On 18 February 2015, the Applicant, Mr Alexander Fuchs, made an application under the Government Information (Public Access) Act 2009 (the Act), in substance for all records pertaining to information about himself held by the Respondent, the Commissioner of Police. The application was refused and a review application was filed in this Tribunal on 26 May 2015.
This Tribunal has jurisdiction by reason of s 100 of the Administrative Decisions Review Act and s 30 of the Civil and Administrative Tribunal Act.
The matter has a long procedural history, noted, for example, in the written submissions of the Respondent of 17 November 2015, 16 February 2016, 9 March 2016, and 19 August 2016.
The following procedural matters are of significance.
On 29 September 2015, at a planning meeting before Senior Member Lucy of the Tribunal, the Applicant narrowed his claim.
On 25 November 2015, the Applicant signed an authority to act, giving permission for Australian Criminal Law Specialists to act on his behalf. On 17 December 2015, that law firm wrote to the solicitors for the Respondent, with a copy provided to the Tribunal, in response to a direction from the Tribunal made on 15 September 2015 to clarify and narrow the scope of the Applicant's claim.
On 27 January 2016, at a further planning meeting, at which the Applicant did not appear, although he had been notified of the planning meeting and Senior Member Lucy then attempted to contact the Applicant without success, the Tribunal determined that the letter of 17 December would be treated as the narrowed scope of the application, the letter indicating that only two categories of material were now sought, namely:
1. "The report (or other documentation) of the Police forensic chemist referred to in e@glei entry created 21-10-13" (a copy of which entry had been provided by Australian Criminal Law Specialists on 17 December) (Category 1); and
2. "All emails and correspondence between the NSW Police Force and ANSTO for the period 12 September 2012 to 11 March 2013 inclusive" (Category 2).
On 15 February 2016, the matter came before Senior Member Montgomery, who also accepted the decision by Senior Member Lucy, narrowing the scope of the Applicant's application.
The Respondent was then ordered to file and serve a response to that narrowed application, and the matter was set down for hearing on the papers, and later allocated to me. The Applicant having filed a number of lengthy documents which I found difficult to understand, I ordered that, by 10 June 2016, the Applicant was to file and serve no more than a 5five page document identifying, with precision, which portions of the Respondent's written submissions dated 17 November 2015, 16 February 2016 and 9 March 2016 he disagreed with, and why. That direction was not complied with.
I listed the matter for a directions hearing on 23 June 2016, at which time the Applicant was given a further opportunity to file submissions. These submissions were filed a few days late, but as I had not then delivered reasons, and as the Respondent had not indicated any relevant prejudice, I decided to consider them. A considerable portion of those submissions sought to re-agitate the question of the scope of the application. I then directed the Registrar to indicate to the parties that other Members of the Tribunal, who previously had charge of the matter, had determined the narrowed scope of the application and I did not propose to alter those decisions. I invited the Respondent to file further written submissions, limited to the two categories previously determined, and he did so.
The scope of the application is as previously determined and set out above. I note that little of the Applicant's submissions were addressed to the remaining issues. I accept the Respondent's submissions that the Applicant has had sufficient opportunity to put forward his case.
[2]
Reasonable and adequate searches
The Act states that the agency receiving an application under the Act must conduct reasonable searches in response to an access application "using the most efficient means reasonably available to the agency": see s 53, but by s 53(5), the "agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources".
The Respondent conducted initial searches in response to the original application in early 2015, and when the matter came to the Tribunal, additional searches were conducted in November 2015, as set out in the statement of Sergeant D Monnock, who is an intelligence analyst at the Professional Standards Command of the Respondent at Redfern. The Respondent undertook searches producing a result of several hundred emails. The evidence is that the analysis of those emails could take months to complete and would have unreasonably and substantially diverted the Respondent's resources, bearing in mind the searches previously undertaken. I accept that evidence.
Nevertheless, further additional searches were undertaken in January 2016, which identified approximately 86 emails that fell within the ambit of the Applicant's narrowed application. These documents were partially released to the Applicant on 9 March 2016 by way of a supplementary Nnotice of Ddecision made on the previous day. Save for the email at page 36 of the Supplementary Notice of Decision, the Applicant is content with production of this material in compliance with the material in Category 2. The Respondent submits (and I accept) that the Category 1 information does not exist. Thus, the remaining issues in this matter are confined.
[3]
Category 1 - The forensic report
Detective Senior Constable Sacco is with the Respondent's State Crime Command Drug Squad and Chemical Operations Unit, and in that role, investigates the manufacture of prohibited drugs and the dismantling of clandestine drug laboratories. In 2013, he was involved in an investigation relating to the Applicant, who was then suspected of manufacturing methamphetamine or "ice".
As part of that investigation, two police officers attended the Applicant's then-employer, the Australian Nuclear Science and Technology Organisation ('ANSTO'), to obtain samples for the testing of prohibited substances. The preliminary tests were conducted by way of a swab test, using a "Saber machine". The evidence is that such machines produce preliminary results in order to identify prohibited substances which then leads, on a positive result, to further analysis by other processes. The results of the test are not conclusive, only indicative. It is possible for the machine to produce a "false positive", which is why it is only used on a preliminary basis.
On 30 January 2013, the test produced a report which Detective Senior Constable Sacco was orally advised by a colleague showed that "some meth [i.e. methamphetamine] came up as well as coke [i.e. cocaine]". At no time did the Detective Senior Constable see a written record confirming this.
Subsequently, the Detective Senior Constable spoke with the Applicant and his legal representative at Surry Hills Police Station. The Detective Senior Constable told the Applicant that traces of ice had been identified on lab equipment found in his laboratory at ANSTO at Camperdown, but a further analytical report was to be obtained before a decision on charges was to be made.
Following the meeting, a report was made on the Respondent's electronic system, known as "e@glei" and a copy of that report with minor deletions, was provided to the Applicant. An analytical report subsequently provided produced the result that there were no drugs detected. As the Detective Senior Constable stated, a false positive on the Saber machine does occasionally occur, as in this case.
In February 2016, the Detective Senior Constable, in relation to these proceedings, was asked whether any other reports or documentation existed in relation to this e@glei entry, to which he responded that there were none. He also advised that, to the best of his knowledge and belief, based on a conversation with Dr Daniel Coghlan, Team Leader of Field Operations Illicit Drug Analysis Unit, Forensic and Analytical Science Service, that the Saber machine was not capable of having a printer attached to it, nor did it have memory capabilities, and so there were no other police reports to be produced.
I accept that evidence from the Detective Senior Constable. There was no application that he be cross-examined, and there was no objection to the matter being determined on the papers. I also note that the ultimate certificate of analysis was provided in redacted form to the Applicant.
[4]
Consideration
The Tribunal is to determine on the basis of evidence before it, whether reasonable searches have occurred, but if not so satisfied, it may direct further searches or production of better evidence as to searches be undertaken, or refer the case to the Ombudsman: see Beesley v Commissioner of Police [2000] NSWADT 52 at [19]; Beer v Commissioner of Police [2013] NSWADT 243 at [40]; and Camilleri v Commissioner of Police [2012] NSWADT 5 at [12]-[15].
In relation to Category 1, the evidence set out above, together with the statement of Sergeant Monnock and the submissions filed by the Respondent, satisfy me that there have been reasonable searches for the material and there is nothing further to produce.
In relation to category Category 2, I am satisfied, based on the evidence and submissions, that there have been reasonable searches for the material, particularly the material within the narrowed application and I do not propose to order that there be further searches, better evidence as to the searches, nor to refer the case to the Ombudsman.
[5]
Category 2 - Tthe email
As noted above, the Respondent identified approximately 86 additional emails and two additional documents as a result of its final round of searches, and those have all been released with some redactions.
The sole remaining question is whether the redactions in page 36 of those documents (being an email of 29 January 2013) are justified. The Respondent relies in that regard upon section 14, Table 2(b) of the Act, which provides:
2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law…
[6]
Consideration
Under the Act, there is a legally enforceable right to information unless there is an overriding public interest against disclosure: see ss 9, 12, 13, and 14. Section 14 contains a table setting out a variety of public interest considerations including 2(b). By s 5, "'There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure".'
I also note that s 15 states:
15 Principles that apply to public interest determinationA determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
I repeat and apply what I wrote in Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 at [23] namely:
The words 'disclosure of the information could reasonably be expected to have one or more of the following effects' is a phrase which is well-understood in the context of the Act, and its Freedom of Information Act analogues. Those words:
(1) have their ordinary meaning, and require an objective judgment to be formed as to what is reasonable, as opposed to what is irrational, absurd or ridiculous, or a mere possibility, risk or a chance: see e.g. Attorney-General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180; and
2) the conclusion must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] and the cases there cited.
It is clear from the email itself that Table 2(b) is engaged. This is an email between two police officers concerning a then- current police investigation and forensic examination of evidence in that context.
I now must weigh the identified public interests in favour of disclosure against the corresponding identified public interest against disclosure, bearing in mind that the onus in this matter is on the Rrespondent: see Flack v Commissioner of Police NSW [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [50] and [70].
I find the public interest against disclosure clearly outweighs the public interest in disclosure. Disclosure could reasonably be expected to reveal police investigative techniques and allow future police investigations to be impeded.
Having found there is an overriding public interest against disclosure the appropriate relief to be granted under s 63 of the Administrative Decisions Review Act is that I affirm the administratively reviewable decision to deny disclosure.
[7]
Conclusion
The Respondent has conducted reasonable and adequate searches in relation to the documents the subject of the Applicant's application (as amended). In relation to the email the public interest against disclosure clearly outweighs the public interest in disclosure.
The Tribunal orders that the decision under review (as amended) is affirmed.
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: 31 August 2016