CITATION: Desmond v Commissioner of Police, NSW Police Service [2004] NSWADT 246 DIVISION: General Division APPLICANT PARTIES: Ken Desmond RESPONDENT Commissioner of Police, NSW Police Service FILE NUMBER: 043093 HEARING DATES: 30/07/2004 SUBMISSIONS CLOSED: 07/30/2004 DATE OF DECISION: 10/29/2004 BEFORE: Montgomery S - Judicial Member APPLICATION: access to documents - confidential material - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - law enforcement & public safety MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 Cain v Glass (No 2) (1985) 3 NSWLR 230 APPLICANT In person REPRESENTATION: RESPONDENT A Arnott, Solicitor Ms McDonald, Solicitor ORDERS: The Commissioner's decision is affirmed. 1 This is a review application under section 53 of the Freedom of Information Act 1989 ('the FOI Act'). On 24 March 2004 the Applicant applied to the NSW Police Service under section 17 of the FOI Act seeking the following documents: "Statement and other relevant documents provided by, for the purposes of this request, a person referred to as Internal affairs Informant 34 (1998) to the then Internal Affairs Section in August 1998." 2 On 3 April 2004 the Co-ordinator of the Freedom of Information Unit with the NSW Police Service determined that application. The Applicant was advised that: "After examining the file in question, I am able to inform you that I could not locate any document provided to Internal Affairs by the person known as "Internal Affairs Informant 34". In view of the fact that a copy of the document requested was unable to be located, you are so advised in accordance with Section 28(1)(b) of the Act." 3 The Applicant applied to the Tribunal for review of the decision. The Tribunal has jurisdiction to hear and determine the application pursuant to section 53 of the FOI Act and section 38(1) of the Administrative Decisions Tribunal Act 1997. The Applicant subsequently amended the application to seek access to: "statements or other relevant documents provided, or statements, record of any conversation, interview notes taken or any other documents pertaining to an interview with Internal Affairs Informant 34 (1998) to the then Internal Affairs Section in August 1998." 4 The Freedom of Information Unit treated this amended application as a fresh application and a decision was made to grant access to a two page running sheet ("the document") was given to the Applicant, however deletions were made to the document. The Commissioner asserted that the deletions were warranted because the document was an exempt document under clauses 4(1)(b) and 6(1) of Schedule 1 of the FOI Act. 5 The Applicant sought an internal review of the decision. That review was finalised on 22 July 2004. The Commissioner's delegate concluded that the document should be released subject to deletions on the bases of Clauses 4(1)(b), (c) and (e), 6(1) and 13(b) of Schedule 1 of the FOI Act. Detailed reasons were given for the decision and the Applicant was provided with a copy of those reasons. Issues on Review 6 The objects of the FOI Act, as identified in section 5, are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. The discretions conferred by the FOI Act are to be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. Pursuant to section 61 of the FOI Act the Commissioner has the burden of establishing that its determination was justified. In determining an application for review the Tribunal is to decide what the correct and preferable decision is having regard to the material before it and for that purpose may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. A copy of the relevant document was provided to the Tribunal on the understanding that it would not be revealed to the Applicant pending determination of this matter. 7 The issues in this application are whether the grounds on which the Commissioner has refused access to the entire document have been made out. That is, whether the Commissioner can establish that the exemptions on which access has been refused do in fact apply. 8 The relevant provisions of the FOI Act are found in section 25 and Schedule 1. Subsection 25(1) of the FOI Act allows an agency to refuse access to an exempt document in certain circumstances, including where a document is an "exempt" document as defined in the FOI Act. Subsection 25(4) of the FOI Act 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 if it appears to the agency that the Applicant would wish to be given access to such a copy. 9 Section 31 of the FOI Act provides in part that an agency shall not give access to a document containing information concerning the personal affairs of any person (otherwise than to the person concerned) unless the agency has taken steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1. 10 The relevant provisions of Schedule 1 of the FOI Act are: "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: … (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 … (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 …" "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." "13 Documents containing confidential material A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest." The Commissioner's case 11 The Commissioner asserts that the document in issue is exempt for several reasons. As noted above, these assertions are based on the provisions of Clause 4, Clause 6 and Clause 13 of Schedule 1 of the FOI Act. The Commissioner argues that Clause 4(1)(b) operates to protect the anonymity of people who supply information to the police or other authorities. The exemption is based on the fact that there is a public interest in maintaining the flow of information from informants to assist in the law enforcement activities of government agencies. A guarantee of anonymity is regarded as essential to people's willingness to pass information to the police. 12 It is further submitted that if the giver and receiver of the information did not expressly agree that the information was subject to an obligation of confidence, confidentiality must be implied from all the surrounding circumstances, such as the reason for the information being supplied, the nature of the information, the means by which it was supplied, whether or not an agency normally treats information from external sources in a confidential manner and an agency's reliance on external sources of information for its proper functioning and the administration or enforcement of the law. Accordingly, it is argued, where information is given by informers to the Police then, unless there is clear evidence to the contrary, it must be presumed that the information was given on a confidential basis. Further, it is generally to be expected that the identity of any informer will be kept confidential. 13 The Commissioner asserts that there is a reasonable, as opposed to irrational, absurd or ridiculous expectation that the disclosure of the information might reveal the identity of a confidential source of information. 14 The Commissioner also asserts that the document is exempt under Clause 4(1)(c) in that it contains matter the disclosure of which could reasonably be expected to endanger the life or physical safety of any person. The FOI Act contains no provision to impose conditions on how an applicant can use or disseminate the information provided. Release of the document would not merely be release to the Applicant but would be release to the world at large. It is possible that information contained within the document would permit the identity of individuals to be ascertained by criminal elements thereby putting the safety of those individuals at risk. 15 The Commissioner further asserts that the document is exempt under Clause 4(1)(e) of Schedule 1. It is submitted that this provision operates to protect methods for preventing, detecting, investigating or dealing with contraventions of the criminal law and revenue law. The exemption encompasses both actual and possible contraventions and is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law. It is argued that the information contained in the document might serve to disclose or confirm the lawful Police methods or procedures for preventing or detecting possible contraventions of the law. Accordingly any reference to the intelligence gathering procedures are exempt on the basis of Clause 4(1)(e) of Schedule 1 of the FOI Act and should be deleted. 16 With respect to the exemption claimed under Clause 6 of Schedule 1, the Commissioner asserts that information contained in the document consists of details of a personal nature including names, occupations and addresses of persons other than the Applicant. It is further asserted that it is not reasonably practicable to obtain the views of all persons who have been named in the document. On balance, the release of information concerning the personal affairs of others would be unreasonable in all the circumstances. It is submitted that the Applicant's right to know is outweighed by the public interest in refusing access to the information. 17 Pursuant to Clause 13(b) of Schedule 1 a document is an exempt document if it contains matter the disclosure of which would otherwise disclose information obtained in confidence, and could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and would, on balance, be contrary to the public interest. The Commissioner asserts that Law enforcement bodies such as NSW Police rely on the receipt of information from a variety of sources in order to facilitate the detection and prevention of crime. It would not be in the public interest for a situation to prevail whereby individuals were not confident that sensitive information provided by them to Police would be treated confidentially in appropriate circumstances. Unless the information were treated in a confidential manner, then there would be a reasonable prospect that the flow of such information to NSW Police would be adversely affected, with the result that the proper administration of NSW Police in the investigation of any contravention or possible contravention of the law would be restricted. It is further submitted that the factors against disclosure outweigh those in favour of disclosure. Given the sensitive nature of the information supplied, the public interest would require that the information be treated on a confidential basis. The Applicant's case 18 In essence the Applicant's case is that the much of the material contained in the document has already been released. He has been provided with a number of documents in which individuals have been named. He said that the information contained within the document was presented before the Police Integrity Commission. It has therefore been taken outside to a public place. The informant was aware that this happened and therefore, to some extent, the exemption claimed under Clause 4 of Schedule 1 has been waived. 19 The Applicant asserts that he already knows some of the information contained in the document. For example, he is aware of the names of particular individuals and a particular establishment has been identified. Therefore the exemption cannot be claimed in relation to that information. Despite the fact that he already knows the information, some of it has been deleted from the document. He argued that matters that have been raised in the public arena should not be concealed from this document. 20 The Applicant stated that he does not seek the informant's identity. He asserted that he wants to ensure that the integrity of the investigative process was followed. He said that the most serious allegations have been made, however proper procedure has not been followed in that no statement was taken from the informant. The public interest requires that a written statement be obtained. The document in issue should be released so that the integrity of the investigative process can be established. Findings and reasons 21 The Applicant has raised the issue of balancing the public interest in protecting the flow of information to law enforcement agencies and the public interest in ensuring that law enforcement agencies follow proper procedure and are accountable. 22 Much of the intelligence obtained by police is from informers who would be likely to suffer grievous consequences if it became known that they were supplying information to police. As a matter of public interest, law enforcement authorities and courts have struck a balance in favour of hiding the identities of informers in order to facilitate the detection and punishment of serious crimes. 23 In Cain v Glass (No 2) (1985) 3 NSWLR 230 Kirby P (as he then was) said at 234: "In the case of police informers, rules have developed, over many years, to protect the confidential basis upon which police deal with such informers. In part, this is for the defence of the particular witness involved. In part, it is to ensure a continuing flow of helpful information from such a witness. In part, it is to reassure the many other persons who, formally and informally, provide useful information to the police. Special care needs to be exhibited by any court approaching an application for the disclosure of the identity of a person said to be entitled to protection as a police informer." 24 In the same matter McHugh JA (as he then was) said at 247-248: "The justification for the exalted position of the informer rule in the spectrum of public interest immunity is that, unless the anonymity of informers is protected 'the flow of intelligence about planned crime or its perpetrators' will stop: D v National Society for the Prevention of Cruelty to Children (at 232) per Lord Simon of Glaisdale. Although the need to protect the safety of informers may have played a part in creating the principle, the existence of a threat to the informer is not a condition precedent to its operation. The paramount position of the informer rule produces the result in civil proceedings that the identity of an informer in a criminal case is not admissible in any circumstances ... The rule is absolute and is relaxed only "Where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence."" 25 I agree with the Commissioner's submission that unless there is clear evidence to the contrary, it must be presumed that information given by informers to police has been given on a confidential basis. In this matter there is no evidence to the contrary. Reasonable grounds exist for the Commissioner's claim that the document relates to confidential information provided in relation to the enforcement or administration of the law. In my view, disclosure of the document could reasonably be expected 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. The identity of an informer remains protected not withstanding that it may have become known in other proceedings. In any event, no evidence has been presented to show that information contained in the document has been publicly released. Accordingly, it is my view that the document is an exempt document as defined by Clause 4(1)(b) of Schedule 1 of the FOI Act. 26 The Commissioner also invokes the clause 13(b) exemption in respect of the document. While Clause 4(1)(b) focuses on the protection of information regarding the existence or identity of an informant, Clause 13(b) focuses on the character of the information supplied. 27 The first issue is whether disclosure of the information would disclose information obtained in confidence. For the reasons given above, I am satisfied that it would. 28 The second issue is whether disclosure 'could reasonably be expected to prejudice the future supply of such information to the Government or the agency'. Again I agree with the Commissioner's submission that unless the information were treated in a confidential manner, then there would be a reasonable prospect that the flow of such information to NSW Police would be adversely affected. The obvious reason why the sources are likely to dry up is the informers' fear of violence from those upon whom they had informed if their identity were to be disclosed: Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at 679-680. 29 The Tribunal must balance the public interest questions involved. In particular, the Tribunal must weigh up the competing public interests in the harm that might be done by production of the documents, and any frustration of or impairment to the administration of justice if the documents are withheld: Attorney-General for NSW v Stuart at 675. It would not be in the public interest if individuals were not confident that sensitive information provided by them to NSW Police would be treated confidentially in appropriate circumstances. In my view this outweighs the public interest in disclosure. On balance I am satisfied that release of the extracted parts of the document would be contrary to the public interest. 30 It follows, in my view, that the Commissioner's decision to release the document that is the subject of this application, subject to deletions, was the correct and preferable one. Accordingly, the Commissioner's decision 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.