CITATION: Chirita v Commissioner of Police, NSW Police Force [2009] NSWADT 69 DIVISION: General Division APPLICANT Ion Chirita PARTIES: RESPONDENT Commissioner of Police, NSW Police Force FILE NUMBER: 083383 HEARING DATES: On the papers SUBMISSIONS CLOSED: 13 March 2009 DATE OF DECISION: 31 March 2009 BEFORE: Handley R - Deputy President CATCHWORDS: Access to documents – personal affairs LEGISLATION CITED : Freedom of Information 1989 Administrative Decisions Tribunal Act 1997 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 CASES CITED: Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Saleam v Director General, Department of Community Services [2002] NSWADT 41 University of NSW v McGuirk [2006] NSWSC 1362 Cianfrano v Director General, Premier's Department [2007] NSWADT 216 University of NSW v McGuirk (No 2) [2008] NSWADTAP 8 APPLICANT In person REPRESENTATION: RESPONDENT C Tipene, solicitor ORDERS: The decision under review is affirmed. REASONS FOR DECISION 1 This matter involves an application by Ion Chirita for the review of a decision of the Commissioner of Police ('the Commissioner') made under the Freedom of Information Act 1989 ('the FOI Act') to refuse access to parts of a document sought by Mr Chirita on the ground that those parts were exempt because they contained information concerning another person's personal affairs. Background 2 Mr Chirita was injured in a car accident in 2002 and suffers from a number of medical conditions including back and left leg pain. He uses a wheelchair. 3 On 22 October 2008, the NSW Police received a request from Mr Chirita for access to COPS (Computerised Information Policing System) Report E27585715. According to this COPS Report, on 13 August 2006, Mr Chirita became involved in a dispute with the College librarian at Abbey College in George Street, Sydney, where Mr Chirita had enrolled in a Database Administration Training course. Mr Chirita states the course was free, although it appears there was an 'administration fee' of $185 payable by those not in receipt of Centrelink benefits. The librarian refused to allow Mr Chirita to borrow a book from the library because there was only one copy: in such circumstances, it was College policy not to allow the book to be borrowed by any student. 4 The COPS Report states that on the morning of 14 August 2006, Mr Chirita returned to the library to again try and borrow the book. He became involved in an argument with College staff and, in particular, with Sam Rad, the Manager of the College. When Mr Chirita refused to leave, Mr Rad called the Police. The COPS Report states that on speaking with the Police, Mr Chirita was aggressive and constantly shouting over what was being said to him. Ultimately, Mr Rad said Mr Chirita had not paid for the course and issued him with a formal letter of disenrolment that was read to him by Police. When, on approaching the lift, having left the College premises, Mr Chirita tried to enter the office adjacent to the College entrance, the Police held Mr Chirita, turned him around and escorted him to the lift. Mr Chirita subsequently complained that he had been assaulted by Police. 5 On 24 October 2008, a delegate of the Commissioner responded to Mr Chirita's FOI request, determining to release most of the document to Mr Chirita but to refuse access to the remaining parts on the ground that disclosure of those parts would involve the unreasonable disclosure of information relating to the personal affairs of another person. Mr Chirita states that he received this determination on 21 November 2008. 6 On 9 December 2008, the Police received an application from Mr Chirita dated 2 December 2008 for a review of this decision. On 15 December 2008, another delegate of the Commissioner confirmed the original decision. On 23 December 2008, the Tribunal received Mr Chirita's application for a review of this decision. 7 On 10 February 2009, I conducted a Planning Meeting with the parties at which I gave directions for the filing of submissions. The parties agreed that, on receipt of the submissions, I should make a decision on the papers. The Relevant Legislation 8 The objects of the FOI Act are stated in section 5, as follows: 5 Objects (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. (2) The means by which it is intended that these objects are to be achieved are: (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and (b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and (c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading. (3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. (4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law. 9 Pursuant to section 16(1) of the FOI Act, "[a] person has a legally enforceable right to be given access to an agency's documents". However, section 25(1)(a) states that an agency "may refuse access to a document" if it is an "exempt document", the onus being on the agency to establish this (s 61). 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. 10 Section 6(1) defines 'agency' as including a 'public authority', defined in s 7(1) so as to include the NSW Police, and 'exempt document' as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents referred to in Schedule 1 include, relevantly, those in cl 6: 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. The Commissioner's Submissions 11 The Commissioner states that the exempt portions of the COPS Report contain the date of birth, home telephone number, mobile telephone number and home address of Mr Sam Rad, the victim and witness named in the COPS Report. The Commissioner submits this is information concerning Mr Rad's personal affairs. The meaning of the words 'personal affairs' has been held to mean "the composite collection of activities personal to the individual concerned": Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 ('Perrin's case'), per Kirby P at [625]. In Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 ('Martin'), at [51], Judicial Member Higgins found that "information relating to the name, address, date of birth, sex, driver licence number, home telephone number and mobile telephone number of the victim and the witness" provided to Police in the person's private capacity was personal information under cl 6(1). 12 The Commissioner submitted that disclosure of this personal information would be unreasonable in circumstances where Mr Rad provided the information to the Police in his private capacity in the course of the Police response to the incident. See Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 ('Re Chandra'), at [51]. 13 The Commissioner notes the incident the subject of the COPS Report occurred on 14 August 2006, and the Report confirms that the Police have not taken any formal action against Mr Chirita in respect of the incident. The Commissioner submits that, in these circumstances, Mr Chirita suffers no prejudice by reason of the refusal to release the exempt portions of the COPS Report. 14 With regard to the residual discretion to release documents notwithstanding that they are exempt, the Commissioner submits that the public interest against disclosure outweighs any public interest in disclosure in circumstances where (1) there is a need for individuals to report incidents to Police without fear that their personal information will be released to the person of interest, (2) the incident occurred over two years ago and no formal action was taken against Mr Chirita, and (3) the information does not relate to Mr Chirita and does not affect his ability to understand the COPS Report or the nature of the complaint that was made against him. Mr Chirita's Submissions 15 Apart from the 'Application for Review of a Decision' filed with the Tribunal, to which a number of documents are attached, Mr Chirita has filed statutory declarations dated 12 January 2009, 10 February 2009 and 25 February 2009, and submissions dated 2 March 2009. Mr Chirita refers to the complaints he has made against the Police to various NSW Government officers and agencies concerning the alleged assault to which, he says, he has had no satisfactory response. Indeed, he alleges he has been the subject of a Police conspiracy to try and cover up their "criminal actions". He also claims to have been discriminated against and to have been racially vilified. 16 Mr Chirita's declarations and submissions are repetitive and difficult to understand, but appear to focus largely on these allegations. He makes comments drawing comparisons with a fascist state, referring to Police tyranny, to Police having an "agenda like Adolf Hitler", and to his father being killed in Romania because of Mr Chirita's loyalty to Australia. In his submissions, Mr Chirita refers to the 'personal affairs' exemption claimed by the Commissioner but then proceeds to relate this to his own personal affairs and to Police seeking to protect their personal affairs. Discussion Is the Commissioner able to justify his decision to rely on the cl 6 exemption? 17 As stated above, where a person applies to the Tribunal for a review of a decision by an agency to deny access to documents on the ground that they are exempt documents, the burden of proof lies on the agency to establish that the determination is justified (s 61). For a document to be exempt under cl 6, firstly, it must contain "information concerning the personal affairs" of a person other than the applicant and, secondly, the disclosure of that information would be "unreasonable". What constitutes the "personal affairs" of a person has been discussed in a number of decisions both of the courts and of the Tribunal. In Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43, at [33], Deputy President Hennessy said the purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. 18 A leading authority on what constitutes the "personal affairs" of a person is the NSW Court of Appeal decision in Perrin's case where, at 625, Kirby P described 'personal affairs' as meaning "the composite collection of activities personal to the individual concerned". 19 With regard to when the disclosure of information is unreasonable, in Saleam v Director General, Department of Community Services [2002] NSWADT 41, at [38], the President of the Tribunal, O'Connor DCJ, followed the approach adopted by the Commonwealth Administrative Appeals Tribunal ('AAT') in Re Chandra, at [51]: "Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was being obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance." 20 However, as the AAT noted, at [52]: "consistently with the stated object of the Act (s 3), it is also necessary to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document." 21 In Martin, at [51], Higgins JM held that "information relating to the name, address, date of birth, sex, driver licence number, home telephone number and mobile telephone number of the victim and the witness ... provided to the police in their private capacity" was those persons' personal information which was prima facie exempt under cl 6(1). 22 In the current matter, the information the Commissioner claims to be exempt is that comprising the date of birth, home telephone number, mobile telephone number and home address of Mr Rad, the Manager of Abbey College and the person named as the "victim" in the COPS Report. As in Martin, I am satisfied that this information concerns Mr Rad's personal affairs and is unconnected with his role as Manager of the College, through which Mr Chirita could contact Mr Rad should he wish to do so. 23 With regard to whether disclosure of this information would be unreasonable, in the circumstances of this case – which include Mr Chirita's allegations of mistreatment by the College, I am satisfied that this is information Mr Rad is likely to not wish to be disclosed without his consent. Mr Chirita has not provided any explanation as to why he needs this information, and I am not satisfied there is any public interest in the disclosure of the information. For example, I am not aware of any reason why Mr Chirita should need this information in order to pursue his complaints against the Police or, indeed, against Abbey College. 24 Thus, I am satisfied that the parts of the document in issue are exempt. Should the residual discretion be exercised? 25 By virtue of s 63(2) of the Administrative Decisions Tribunal Act 1997 and s 25(1)(a) of the FOI Act, the Tribunal has a residual discretion to release documents otherwise found to be exempt pursuant to Schedule 1 of the FOI Act, and, in such a case, must consider whether to exercise its discretion to do so: University of NSW v McGuirk [2006] NSWSC 1362, at [102] (per Nicholas J). 26 In Cianfrano v Director General, Premier's Department [2007] NSWADT 216, at [24], O'Connor P summarised the relevant principles: "the following principles to guide the exercise of the discretion have emerged: (1) The Tribunal must first ascertain whether the matter is exempt matter. (2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption. (3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in section 5. (4) ... (5) ..." 27 The President noted that the objects clause of the Act (s 5) now has a greater degree of prominence than previously in Tribunal decisions. He said, at [27]: "Practical circumstances that might influence the Tribunal to exercise the discretion include: - whether the exempt matter was, by other means, in the public domain - whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant - the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity - the public interest in an informed debate on issues of significance to the community - whether there were adverse consequences for the proper administration of government, and their extent - whether any adverse consequence is remote or innocuous." See also University of NSW v McGuirk (No 2) [2008] NSWADTAP 8, at [18]. 28 Applying these principles in the current matter, I am not satisfied there are strong reasons justifying overriding the exemption. As stated above, there is no public interest in the personal information about Mr Rad being disclosed, nor is there any adverse consequence for the proper administration of Government in not doing so. Thus, I am not satisfied that I should exercise the Tribunal's residual discretion to release the exempt parts of the document. Decision 29 The decision under review 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.