Hutchinson v Roads and Traffic Authority, NSW [2002] FCA 1442 | Case summary

REASONS FOR DECISION Introduction 1 Mr Hutchinson applied to the Roads and Traffic Authority (RTA) under the Freedom of Information Act 1989 (FOI Act) for documents relating to "structural rust and /or lack of proper painting maintenance on the Sydney Harbour Bridge". Mr Hutchinson said that he was seeking access to the documents because there is a significant amount of rust on the Bridge that up until now has not been properly dealt with. The RTA provided Mr Hutchinson with some documents and photographs, but refused to give him access to 53 photographs. The ground for refusal was that they were exempt documents because they relate to counter terrorism measures. The main basis for claiming the counter terrorism measures exemption was that the photographs show structural detail not normally visible by or accessible to the public. 2 Attached to the 53 photographs was some written information including a number, the date the photograph was taken, the project to which the photograph related and the description of the image in the photograph. In these reasons, I refer to the 53 photographs in dispute together with the written information attached to each photograph, as "the photographs". While Mr Hutchinson's primary submission was that he was entitled to be given access to the photographs in their entirety, his alternative submission was that he should be given access to the photographs with the description of the location removed. 3 The RTA provided the photographs to the Tribunal on a confidential basis. They also filed two confidential statements. Because of the claims of confidentiality in relation to the photographs and the evidence, part of this decision will only be made available to the RTA and their legal representatives and to Mr Hutchinson's legal representative, Mr Zipser. The remainder of the decision will be available without restriction. Restricted documents 4 Under s 16(1) of the FOI Act "[a] person has a legally enforceable right to be given access to an agency's documents in accordance with this Act." After considering an application for access to an agency's documents, the agency must determine whether access should be given or refused, and if access is to be given any charge payable in respect of giving access: s 24(1). Section 25(1)(a) provides that an agency may refuse access to an exempt document. An exempt document includes a document referred to in any one or more of the provisions of Schedule 1: s 6. Clause 4A of Schedule 1 exempts documents affecting counter terrorism measures. Such documents are "restricted documents" because they come within Part 1 of Schedule 1. Section 57 of the FOI Act imposes certain duties on the Tribunal and gives it certain discretions when dealing with restricted documents. Section 57 provides that: (1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate. (2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of: (a) the public, and (b) the review applicant, and (c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative. (3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it. (4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application. (5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter. (6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings. 5 Three issues arise from the provisions of s 57. They are: (a) whether the Tribunal should receive evidence and hear argument in the absence of the public, Mr Hutchinson and Mr Hutchinson's representative? (b) the procedure the Tribunal should follow when dealing with "restricted documents"? (c) the involvement of the Premier in the proceedings. Confidential evidence 6 Pursuant to s 57(2), the RTA applied to the Tribunal to receive certain evidence and hear argument in relation to it, in the absence of the public, Mr Hutchinson and Mr Hutchinson's legal representative, Mr Zipser. When such an application is made, the Tribunal is bound, by the provisions of s 57(2), to receive evidence and hear argument in the absence of the public and the review applicant. The Tribunal has a discretion to exclude the applicant's representative, if in the opinion of the Tribunal, it is necessary to do so to prevent the disclosure of any exempt matter. In my view, it was not necessary in this case to exclude Mr Zipser from seeing or hearing confidential evidence, because I was satisfied that if I imposed certain conditions on his participation, exempt matter would not be disclosed, except to him. 7 The conditions on which I allowed Mr Zipser to participate in that part of the proceedings where confidential evidence was given and confidential submissions made, were that the material was to be viewed only in the Tribunal hearing room, that the material was to be used solely for the purpose of these proceedings and that Mr Zipser give an undertaking to the Tribunal that he would not disclose the material or communicate the content of the material, or any of the oral evidence or submissions relating to that material, to any person, including Mr Hutchinson. That undertaking does not apply to communication of the material or its content to the Tribunal or representatives of the RTA within the hearing room. Mr Zipser gave that undertaking to the Tribunal. Procedure for dealing with restricted documents 8 In Bissett v Director General, NSW Department of Gaming and Racing [2004] NSWADT 160, the respondent argued that s 57(4) means that the Tribunal may only consider whether there are reasonable grounds for the exemption and may not conduct a merits review of the decision not to give access to the documents. The Tribunal did not accept that submission. Instead it followed the approach to restricted documents previously set down by the Tribunal in BY v Director General, Attorney General's Department [2002] NSWADT 79. In that case the Tribunal decided that s 57 applies to all restricted documents claims, but that it does not deprive the Tribunal of its ordinary merits review powers. Neither the RTA, nor Mr Zipser, submitted that that interpretation was incorrect. 9 The RTA provided a confidential copy of the photographs to the Tribunal before I had made any formal decision in accordance with s 57(3) that I was not satisfied that there were reasonable grounds for the claim. In accordance with the principles in BY v Director General, Attorney General's Department [2002] NSWADT 79, I must now go on to decide whether the agency's decision to rely on the exemption is the "correct and preferable" decision: ADT Act, s 63. The onus is on the RTA to establish that its determination not to release the photographs was justified: FOI Act, s 61. Involvement of the Premier 10 Under s 57(5), the Tribunal is not to reject the agency's claim for exemption unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter. The RTA advised the Premier of this application but he declined to appear. Exemption for documents affecting counter-terrorism measures 11 The exemption relied on by the RTA is in Cl 4A to Schedule 1 of the FOI Act. The relevant provisions are Cl 4A(1) and (2). None of the exceptions to the exemption in Cl 4A(3) applies to the photographs. 4A Documents affecting counter-terrorism measures (1) In this clause: "terrorist act" has the same meaning as in the Terrorism (Police Powers) Act 2002 . (2) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: (a) to facilitate the commission of a terrorist act, or (b) to prejudice the prevention of, preparedness against, response to, or recovery from, the commission of a terrorist act. 12 Terrorist act is defined in the Terrorism (Police Powers) Act 2002 to mean an action where: (a) the action falls within subsection (2) and does not fall within subsection (3), and (b) the action is done with the intention of advancing a political, religious or ideological cause, and (c) the action is done with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country, or (ii) intimidating the public or a section of the public. (2) Action included Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person, or (b) causes serious damage to property, or (c) causes a person's death, or (d) endangers a person's life, other than the life of the person taking the action, or (e) creates a serious risk to the health or safety of the public or a section of the public, or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system, or (ii) a telecommunications system, or (iii) a financial system, or (iv) a system used for the delivery of essential government services, or (v) a system used for, or by, an essential public utility, or (vi) a system used for, or by, a transport system. (3) Action excluded Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action, and (b) is not intended: (i) to cause serious harm that is physical harm to a person, or (ii) to cause a person's death, or (iii) to endanger the life of a person, other than the person taking the action, or (iv) to create a serious risk to the health or safety of the public or a section of the public. (4) Application In this section: (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside the State (including within or outside Australia), and (b) a reference to the public includes a reference to the public of another State or Territory or of a country other than Australia. 13 A terrorist act done with the intention of advancing a political, religious or ideological cause and with the intention of coercing, or influencing by intimidation, a government or intimidating the public or a section of the public. It must also be action of the kind listed in s 3(2) of the Terrorism (Police Powers) Act 2002, for example an act that causes serious damage to property, endangers a person's life or creates a serious risk to the health or safety of the public or a section of the public. The RTA did not specify the kinds of terrorist act that disclosure of the photographs would facilitate. Issue 14 The key issue in relation to the applicability of the exemption in Cl 4A is whether disclosure of the photographs "could reasonably be expected to facilitate the commission of a terrorist act or to prejudice the prevention of, preparedness against, response to, or recover from, the commission of a terrorist act." The words "could reasonably be expected" have been interpreted in other cases in relation to other exemption clauses in the FOI Act and its federal counterpart, the Freedom of Information Act 1982 (Cth). In Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like... In our opinion, in departing from the terms of s 43(1)(c)(ii) and requiring the applicants to establish a case on the balance of probabilities, the majority of the Tribunal fell into error in their construction of the provision." 15 The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at 106. 16 This reasoning has been applied consistently at the federal level. In Searle (Australia) Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 123-124, the Full Court of the Federal Court reaffirmed the approach taken in Cockcroft. The RTA also quoted a passage from the decision of the Federal Court in Centrelink v Dykstra [2002] FCA 1442. In that case Mansfield J decided (at [25]) that the correct approach was for the decision maker to objectively determined whether "there was a possibility that the disclosure of the documents could endanger the life or physical safety of other persons, and if so whether that possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous". This test is inconsistent with that put forward in Cockcroft where the Full Court said that something more than a "possibility" was required. 17 In "B" and Brisbane North Regional Health Authority, Re (1994) 1 QAR 279 at [154]- [160] the Commissioner analysed the meaning of the phrase "could reasonably be expected to" by reference to relevant Federal Court decisions. The Commissioner said that: The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. 18 This is the correct basis for determining whether the disclosure of a document "could reasonably be expected" to have a particular effect. Non-confidential evidence 19 The non-confidential evidence from the RTA consisted of a statement from Gunhan Guven, Infrastructure Protection Engineer with the RTA. Mr Guven said that his responsibilities include developing countermeasures for the RTA in response to terrorism. That involves assessing critical RTA infrastructure, including the Bridge, carrying out risk assessments, developing proposals for countermeasures and managing the overall program for implementation of those measures. He examined the disputed photographs and considered whether they contained images of parts of the Bridge taken from locations which the public cannot access. He said that it was the RTA's policy to limit information that is available about the structure of the Bridge and, in particular, any images showing structural detail. He added that public release of the photographs could facilitate the commission of an act of terrorism on the Bridge and also possibly prejudice counterterrorism measures. 20 The non-confidential evidence tendered by Mr Hutchinson is two sets of photographs of the Bridge: one set taken by Mr Hutchinson recently and the other an historical set of photographs from the Mitchell Library. The purpose of the photographs taken by Mr Hutchinson was presumably to demonstrate that members of the public could take images of the structure of the Bridge. The purpose of the Mitchell library photographs was to demonstrate that images of structural details, not normally visible by the public, are nevertheless available to members of the public. 21 The following seven paragraphs are confidential. Confidential evidence 22 Subject to suppression order 23 Subject to suppression order 24 Subject to suppression order 25 Subject to suppression order 26 Subject to suppression order 27 Subject to suppression order 28 Subject to suppression order Reasoning and conclusion 29 One of the objects of the FOI Act is "to extend, as far as possible, the rights of the public to obtain access to information held by the Government": FOI Act, s 5(1)(a). The FOI Act is to be interpreted and applied so as to further the objects of the Act. Mr Lancaster, representing the RTA, pointed to the Second Reading Speech as a guide to interpreting Cl 4A. Section 34 of the Interpretation Act 1987, allows the Tribunal to use extrinsic material of this kind if it is capable of assisting in the ascertainment of the meaning of the provision. In this case, the Second Reading Speech does nothing more than confirm that the meaning of s 4A is the ordinary meaning conveyed in that provision. 30 At the heart of the RTA's evidence is a general statement that any increase to the number of images of the structure of the Bridge over and above those currently available to members of the public justifies reliance on the exemption. No specific evidence was given about how disclosure of the particular photographs in dispute would come within Cl 4A(2) to the Schedule. 31 Subject to suppression order 32 Subject to suppression order 33 It is not irrational, absurd or ridiculous to expect that disclosure of the photographs could facilitate the commission of a terrorist act. There are real or substantial grounds for expecting that such consequences could arise. Keeping in mind the objects of the FOI Act, I am satisfied that the RTA has discharged its onus of proving that disclosure of the photographs "could reasonably be expected" to facilitate the commission of a terrorist act. Having come to that view, I do not need to make a finding in relation to Cl 4A(2)(b) about prejudicing the prevention of, preparedness against, response to, or recovery from, the commission of a terrorist act. Deletion of the information about the location of the images in the photographs would decrease the usefulness of the photographs for people planning a terrorist attack, but the confidential evidence satisfies me that the photographs without the location information would nevertheless come within the exemption in Cl 4A(2)(a). Orders The decision of the Roads and Traffic Authority not to give Mr Hutchinson access to the 53 photographs is affirmed.

Hutchinson v Roads and Traffic Authority, NSW

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