Sawires v Commissioner of Police, NSW Police [2006] NSWADT 302

CITATION: Sawires v Commissioner of Police, NSW Police [2006] NSWADT 302

DIVISION: General Division

APPLICANT Emad Sawires PARTIES: RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 063160

HEARING DATES: 13/10/2006

SUBMISSIONS CLOSED: 10/13/2006

DATE OF DECISION: 10/25/2006

BEFORE: Handley R - Judicial Member

CATCHWORDS: access to documents - law enforcement & public safety - access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Freedom of Information Act 1989

Re Porter and Department of Community Services and Health (1988) 8 AAR 335 RT v Commissioner of Police, NSW Police [2005] NSWADT 270 Kennedy v NSW Police [2001] NSWADT 39 CASES CITED: Sobh v Victoria Police [1994] 1 VR 41 DZ v NSW Police [2002] NSWADT 274 Department of Health v Jephcott (1985) 62 ALR 421 Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35 Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349

APPLICANT In Person REPRESENTATION: RESPONDENT R Burdick, NSW Police

ORDERS: The Commissioner's decision not to release certain documents to Mr Sawires because they are covered by an exemption is affirmed

REASONS FOR DECISION Background 1 On 8 December 2005, Mr Sawires applied to the NSW Police for access to all documents held by the NSW Police in relation to him. By letter dated 13 December 2005, the Acting Co-ordinator, Freedom of Information, NSW Police, notified Mr Sawires of his decision to refuse access to the documents requested on the ground that to process the application would substantially and unreasonably divert the resources of the Office to the detriment of other applications. On 12 January 2006, Mr Sawires applied for an internal review of this decision. At the request of the NSW Police, he subsequently narrowed the range of documents to which he sought access "to COPS Events, Intelligence Reports, criminal history, including any statements which may come to light while undergoing my criminal history search". 2 By letter dated 14 March 2006, the Deputy Director of the Compliance Law Division, Legal Services, NSW Police, notified Mr Sawires of her decision on an internal review to release certain documents or parts of documents (with deletions made on the ground that some of the material is exempt pursuant to Sch 1, cl 6 (documents affecting personal affairs) of the Freedom of Information Act 1989 ('the FOI Act')), but to refuse access to other documents on the ground that those documents are exempt pursuant to Sch 1, cl 4 (documents affecting law enforcement and public safety). 3 On 11 April 2006, Mr Sawires applied to the Tribunal for the review of this decision. During the course of pre-hearing discussions, Mr Sawires agreed to limit his request for a review by the Tribunal to five documents listed in the internal review decision: document 23 - Information Report I25137122; document 24 – Information Report I22306601; document 25 – Event No E23350752; document 26 – Event No E25660545; and document 27 – Event No E25396824. Access to these documents was refused on the ground that the documents are exempt pursuant to Sch 1, cl 4(1)(a) or (b) of the FOI Act. The Relevant Law 4 Pursuant to s 16(1) of the FOI Act, "[a] person has a legally enforceable right to be given access to an agency's documents". However, s 25(1)(a) permits an agency to refuse access to a document if it is an "exempt document", the onus being on the agency to establish this. Section 25(4) 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 from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy. 5 Section 6(1) defines 'agency' as including a public authority and public office, and 'exempt document' as including a document referred to in any one or more of the provisions of Sch 1. The exempt documents in Sch 1 include, relevantly, those specified in cl 4(1), as follows: 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 ... NSW Police Evidence and Submissions 6 The NSW Police submits that document 23 is exempt pursuant to cl 4(1)(a), and documents 24 to 27 are exempt pursuant to both cl 4(1)(a) and (b). The NSW Police contends that all five documents contain material concerning matters in relation to police investigations that have not yet been finalised. Given the sensitive nature of the investigations, prejudice to the investigations could reasonably be expected should the documents be released to Mr Sawires and to the world at large. 7 The NSW Police contends that documents 24 to 27 contain information received under an implied understanding of confidence. The parties who supplied the information would have expectation that their identity and the information supplied would remain confidential because of the circumstances in which the information was provided. That the police are known to respect the confidentiality of information given to them and of the informants is crucial to effective policing in NSW. 8 The NSW Police contends that documents 24 to 27, being event and information reports created by police officers, by their very nature, concern the enforcement and administration of the law. The matters disclosed in the documents involve actual or possible breaches of the law, which the NSW Police has, and will continue, to investigate. The NSW Police submit there are reasonable grounds for its claiming the cl 4(1)(b) exemption in respect of these four documents, in the sense that the grounds are not irrational, absurd or ridiculous, but rather are based in reason: Re Porter and Department of Community Services and Health (1988) 8 AAR 335, at 337-339. 9 Ms Burdick, for the NSW Police, also called confidential evidence and made confidential submissions in closed session, my having determined it was necessary to do so pursuant to s 55(b) of the FOI Act. The paragraphs below in which that evidence and those submissions are summarised or discussed has consequently been suppressed. 10 Subject to suppression order. 11 Subject to suppression order. 12 Subject to suppression order. 13 Subject to suppression order. 14 Subject to suppression order. 15 Subject to suppression order. 16 Subject to suppression order. 17 Subject to suppression order. Mr Sawires' Evidence and Submissions 18 Mr Sawires said he has not been approached, questioned or arrested in relation to any breach of the law of a serious nature. He believes that unfounded and unjustified accusations have been made against him. He suspects that the five documents the NSW Police claim to be exempt are in relation to Elizabeth Kyrilos with whom he was involved in an intimate personal relationship for a period of two and a half years ending in May 2004. Mr Sawires said he has become aware that a number of accusations and reports to the NSW Police have been made about him by Ms Kyrilos, her family members and friends. 19 Mr Sawires said an Interim AVO was granted against him in 2004, and Ms Kyrilos then applied to the Local Court for an order for a period of 12 months, which was granted from 9 May 2005. Ms Kyrilos gave evidence and made allegations against him in Court in support of her application. She did not apply to have the AVO renewed when in expired in May this year, and no breaches of the AVO have been recorded. 20 Mr Sawires said since then, he has seen Ms Kyrilos and her father at the St George Coptic Orthodox Church at Kensington and at Arncliffe but has not spoken to them. He has received a telephone call from Ms Kyrilos' father who, however, spoke to Mr Sawires' father and Mr Sawires does not know what was said. Mr Sawires also received a telephone call from Ms Kyrilos on a private number. He contacted the police about the two calls so that there is a record of the calls having been received. However, he no longer has any relationship with Ms Kyrilos, although he holds no bad feelings against her. 21 Mr Sawires submitted that the documents contain information concerning his personal affairs to which he has a right of access under the FOI Act. If the documents relate to the AVO and the Tribunal considers them to be exempt, consideration should be given to releasing the documents to him with deletions, for example of names and addresses. He pointed out that he has already received a number of statements made by Ms Kyrilos and her family and friends to the police in relation to the AVO proceedings. 22 Mr Sawires cited a number of authorities in support of his submissions. For example, in RT v Commissioner of Police, NSW Police [2005] NSWADT 270, a matter which included claimed exemptions under cl 4(1)(a), Montgomery JM ordered the release of a number of documents with deletions. Discussion 23 I note that the words "reasonably be expected" in cl 4(1) are to be given their ordinary meaning - that is expectations that are reasonably based, as opposed to those that are irrational, absurd or ridiculous: Hennessy DP in Kennedy v NSW Police [2001] NSWADT 39 (at par 63). 24 With regard to cl 4(1)(a), in Sobh v Victoria Police [1994] 1 VR 41, at 55, Nathan J considered the meaning of the word 'prejudice' in the equivalent Victorian provision: "[p]rejudice is not a term of legal art. It means to impede or derogate from." In DZ v NSW Police [2002] NSWADT 274, at par 62, Hennessy DP, referring to cl 4(1(a), said: "The fact that this exemption applies both "generally" and "in a particular case" means that it could apply to unspecified contraventions, which have occurred or may occur in the future. Once an investigation has been completed, and there is little chance that it will be revived, then it will be difficult for an agency to establish that this exemption applies." (See also RT v Commissioner of Police, NSW Police [2005] NDSWADT 270, at par 33.) 25 The NSW Police submits that all five documents are exempt under cl 4(1)(a). Having examined the documents and considered the evidence and submissions, I am satisfied that documents 23, 24 and 25 are covered by the exemption. The release of these documents could reasonably be expected to prejudice the investigation of contraventions or possible contraventions of the law. However, I am not satisfied that documents 26 and 27 are covered, given that there seems to be a negligible possibility of there ever being any further investigation to determine whether there has been any contravention or possible contravention of the law related to these documents. As stated below, those documents are, nevertheless, covered by the cl 4(1)(b) exemption. 26 Subject to suppression order. 27 With regard to cl 4(1)(b), in the Full Federal Court decision in Department of Health v Jephcott (1985) 62 ALR 421, at 425, Forster J (Keely J agreeing) held that a source of information is confidential if the information was provided under an express or implied pledge of confidentiality. In Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35, the President of the Tribunal, O'Connor DCJ, said, at par 34, that: "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 ... .'" 28 The NSW Police submits that documents 24 to 27 are exempt under cl 4(1)(b). Having examined the documents and considered the evidence and submissions, I am satisfied that documents 25, 26 and 27 are covered by the exemption, it being clear from the circumstances that the informant provided the information on a confidential basis in relation to the enforcement of the law. However, I am not satisfied that document 24 is covered by the cl 4(1)(b) exemption. It is, nevertheless, covered by the cl 4(1)(a) exemption. 29 Subject to suppression order. 30 Having examined the documents, I am not satisfied that any of them can be released subject to deletions. 31 In conclusion, documents 23, 24 and 25 are exempt under cl 4(1)(a) of Sch 1 of the FOI Act; documents 25, 26 and 27 are exempt under cl 4(1)(b). Decision 32 The Commissioner's decision not to release certain documents to Mr Sawires because they are covered by an exemption is affirmed.