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austlii:nsw/NSWADT/2010/27
respondent. The decision under review was affirmed. The Tribunal concluded that the documents should not be released. ([70] and Order)
The Tribunal reviewed the refusal to provide some records about complaints made against a serving police officer. It accepted that some withheld material revealed personal information about complainants and informants, that complaint information was provided confidentially and disclosure could reduce future cooperation, and that Complaint Management Team deliberations needed protection from disclosure. The Tribunal did not decide whether the investigations were fair or adequate. It affirmed the refusal of access.
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1,731 words · generated 02/10/2026
Jonathan Head, a serving NSW Police officer for 15 years, applied to the Commissioner of Police under the Freedom of Information Act 1989 (NSW) for records about two complaints made against him, identified as P0704393 and P0704457. His request included complaint letters and other material supplied by complainants, Complaint Management Team (CMT) meeting notes, complaint-file documents, records of interviews, C@tsi System records and other investigation documents [1].
2 cited instruments linked from this judgment.
The FOI Unit granted access to some material and refused access to other material. On internal review, additional documents were located, but the decision continued to withhold or redact ten documents, two of them partly [2]–[4]. Head then sought external review by the Administrative Decisions Tribunal.
Head's stated purpose was to examine how the investigations had been conducted, understand the evidentiary basis for the findings, and respond to allegations he considered false or incompletely put to him [3], [41]–[56]. He alleged, among other things, that an investigator had not obtained or considered all evidence he wished to provide and had not obtained accounts from witnesses at the scene [42]. He also questioned how findings in one complaint matter had changed [54]–[56].
The Commissioner relied on exemptions concerning personal affairs, confidential information and the management or assessment of police personnel. The Tribunal affirmed the decision, finding the relevant exemptions made out [60], [68]–[70]. Its decision concerned access under the FOI Act. It did not determine whether the underlying investigations were properly conducted.
The decision was made by Montgomery S, Judicial Member of the Administrative Decisions Tribunal. The starting point was the statutory access framework: section 16 of the FOI Act provided a legally enforceable right of access, but section 25 allowed an agency to refuse access to exempt documents. Section 61 placed the onus on the agency to satisfy the Tribunal that its decision was justified [6]–[8].
For clause 6, the Tribunal treated the character of information as dependent on its context. It found that the withheld information about informants was information concerning their personal affairs. Head's belief that he already knew some identities and addresses did not alter that character [61]. The Tribunal also recognised the need to assess whether disclosure would be unreasonable by examining the circumstances and balancing privacy against disclosure interests [62]. It accepted that Head wanted to identify deficiencies in the investigations and was unlikely to seek publicity, but still found the balance favoured withholding the documents [63]–[64].
For clause 13(b), the Tribunal accepted evidence from Detective Inspector Bellis and Suzanne Larsen that information was obtained or provided confidentially, and that Part 8A investigations were treated as confidential processes [65], [67]. It accepted that the type of information would normally be supplied on a confidential basis and that disclosure could prejudice the future supply of similar material [67]. The Tribunal considered the public interest in receiving frank and full cooperation from serving officers and members of the public when investigating alleged police misconduct. It also accepted that mechanisms existed to support integrity and fairness in investigations while preserving informant confidentiality [67].
For clause 16(a)(iii), the Tribunal accepted that the relevant records concerned CMT deliberations and discussion. It concluded that disclosure could reasonably be expected to have a substantial adverse effect on police management or assessment of personnel and would be contrary to the public interest [68].
A separate boundary was important. Head's concerns about procedural fairness and the adequacy of the investigations were serious if established, but the Tribunal said the FOI review was not the forum to resolve them [59]. It described its task as deciding whether the exemptions were made out and, if so, whether the documents should nevertheless be released, referring to its reasoning in Ritson [58].
This decision applied the FOI Act as set out in the reasons. It did not purport to change the statutory tests. Section 16 established access as the starting point, subject to the Act's exemptions. The agency bore the burden of justifying its decision under section 61 [6]–[8].
The decision's contribution is its application of the cited exemption provisions to a police complaints context. Under clause 6, the Tribunal considered the information's context and the interests affected by disclosure, rather than treating the applicant's asserted knowledge of identities as decisive [61]–[64]. Under clause 13(b), it accepted evidence that police complaint and investigation information was ordinarily confidential, and linked confidentiality to the anticipated supply of similar information in future [65]–[67]. Under clause 16(a)(iii), it found that CMT deliberative material could affect personnel management and assessment [68].
The reasons do not identify a prior rule that was displaced, nor do they state that the Tribunal was changing the law. They rely on existing statutory language and earlier decisions. In particular, the Tribunal referred to Ritson for the boundary between FOI review and complaints about police processes [58], and to Department of Education and Training v GJ (GD) and Victoria Police v Marke on the relevance of an applicant's motive to the clause 6 assessment [62]. On the material provided, the decision is best understood as a fact-specific application of those principles, not a declaration that all police complaint documents must be withheld.
At [58], the Tribunal adopted its earlier statement in Ritson that it should not attempt to cure defects that might exist in police processes. In plain English, the access review was not a substitute proceeding for deciding whether Head had received procedural fairness in the complaint investigations. The Tribunal's task was limited to the FOI determination.
At [61], the Tribunal said that Head's belief that he knew the identities and addresses of informants did not alter the character of the information. In plain English, a claim of prior knowledge did not remove the privacy character the Tribunal found in the records.
At [62], the Tribunal described the reasonableness assessment as a factual exercise involving the circumstances of the document and a balance between protecting personal privacy and releasing information. It also said an applicant's motive may be relevant. This did not mean Head's motive was ignored: the Tribunal accepted that he sought to identify deficiencies and was unlikely to publicise the material [63]. It nevertheless found the balance favoured non-disclosure [64].
At [67], the Tribunal identified an interest in ensuring police continued to receive frank and full cooperation from serving officers and members of the public. In plain English, it considered future cooperation in police misconduct investigations to be a public-interest factor favouring confidentiality.
At [68], the Tribunal found that releasing CMT deliberations could substantially adversely affect police management or assessment of personnel. This was its stated basis for applying clause 16(a)(iii) to those documents.
The decision is most directly relevant to an FOI review involving records of internal police complaints, where the disputed information identifies complainants or informants, was provided on a confidential basis, or records internal complaint-management deliberations. Its findings depended on evidence about the nature of the material and the NSW Police Force's practices in this case [65]–[68].
For clause 6, the decision illustrates the significance of context. It involved information about informants and third parties, and an applicant who said he believed he knew their identities. The Tribunal held that this belief did not change its assessment of the information's character [61]. It then weighed the applicant's reasons for seeking access against privacy and the broader public interest [62]–[64].
For clause 13(b), the features were evidence of confidentiality, material of a kind normally provided confidentially, and a reasonable expectation that disclosure could prejudice future supply. The Tribunal also considered whether disclosure would be contrary to the public interest [65]–[67]. The decision does not establish that a confidentiality assertion alone will always satisfy those requirements; the Tribunal relied on evidence about practice and the material at issue.
For clause 16(a)(iii), the relevant feature was that documents recorded CMT deliberations and discussion concerning police personnel matters [68]. The judgment does not specify that every note or record generated during a complaint investigation falls within that exemption.
The decision also applies where an applicant seeks FOI access partly to challenge the fairness or adequacy of an underlying investigation. It indicates that those concerns do not themselves convert an FOI review into a determination of the underlying process. The Tribunal expressly left those concerns outside its task [57]–[59].
The judgment itself does not discuss later treatment of Head, and the supplied text contains no later decisions applying, distinguishing, affirming or overturning it. It would therefore be unsupported to describe how later courts or tribunals treated this decision.
The authorities the Tribunal did discuss include Ritson, which it treated as materially similar when explaining the limits of the FOI review [58]. It also cited Department of Education and Training v GJ (GD) and Victoria Police v Marke in connection with the relevance of an applicant's motive to the personal-affairs assessment [62]. Those authorities were part of the reasoning available to the Tribunal at the time; the judgment does not establish their subsequent treatment of Head.
The reasons decide the status of the disputed records on the evidence in this case, but do not answer several broader questions. They do not specify, document by document, which parts were exempt under each clause beyond the general findings recorded at [60]–[68]. Nor do they give a detailed account of how each public-interest factor was weighed against every particular passage or redaction.
The Tribunal accepted that some material had been obtained or provided in confidence and that future supply could be prejudiced [65]–[67]. The reasons do not set out a detailed assessment of whether every source, document type or piece of information would have the same confidentiality characteristics. The decision therefore should not be read from this text as establishing a blanket rule for all complaints or police investigations.
The judgment also does not decide whether Head received procedural fairness, whether the investigations were adequate, or whether the findings in the complaints were correct. It says those matters were not for resolution in this FOI review [59]. Those issues remain distinct from the access determination.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
CITATION: Head v NSW Commissioner of Police [2010] NSWADT 27
DIVISION: General Division
PARTIES: APPLICANT
Jonathan Head
RESPONDENT
NSW Commissioner of Police
FILE NUMBER: 093114
HEARING DATES: 9 October 2009
SUBMISSIONS CLOSED: 9 October 2009
DATE OF DECISION:
29 January 2010
BEFORE: Montgomery S - Judicial Member
LEGISLATION CITED : Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Police Act 1990
CASES CITED: Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429; 200 ALR 111
Department of Education and Training v GJ (GD) [2009] NSWADTAP 33
Director General, Department of Education and Training v Mullet [2002] NSWADTAP 13
Macquarie University v Howell (No 2) [2009] NSWADTAP 19
McGuirk v UNSW [2007] NSWADT 204
McMahon v Director General, Department of Fair Trading [2003] NSWADT 164
NSW Police v District Court (NSW) (1993) 31 NSWLR 606
Ritson v Commissioner of Police, NSW Police Force [2010] NSWADT 22
Rouvinetis v Director General, Department of Housing [2001] NSWADT 155
Simring v Commissioner of Police, NSW Police [2006] NSWADT 331
UC v Commissioner of Police [2005] NSWADT 272
University of New South Wales v McGuirk [2006] NSWSC 1362
REPRESENTATION: APPLICANT
In person
RESPONDENT
A Johnson, solicitor
ORDERS: The decision is affirmed.
REASONS FOR DECISION
The Applicant is a serving NSW Police Officer and has been so for fifteen years. He applied to the Commissioner of Police under the Freedom of Information Act 1989 ("the FOI Act") for access to information in relation to complaints that were made against him as a serving NSW Police officer. He sought the following documents: In relation to complaint number P0704393; 1. Complaint letters or any other document/statement relating to information supplied by the complainants, or any audio/video,
The Complaints Management team meeting notes,
A copy of all documents in the complaint file,
A copy of the record of interview between Inspector Bellis and Sergeant Jonathan Head,
A copy of all records contained on the C@tsi System pertaining to this complaint number,
Any other documentation pertaining to the investigation. In relation to complaint number P0704457; 1. Complaint letters or any other document relating to information supplied by the complainants, 2. The Complaints Management team meeting notes, 3. A copy of all documents in the complaint file, 4. A copy of any formal interview between Inspector Bellis and Sergeant Jonathan Head (if it exists), 5. A copy of all records contained on the C@tsi System pertaining to this complaint number, 6. Any other documentation pertaining to the investigation.
2 The Coordinator of the Freedom of Information Unit, NSW Police Force, determined the application, granting access to some of the documents, and refusing access to some of the documents falling within the scope of the application.
3 The Applicant sought an internal review of the determination. In his application, the Applicant asserted that he sought all documents on the basis that it will enable him to defend himself from what he believes are false allegations. He says that there appears to be discrepancies in the investigation and that he wants to examine the decision making process and the examination of the evidence and how the findings were determined.
4 The internal review application re-examined all documentation withheld or released in part only. The determination was varied to the extent that some additional documents were located. The Respondent argues that the documents are exempt under a number of grounds. There are ten documents over which an exemption has been claimed (two of which are only partially exempt).
5 The Applicant then filed an application with the Tribunal seeking this external review of the determination. Copies of the documents in issue and have been filed with the Tribunal.
Applicable legislation
6 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with that Act.
Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(l)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document in accordance with one or more of the grounds of exemptions referred to in Schedule 1.
The onus is on the agency to satisfy the Tribunal that its decision was justified: section 61 of the FOI Act.
Clause 6(1) of Schedule 1 to the FOI Act (Documents affecting personal affairs) provides that a document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person. Clause 6 relevantly provides: 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.
Clause 13 of Schedule 1 to the FOI Act relevantly provides: 13 Documents containing confidential material A document is an exempt document: … (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest.
Clause 16(a)(iii) of Schedule 1 to the FOI Act relevantly provides: 16 Documents concerning operations of agencies A document is an exempt document if it contains matter the disclosure of which: (a) could reasonably be expected: … (iii) to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel, or ...
The Respondent’s case
The Respondent argues that the documents are exempt under a number of grounds. He relies on the evidence of Detective Inspector Bellis, the investigator in relation to the files that the Applicant has requested, who provided open and confidential statements and appeared at the hearing. The Respondent also relies on the statement of Suzanne Larsen, Executive Officer North West Metropolitan Region, Professional Standards Unit. Ms Larsen provided advice about an incident concerning the Applicant to the Local Area Command Complaint's Management Team ("the CMT")
The evidence of the Respondent is that some of the material includes information such as the names, addresses and personal information relating to persons other than the Applicant. That material is therefore exempt pursuant to Clause 6 of Schedule 1 to the FOI Act. Ms Johnson submits that it is irrelevant if the Applicant is aware of the identity of the persons. The Respondent contends that this exemption applies to documents 1, 3, 5, 6(a), 6(b), 7, 8, 9 and 10 in these proceedings.
She relies on the decision in Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429; 100 ALR 111, where the Court held that personal affairs connotes information which concerns or affects the person as an individual whether or not it is known to other persons or not.
The NSW Court of Appeal has held in NSW Police v District Court (NSW) (1993) 31 NSWLR 606 (Perrin's case") that whether names, dates of birth and addresses constitute "personal affairs" depends on the context in which they appear.
Having regard to the context in which the information appears in these proceedings, it is submitted that names and other personal details pertaining to individuals who have made complaints to, or assisted police with the investigations constitute "personal affairs" even if the Applicant believes that he is aware of their identity and addresses.
It is submitted that the names and addresses of third persons in the documents over which an exemption is claimed constitute personal affairs of third parties.
The Respondent submitted that documents 7 and 10 in the present proceedings, the complaint letters, are the personal affairs of the complainants: Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 and that statements or records of interview taken during the course of the investigation would constitute the personal affairs of the third party being interviewed. All statements and records of interview have been released to the Applicant, with the exception of documents 4 and 6a.
Ms Johnson submits that it is well accepted that the question of whether or not disclosure of documents containing information concerning the personal affairs of another person would be 'unreasonable' has at its core public interest considerations: Colakovski. It is a question of fact that involves an examination of all the circumstances related to the document in question and then weighing up the public interest in protecting personal privacy against the public interest in the release of the documents.
The Applicant’s case
The Applicant relies on his own evidence. He seeks release of in relation to complaints that were made against him. He provided an outline of the complaints that he knows about, the background to the complaints and the action taken.
He alleges that the investigation of one of the matters (complaint PO704393) was mishandled in that the investigating officer, Inspector Bellis, failed to obtain and review all evidence which the Applicant wished to provide to him, and failed to obtain statements or versions from witnesses who were at the scene of the alleged incident.
The Applicant provided a response to the evidence of Inspector Bellis and Ms Larsen Respondent’s arguments against releasing the information that he is seeking.
With respect to the assertion that the material is exempt pursuant to clause 6 of Schedule 1 to the FOI Act the Applicant says that the names and identities of the complainants in this matter have already been released.
He submits that it must be remembered that this complaint is about the Applicant and the information is about him. It is his belief that all allegations contained in these complaints were not put to him, for example allegations of "on-going harassment" and "threatening witnesses". He says that he should be given the opportunity to answer all the allegations and test the allegations made by being able to rebut these allegations with evidence that he holds. He says that Inspector Bellis’s failure to obtain and review all evidence has lead to the perception of a partial and one-sided investigation and is against the rule of law and a denial of natural justice.
The Applicant also understands that a complainant has made a formal statement. He says that this would be the case only if some form of criminal accusation has been levelled against him. He believes that he was not interviewed in relation to all the matters and that information contained in the complainant's statement and complaint letter make further accusations of which he was not questioned. I would like the opportunity to have these documents so he can be aware of and address all accusations.
The Applicant was informed that the investigating officers had spoken about the matter to other persons, who had given verbal accounts about the incident. Those verbal accounts were also taken into consideration in coming to the findings. He says that the verbal accounts are not in the required format (i.e. in writing) and therefore should not be used in any determination.
He contends that the verbal accounts should be contained in the notes of the CMT and therefore he requests that this information be release so he can again defend himself.
He submits that Ms Larsen provided advice to the CMT, which was not requested, and he queries why she would have done so. He says that he would like to review and obtain Ms Larsen's advice to see if it is correct and proper. He submits that Ms Larsen should have no concern about the release of this information, unless there is something inappropriate in it or what it uncovers about the subject matter.
Consideration
The Applicant has been the subject of investigations following complaints against him. His application concerns access to the documents related to those investigations. He says that the documents are essential to his efforts to address defects in the investigations. He alleges that internal processes within the NSW Police Force have denied him procedural fairness and it seems that he is attempting to obtain documents pursuant to the FOI Act because of defects in the processes under the Police Act.
In this regard, this matter has many similarities to those that I considered recently in Ritson v Commissioner of Police, NSW Police Force [2010] NSWADT 22. As I stated in that matter: 54 While I accept that the Applicant is concerned about the adequacy of the processes under the Police Act and that he will be denied procedural fairness, it is my view that the Tribunal should not attempt to cure defects that might exist in those processes. The Applicant has other avenues available to him to address those issues if they arise. 55 The Tribunal’s role is to determine the correct and preferable decision in regard to the matter before it. In doing so, it is necessary to consider whether or not the Respondent has made out the exemptions that have been asserted and if so, whether the documents should nevertheless be released.
If the Applicant’s assertion that a complaint has been sustained against him without his being given the opportunity to respond to the complaint, there is serious cause for concern. Nevertheless, this is not the forum to address those concerns.
The Respondent has asserted that the documents are exempt pursuant to a number of clauses in Schedule 1 to the FOI Act. For the reasons argued by the Respondent, It is my view that the documents are exempt pursuant to clauses 6, 13 and 16 of Schedule 1 to the FOI Act.
I agree that parts of the documents are exempt pursuant to clause 6 of Schedule 1 to the FOI Act. I am satisfied that in the context of this matter the withheld information about the informants constitute information concerning the personal affairs of those persons. In my view, the fact that the Applicant believes that he is aware of those identities and addresses does not alter the character of the information in the context of this matter.
It is well established that the question of whether or not disclosure of documents containing information concerning the personal affairs of another person would be 'unreasonable' is a question of fact that involves an examination of all the circumstances related to the document in question and then weighing up the public interest in protecting personal privacy against the public interest in the release of the documents. As I also noted in Ritson an Applicant's motive may be relevant to the assessment of whether the release of a document would be unreasonable: see Department of Education and Training v GJ (GD) [2009] NSWADTAP 33; Victoria Police v Marke [2008] VSCA 218.
Order
The decision is affirmed.
Head
NSW Commissioner of Police [2010] NSWADT 27
(1991) 29 FCR 429
(1993) 31 NSWLR 606
The decision under review was affirmed. The Tribunal concluded that the documents should not be released. ([70] and Order)
In Simring v Commissioner of Police, NSW Police [2006] NSWADT 331 the applicant sought access to a statement from the victim and two statements from witnesses on the basis that they would expose that he had been wrongly convicted and that these documents were crucial to his appeal against the conviction. The documents were considered to constitute the personal affairs of these third parties.
The Tribunal held that it would be unreasonable disclosure of the witnesses and victim's personal affairs as the statements were prepared for the purpose of the investigation and subsequent prosecution of the applicant and that it was provided for the limited purpose of the criminal proceedings. Ms Johnson submits that the same principles should be applied to the complaints which concern investigations into conduct by the Applicant pursuant to Part 8A of the Police Act 1990 and statements in the present proceedings, particularly where the person providing the information has expressly indicated to police or been informed by the investigator that the information was being provided or obtained on a confidential basis. She argues that this would extend to internal informants.
It is submitted that the wishes of the Applicant to obtain copies of the complaint documents, statements or names and addresses of third parties in these proceedings are outweighed by the fact that the information was provided in confidence by third parties in their personal capacity and that it may undermine the provision of such information in the future. Furthermore, it is unlikely that disclosing the contents of the statements and letters over which an exemption is maintained will enhance the Applicant's understanding of the investigation in any significant way and, accordingly, the public interest in maintaining the exemption outweighs the public interest in disclosing the contents of the documents. Finally, it is submitted that there is no public interest in releasing the names or addresses of the third parties in these proceedings.
The evidence of the Respondent is that some of the material was obtained or provided in confidence, and that, should the wider public or internal informants become aware of the fact that such information could be disclosed via FOI requests, it would reasonably be expected to prejudice the future supply of such information. The Respondent contends that the disclosure of that material would, on balance, be contrary to the public interest and it is therefore exempt pursuant to Clause 13(b) of Schedule 1 to the FOI Act.
The Respondent relies on the evidence of Detective Inspector Bellis and Ms Larsen in support of his submission that whilst there is a public interest in the ensuring the integrity of the investigation and in the Applicant knowing the allegations made against him, the public interest in ensuring the continued flow of information to Police outweighs this. Furthermore, Ms Johnson submits that sufficient documentation has already been provided to the Applicant via his FOI request, and there are other mechanisms in place that ensure that the investigation process is undertaken with integrity and fairness which further suggests that the release of the information would be contrary to the public interest.
The evidence of Detective Inspector Bellis is that the third parties to whom information in documents 3, 4, 6a and b relate, were either told that it would be kept confidential, or asked that it be kept confidential and that, as a matter of practice, investigations pursuant to Part 8A of the Police Act are considered to be a confidential process. Detective Bellis indicates that it is standard practice and procedure for complainant's identities and the contents of their complaints to be kept confidential (albeit the officer must be made aware of the allegations). Ms Larsen similarly indicates that her advice was provided on the understanding that it would not be disclosed to the Applicant and that in her experience complaints are made on a confidential basis. It is also submitted that the information requested is not of a kind that is widely disseminated or circulated.
Furthermore, the evidence of the Respondent is that information of the type contained in documents 3, 4, 6a, 6b, 7, 9 and 10 is of a sort that would normally be given and received on a confidential basis.
Ms Johnson submits that in determining whether disclosure of the information would "prejudice" the future supply of such information to the agency, the test is not whether the particular confider whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in the future: McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 at [25].
In Director General, Department of Education and Training v Mullet [2002] NSWADTAP 13 at [58], the Appeal Panel held that: 58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary.
This principle has been reiterated by the Appeal Panel in Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10]. The Respondent submits that in the present proceedings the Tribunal should accept that complaints or statements, from both the public and internal informers, provided in the course of an investigation pursuant to Part 8A of the Police Act regarding the conduct of police officers are of a nature that would in most cases be provided on a confidential basis. Should the complaint documents or statements be disclosed, it is submitted that the future supply of such information may be prejudiced.
In regard to the third element of clause 13(b), namely whether disclosure would be contrary to the public interest, Ms Johnson submits that the comments of the Tribunal's President in Rouvinetis v Director General, Department of Housing [2001] NSWADT 155 at [21] and [22] are relevant: 21 If a document falls into the categories found in the internal working documents exemption, cl 9(1)(a), the exemption may only be invoked if disclosure ‘would, on balance, be contrary to the public interest.’ I consider that the public interest in the public housing context may include the need not to promote further tension or conflict between neighbours by disclosing the identity of complainants until such point as that may become unavoidable in order to obtain resolution. 22 A similar structure is found in the confidentiality exemption, cl 13. If the document falls into one of the listed categories, the same public interest test as for the internal working documents exemption applies. I see the same policy considerations as relevant.
Ms Johnson also referred to my decision in UC v Commissioner of Police [2005] NSWADT 272 where I stated at paragraph [36] that "by disclosing the identity of some of the complainants and informants could promote further tension or conflict between neighbours" Ms Johnson submitted that this is relevant to the present proceedings.
The Respondent also contends that some of the material if disclosed could reasonably be expected to have a substantial adverse effect on the ability of the Commissioner to manage and assess his personnel and it is therefore exempt pursuant to Clause 16(a)(iii) of Schedule 1 to the FOI Act. The Respondent contends that this exemption applies to documents 1, 2, 4, 8, and 9 in these proceedings.
The evidence of the Respondent is that the release of that information would disclose information that involves deliberation and discussion by the Complaint's Management Team, which is an important tool in the Part 8A process. Ms Johnson submitted that whilst there is a public interest in the ensuring the integrity of the investigation and in the Applicant knowing the allegations made against him, the public interest in ensuring that this important part of the complaints process remain confidential outweighs this. Furthermore, she says that sufficient documentation has already been provided to the Applicant via his FOI request, and there are other mechanisms in place that ensure that the investigation process is undertaken with integrity and fairness which further suggests that the release of the information would be contrary to the public interest.
The Respondent submits that release of the documents that have not been disclosed would impact on the ability of the management and investigators to have a forum to discuss the process and specific investigations or methodology. Secondly, it may hinder the ability of investigators to properly carry out their functions if the public and internal informants were deterred from providing information because they were aware that their confidentiality may not be maintained and where their personal affairs may be disclosed to the Applicant and/or wider public. Ms Larsen indicates that informers, herself included, may think twice before providing advice or information in the future.
In these proceedings, the NSW Ombudsman reviewed the findings of the investigations and provided his advice as to issues to further consider. Furthermore, all investigations are quality reviewed by other officers to ensure that the investigation was undertaken with integrity and fairness. The Respondent contends that in view of the existence of avenues available to the Applicant whereby grievances can be addressed, there is no public interest that outweighed the countervailing public interest in non-disclosure.
Ms Johnson further submits that the issues that the Applicant has raised concerning whether a particular complaint should have been investigated and whether he should have been provided with the content of allegations and offered the opportunity to refute the allegations and that he should be able to discover whether or not there is some form of cover up or hidden agenda against him are irrelevant to the question of whether it is correct and preferable for the documents in issue to be released to the Applicant. She says that the Applicant it is essentially requesting the Tribunal to hear evidence on how the investigation was conducted as well as have regard to the contents of the documents created for the purpose of the investigation to determine such issues.
The Respondent contends that the Tribunal could be satisfied that the disclosure of that information would reasonably be expected to have a substantial adverse effect on the management or assessment by police of its personnel and would, on balance, be contrary to the public interest.
The Respondent contends that any record of information held by the Respondent that was provided by the Ombudsman whilst undertaking the Ombudsman’s "complaint handling, investigative, review and reporting functions” would be exempt pursuant to sections 6, 9 and Schedule 2 to the FOI Act.
The Respondent submits that once a respondent has made out an exemption, the onus of proof shifts and the Applicant must persuade the Tribunal to exercise the discretion to release the documents identified by the Nicholas J in University of New South Wales v McGuirk [2006] NSWSC 1362 at [102]. In support of that submission the Respondent relies on my decision in McGuirk v UNSW [2007] NSWADT 204 at [29] and [39] in which I rejected the Applicant's submission that the onus of proof in relation to the residual discretion is on the Respondent pursuant to section 61 of the FO1 Act.
Ms Johnson submits that the Applicant has not raised any matters in support of the exercise of the residual discretion, and the Respondent is not aware of any matters that would enliven or support the exercise of the discretion in the circumstances.
The Applicant submits that Police service guidelines state that all employees must be accountable for their actions and decisions. It is his submission that therefore Ms Larsen's advice must be released for scrutiny and transparency within the organisation.
He says that he believes that it is perfectly reasonable to request information and be supplied with files and complaint details which are about him.
He does not agree with the Respondent’s evidence that releasing information may prevent persons from coming forward in the future. He submits that knowledge that information may be released to the subject officer(s) would actually have a positive result, in that informants will be cautious to only include the truth and not be inclined to make false accusations and include untruths about a police officer (or related persons).
The Applicant says that there is no risk that the release of the documents might reignite tensions between the complainant and the Applicant. He says that he wishes to obtain the documents so he can answer the allegations properly. His disagreement is not with the complainants but with the Respondent, who chose not to properly investigate or show any form of fairness, loyalty or honour towards him.
In regard to complaint PO704457 the Applicant says that the initial findings by Inspector Bellis was: Issue 1 - "No adverse Finding" Issue 2 - "No adverse Finding"
However, he says that the findings on the report have been changed to: Issue 1: Inaction of investigation - Not Sustained. Issue 2: Inadequate Customer Service - Sustained - Supt McGee counselled Sgt Head on 8/01/08 in relation to his attitude.
The Applicant says that he request the information including CMT notes and complaint letter be released. He says that he knows the identity of the complainant but he wishes to see what the allegation made against him was. He maintains that I was never interviewed about this matter and he believes that the complaint letter contains false and misleading information about him. He says that the CMT notes will explain why the initial findings were changed.
I accept that the Applicant’s motivation is to attempt to identify deficiencies within the complaint investigations. He is unlikely to seek publicity for the material released.
Nevertheless, for the reasons argued by the Respondent, it is my view that on balance, it would be contrary to the public interest to release the documents.
I also accept the evidence of the Respondent that some of the material was obtained or provided in confidence. I also accept that release of material obtained in confidence would reasonably be expected to prejudice the future supply of such information.
In my view, the wishes of the Applicant to obtain copies of the documents are outweighed by the fact that the information was provided in confidence by third parties in their personal capacity and that it may undermine the provision of such information in the future.
I also agree with the Respondent in regard to the asserted exemption pursuant to clauses 13 of Schedule 1 to the FOI Act. I accept the evidence of Detective Inspector Bellis and Ms Larsen in regard to the Respondent’s usual practice to keep investigations pursuant to Part 8A of the Police Act as confidential processes and that it is standard practice and procedure for complainant's identities and the contents of their complaints to be kept confidential. I accept that information of the type under consideration is of a sort that would normally be given and received on a confidential basis. In my view it is important to maintain confidentiality over the identity of complainants and witnesses and the information provided even after investigations are concluded. I am also satisfied that should the complaint documents or statements be disclosed, the future supply of such information may be prejudiced. Its disclosure would also be contrary to the public interest. There is public interest in ensuring that the NSW Police continue to receive the frank and full co-operation of serving officers and members of the wider public when investigating allegations of misconduct on the part of other serving officers. I am satisfied that the mechanisms in place that ensure that the investigation process is undertaken with integrity and fairness are sufficient to ensure that the public interest while preserving the confidentiality of informants.
I am also satisfied that those documents which concern the deliberation and discussion by the Complaint's Management Team should not be released. For the reasons argued by Ms Johnson, I am satisfied that the exemption pursuant to clauses 16(a)(iii) of Schedule 1 to the FOI Act is made out. Disclosure of those documents would reasonably be expected to have a substantial adverse effect on the management or assessment by police of its personnel and would, on balance, be contrary to the public interest.
In light of these findings, it is unnecessary that I consider the other exemptions asserted by the Respondent.
In my view, the correct and preferable decision is that the documents should not be released.