mr Murre's request which relates to any further documents on the Operation Mashti file because I am satisfied no further documents are "held" by the agency within the meaning of that word in s 6(1) of the FOI Act. 19 In relation to the memo referring to Mrs X, again I must weigh the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. The memo itself is not reliable evidence because it contains hearsay information about what Mrs X apparently said to an administrator at Newington College. Neither the administrator nor Mrs X was called to give evidence. The memo by itself is a weak basis for a suspicion that Mrs X contacted the CPEA, and that a record was made of that contact. Detective Sergeant Linkenbagh's evidence was that all files relating to the investigation of Mr Murre had been produced. On the basis of all the evidence, I affirm the agency's decision to refuse that part of Mr Murre's request which relates to any further documents relating to Mrs X because I am satisfied that no further documents are "held" by the agency within the meaning of that word in s 6(1) of the FOI Act. 20 In relation to the Person of Interest Profile, Detective Sergeant Linkenbagh's evidence was that there were no further documents meeting Mr Murre's request. Mr Murre did not provide any evidence which would raise a suspicion that such a document exists. Again, I affirm the agency's decision to refuse that part of Mr Murre's request which relates to any further document entitled Person of Interest Profile. I am satisfied that no such document is "held" by the agency within the meaning of that word in s 6(1) of the FOI Act. Access 21 Documents over which an exemption is claimed are: · Information/intelligence report I 9406016; · Information/intelligence report I 5496629; · Information Report Summary I 6065054; and · Document 4. Relevant statutory provisions 22 Section 25(1)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document in accordance with one or more of the grounds of exemptions referred to in Schedule 1 of the Act. Section 25(4)(a) 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 with the exempt matter deleted. Section 28(3) provides that an agency is not required to include in a notice any matter that is of such a nature that its inclusion in the notice would cause the notice to be an exempt document. Similarly, s 55 of the FOI Act provides that the Tribunal is to ensure that it does not disclose any exempt matter in the reasons for its decision or otherwise. 23 Relying on s 28(3) of the FOI Act, the agency identified the exemptions on which it relied as being contained in Clause 4 of Schedule 1 to the FOI Act. In their view, further identification of the specific clauses on which they relied would disclose exempt matter. Clause 4 provides that: (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. (3) A document is an exempt document if it is a document that has been created by: (a) the 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 or the former Bureau of Criminal Intelligence. (4) In this clause, a reference to the law includes a reference to the law of the Commonwealth, the law of another State and the law of another country. 24 None of the agencies involved fall within Cl 4(3). Respondent's submissions 25 The agency argued that the exemptions relied on and the nature of the information contained in the documents should not be identified with any more precision because to do so would cause their notices of determination to be exempt documents under s 28(3) of the FOI Act. In addition, the agency submitted that the Tribunal should not identify the exemptions relied or the nature of the information in the documents because to do so would disclose exempt matter in the reasons for decision contrary to s 55(a) of the FOI Act. 26 During the hearing, I accepted the agency's submission about disclosure of exempt material during the course of the hearing and in these reasons for decision. I cannot set out my reasons for that decision without disclosing what I consider to be exempt material. While I appreciate that this means that the decision is not transparent in the usual sense, the provisions of the FOI Act make transparency in these circumstances subordinate to the principle that exempt matter should not be disclosed. 27 The agency tendered a "confidential statement" of Inspector Koopman dated 30 July 2001, which annexed a copy of the three intelligence reports (Exhibit A). I directed that this evidence remain confidential. Similarly, the agency tendered a "confidential statement" of Detective Sergeant Linkenbagh dated 13 September 2001 in relation to Document 4 (Exhibit C). 28 At the hearing on each day, the agency requested that the Tribunal receive evidence and submissions in the absence of the applicant under s 55 of the FOI Act. I granted those applications and during those sessions I heard confidential evidence and submissions. Applicant's submissions 29 In his submission dated 25 September 2001, Mr Murre said that for intelligence reports to be relied on to support the exemption claimed it must be established that these reports are true. This submission was subsequently withdrawn. 30 On behalf of the applicant, Mr Gerace stated that Mr Murre is aware of a number of informants and or witnesses which relate to his criminal trial. Three informants/witnesses were named. The submission was that if the objection to disclosure of the document is on the basis of Cl 4(1)(b), then Mr Murre already knows the names of certain informants and witnesses. 31 Similarly, Ms Gerace submitted that if there was any reliance on Cl 4(1)(e), that disclosure of the documents would not prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law. Allegations against Mr Murre have already been investigated and have resulted in him being charged with certain paedophile offences. The documents may be relevant to his defence and should be disclosed for that reason. 32 Mr Gerace pointed out that one of the issues in Mr Murre's criminal trial will be the credit of an alleged victim of Mr Murre. Ms Gerace submitted that the circumstances in which the alleged victim came to be contacted by police is critical to his credit. Reasoning and decision 33 The agency bears the burden of establishing that the determinations made in this case are justified: s 61 of the FOI Act. 34 Information/Intelligence Reports. I am satisfied on the basis of the confidential evidence and all the submissions that these reports are exempt documents within Clause 4 of Schedule 1 to the FOI Act. It is not practicable to give access to a copy of the document with the exempt matter deleted. 35 Document 4. The confidential statement of DS Linkenbagh dated 13 September 2001 sets out his evidence as to why the document is regarded as exempt under Clauses 4 of Schedule 1 to the FOI Act. I am satisfied having read the document and DS Linkenbagh's statement of 13 September 2001 that this document is exempt. It is not practicable to give access to a copy of the document with the exempt matter deleted. 36 Disclosure of the reasons for this decision would disclose exempt matter. I cannot address Mr Murre's submissions, even in a hypothetical way, without disclosing exempt matter. Responding to those submissions would, in my view, enable Mr Murre to deduce the nature of the exempt material. While I appreciate that I have not provided what would normally be regarded as adequate reasons for my decision, I have no other option. 37 The next question is whether the Tribunal has power to grant access to the documents despite the fact that they are exempt documents and if so, whether it should do so. In the agency's submission, the Tribunal has no such "override" discretion. This issue has been discussed in several previous Tribunal decisions. Without canvassing the arguments again in this decision, I rely on the Tribunal's reasoning in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85] as the basis for my conclusion that such a discretion exists. 38 Neither the agency nor the applicant provided any submissions about the factors that the Tribunal should take into account in exercising such a discretion, on the assumption that it exists. 39 The nature of the override discretion in relation to exempt material generally was discussed by the Tribunal in Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 at [90] and [91]: In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)). 40 In this case, there is nothing about the information itself or the surrounding circumstances which persuades me that the exemptions relied on should not be claimed. On the contrary, this case is a classic example of a situation where withholding the documents is "reasonably necessary for the proper administration of justice." 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