Appeal Panel - Internal CITATION: XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2 APPLICANT XZ PARTIES: RESPONDENT Commissioner of Police, NSW Police Force FILE NUMBER: 089038 HEARING DATES: 24 July 2008 SUBMISSIONS CLOSED: 3 September 2008 DATE OF DECISION: 20 January 2009 BEFORE: Hennessy N - Magistrate (Deputy President); Handley R - Deputy President; Bolt M - Non-Judicial Member CATCHWORDS: Varying reasons for decision on appeal, applicability of exemption for documents affecting law enforcement. DECISION UNDER APPEAL: XZ v Commissioner of Police, NSW Police [2008] NSWADT 106 FILE NUMBER UNDER APPEAL: 073096 DATE OF DECISION UNDER APPEAL: 04/09/2008 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 RT v Commissioner of Police, NSW Police [2005] NSWADT 270 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (No 2) [2005] NSWADTAP 33 Saleam v Commissioner of Police, NSW Police Service [2002] NSWADT 40 CASES CITED: Re Lawless and Secretary to Law Department (1985) 1 VAR 42 Re Russo and Australian Securities Commission (1992) 28 ALD 354 DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 Re McEneiry and Medical Board of Queensland [1994] 1 QAR 349 Ainsworth v Criminal Justice Commission (1999) QICmr 10 Re Gold and Australian Federal Police (1994) 37 ALD 168 APPLICANT V Pigott, agent REPRESENTATION: RESPONDENT A Johnson, solicitor 1. The agency's decision to refuse access to Information Report I 21636782 is set aside ORDERS: 2. In substitution for that decision a decision is made to give XZ access to that document 3. This decision comes into effect 28 days from the date of this decision. REASONS FOR DECISION Introduction 1 On 10 January 2007, XZ applied under the Freedom of Information Act 1989 (FOI Act) for copies of certain policy documents and for all documents that indicate that he had been involved in "activity by sitting inside vehicles and masturbating whilst children attend and leave school grounds". One of the documents that the Commissioner identified as falling within the scope of the request, and the only document still in dispute, is Information Report I 21636782 (the document). The Commissioner said that the entire content of that document is exempt from disclosure because it would prejudice the effectiveness of a lawful method for preventing, detecting, investigating or dealing with a contravention of the law: FOI Act, Schedule 1, clause 4(1)(e). XZ applied to the Tribunal for a review of that decision. The Tribunal affirmed the Commissioner's decision. XZ has appealed against the Tribunal's decision on questions of law and applied for leave for the appeal to be extended to a review of the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 (ADT Act), section 113(2). Extension to the merits 2 During the hearing of the appeal we gave leave for the appeal to be extended to the merits of the Tribunal's decision. We did so for four main reasons. Firstly, the only issue in dispute is a narrow one, that is whether the correct and preferable decision is to refuse to give XZ access to a single document. Secondly, the grounds of appeal raised several potentially complex questions of law including issue estoppel, adequacy of reasons, bias and breach of procedural fairness. Rather than deal with each of those grounds, we regarded it as quicker and fairer to deal with the merits of the Tribunal's decision. Thirdly, we had some difficulty identifying the basis for the Tribunal's decision and no confidential reasons were provided. Fourthly, the Appeal Panel formed a preliminary view that the exemption in clause 4(1)(e) did not apply to the document. 3 The Tribunal's role after giving leave for an appeal to extend to the merits of the Tribunal's decision is set out at section 115 of the ADT Act: (1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned. (3) In determining any such appeal, the Appeal Panel may decide: (a) to affirm the decision, or (b) to vary the decision, or (c) to set aside the decision and make a decision in substitution for the decision it set aside. 4 After the Appeal Panel gave leave to extend the appeal to the merits, the Commissioner applied to amend the reasons for decision by relying not only on the exemption in clause 4(1)(e), but also the exemption in clause 4(1)(b) to Schedule 1 of the FOI Act. 5 We gave the Commissioner leave to amend the decision and directed Mr Pigott, acting as agent for XZ, to file and serve any further written submissions by 7 August 2008. The Commissioner was directed to file and serve any further submissions in response by 21 August 2008. Mr Pigott filed his submissions on 12 August 2008 and the Commissioner filed submissions in reply on 3 September 2008. 6 At one stage Mr Pigott sought to file fresh evidence before the Appeal Panel but after some discussion he acknowledged that that evidence was not relevant and withdrew it. Issues 7 Mr Pigott submitted that it was an abuse of process for the Appeal Panel to have allowed the Commissioner to amend its decision to rely on clause 4(1)(b). The first issue is whether we accept that submission. If not, the second issue is whether the elements of clause 4(1)(b) or (e) have been met in this case. If they have, the final question is whether, despite the document being an exempt document, we should nevertheless give XZ access to the document (the so-called 'override discretion' issue). Abuse of process? 8 Mr Pigott noted that the Tribunal has decided in two previous cases that XZ should not be given access to the document. In RT v Commissioner of Police, NSW Police [2005] NSWADT 270 the Commissioner relied on clause 4(1)(a), clause 4(1)(e) and clause 13(b). At [38] the Tribunal held that: 38 After reviewing the documents that fall within this category, I am satisfied that the documents identified as 'Information Report I 21636782' contains matter that falls within the exemption provided by clause 4(1)(e) of Schedule 1 and ought not be released. 9 The Tribunal considered the issue again at first instance in these proceedings and said at [14] that: 14 At the conclusion of the hearing on 19 September 2007 I rejected Mr Pigott's argument and determined that Information Report I 21636782 should not be released. I agree with the Commissioner's submission and I am satisfied that the document identified as 'Information Report I 21636782' contains matter that falls within the exemption provided by clause 4(1)(e) of Schedule 1 to the FOI Act. 10 Mr Pigott submitted that the Appeal Panel is wrong to allow the Commissioner to rely on an exemption that was not relied on in either case at first instance. The basis for that submission was said to be either the Tribunal's "inherent power" to prevent a misuse of its procedure or in accordance with section 73(5)(h) of the ADT Act which allows the Tribunal to dismiss proceedings if it considers them to be "frivolous or vexatious or otherwise misconceived or lacking in substance". 11 Being a creature of statute, the Tribunal has no inherent power to dismiss a claim or defence because it is an abuse of process. The dismissal of proceedings under section 73(5)(h) would not assist XZ as he has instituted the proceedings. However, the Tribunal does have power to determine its own procedure and to amend proceedings if the Tribunal considers this to be necessary in the interests of justice: ADT Act section 72(1) and section 81. In our view, those powers allow the Tribunal to prevent an agency from amending its reasons for decision. 12 In this case there is no suggestion that the Commissioner failed to rely on the exemption in clause 4(1)(b) for some improper or collateral purpose. It appears that the possible application of that provision was overlooked. Although the principle that there should be finality in litigation is an important one, raising a further reason for a decision on appeal may be justified where the Appeal Panel extends the appeal to the merits of the Tribunal's decision. 13 The Appeal Panel's role when conducting a merits review is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. In addition, the Appeal Panel may exercise all the functions that are conferred or imposed on the Tribunal at first instance: ADT Act, section 63. The Tribunal is conducting a re-hearing, rather than a hearing de novo: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. As long as the rules of procedural fairness have been followed, the Tribunal is empowered to allow a respondent to add a further ground of exemption during the course of the hearing. The Appeal Panel has done so previously in the case of Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (No 2) [2005] NSWADTAP 33 (23 June 2005) at [2]. Of course, the onus remains on the Commissioner to establish that the exemption applies: FOI Act, section 61. XZ's knowledge of the content of the document 14 XZ accepts that he does not know the content of the document but has made submissions on the basis that it relates to one of two types of complaint made about him. He says that the first possibility is that it relates to complaints that Senior Constable Bill Pearson said had been made about him using a pair of binoculars to spy on people at the Weir Reserve in Penrith. The second possibility is that it relates to two Information Report Summaries (I 23079765 created on 23/11/2004 and I 42749101 created on 28/9/2004) both submitted by Inspector Kevin Dodds, which refer to him having sat inside vehicles and masturbated while children came to and from school. The first Information Report states, in part, as follows: A check on the Intel system indicates that the POI has been involved in activity by sitting inside vehicles and masturbating whilst children attend and leave school grounds. 15 The second Information Report states, in part, as follows: Of concern is a crime stoppers phone in indicates that he is a suspect for masturbating (sic) outside of schools in his vehicle whilst the children arrive at and leave from school. 16 XZ denies the allegation that he had been using a pair of binoculars to spy on people at the Reserve. He also denies that he has been sitting inside vehicles and masturbating while children attend and leave school grounds. Mr Pigott conceded that he had no relevant evidence to support XZ's suspicion that the complaints made about XZ were false other than that XZ denies the allegations. Mr Pigott also said that XZ suspected that Inspector Dodds might have been involved in the provision of the information in the document. Ms Johnson assured Mr Pigott that the submitting officer referred to in the document under review was not Inspector Dodds. We now turn to consider whether either of the exemptions in clause 4(1)(b) or (e) of the FOI Act apply to the document. Documents affecting law enforcement and public safety 17 Clause 4 to Schedule 1 of the FOI Act sets out the circumstances in which documents affecting law enforcement and public safety are exempt from disclosure. Clause 4(1) states 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. (Emphasis added.) 18 Mr Pigott submitted that even if the document was exempt pursuant to clause 4 it should be released because of the exception in clause 4(2)(v) (incorrectly identified in Mr Pigott's submission as clause 4(2)(a)(iv)) which states that: (2) A document is not an exempt document by virtue of subclause (1): (a) if it merely consists of: (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. 19 Mr Pigott also pointed out that we should not refuse access to an exempt document if it is practicable to give access to the document from which the exempt matter is deleted. He emphasised that XZ was not seeking the name of the informer, just the information provided by the informer: FOI Act, section 25(4). Prejudicing the effectiveness of lawful investigation methods - clause 4(1)(e) 20 Our preliminary view was that clause 4(1)(e) does not apply to the circumstances of this case. Ms Johnson submitted that while it is well known that anonymous phone calls are a methodology that Police use, the disclosure of confidential information provided by that means would prejudice the effectiveness of that methodology. She said that this is not a case where the methodology itself is confidential, rather the Commissioner seeks to protect the effectiveness of Crime Stoppers as a methodology, Police need to be able to assure informants that information they provide will remain confidential. Ms Johnson also referred to the mosaic effect which was discussed in Saleam v Commissioner of Police, NSW Police Service [2002] NSWADT 40. Ms Johnson submitted that the mosaic effect is a metaphor for the proposition that the Appeal Panel (and respondent) cannot know what knowledge XZ has about whatever is contained in the intelligence report. If any parts of the report are released he might be able to knit together those parts with knowledge acquired elsewhere and thereby infer the existence or identity of an informant. 21 Notwithstanding Ms Johnson's submissions, we have come to a conclusion which is consistent with our preliminary view. The exemption in clause 4(1)(e) undoubtedly covers the disclosure of the methods or procedures themselves as long as they are not commonplace or well known: Re Lawless and Secretary to Law Department (1985) 1 VAR 42; Re Russo and Australian Securities Commission (1992) 28 ALD 354 at 357. Ms Johnson conceded that the practice of obtaining information through informants whose identity remains confidential is so well known and routine that disclosure of that method or procedure could not reasonably be expected to prevent its effectiveness. 22 It is less clear whether the exemption covers disclosures which would indirectly prejudice the effectiveness of the methods or procedures. Ms Johnson's submission was that the Crime Stoppers phone line is based on the principle that callers may remain confidential. She said if that principle is undermined by the disclosure of information that has been given anonymously, then the effectiveness of Crime Stoppers as a methodology could reasonably be expected to be prejudiced. There is no authority of which we are aware which directly supports that interpretation and there is some authority which contradicts it. In Re Anderson (1986) 11 ALD 355 at 365, the Administrative Appeals Tribunal said in relation to the comparable provisions in the Commonwealth Freedom of Information Act 1982 (Cth) that: In my view, however, a document which discloses intelligence gathered by the police, but reveals nothing as to the source of that information or as to lawful police methods or procedures, is not within the potential scope of the exemption provided by s 37(1)(b) or s 37(2)(b). Claims of exemption under other provisions of the Act may, however, arise in such cases. 23 The Appeal Panel agreed with that interpretation in DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215, providing the following reasons at [53] – [55]: 53 In its original determination the agency relied on cl 4(1)(e) (prejudice methods of investigation). There were only brief submissions addressed to the point in the written submissions presented at hearing. It is plain on the face of the document as to the police operation within which the information was received. The contention seems to be that to disclose the identity of a source of information would 'prejudice the effectiveness of [a] lawful method of investigation' such as the one here. 54 In my view the categories of exemption set down in cl 4(1) should be read, ordinarily at least, as covering different aspects of policing and law enforcement functions. The exemption relevant to the protection of sources of information, therefore, is cl 4(1)(b) - that is clearly its subject matter. On the other hand cl 4(1)(f) is addressed to 'methods' or 'procedures' for preventing, detecting, investigating or dealing with crime or other possible contraventions of the law. Here the subject matter is in my view a different one – to do with protecting from exposure methods of investigation which if known to their targets would impede their usefulness. A typical instance is the use of covert surveillance. See generally Re Anderson (1986) 11 ALD 355. 55 In my view this exemption is not relevant to the present circumstances. The method of investigation employed in this case is a well known one that depends on wide publicity for its effectiveness. 24 We agree with this interpretation as it applies to clause 4(1)(e). It follows that the exemption in that clause does not apply to the document. Confidential sources of information – clause 4(1)(b) 25 Clause 4(1)(b) exempts matter the disclosure of which 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 elements of clause 4(1)(b) are as follows: 1. the existence of a confidential source of information; 2. that the information in the document must relate to the enforcement or administration of the law; and 3. disclosure of the information could reasonably be expected to (a) enable the existence of a confidential source of information to be ascertained or (b) enable the identity of the confidential source of information to be ascertained. 26 Existence of a confidential source of information. A source of information is confidential if it is provided under an express or implied pledge of confidentiality: Department of Health v Jephcott (1985) 8 FCR 85 per Forster J at 89. In order to determine whether that is the case all the relevant circumstances need to be taken into account: Re McEneiry and Medical Board of Queensland [1994] 1 QAR 349 at 371. We are satisfied, having read the document, that a confidential source of information exists. (The next two sentences are subject to a suppression order) We agree with Mr Pigott's submission that the question of whether the source of the information is confidential must be ascertained at the time of the hearing but there is no basis for concluding that confidentiality has been lost or abandoned in this case: Ainsworth v Criminal Justice Commission (1999) QICmr 10 (17 December 1999) at 18. 27 Enforcement or administration of the law. The second element is that the information relates to the enforcement or administration of the law. It is clear from the content of the document that it relates to the enforcement of the criminal law. Mr Pigott's submission was that if the report was made falsely or maliciously it did not relate to the enforcement or administration of the law and should be released. There is authority in relation to the equivalent provisions in the Commonwealth FOI Act, that neither the correctness of the information nor whether it was provided in good faith affects the operation of the exemption. In Re Gold and Australian Federal Police (1994) 37 ALD 168 at 174 the Administrative Appeals Tribunal said: Whatever the personal motivation of the source for which confidentiality is claimed, the information may be of relevance to law enforcement agencies. Motive alone, therefore, is not necessarily sufficient to exclude the material from relating to "the enforcement or administration of the law". As a matter of public policy, informants are encouraged by having their anonymity preserved to bring information concerning potential breaches of the law to the attention of the authorities. Even without the statutory protection provided by s 37(1)(b), the courts have recognised the need for the protection of the identity of such informers: see D v National Society for the Prevention of Cruelty to Children [1978] AC 171; [1977] 1 All ER 589. No doubt some of the information will transpire to be true and some of it will be useful, and some of it will be not true and some of it may transpire to be irrelevant. The full Federal Court in the Department of Health v Jephcott (1985) 9 ALD 35; 62 ALR 421 rejected any suggestion that in assessing whether or not to grant exemption under the provisions of s 37(1)(b), the decision-maker was involved in balancing public interest considerations of this sort. 28 We agree with this view which is consistent with the fact that the exceptions to clause 4(1) are listed in clause 4(2) and there is no exception for the giving of false or malicious information, nor is there a general public interest test applicable to clause 4. 29 Could reasonably be expected. The third element of clause 4(1)(b) requires the Tribunal to apply the "could reasonably be expected" test. That phrase should be given its ordinary meaning. Little is gained by substituting a different form of words in an attempt to explain what the phrase means. 30 Ascertain the existence of a confidential source of information. By relying on the exemption in clause 4(1)(b) the Commissioner has effectively disclosed that, at least in their view, a confidential source of information exists. It may have been open for the Commissioner to have relied on section 28(3) of the FOI Act which 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." It is arguable that the Commissioner could have excluded the document from the notice of determination in order not to disclose the existence of a confidential source of information. We make no finding as to whether that is a legitimate application of section 28(3). Nevertheless, by disclosing the existence of Information Report I 21636782 and relying on clause 4(1)(b), XZ can be taken to be aware that the Commissioner maintains that the document discloses that a confidential source of information exists. Our focus is therefore on whether the identity of that source could reasonably be expected to be disclosed if the document is released. 31 Ascertain the identity of a confidential source of information. Mr Pigott submitted that the exemption operates to prevent disclosure of the existence or identity of a confidential source of information, but not the actual confidential information itself unless its disclosure would reveal the identify of the informant. We agree with that submission. Clause 4(1)(b) is designed to protect the identity of the source of the information, not the information that the source provides. 32 Ms Johnson submitted that XZ might be able to ascertain the identity of the informant by reading the document. (The remainder of this paragraph is subject to a suppression order.) 33 We must determine whether it "can reasonably be expected" that disclosure would allow XZ to ascertain the identity of the confidential source of information. (The remainder of this paragraph is subject to a suppression order.) 34 The other possibility put forward by Ms Johnson is that XZ could ascertain the identity of the person on the basis of information he already knows combined with the document itself (the so-called mosaic effect). (The remainder of this paragraph is subject to a suppression order.) 35 It follows that the exemption in clause 4(1)(b) does not apply to the document and that XZ should be given access to the document. Order 1. The agency's decision to refuse access to Information Report I 21636782 is set aside 2. In substitution for that decision a decision is made to give XZ access to that document 3. This decision comes into effect 28 days from the date of this decision. 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.