Black v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 80

Appeal Panel - Internal

CITATION: Black v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 80

APPELLANT Phillip Ross Black PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Force

FILE NUMBER: 089050

HEARING DATES: 26 September 2008

SUBMISSIONS CLOSED: 26 September 2008

DATE OF DECISION: 8 December 2008

BEFORE: O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Bolt M - Non-Judicial Member

CATCHWORDS: Freedom of Information - Exempt Document - Confidential Source of Information - Relevant Considerations - Freedom of Information Act 1989, Sch 1, cl 4(1)(b) - Appeal Dismissed

DECISION UNDER APPEAL: Black v NSW Police Force [2008] NSWADT 177

FILE NUMBER UNDER APPEAL: 073246

DATE OF DECISION UNDER APPEAL: 06/19/2008

LEGISLATION CITED : Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997

University of New South Wales v McGuirk [2006] NSWSC 1362 CASES CITED: IPART v Services Sydney Pty Ltd [2008] NSWADTAP 79 House v The King [1936] HCA 40; (1936) 55 CLR 499

APPELLANT In person REPRESENTATION: RESPONDENT R Bhalla, Crown Solicitor's Office

ORDERS: Appeal dismissed

REASONS FOR DECISION 1 The appellant applied under the Freedom of Information Act 1989 (FOI Act) for access to documents held by the New South Wales Police Force. Some documents were refused. He applied for review by the Tribunal. The dispute narrowed to one document. The Tribunal held that the document was exempt, and affirmed the Police Force's determination in that regard. The appellant now appeals to the Appeal Panel under the Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. He has applied for leave to extend the appeal to the merits. 2 The Police Force relied on three exemptions in refusing access to the document. The principal one was the exemption contained in cl 4(1)(b) of Sch 1 of the Act, i.e. '(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.' 3 The Tribunal decided the case on that point, and did not consider the other exemptions on which the Police Force relied (cl 6 (privacy), cl 13(b) (confidential information)). 4 The Tribunal then went on to consider whether it should exercise the residual power to grant access to an exempt document, the power identified as flowing to the Tribunal from the agency discretion not to refuse access to an exempt document: see FOI Act, s 25; ADT Act, s 63(2); and University of New South Wales v McGuirk [2006] NSWSC 1362. It found that the discretionary considerations favour refusal. 5 The disputed document provides, the applicant believes, the explanation for an attendance by police officers at his home on 23 December 2005. They asked him to surrender firearms kept by him at his home under licence. He did so voluntarily. The police later suspended his licence, which he contested. The suspension has been lifted and the firearms returned. 6 The Tribunal refers in its decision to his marital circumstances at the time. The Tribunal states that he was living separately from his wife, and his wife was undergoing medical treatment. The Tribunal stated that the document contained information that was part of the information which prompted the police officers to take the action they did. 7 The Tribunal examined the document, referred to cl 4(1)(b) and stated at para [7] of its reasons: 'The document under review is clearly of this nature [i.e. one of the type to which cl 4(1)(b) refers], as a perusal of it amply demonstrates. There is essentially no part of this document which does not contain matter of which this sub-clause speaks. To endeavour to edit this document so as to delete exempt matter would render the document nonsensical.' 8 The Tribunal also noted that it was constrained by s 55 of the FOI Act, and must ensure that it did not reveal in its reasons any exempt material. It said at [8]: 'In such cases both an applicant and a respondent must place their trust in the Tribunal's independent status. This is one such case. Consequently, it is sufficient here to say that the information contained in the document satisfies the Tribunal, as matters of fact, that there is information in this document which would enable a reader to ascertain the existence and identity of a source of information which is a confidential source, that information having been obtained in confidence, and which relates to the enforcement and administration of laws properly falling within the powers of officers of police.' 9 In his notice of appeal, the appellant asserts that the document is known to him, and gives the name of a person who he says is its author, and who he says was the source of the decision of the police to attend at his home. The author, he asserts, is the psychologist who was at the time treating his wife, and should, he considers, have consulted him about references to the family circumstances. In our view, this is not a relevant matter when assessing the applicability or otherwise of cl 4(1)(b). The appellant has lodged a complaint against the psychologist with the Health Care Complaints Commission, a matter to which he refers in the notice of appeal. 10 At hearing, the appellant referred to the strain and embarrassment he had experienced by being the subject of a police approach of the kind that occurred. He has had a long history of using firearms for recreational purposes. He is concerned at the stain on his reputation that this approach involved. He wants to see and rectify the record. 11 In the internal review determination, the Police Force noted that the information in issue related to disputes between the appellant and his estranged wife. The determination also expressed concern that release 'could endanger the peace and good order of the families and the professional environments of the persons named in the documents under review'. Before coming to the Tribunal, the appellant exercised his right to have the determination reviewed by the Ombudsman. The Ombudsman agreed with the Police determination, in particular its reliance on cl 4(1)(b). 12 The burden of establishing that the determination is justified lies on the agency: FOI Act s 61. In this case the agency relied on an affidavit from the General Manager, Firearms Registry, Mr P Houlton. It referred to the importance of confidential reports to the administration of firearms licensing. The affidavit also contained confidential submissions as to the risks associated with release of this document. 13 In our view, the finding made by the Tribunal was clearly open to it to make on the evidence. 14 This is the kind of case where the Tribunal must necessarily be circumspect in what it says in its published reasons. It had to consider whether the document had contents provided by 'any confidential source of information', whether disclosure would 'enable the existence or identity' of that source 'to be ascertained' and whether the information was given 'in relation to the enforcement or administration of the law'. In our view, the Police provided cogent evidence on each of these matters, and the Tribunal properly addressed them. 15 It is open to the Tribunal, as the appellant contends, to give access to those parts of a document which do not contain exempt matter. The question is one of practicability (see FOI Act, s 25(4)). The Tribunal turned its mind to that question, and concluded that the document could not be edited or severed in a way that would avoid the harm to which cl 4(1)(b) is addressed. 16 The appellant refers in his notice of appeal to the objects of the FOI Act. The FOI Act is designed to promote transparency, and to provide persons the subject of inaccurate or unfair records with an opportunity to see them and have them amended. But those objects are themselves expressed to be subject to 'such restrictions as are reasonably necessary for the proper administration of Government'. The main restrictions are set out in the subject of the exemption provisions found in Sch 1 and Sch 2 of the Act. There is no untrammelled right for persons the subject of official records to see those records and have them corrected. 17 The appellant also submits that it was unjust of the Tribunal to have regard to confidential evidence. Ordinarily courts and tribunals proceed in the open. In a dispute over whether a document is to be withheld, it will sometimes occur that the agency will wish to proceed in closed session. It may wish to refer expressly to the contents of the document, or explain surrounding circumstances that justify its non-release. 18 The Parliament recognised these possibilities in s 55 of the FOI Act, in particular (b): ' 55 Procedure for dealing with exempt matter In determining a review application, the Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and (b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.' 19 The Tribunal was entitled to proceed in the way that it did. 20 The Tribunal went on to weigh the discretionary factors for and against release of the matter which it had found to be exempt. In our view, there must be a real doubt as to whether the residual discretion extends to matter which falls within the purview of the 'restricted documents' exemptions (cll 1, 2 and 4 of Sch 1). While the Tribunal in this instance was not called upon by the agency to engage in a 'reasonable grounds' inquiry (see s 57), it may well be that the scheme of the FOI Act is such that the broad power that the Tribunal has under s 63 of the ADT Act to make the 'correct and preferable decision' and, to that end, exercise all the functions vested in the administrator including the power not to refuse to disclose exempt matter, is ousted. See further IPART v Services Sydney Pty Ltd [2008] NSWADTAP 79. 21 In any event, we are satisfied that the Tribunal had regard to relevant considerations for and against discretionary release, and it made a decision that was open to it to make. There was no infringement of the relevant principles as enunciated in the line of authority flowing from the observations of the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505-506 per Dixon, Evatt and McTiernan JJ. 22 The notice of appeal also alleges some inaccuracies in the Tribunal's recording of the background circumstances to the document. Accepting for this purpose that the appellant is correct (for example, misstating number of children of the marriage, and misstating that the police's visit was in reaction to the document), these are not matters that, in our opinion, bore in any material way on the ultimate decision of the Tribunal. 23 Leave to extend the appeal to the merits is refused.