E Danis (Applicant) in person
File Number(s): 2015/00383598
[2]
reasons for decision
The application for review made by the applicant in these proceedings has been remitted to me to redetermine following a decision by the Appeal Panel (Commissioner of Police v Danis [2017] NSWCATAP 7) on 10 January 2017.
An appeal was lodged by the Commissioner of Police from a decision of the Tribunal at first instance made under the Government Information (Public Access) Act 2009 (the GIPA Act). The Tribunal set aside the Commissioner's decision to refuse to deal with the application, and ordered the Commissioner to disclose the information that was in issue.
The information in issue was a DVD of a police interview with the applicant's son dated 12 June 2014. The applicant originally applied for this DVD and two COPS Events (E54127072 and E54409764) on 15 May 2014. The respondent had originally refused to provide access to the DVD on the basis that there was an overriding public interest against disclosure pursuant to clause (a) of Table 3 under s.14 of the GIPA Act.
On 5 August 2015 the applicant filed an application for review of that decision with the Information Commissioner. The Information Commissioner reported on 5 November 2015 and made no recommendations in her report.
Subsequently the applicant applied to the Tribunal for review of the 6 July 2015 decision. On 24 May 2016 the Tribunal remitted the matter to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997. On 31 May 2016 the respondent determined to release E54127072 in full, and in relation to the DVD, to refuse to deal with the request, pursuant to s 60(1)(d) of the GIPA Act.
Section 60(1)(d) of the GIPA Act provides:
"60 Decision to refuse to deal with application
(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):
…
(d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order."
In its decision the respondent stated:
"The NSWPF is refusing to deal with this part of your access application because the information requested has been the subject of a subpoena for production of documents to the Family Court of Australia (Ref No Sub/2014/5524 - copy attached) and is available to you as a result of having been produced in compliance with the subpoena, as stated in your application dated 8 May 2015."
On 12 July 2016 the Tribunal issued a decision which set aside the decision of the respondent and ordered that the DVD be released to the applicant.
On appeal, the Appeal Panel held that the Tribunal at first instance had regard to two irrelevant considerations, and failed to have regard to considerations of a systemic kind which it held were relevant to the exercise of the discretion to refuse to deal with the application.
The Appeal Panel stated:
"46 The Tribunal referred to three matters in reaching the view that the correct and preferable decision was to release the DVD:
(a) The information that is the subject of the DVD is information concerning the applicant's son.
(b) The applicant has already viewed the information.
(c) Release of the information would not release any new information.
47 The agency is correct in its submission that factors (b) and (c) are of no relevance to the exercise of the s 60(1)(d) discretion. They are factors that will always be present when s 60(1)(d) is relied upon by an agency. They are mere factual predicates to the exercise of the discretion; they are pre-conditions. They do not, of themselves, inform the exercise of the discretion. Parliament clearly gave agencies a discretion not to proceed with an access application, even though the applicant may well have seen the information, and therefor necessarily it could be said not to 'new' information when GIPA Act access application is made.
48 Factor (a) relied on by the Tribunal - that the DVD related to the applicant's son - might have some arguable relevance. A parent might be said to have a stronger stake in getting full access to material that bears on a family member, as against material of some other kind. But equally privacy considerations and respect for the wishes of the child might come into play as countervailing factors.
49 In our view, the Tribunal when reviewing decision to invoke a s 60(1) should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources. In the case of decisions founded on s 60(1)(d), the restrictions that apply to party use of subpoenaed material might be relevant, as well agency considerations in relation to respect for court orders. This is not intended to be an exhaustive statement of the matters to be taken into account in any particular case. We accept that there may be factors of a personal kind, related to the particular application and the access applicant's personal circumstances, that may also be relevant.
50 In our view, as submitted by the agency, the Tribunal needed at least to weigh the systemic considerations that might justify the agency in not continuing to process the application."
Accordingly I am now required to redetermine the application for review, within the scope outlined by the Appeal Panel.
[3]
The issues before the Tribunal
It was agreed at the hearing before me that the two COPS Events were no longer in issue, as they had been provided. The only information in issue was that contained on the DVD.
The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. The Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
In any review of a reviewable decision under the GIPA Act, s 105 places the burden of justifying the decision on the agency concerned.
[4]
The meaning of "available"
In order for the discretion in s 60(1) to apply, the information sought must be "available to the applicant as a result of having been produced in compliance with the subpoena or other order" (s 60(1)(d)).
It is not in dispute that the information was the subject of a subpoena for production issued by the Family Court and could be inspected by the applicant as a result. This raises the question of the meaning of "available" in the subsection.
The word is not defined in the Act. Its ordinary meaning, according to the Macquarie Dictionary, is "suitable or ready for use; at hand; of use or service." The parties were not able to refer me to any relevant any case law.
Section 59 provides:
"59 Decision that information already available to applicant
(1) An agency can decide that information is already available to an applicant only if the information is:
(a) made publicly available by the agency or some other agency in accordance with a legislative instrument other than this Act, whether or not availability of the information is by inspection only and whether or not availability is subject to a charge, or
(b) available to the applicant from, or for inspection at, the agency free of charge in accordance with this Act or the agency's policies and practices, or
(c) contained in a document that is usually available for purchase.
(2) An agency is not required to provide access to information that the agency has decided is already available to the applicant, but notice of the decision must indicate how the information can be accessed by the applicant."
The respondent submitted that s 59 supported the interpretation of "available" as meaning accessible or attainable, and that it showed that the Act envisaged availability, as described in s 60(1)(d), as including availability by way of inspection only. However s 59 does not apply to a decision to refuse to deal with an application under s 60. It applies to a decision that information is already available to the applicant under s 58(1)(c).
Mr Danis submitted that the material was not "available" to him in the sense meant by s 60(1)(d) because he could not uplift it.
Access to information may be provided in a number of ways under the GIPA Act. The form of access requested by the applicant should be granted unless any of the factors in s 72(2) of the Act apply. The applicant, in reliance on 72, submitted that information was not "available" unless it was provided in a form which complied with his request.
As a principle of statutory interpretation, it is assumed that by using the different terms "access to" and "available to" in the GIPA Act, the Legislature intended to refer to different things (Bell v Day (1886) 2 QLJ 180). There is nothing in the GIPA Act, in my view, which contradicts this presumption. On my reading of the Act I conclude that an applicant who has "access to" information within the meaning of the GIPA Act has been provided with a means of viewing, obtaining or otherwise accessing the information under that Act. Information which is described as "available to" an applicant is information which the applicant may access by some means outside the Act ( see for example ss 59, 80(f)). In my view the DVD was available to the applicant, as he could inspect it at the Family Court. The fact that he could not copy it does not mean that it was not available.
[5]
How the discretion in s 60(1)(d) should be exercised
Therefore, the respondent was entitled to exercise the discretion under s 60(1)(d). Mr Danis submitted that the discretion should be exercised, so far as possible, so as to facilitate and encourage access to government information, promptly and at the lowest reasonable cost (s 3(2)(b) GIPA Act). However this cannot mean that the discretion should always be exercised so as to grant access, as that would mean s 60 had no operation at all. In addition, as noted by the Appeal Panel, appropriate refusal of applications may benefit applicants whose only means of accessing information is an application under the GIPA Act (at [44]).
The respondent submitted that its exercise of the discretion in s 60 so as to refuse to deal with the application, was the correct and preferable decision because of the following relevant considerations:
1. The systemic considerations - identified by the Appeal Panel as the efficient administration of the GIPA Act and the avoidance of wasteful deployment of limited resources;
2. restrictions that apply to party use of subpoenaed material and respecting the restraints placed on it by the court (identified by the Appeal Panel at [49]; and
3. the fact that the information concerned a minor whose wishes were not known.
In relation to the systemic considerations, Ms Tipene submitted on behalf of the respondent that the Police Force received the largest number of requests for information of any NSW agency. She relied on the decision of the Appeal Panel that s 60 was intended to give agencies flexibility in processing requests for information under the GIPA Act and avoid wasteful use of administrative resources, including where the applicant has already obtained a practical result (at [43]).
In relation to restrictions placed on the material by the Family Court, Ms Tipene submitted that the DVD was produced by the Police in response to a subpoena issued by the Family Court at the request of the applicant. This much is evident from the applicant's GIPA Act application which states:
"These documents and the DVD were produced in the Family Court pursuant to the subpoena issued on my behalf by the Court. I inspected these two COPS Events and viewed the DVD. The COPS Events were printed on 18/12/2014. I also read the transcript corresponding to the DVD. Further, I inspected all materials produced by Police pursuant to the subpoena."
It was not disputed that the Family Court orders allowed the DVD to be viewed but not uplifted. Therefore Mr Danis could not obtain his own copy of the DVD. Mr Danis drew my attention to the Notes to the Family Court Subpoena form which stated that police records produced in response to a subpoena would be available for inspection but not for copying.
Ms Tipene submitted that it was appropriate for the decision maker to take into account that the Court did not permit uplift or copying of the DVD. It appears that it was the status of the DVD as a police record which prevented it from being copied under the Family Law Rules 2004 15.30(2):
"(2) Each party to the proceedings, and any independent children's lawyer in the proceedings, may:
(a) inspect a document produced in accordance with the subpoena; and
(b) take copies of a document (other than a child welfare record, criminal record, medical record or police record) produced in accordance with the subpoena."
The fact that the DVD related to the applicant's son might also be a matter which the decision maker should have regard to. The Appeal Panel stated:
"A parent might be said to have a stronger stake in getting full access to material that bears on a family member, as against material of some other kind. But equally privacy considerations and respect for the wishes of the child might come into play as countervailing factors." (at [48])
Ms Tipene submitted on behalf of the respondent that the information was sensitive in nature, as it concerned a criminal investigation involving a minor, and the decision maker did not know the view of the minor on its release.
In reply to these considerations, Mr Danis submitted, firstly, that the respondent had not already wasted resources on this matter given that the application had been considered twice by the respondent, as well as being reviewed by the Information Commissioner, and litigated before the Tribunal and the Appeal Panel.
He stated that the Commissioner of Police had been represented at the subpoena hearings and had objected to the release of the material in the Family Court. Ms Tipene said she had no instructions on this point.
He submitted that it was not appropriate for the respondent to delve into the relationship between a parent and a child. He had no intention to release the material publicly. As a father, he was entitled to access to records concerning his son.
Mr Danis submitted that the Tribunal at first instance had the jurisdiction to make the decision it did. He submitted that the objects of the Act would be promoted if the material was released.
[6]
Consideration
In my view the systemic considerations should be determined in favour of the respondent, as the purpose of the section is evidently to prevent inefficiencies in the administration of the GIPA Act, and avoid limited resources being used unnecessarily.
There is an established legal obligation upon a party to litigation who receives documents from another party in the litigation pursuant to a subpoena, not to use the documents for any purpose other than the conduct of the legal proceedings in which they were produced (Hearne v Street [2008] HCA 36). This was referred to by the Appeal Panel at [49]. However the applicant has not identified any other purpose for which he intends to use the information and it is not clear how relevant this factor would be in exercising the discretion as the obligation applies to all subpoenas. Therefore I do not regard this as relevant in this case.
The Appeal Panel also noted that respect for court orders by the agency might be a relevant consideration. Pursuant to the Family Law Rules, the information produced to the Family Court cannot be copied. This rule presumably supports the proper operation of Family Court proceedings. Those proceedings are ongoing. The agency might consider that to deal with the application could undermine the operation of the Court rules in this case, which limit the use of specific material such as police and child welfare records produced in such proceedings. I think there is force in this argument.
The final consideration identified by the Appeal Panel is whether Mr Danis' status as a parent of the person being interviewed by police on the DVD, dictates that the agency should not exercise its discretion to refuse to deal with his application. Because a minor was involved, the respondent submitted that the information was sensitive. Mr Danis said in submissions that he had no intention to publish the material or use it in any other way. There is no evidence of the wishes of his child.
The DVD is available to Mr Danis to inspect at the Family Court, but as a parent he wishes to have full access to it. The Family Court Rules limit his access regardless of whether he is a parent or not. I think in those circumstances his status as the parent of the minor in the DVD does carry some weight.
In reaching the correct and preferable decision therefore it is a matter of weighing Mr Danis' status as the father of the person recorded on the DVD against the systemic issues concerning resources and the possible undermining of the operation of the Court rules in this case, which specify that police records produced in such proceedings may not be uplifted or copied. In my view, the discretion should be exercised so as to refuse to deal with the application.
[7]
Conclusion
I have concluded that the agency's decision to refuse to deal with the application, relying on s 60(1)(d), was the correct and preferable decision.
[8]
Order
The agency's decision to refuse to deal with the application is affirmed.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 05 August 2019