Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Miller v Director of Public Prosecutions [2012] NSWADT 38 Hearing dates: On the papers Decision date: 08 March 2012 Jurisdiction: General Division Before: Judicial Member N Isenberg Decision: The Tribunal finds that the applicant had made an invalid application having sought access to "excluded information" . Legislation Cited: Government Information (Public Access) Act 200; Freedom of Information Act 1989; Interpretation Act 1987; Director of Public Prosecutions Act 1986 Cases Cited: DF v Director General, Attorney General's Department [2002] NSWADT 164; Cianfrano v NSW Ombudsman [2007] NSW ADT 273; Raethel v Director-General, Department of Education & Training [1999] NSW ADT 108 Category: Principal judgment Parties: Applicant - Allen Gregory Miller Respondent - Director of Public Prosecutions Representation: Applicant - in person Respondent - Crown Solicitors Office File Number(s): 113287 REASONs for DECISION Background 1The applicant is a former police officer and, in his former capacity, had brought criminal proceedings against 4 defendants, alleging fraud. The Office of the Director of Public Prosecutions (ODPP) took over the prosecution, but ultimately, the charges were dropped. 2By letter dated 21 June 2011, the applicant requested, under the Government Information (Public Access) Act 2009 ("GIPA") Act, copies of the documents listed in an attached schedule, which in essence, related to how the charges came to be dropped and the alleged misconduct of an officer of the ODPP in dropping the charges, about whom the applicant had complained. 3By letter dated 28 June 2011, the respondent informed the applicant that it considered the application to be invalid because it sought access to "excluded information" of the respondent, namely, information relating to its prosecuting functions: cl. 1 of Schedule 2 of the GIPA Act. 4By letter dated 22 September 2011 the Office of the Information Commissioner ("OIC") informed the respondent, amongst other things, that the applicant had requested internal review of its decision which was reviewable under s. 80(a) GIPA Act. 5By letter dated 10 October 2011, the respondent reconsidered the application and identified seven documents falling within categories suggested by the OIC. One related to the correspondence from the DPP to the applicant dated 27 September 2010, and the applicant was offered a copy in the event he had not retained it. 6The respondent decided to informally release 3 of the remaining documents, having consulted NSW Police, and notwithstanding that the information was considered to be "excluded information", on condition that the applicant agreed not to give the information to anyone else or publish it elsewhere. (Those documents, having been provided to the applicant , have not been considered in the context of "excluded information"). The respondent maintained the other 3 documents were excluded information. 7By application filed 7 October 2011, the applicant sought review of the respondent's decision. 8The respondent has provided copies of the documents to the Tribunal on a confidential basis. Issue 9At the planning meeting conducted on 15 November 2011 it was agreed that the Tribunal would make an interlocutory decision, on the papers, following submissions, as to whether the applicant had made a valid access application. Legislation 10Section 43 GIPA Act provides that an access application cannot be made to an agency for access to excluded information of the agency and such an application is not valid to the extent that the application is made in contravention of the section. 11Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. The schedule notes, as excluded information, prosecuting functions of the ODPP. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). CONSIDERATION Scope of Section 43 exemption 12The predecessor to the GIPA Act, the Freedom of Information Act 1989 ("FOI" Act), also provided for an exemption from the operation of that Act with respect to the prosecuting functions of the ODPP: s. 9 and Schedule 2. 13The OIC submitted that the terms of s 9 of FOI Act were wider than those of s43 GIPA Act in that s 9 provided that the exemption applied to the DPP in relation to it prosecuting functions whereas S43 of GIPA Act excluded, only, under the heading, 'Judicial and prosecutorial information', 'The ODPP- prosecuting functions'. It submitted that s 43 does not extend the prosecuting functions of the ODPP to matters "relating" to those functions, notwithstanding t he note to section 43(1) of the GlPA Act which states: Note Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (Tribunal underlining) 14The OIC referred to Section 35(2)(c) of the Interpretation Act 1987 which provides that the marginal notes, footnotes or endnotes in an Act or Instrument "shall be taken not to be part of the Act or instrument". S 35(4) of the Interpretation Act 1987, it was submitted , does not apply to render this note part of the text of the GlPA Act. Notes, it was submitted, are only usually considered in the construction of an enactment if the provision under consideration is ambiguous. In the OIC's submission therefore, the note does not form part of the Act and should not be considered in construing the meaning of clause 1 of Schedule 2 of the GlPA Act. I observe that the fact the IOC makes submissions as to the appropriate interpretation, in itself, might suggest that the section is unclear and its interpretation would be assisted by reference to the accompanying note. 15The OIC also submitted that it was relevant that no other part of the GlPA Act makes express reference to the note. 16It was also submitted that the meaning of clause 1 of Schedule 2 of the GlPA Act is clear, especially when reference is had to Part 3 of the Director of Public Prosecutions Act 1986. Part 3 of the DPP Act sets out the principal functions and responsibilities of the DPP. Relevantly these include to institute and conduct prosecutions on behalf of the Crown: section 7(1)(a). Also, the DPP has the same functions as the Attorney General in relation to directing that no further proceedings be taken against a person who has been committed for trial or sentence: section 7(2)(b). 17Schedule 4(1) of the GIPA Act however, defines excluded information of an agency specified in Schedule 2 as information that relates to any function specified in that Schedule in relation to the agency. 18I therefore do not accept that the s 43 exclusion with respect to the ODPP is limited as the OIC submitted. In my view, to interpret clause 1 of Schedule 2 in such a fashion would exclude from s 43 no more than a statement of the prosecutorial function set out in the DPP Act. In any event, when the GIPA Bill was introduced into Parliament the Premier, in explaining s 43 said that its purpose was to 'prevent an access application being made to an agency for access to government information that is excluded information of the agency (ie information relating to a function of the agency specified in Schedule 2)' (Tribunal's italics). 'prosecution functions' 19In DF v Director General, Attorney General's Department [2002] NSWADT 164, President O'Connor considered documents related to the DPP's prosecuting functions. There, the applicant, who had been the subject of an assault, brought a private prosecution which was taken over by the Crown, but the defendants were acquitted by direction. The applicant was dissatisfied with the outcome, because of what he saw as the failure of police. The President noted at [9] that: "The applicant, as is usual in these cases, is faced with the difficulty that he can only make general submissions as to the applicability of the heads of exemption claimed for the documents. The documents have been supplied to the Tribunal as a confidential exhibit. The Tribunal has inspected the documents in light of the exemptions relied upon." 20The President was satisfied that an advice to the DPP from the relevant Crown Prosecutor in relation to the conduct of a trial was "reasonably connected with the conduct of the 'prosecuting functions' of the DPP" and thus exempt from the FOI Act by virtue of s. 9 and Schedule 2. His Honour then said in relation to the scope of the exemption: "24 It is not necessary, in my view, in this case to attempt an exhaustive definition of the meaning of 'prosecuting functions' in order to reach that conclusion. This is not a document which might be said to lie at the boundary between the 'prosecution functions' and the FOIA-covered 'non-prosecution' functions of the Office. In the practice of criminal law, the term 'prosecution' refers to the conduct of criminal proceedings (see, for example, Osborn's Concise Law Dictionary, def. of 'prosecution'; Mozley and Whiteley's, Law Dictionary, def. of 'prosecution'.) 'Prosecution' in the context of Schedule 2, item (ii) refers at least to the conduct of criminal proceedings by the Director, his officers and other persons (such as private practitioners) engaged by him. 25 The 'functions' connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal)." 21The President formed the same view about a letter from the DPP to the respondent in those proceedings rendering an advice in relation to aspects of the prosecution (at [40]) and about a report prepared by the relevant Crown Prosecutor to the DPP providing the foundation for that advice and containing extensive annexures (at [41]). 22In Cianfrano v NSW Ombudsman [2007] NSW ADT 273, the Tribunal again considered the breadth of the s. 9 and Schedule 2 exemption, albeit in a case in relation to the Ombudsman's functions. The Tribunal referred (at [15]) to Raethel v Director-General, Department of Education & Training [1999] NSW ADT 108 where the President had said (at [33]): "33 The expression 'functions relating to' these matters is a broad one." 23The Tribunal then referred approvingly to the passage from [25] in DF quoted above and concluded (at [26]): "26 It is apparent from various authorities that have considered the expression 'relating to' and similar expressions that ... the words are of the widest import: See for example Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111." Do the remaining documents relate to the DPP's prosecuting function? 24The remaining documents to be considered were: Memorandum of advice from the Managing Lawyer Advisings to the Director (document B) Memorandum to Solicitor for Public Prosecutions from Janis Watson-Wood attaching a draft letter to Superintendent Trichter 20 March 2007 (document C) Memo to file from N Borosh 22 December 2004, concerning a meeting with the applicant , Mr Borosh and Mr Fliegner where the charges were discussed (document G) 25The DPP regarded these documents as 'excluded information' because the applicant's complaint was about the conduct of a prosecution. The documents were said to form part of the prosecution file and contain factual information, legal analysis, and legal opinion that is integral to the DPP's prosecution of this matter and its prosecution function . 26The OIC submitted that Part 3 of the DPP Act provides a relevant context within which the Tribunal should consider what amounts to excluded information. In particular, OIC submitted that it would be difficult to fit information relating to a complaint to any of the functions set out in Part 3 of the DPP Act. 27Previous decisions of the Tribunal referred to above support the view that "prosecuting functions" should be given a wide meaning. I accept the OIC's submission though that the cases do not support the view that such functions are unlimited or that every function performed by the ODPP is a prosecuting function. 28In DF , some of the excluded documents related to post-prosecution activities, namely the application by the applicant in that matter for victim's compensation , and which included a report by the Crown Prosecutor. 29The respondent submitted that the circumstances of DF are similar to the circumstances in the present matter and, having regard to the scope of the exemption set out at [25] by the President, all the documents the subject of the application could be said to be connected with the prosecution case "covering all the professional and administrative tasks connected with ... its outcome including review of the outcome and the taking of any further action in respect of the case..." 30Document B : From my reading, appears to have been generated following the applicant's complaint to the ODPP. The memorandum reviews the history of the prosecution and what had transpired in the lead-up to the charges being dropped. The document went on to discuss post-prosecution activities including liaison with the police. Importantly, the document made recommendations about future possible prosecutions. I have therefore come to the view that the document attracts the provisions of S. 43 and Schedule 2. 31Document C : The document included an analysis of what had transpired in the course of the prosecution by the ODPP and future possible prosecution strategies were discussed. I accept that this document was generated in connection with the DPP's prosecutorial function. 32Document G : The document related to Mr Borosh's presence at a meeting with the applicant , and another officer of the ODPP where the charges were discussed. That document, also clearly in my view, is one relating to the prosecutorial function of the DPP. DECISION 33The Tribunal finds that the applicant had made an invalid application having sought access to "excluded information" . ********** Amendments 02 April 2012 - Reference to document C amended to document G Amended paragraphs: 32 02 April 2012 - Reference to document C amended to document G Amended paragraphs: 32 02 April 2012 - Reference to document C amended to document G Amended paragraphs: 32 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. Decision last updated: 02 April 2012