For the reasons I have given, the exemption in section 31(1)(d) of the FOI Act is established and the public interest override should not be applied. Therefore, I affirm the decision made by the Commissioner on 6 June 2019.
Akers v Victoria Police (Review and Regulation) [2022] VCAT 979 (24 August 2022)
There are witness statements made by Mr Akers in the Tribunal Book that relate to his general history of interactions with Victoria Police and other agencies, and to numerous FOI requests he has made over many years. There is further history recorded in many VCAT decisions - particularly in one that Mr Akers included in the Tribunal Book: Akers v Victoria Police[2021] VCAT 1060.
I must of course focus on the particular FOI request in this instance and the evidence in support of the respective parties' cases, and the Law - by which I mean the FOI Act and relevant case law.
The present proceeding has a complex procedural history, due in large measure to the relationship it has to other VCAT proceedings in which Mr Akers has been applicant and Victoria Police has been respondent. The complexity has been increased by some unfortunate errors that have been made along the way in distinguishing the present proceeding from certain other proceedings.
The original FOI request was received by Victoria Police on 1 October 2018. As it was clarified following a period of consultation, the request was for a list of Law Enforcement Assistance Program (LEAP) involvements from 1 September to the date of the agency's decision.
The agency identified one document comprising 13 pages and granted access to the document in part, deleting a handful of lines under the heading 'Description'. Some material was deleted on the basis this it was irrelevant to the FOI request. I note in passing that a letter by the agency dated 23 January 2019 corrected and clarified its decision.
I have inspected the document in question. (Some of the abbreviations in the document were explained to me during the hearing so that I could better understand the document). The deleted parts are really parts of lines that appear under a column headed 'Description' in a handful of the 13 pages. Referring to that information, the agency's decision letter and the Commissioner's decision noted that the deleted material includes 'person warnings' or details about that.
Key to my decision is the evidence given by Inspector Matters.
The document in question is described as a LEAP involvement list. As explained by Inspector Matters, that is a detailed list of persons' interactions with Victoria Police. For Mr Akers the date range was 1989 through to 2018.
Inspector Matters explained that person warning flags are for purpose of intelligence gathering and assisting police members when attending incidents or dealing with the public. They provide an alert to members where a person may pose a risk to police, the public or themselves. Some flags are automatically generated. Some are generated by the police member where he or she believes that to be warranted.
The main challenge to Inspector Matters' evidence (as Mr Akers' cross-examination related to the exemption claimed in the case) was that his evidence was of a general nature only.
Mr Goodwin, counsel for Victoria Police, noted in his submissions that section 31(1)(d) has two limbs.
I asked Inspector Matters some questions that were directed to how both limbs would be established in the specific circumstances of the document and the case.
I accept the evidence given by Inspector Matters.
Turning to the first limb, the question is whether disclosure under the Act would or would be reasonably likely to disclose methods of procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law. The expression 'be reasonably likely' as considered in the Department of Agricultural and Rural Affairs v Binnie[1989] VicRp 73; [1989] VR 836 speaks of a chance of an event occurring or not occurring that is real, not fanciful or remote.
On the general question of 'disclosure' I make this point. Knowledge by members of the public of the existence of the LEAP database is one thing. Knowledge of police methods or procedures is another.
The decision in XYZ v Victoria Police[2010] VCAT 255; (2010) 33 VAR 1 makes clear that if the methods or procedures are widespread and well known the exemption will not apply. As to the question whether the methods or procedures in this instance are widespread and well-known, Inspector Matters evidence is clearly that they are not. Further he described in evidence how it is that disclosure would or would be reasonably likely to disclose methods or procedures of a relevant kind.
In my view that is self-evidently correct. That statement of principle was cited with approval in the JCL case I have referred to.[2]
I go on to say that I raised with Inspector Matters something that Senior Member Megay said in Porter v Victoria Police[2005] VCAT 962. Senior Member Megay observed that Victoria police officers 'are a robust group of individuals not easily cowed by threats of disclosure'.[3]
Mr Goodwin made helpful submissions that put those remarks in context. I might add that even though one would say, sadly, that even by 2005 (when Porter was decided) the world had probably changed for the worse, I accept what Inspector Matters said about the further deterioration there has been in security for officers and members of the public, such that the issue about the inhibition that police officers might feel in adding to the LEAP database if they were concerned about disclosure is an increasingly real issue and a reason for the second limb of section 31(1)(d) to be made out.
I haven't quite finished with the second limb, but I will just say in parenthesis that I raised with Inspector Matters whether he was aware of any instance in the past of the release of information from the LEAP database with the view to a person seeking amendment under section 39. Now, past release of such information, if it ever did happen, could not determine the question now of whether a document is exempt or not.[4] In any event, I heard that 'correction' of the database is very difficult to achieve and that, if it is to be done at all, it would be done by way of a notation. The reason I raised these matters was because it is to be inferred - if Mr Akers didn't say it expressly - that he wanted the document because he wanted to be able to express his opinion and to have his opinion recorded somewhere on the LEAP database.
There is a further important consideration about the second limb of section 31(1)(d). Inspector Matters said in his written statement (at paragraph [26]) that if persons knew that the information was being collected about them specifically, they would be more reluctant to reveal this information when police spoke to them. This would have a flow-on effect, impacting the amount of information available to police and therefore potentially reducing the ability of police to effectively investigate and prosecute breaches of the law. It would create more unsafe interactions with these people as they would try to hide their traits. For instance, they would be better able to act violently if the opportunity arose.
(2010) 241 CLR 320
At first this matter was not entirely clear to me, but I was persuaded by submissions by Mr Goodwin to the effect that to some extent at least these matters can arise by way of inference. Mr Goodwin cited the XYZ decision at paragraph [194] and decision of VCAT in JCL v Victoria Police[2012] VCAT 1060 from paragraph [54] onwards, albeit in the context of documents that were not precisely of the same nature as the document that I am considering.
I was assisted also by oral evidence that Inspector Matters gave regarding his own personal use of the LEAP database when planning to visit a person (for official purposes).
Mr Akers emphasised in the oral submissions he made that the respondent has the onus of proof. I am satisfied that the onus of proof has been discharged in relation to the first limb of section 31(1)(d).
I turn to the second limb - that is whether, if the first limb is satisfied, the disclosure would or would be reasonably likely to prejudice the effectiveness of relevant methods or procedures.
I recall what was said in the Binnie case regarding the meaning of 'be reasonably likely'. I am satisfied on the basis of Inspector Matters' evidence that disclosure would or would be reasonably likely to prejudice the effectiveness of the relevant methods or procedures.
This arises in a number of ways. Inspector Matters stated his belief that if police thought that a document of this nature would be disclosed, they would be reluctant to be so forthright in the information they supplied. This would mean less information would be shared, with the potential impact that police interactions with persons would become more dangerous, and investigations would be less effective, and fewer people would be prosecuted for breaches of the law.
I mention that in his oral evidence Inspector Matters elaborated in important ways when he spoke of his involvement in a project entitled 'Advancing Investigating Management' (ProjectAIM) in the years 2009 to 2011. Inspector Matters also told me about concerns police have had about the possibility of being targeted physically and on social media, and concerns that persons knew what police were saying or recording about them - concerns that those persons would become upset and feel the need to harass or act with animosity towards the officer or police generally. I am paraphrasing and not quoting Inspector Matters directly.
Inspector Matters added, importantly, that in addition, police would be very reluctant to provide information of the kind that addresses the best way to handle individuals, or make plans around interactions with individuals, if they thought the person could put himself or herself in a position to avoid detection or to somehow counter police responses to that person.
Further, in relation to Project AIM, it is relevant to say that Inspector Matters told me in effect that through processes such as focus groups he was able to ascertain real examples of the attitudes of police members.
In this context, there is an important statement to note that was made in Western Suburbs Legal Service v Victoria Police (unreported, Administrative Appeals Tribunal of Victoria, 18 August 1995, Deputy president Galvin). It concerns the prejudice to the effectiveness of police officers in their application. Deputy President Galvin said:
So, in summary, for the above reasons concerning the second limb of section 31(1)(d), I am satisfied that the onus of proof has been discharged.
And the onus is discharged, in my view, whether or not it could be said that Mr Akers would be likely to publish the document further if it were released to him. Whether or not he would not be likely to do that, there are reasons for saying that the second limb is satisfied.
There were cases cited to me that perhaps had stronger grounds than the grounds in the present case. Nevertheless, the grounds in the present case were sufficiently strong.
I said earlier that there are important introductory words to s 31(1). I must not overlook them.
Section 31(1) begins with the words: 'Subject to this section ...'. In particular that requires me to look at subsection (2) which, in broad summary, states that the section does not apply to any document that, among other things, reveals that the scope of the law enforcement investigation has exceeded the limits imposed by law, or to any document that reveals some illegal methodology.
Mr Akers made allegations to the effect that there had been some or other form of improper behaviour by police towards him in some instances. Further, he questioned the accuracy of the document released to him because he could not recall interactions with police in the most recent occasions noted in the record. He seemed to be saying that there were some records that could not have been made and perhaps should not have been made.
All these were really general statements by Mr Akers. They were not supported by evidence.
In my view, there is nothing on the face of the document to indicate any reasonable likelihood of circumstances that would bring the document within section 31(2).
I therefore now turn to the public interest override. Mr Goodwin referred to Osland v Secretary, Department of Justice[2010] HCA 24; (2010) 241 CLR 320 where the High Court of Australia stated that a 'high-threshold' public interest has to be identified before the power given by section 50(4) of the FOI Act to decide to grant access an exempt document can be exercised.
I must consider the public interest override only if satisfied in respect of the document in dispute that the exemption claimed is made out.
Public interest must require release in the sense that it demands, or it necessitates, release. There is a different between what is in the public interest and what is of interest to the public.
There is more that the authorities say, but I can leave the point there. The question is: Am I of the opinion that public interest requires that access to the document should be granted under the Act?
I have regard to the respondent's Statement of Public Interest Grounds. The grounds stated at page 66 of the Tribunal Book fundamentally relate to the protection of the investigation of a breach of law from being prejudiced, and to the protection of necessarily covert methods and procedures. I refer to all the grounds stated without reciting them all now.
Mr Akers has a Statement of Public Interest Grounds of his own. That in part seems to cut and paste, or otherwise align with, the things that have been said on behalf of Victoria Police. On the other hand, there are elements of some of the allegations Mr Akers made that could have been said to give rise to a broader public interest if there had been evidence to support what he alleged, but there wasn't evidence to support that.
I accept Mr Goodwin's submission that Mr Akers was effectively concerned with his personal interest. And, echoing something said in the XYZ decision (at paragraph [140]), there are no reasonable grounds for suspecting some impropriety that could displace the public interest in the material remaining confidential.
So, no 'high-threshold' public interest has been identified. I refer here to what Judge Bowman said in Wells v Victoria Police[2006] VCAT 1644; (2006) 25 VAR 177, which was another of the authorities cited: