Re Page and Metropolitan Transit Authority (1988) 2 VAR 243

Victoria Police v Marke [2008] VSCA 218

Wilson v Department of Premier and Cabinet [2001] VCAT 663

Graham Duncan, the applicant, seeks access under the Freedom of Information Act 1982 ("the FOI Act") to images that are the reproduction of material held on a computer hard drive and other devices. The images are documents within the meaning of the FOI Act.[1]

Mr. Duncan, currently serving a term of imprisonment, participated in the hearing before me on 13 May by telephone. He has previously been imprisoned for offences including intentionally causing injury to a female victim. He pleaded guilty to those offences. Before he received his current sentence he pleaded guilty to stalking offences against the same victim. He concedes that this occurred by him sending emails to the victim's daughter.

On the date that Mr. Duncan was last sentenced - 20 June 2010 - a judge of the County Court made a "disposal order" under the Confiscation Act 1997 in relation to property seized by police. That property was a dismantled computer, a modem, a computer hard drive, some memory sticks and a laptop computer. According to the order the Court was satisfied that the property "was used, or was intended to be used, in, or in connection with, the commission of the offence". The property was to be held for 28 days or the conclusion of any appeal proceedings at which time it could be destroyed.

Mr. Duncan alleges in essence that, although he pleaded guilty, police could not have had evidence that the offending emails were sent from his computer because he hid the actual computer that was used. He put forward technical reasons for his assertion that the images he sought - when examined with the computer that he had hidden - would prove police acted improperly by loading the email onto the seized hard drive. He wants the matter investigated by the proposed new independent, broad-based anti-corruption commission.

Mr. Duncan made his request under the FOI Act by letter dated 25 May 2010. This was in the month before the County Court made of the disposal order. By letter dated 13 July 2010 Victoria Police informed him of its decision to deny the request pursuant to section 25A(5) of the Act. At Mr. Duncan's request there was an internal review of the decision. The decision was affirmed by letter dated 17 August 2010. Section 25A(5) of the Act essentially permits an agency to refuse to process a request if it is apparent that all of the documents to which the request relates are exempt and, further, it is apparent either that it would not be practicable to grant access to an edited copy of the document or that the person making the request would not want access to an edited copy. Mr. Duncan confirmed at the hearing that he did not want an edited copy. In this case the documents were actually identified. At first Victoria Police claimed that they were exempt under FOI Act sections 33(1) (document affecting personal privacy) and 38 (documents to which secrecy provisions of enactments apply). By the time of the hearing Victoria Police indicated that it did not pursue the claim of exemption under section 38 but maintained the claim of exemption under section 33(1) and further claimed exemption under section 31(1) (that disclosure would or would be reasonably likely to prejudice the proper administration of the law).

Mr. Duncan's application to VCAT for review was dated 10 January 2011. It was out of time but there was no point taken in relation to this. In letters to the Tribunal and evidence given at the hearing Mr. Duncan spoke of difficulties he had experienced as a prisoner, including problems with mail, and he had been transferred from one prison to another. I consider it appropriate to extend the time for making the application[2].

There were witness statements made by two police officers - Robert Baker, a Detective Leading Senior Constable and Thomas Manley, a Deputy Inspector. Mr. Baker attended and was cross-examined. Mr. Manley was unavailable but Mr. Duncan indicated that he did not wish to cross-examine him and did not oppose that officer's witness statement being admitted into evidence.

Mr. Baker said that as an investigator at a suburban Criminal Investigation Unit he was generally aware that Mr. Duncan had been identified and charged by another officer with a series of stalking offences and breaches of intervention orders relating to the victim, for which he was ultimately convicted. He was the corroborator in the earlier arrest and processing of the charges that Mr. Duncan seriously assaulted the victim. In relation to that episode, Mr. Duncan pleaded guilty to damaging the victim's property, intentionally causing her injury and breaching an intervention order. Mr. Baker conducted the later investigation and charged Mr. Duncan with stalking offences against the victim and her daughter that were committed after his release from prison following the assault. Mr. Duncan pleaded guilty to those charges. Mr. Baker referred to the disposal order and explained that during the investigation computers and other devices were seized and imaged copies were made and examined. The images sought by Mr. Duncan were taken from the devices mentioned in the disposal order. The materials that formed the evidence of stalking were obtained from the images. There was information about the victim's daughter on some of the images. Mr. Baker said that it was standard practice - when the Court ordered destruction of property, exhibits or documents - for all copies to be destroyed "so as to effect complete compliance" with the order. Mr. Baker further stated that he was aware that Mr. Duncan had lodged an appeal against the sentence imposed by the Court. It was his "understanding" that Victoria Police would not act on the disposal order until the hearing and determination of the appeal but that, because the appeal was not against conviction, there was no prospect that the Court of Appeal would make any order in relation to the disposal order.

In his statement, Mr. Baker described Mr. Duncan as a recidivist offender who was obsessed with the victim and her family. He expressed the view that Mr. Duncan was unable to change his way of acting towards them. He was concerned for the victim's safety saying that Mr. Duncan's attempts to gain material related to her was "a continuing example of his aberrant and compulsive behaviour towards her and the immediate family".

A copy of the Crown opening on plea dated May 2006 was exhibited to Mr. Baker's witness statement. That related to charges of breaching an intervention order, damaging property and intentionally causing injury. It referred to previous convictions for stalking and breach of an intervention order in relation to the same victim. It summarised evidence that Mr. Duncan used a metal pole to smash the windscreen of the victim's car and strike the victim as she tried to run away. One witness said that Mr. Duncan said that he did not care if he went to gaol and said to tell the victim that when he was released he would "get her". When interviewed, he told police that he had consumed valium and alcohol but he admitted damaging the victim's car and assaulting her. Also exhibited to Mr. Baker's statement was an undated summary of prosecution opening in the case concerning the emails. That document referred to four emails received by the victim's daughter at her place of business, the first being received within weeks of Mr. Duncan's release on parole following his imprisonment for the offences earlier described earlier. The Crown alleged that Mr. Duncan engaged in conduct including sending the emails with the intention of arousing fear in the victim and that the emails achieved that. The summary said that after his arrest Mr. Duncan gave permission for police to seize his computer equipment. That was seized and analysed. It was found that the equipment was used to access the victim's daughter's business' website address and to send one of the emails.

Cross-examined by Mr. Duncan, Mr. Baker denied that there was any vendetta concerning Mr. Duncan.

In his statement, Mr. Manley said that he managed the E-Crime Squad of Victoria Police whose functions included digital forensic analysis of evidence from seized computer equipment. He said that the squad's practice was to delete images (that is, copies) relating to a prosecution after it was finalised and the appeal period expired. It did not keep "physical exhibits" such as computers once they had been imaged and analysed.

Mr. Duncan gave evidence and made submissions. He referred to letters and other material that he filed before the hearing. A substantial amount of that related to peripheral matters, including the difficulties that he said he had with mail while he was in prison. Mr. Duncan went into technical details explaining his allegation that police had not acted properly when pursuing the case regarding the emails. He said in effect that he did not resist the making of the disposal order not only because he was advised against that but also because he had already made his request under the FOI Act so that, he thought, the disposal order would not affect his ability to retrieve the evidence he wanted to place before someone investigating police conduct. Mr. Duncan also told me in effect that his FOI request did not reflect any interest in pursuing the victim. Rather, he said that his concern was what he generally alleged to be police corruption. Nevertheless, during the hearing Mr. Duncan sought to demonstrate that, among other things, the injuries that the victim claimed to have sustained in the assault were fewer or less serious than the ones documented in hospital records. And in correspondence addressed to the Tribunal he said that, among other things, the victim had fabricated evidence to him. Regarding the emails, Mr. Duncan acknowledged that he should not have sent them but put forward some reasons for saying that his conduct was not as serious as the police alleged. He also said in effect that some of the information contained in the images was already in the public domain.

Mr. Duncan confirmed that he did not want access to any edited copy of the documents.

Citing Wilson v Department of Premier and Cabinet[3] Ms. Ellyard submitted that where an agency denies access under section 25A(5) of the FOI it will ordinarily be appropriate for the Tribunal to confine itself to the question whether the agency's decision to refuse to process the request for access should be affirmed without engaging in full consideration of exemptions claimed and any public interest override.

Regarding section 31(1)(a) it was submitted that the images were the subject of the disposal order made by the County Court at the conclusion of Mr. Duncan's criminal proceeding and that Mr. Baker's evidence showed that such orders are taken to encompass any copies of such materials. Mr. Duncan had not challenged the conviction forming the basis for the disposal order. Consent to the making of the order was an implicit admission that the property was tainted property[4] but, even without that admission, the terms of the order make it apparent that the Court made a finding to that effect. It was submitted, therefore, that release of the images to Mr. Duncan would prejudice the proper administration and enforcement of the law in that it would interfere with the operation of the disposal order. It would provide Mr. Duncan with a further opportunity to engage in the very criminal conduct which led to the making of the disposal order. It would negate the effect of the disposal order.

Regarding section 33(1) it was submitted that disclosure would involve the disclosure of information relating to the personal affairs of persons other than Mr. Duncan and that disclosure would be unreasonable. In considering whether it would be unreasonable there had to be a balancing of the individual's right to privacy with the purposes of the FOI Act.[5] The Tribunal must look to all the circumstances, including the purpose for which access is required, the nature of the information, and the circumstances in which it was obtained.[6] The identity and motive of the applicant were relevant.[7] Disclosure may be more likely to be unreasonable if the applicant intends to disseminate the document widely.[8] In the present case it was apparent on the face of the request that disclosure would be unreasonable. The person whose affairs were contained in the documents was the victim of serious criminal offences committed against her by Mr. Duncan; he sought the documents to pursue complaints and legal action against her in what would amount to a continuation of his past offences against her; and the Court had made an order that the documents not be returned to him. Mr. Duncan would not accept edited versions of the documents for his purpose was to show that they had been tampered with.

Finally, it was submitted that although at this preliminary stage the Tribunal should not turn its mind to the public interest override in section 50(4) of the FOI Act, there would be no override so far as section 33(1) is concerned. Concerning section 31(1), the Tribunal would have to be satisfied that there was no practical alternative but to allow access on the basis that unless access were granted the public interest would suffer.[9] In this case the public interest would not suffer if the documents were not released. On the contrary, the public interest in the proper administration of justice (the disposal of property used in the commission of criminal offences) required that the documents be exempt from disclosure.

Mr. Duncan's submissions were bound up with his evidence and so have been set out above.

1. The objects of the Confiscation Act 1997 include to disrupt criminal activity by preventing the use of tainted property in further criminal activity.[10] For this purpose "tainted property" means property that used in the commission of the offence.[11] To the extent that is relevant, section 78 of that Act provides that Court may, if it considers it appropriate, order that tainted property be forfeited to the State and destroyed or disposed of in such manner as is provided in the order if it is satisfied that the property is of negligible value or is not fit for the use for which it is intended and cannot be readily made fit for that use. A disposal order made in reliance on a person's conviction is stayed pending the expiry of the appeal period in relation to the conviction and ceases to have effect if on appeal the conviction is set aside.
2. The main provisions of the FOI Act that I must consider are sections 25A(5), section 31(1)(a) and 33(1). Section 25A (5) provides:

"(5) An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if -

(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and

(i) it is apparent from the nature of the documents as so described that no obligation would arise under section 25 in relation to any of those documents to grant access to an edited copy of the document; or

(ii) it is apparent, from the request or as a result of consultation by the agency or Minister with the person making the request, that the person would not wish to have access to an edited copy of the document."

Section 31 is headed "Law enforcement documents". The relevant parts provide:

"(1) Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

(a) prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance ..."

"(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person ...

(2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person ...

information relating to the personal affairs of any person includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined."

1. I agree with Ms. Ellyard's submission that the preliminary question for the Tribunal is whether Victoria Police is entitled to refuse to process the request[12]. Mr. Duncan confirms that he does not wish to have an edited copy of the documents. This means that the question for me is whether it is apparent from the nature of the documents requested that they are exempt documents. I therefore now consider the exemptions claimed under section 31 and 33.

1. The documents in this case are not what one would ordinarily describe as "law enforcement documents", being the words in the heading to section 31. The heading does not form part of the FOI Act[13] but, in any event, the whole of section 31 indicates that Parliament's concern is not how the requested document might most accurately be described but the effect that disclosure by an agency would be reasonably likely to have upon the enforcement or proper administration of the law.

2. I am satisfied that by necessary implication the disposal order made by the County Court encompasses the images made from the tainted material. This view is consistent with the standard practice had by police that was described in evidence. This appears to me to be logically sound for, were it otherwise, the Court's purpose could be thwarted by access to the images being gained under the FOI Act or by some other means. I consider that disclosure under the FOI Act would prejudice the enforcement or proper administration of the law.

3. Although Mr. Duncan said in effect that he would not have agreed to the disposal order had he not already made his request under the FOI Act, what is important is that the Court saw fit to make the order. It is significant too, I think, that there has been no appeal against conviction and so no apparent basis on which the Court order would be overturned. That would in any event be the decision for a Court. It does not affect my conclusion at this time.

1. I am also satisfied that to provide the images would involve the disclosure of the "personal affairs" (as that expression is defined in section 33(9)) of persons other than the applicant - the victim and her daughter. It is not enough that release of documents would involve disclosure of information relating to the personal affairs of any person. For the exemption to operate that disclosure must be unreasonable. The relevant principles were enunciated by the Court of Appeal in Victoria Police v Marke[14], which was cited by Ms. Ellyard. When I come to consider the balancing competing interests, I come to the view that the nature of the information and the circumstances in which it was obtained weigh heavily against disclosure. What weighs especially heavily is the fact that the main person whose affairs are concerned is someone who has been the victim of serious offences committed over time by Mr. Duncan. It is to be expected that she and her daughter would want the documents not to be disclosed. Mr. Duncan maintained that his primary concern was to demonstrate wrongdoing on the part of police and not pursue any issue concerning the victim, but the whole of the evidence indicated that he had a continuing interest in establishing that the victim had made false statements that led to his imprisonment.

2. In reaching my conclusion that the claimed exemption under section 33 is justified, it is not necessary to have regard to the disposal order but the disposal order provides a general basis for saying that disclosure would be unreasonable.

1. So far as the public interest is concerned I need say only this. I agree that the Tribunal should not turn its mind to the public interest override at this stage. It can at least be said that there would be no override in relation to section 33(1). So far as section 31(1) is concerned, the circumstances indicate to me that the public interest would not suffer if the documents were not released. Mr. Duncan's guilty pleas and other concessions, and indications of his continuing interest in the victim, combine to reduce the significance of his allegations concerning police to the point whereby, at its highest, that consideration is still outweighed by other considerations. I accept the submission that the public interest in the proper administration of justice (the disposal of property used in the commission of criminal offences) would require that the relevant exemption from disclosure be maintained.

1. As to the preliminary question identified in this case, my conclusion is that Victoria Police are justified in refusing to process the request. The refusal is justified on the grounds that release of documents would be likely to prejudice the enforcement or proper administration of the law and, further, that it would involve the unreasonable disclosure of the personal affairs of persons. The decision by Victoria Police should be affirmed.

1. The time for commencement of the proceeding is extended to 10 January 2011.

1. The application for review is dismissed and the decision of the respondent under review is affirmed.

[2] See section 126 of the Victorian Civil and Administrative Tribunal Act 1998

[3] [2001] VCAT 663

[4] R v Djukic [2010] VSCA 65 at paragraph 18

[5] Penhalluriak v Department of Labour and Industry (unreported, County Court of Victoria, Judge Lazarus, 19 December 1983)

[6] Re Page and Metropolitan Transit Authority (1988) 2 VAR 243

[7] Victoria Police v Marke [2008] VSCA 218 at paragraph 104

[8] Victoria Police v Marke at paragraph 86

[9] Secretary to the Department of Justice v Osland [2007] VSCA 96 at paragraphs 91 and 123

[10] Confiscation Act 1997 section 3A(3)

[11] Confiscation Act 1997 section 3(1)

[12] See also paragraph [FOI 25A.300] of Pizer's Victorian Administrative Law, Thomson Lawbook Company.

[13] Interpretation of Legislation Act 1984 section 36(2A)

[14] [2008] VSCA 218. See Morgan v DHS [2008] VCAT 2420 where Senior Member Davis conveniently summarised those principles