McGuirk v Commissioner of Police, New South Wales Police [2007] NSWSC 147 | Case summary

REASONS FOR DECISION 1 This is an application by Mr McGuirk seeking review of a decision of the respondent Commissioner pursuant to the Freedom of Information Act 1989 ('the FOI Act') in regard to Mr McGuirk's FOI request of 17 August 2006. In that request Mr McGuirk sought access to nine categories (items) of documents. Of the documents held by the Commissioner falling within the terms of Mr McGuirk's request, the Commissioner determined to grant Mr McGuirk access to many of these in full. Of the remaining documents, the Commissioner decided to refuse Mr McGuirk access to these documents either in part or in full. 2 After Mr McGuirk filed his application for external review, another delegate of the Commissioner made an internal review determination in which the Commissioner decided to grant Mr McGuirk access to additional documents. However, the Commissioner refused Mr McGuirk access, in part of whole, in regard to the following categories (items) of documents, which at the time of the hearing remained in dispute: Item 1 Duty rosters for Burwood Police Station for the period from midnight on Thursday, 2 August to midnight on Saturday, 12 August 2006. Item 5 Copies of CCTV recordings and other similar recordings (whether oral or visual) relating to the arrest and detention of Gerard Michael McGuirk on Saturday, 12 August 2006, including, but not limited to, the time of his arrival at Burwood Police Station until he left at approximately 5.30 pm that same day. The documents sought under this part of his application include, but are not limited to, the following: CCTV recording and/or audio recording of Cell 2 at Burwood Police Station for the complete period during which Mr McGuirk was detained. CCTV recording and/or audio recording from other parts of Burwood Police Statement which show Mr McGuirk or are related to the arrest and detention of Mr McGuirk even if he is not visible or audible in the recording. Audio recordings of telephone conversations between Mr Gerard Michael McGuirk and officers of Burwood Police LAC prior to his arrest in the early hours of Saturday, 12 August 2006, including, but not limited to, the conversations he had with Inspector Gomes. Item 6 Copies of all records held by Burwood Police LAC in relation to the oral complaint made by Gerard Michael McGuirk in which he alleged that his arrest and detention had been illegal, both at common law and under statute. 3 In regard to Item 1, the Commissioner identified 42 documents (that is pages) relevant to this Item and determined to grant Mr McGuirk access to these documents, with deletions, pursuant to sub-section 25(4) of the FOI Act. The deleted material, the Commissioner had determined to be exempt under clause 6 of Schedule 1 of the FOI Act (i.e. was information affecting the personal affairs of persons other than Mr McGuirk). 4 In regard to Item 5, the Commissioner located 2 CCTV video cartridges that fell within the description of the first two dot points of this request. Otherwise, no further documents were found relevant to this Item. In regard to the 2 CCTV video cartridges, the Commissioner determined to refuse to grant Mr McGuirk a copy of these documents on the basis that they were exempt under clause 6 of schedule 1 of the FOI Act. In the original determination the Commissioner had invited Mr McGuirk to view these documents at his Offices. A similar invitation was not made in the internal review determination. 5 In regard to Item 6, the Commissioner identified 125 documents (that is pages). Of these, pages 1 to 123 were released to Mr McGuirk in full. In regard to the remaining two pages (124 and 125), the Commissioner determined that these were exempt documents on the basis that they contained matter relating to the complaint handling, investigative and reporting functions of the office of the Ombudsman (see section 6(1) and paragraph (b) of the definition of 'exempt document' and section 9 of the FOI Act). 6 The Commissioner provided to the Tribunal, on a confidential basis, a copy of the exempt material. In regard to this material and the Tribunal notes its obligation under section 55 of the FOI Act not to disclose that material. 7 In his application for review, Mr McGuirk also asserted that the Commissioner's delegates in determining his FOI request had failed to exercise their 'statutory discretion for proper purposes and in good faith. (ultra vires) Improper application of exemptions to cover misconduct by officers of the Burwood Police LAC'. Issues 8 The issues in this application are: (a) whether the duty roster (Item 1) contained matter that was exempt under clause 6 of Schedule 1 of the FOI Act'; (b) whether the CCTV video cartridges (Item 5) contained matter that was exempt under clause 6 of Schedule 1 of the FOI Act; (c) whether pages 124 and 125 (Item 6) contain matter relating to the complaint handling, investigative and reporting functions of the Ombudsman and are therefore an exempt document; and (e) whether there is any evidence that in the handling of Mr McGuirk's FOI request, an officer of the Commissioner's Office has failed to exercise, in good faith, a function conferred or imposed on him/her by or under the FOI Act. Hearing 9 This matter was heard on 2 July 2007. There was no appearance by or on behalf of Mr McGuirk, even though he had been present, on 29 May 2007, when the matter was set down for hearing. 10 On the day of hearing, Mr McDonnell, solicitor, appeared on behalf of the Commissioner. As Mr McGuirk had consented to the hearing date and the Tribunal's file did not contain any correspondence or file note indicating that Mr McGuirk was unable to attend the hearing, the matter proceeded in his absence. At the conclusion of the hearing I reserved my decision. 11 Some time after the hearing, I became aware of an email Mr McGuirk had sent to the Tribunal, at 11.51 pm, on the evening prior to the hearing. In that email Mr McGuirk advised that he was unable to attend the hearing on the following day due to a commitment with the Supreme Court. While Mr McGuirk did not seek an adjournment, the inference arising from his email was that he wished to be present when his application was heard. Accordingly, at my directions, the matter was listed for directions on 27 November 2007. Mr McGuirk indicated at these directions hearing that he did not wish to place any further material before the Tribunal. However, directions were made giving him a specified amount of time within which he should file and serve additional material, if any. The 'personal affairs' exemption - clause 6 12 In order for a document to be exempt under clause 6, Schedule 1 of the FOI Act it must be established: (a) the document contains information concerning the personal affairs of a person, other than the FOI applicant; and (b) the disclosure of that information would involve an unreasonable disclosure. Both issues are ultimately a question of fact.

13 Meaning of Personal Affairs - The term 'personal affairs' as used in clause 6 and other sections of the FOI Act is not defined in that Act. However, it has long been accepted that it should be given its ordinary meaning. In Commissioner of Police v District Court of NSW (1993) 39 NSWLR 686 ( Perrin's case ) Kirby P. held that the words 'personal affairs' in the context of the FOI Act meant 'the composite collection of activities personal to the individual concerned'. In Young v Wicks (1986) 13 FCR 85; 79 ALR 448, Beaumont J. said that the term 'personal affairs' referred to matters of private concern to a person'. 14 In Perrin's case, Kirby P. drew a distinction between information concerning the duties of a public servant and information relating to the public servant's personal affairs. In that case the question was whether the disclosure of the names of the police officers who had prepared the report for which access had been sought would be a disclosure of their 'personal affairs'. The Court held it was not as these officers had prepared the report in the course of their duties as police officers. That is, their names on the document in question were included in the context of this information forming part of their public duties and the discharge of them and not their 'personal affairs': see per Mahoney JA, at 638. 15 Perrin's case however is not authority for the proposition that all information concerning a government agency employee in the course of his/her employment falls outside the personal affairs exemption. An authoritative examination of the case law in this regard was provided by the Queensland Commissioner in Re Stewart and Department of Transport (1993) 1 QAR 227. That examination was accepted by the Appeal Panel in Chief Executive Officer, State Rail Authority v Woods (GD) [2003] NSWADTAP 25 at [17]. In that appeal the Appeal Panel said the following in regard to the Queensland Commissioner's examination: 17. … In our view it is clear from that exposition and from our review of the case law that no exact line is drawn as to what information relating to performance in the work place can be characterised as falling within or outside the meaning of 'personal affairs'. While it is beyond doubt that quintessentially private information (domestic relationships, personal finances, health) is covered by the term 'personal affairs' there is an area, which the Queensland Commissioner describes as the 'grey area', where decisions either way may be made depending on the context. 18. The Commissioner referred to the following categories of information as ones where much depends on the context as to whether it will be categorised as involving a matter of 'personal affairs' or be seen as non-personal and falling outside the protection of the exemption: names, addresses and telephone numbers; employment related matters; 'one-off' commercial transactions; information with a mixture of personal and less personal information (a workplace appraisal might include for example references to aspects of home life bearing on performance at work). 19. The Commissioner listed the following 'employment related matters' that could be said to form part of an individual's 'personal affairs': information relating to sick leave, annual leave, level of personal superannuation contributions. The Commissioner also endorsed the following instance as correct in treating the information as falling on the 'personal affairs' side of the line: the contents of complaints or allegations made to an external complaints agency, the Commissioner for Equal Opportunity, of sex and racial discrimination relating to incidents that arose in the workplace … 16 Meaning of 'unreasonable disclosure' - It is well established that an 'unreasonable' disclosure of information for the purpose of clause 6 of Schedule 1 of the FOI Act has at its core public interest considerations, see Saleam v Director General, Department of Community Services & Ors [2002] NSWADT 41 at [42] in which the President cited with approval the remarks of Lockhart J. in Colakovksi v Australian Telecommunications Corporation (1991) 13 AAR 261 at 260. In Colakovski Lockhart J said that 'the exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned' in the exemption are satisfied. 17 In Woods at [38] the President agreed with the following approach of the AAT in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 in determining whether the disclosure of matter concerning the personal affairs of a person was an unreasonable disclosure: … Whether a disclosure is "unreasonable" requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. … 18 This approach has been followed in other decisions of the tribunal; see Humane Society International Inc. v National Parks & Wildlife Service [2000] NSWADT 133 at [21]; Keriakes v State Railway Authority [2003] NSWADT 191 and EB v Commissioner of Police, NSW Police [2007] NSWADT 303 at [5] to [9]. Item 1: the Duty Roster deletions 19 The duty rosters appear to be print outs from a daily electronic record made and retained at the Burwood Police Station for the relevant period. The print out is in the form of a schedule, which lists the names of the officer, assigned to that station each day. Recorded against each name is the officer's rank, skills, duties, shift hours and overtime (if any). The deletions that have been made primarily occur in the column headed 'duties'. On the documents that have been disclosed, descriptions of duties include 'Annual Leave NCO', 'sick leave' and 'training: see for example pages 2, 10, 15, 18, and 19. Yet exemption has been claimed for the same similar descriptions on other pages of the duty roster. 20 This would appear to be an inconsistent approach to the deletions as no explanation has been provided as to why the same description has been in some instances been disclosed and others it has not been disclosed. The approach also appears to be incorrect in some aspects. 21 On the basis of the principles set out in Woods, in my opinion, that part of the duty roster recording whether an officer was, or was not, on duty on a particular day, is not a matter concerning that officer's personal affairs. Nor is the record as to what duties that officer was assigned to perform on a particular date a matter concerning that officer's personal affairs. On the other hand, where the record is to the effect that the officer was 'absent' on a particular day, then this may be a matter concerning that officer's personal affairs. This will be particularly so when the reason for the absence is also recorded. In my opinion, not only would this be a matter concerning the officer's personal affairs, the disclosure of this information would be an unreasonable disclosure. 22 I am also of the opinion that the deletion at the bottom of the first page of the duty rosters is not exempt in that it does not concern the personal affairs of any of the officers named on that page or the following page. It appears to concern a matter of general administration in regard to the duty roster. 23 Accordingly, for the reasons set out above, the Commissioner has failed to satisfy the Tribunal that the deletion at the bottom of page 1 is exempt under clause 6 of Schedule 1 of the FOI Act. Furthermore, in regard to the abovementioned deletions in the 'duties' column, there are a number of deletions, which are not exempt under this clause. As there are not many deletions to which this applies it is appropriate that the decision of the Commissioner in regard to those deletions in the 'duties' column and the deletion on page 1 be set aside and remitted for reconsideration in accordance with these reasons for decision, pursuant to paragraph 63(3)(d) of the Administrative Decisions Tribunal Act 1997. Item 5: the CCTV video cartridges 24 The CCTV video cartridges that have been provided to the Tribunal on a confidential basis cover two 24 hour periods from about 6.40 am on the morning of 11 August 2006 to about 6.40 am on the morning of 13 August 2006. Each cartridge contains an ongoing image from a security camera at Burwood Police Station. The camera is directed towards two adjoining lock up rooms. At the front of each lock up room is a glass door and they are also joined by a glass wall. There is a door to the right of the lock up rooms and another door on the left adjoining door. Immediately under the camera is a desk and there is a piece of equipment on the right hand wall of the room. Mr McGuirk did not request access to the entire record of both cartridges. He only requested that part which covered the period from very early morning to about 5.30pm on 12 August 2006. It is assumed that no separate record is kept of the hours requested and that the only CCTV footage that is retained is that which covers a 24 hour period. That is, the cartridges are only changed every 24 hours. However, I note that a schedule has been prepared of that portion of the two tapes, which relate to Mr McGuirk's request. Mr McGuirk has also been granted access to that schedule: see page 19 of Item 6. 25 To the extent each CCTV video cartridge covers a period not included in Mr McGuirk's FOI request, this portion of each cartridge is of no relevance to that request. 26 In regard to that portion of each CCTV video cartridge, relevant to Mr McGuirk's request, there are images of police officers, other workers at the police station, Mr McGuirk and other persons who appear to have been detained or questioned by police. In my opinion, it is only the images of the last category of persons, who are identifiable from the image, that are exempt under clause 6 of Schedule 1 of the FOI Act. That is the image concerns the personal affairs of those persons (i.e. if they are identifiable from the image) and disclosure of these would be an unreasonable disclosure. 27 Images of the on duty police officers and other workers are not exempt on the basis of the principles set out in Perrin's case. Nor are the images of Mr McGuirk or other persons who appear to be performing work duties at the station. The image of Mr McGuirk comes within clause 6(2) and therefore expressly excluded from the exemption. 28 It is noted that a large portion of the video footage to which Mr McGuirk seeks access to contains no image of any person. This portion of the footage does not fall within the clause 6 exemption. 29 For the reasons set out above, I am satisfied that the CCTV video cartridges contain irrelevant matter and in so far as it contains relevant matter this includes matter that is exempt under clause 6 of Schedule 1 of the FOI Act. 30 However, as to that part of each CCTV video cartridge that is relevant to Mr McGuirk's FOI request, these also contain non exempt matter. Accordingly, consideration must be given to the requirements of sub-section 25(4) of the FOI Act. That sub-section provides that an agency is not to refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter is deleted and if it appears that the FOI applicant would wish to be given access to such a copy. Mr McGuirk has at all times requested a copy of the CCTV video cartridge to the extent requested. 31 It is difficult to imagine that it would not be possible to give Mr McGuirk a copy of the CCTV video cartridges with the irrelevant and exempt images deleted. However, the test is whether it is practicable to do so. In this application, the Commissioner may have considered that it was not practicable to provide Mr McGuirk with a copy and this may be why the Commissioner in the original determination invited Mr McGuirk to view the CCTV video cartridges. At the time, this may have been considered as a practical solution to Mr McGuirk's concerns. However, Mr McGuirk has insisted on his right of access to a copy pursuant to the provisions of the FOI Act. 32 At the hearing, Mr McDonnell, on behalf of the Commissioner, suggested that paragraph 57(1)(c) of the FOI Act was applicable in that the Commissioner could grant access in the form suggested by D Stuart, Co-ordinator of the Freedom of Information Unit, in the original determination on behalf of the Commissioner. That paragraph provides that where a document from which sounds or visual images are capable of being reproduced, access to that document may be given by making arrangements for the person seeking access to hear or view those sounds or images. 33 However, that paragraph must be read together with sub-section 57(2) of the FOI Act. This sub-section provides that where an FOI applicant has requested that access to a document be given in a particular form, 'access to that document shall be given in that form' (underlining added). Sub-section 57(3) of the FOI Act goes on to provide that an agency can refuse access in the requested form if: (a) this would unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions; (b) would be detrimental to the preservation of the document or (having regard to the physical nature of the document) would otherwise not be appropriate; (c) would involve an infringement of copyright subsisting in matter contained in the document. 34 It is not apparent from the Commissioner's determination (original or internal review) or reasons given for his determinations, whether the Commissioner, when making these determinations, had one or more of the above matters in mind. Nor was any material placed before the Tribunal in this regard. 35 In this application I have found that each CCTV video cartridge contains a substantial amount of matter that is not exempt. Accordingly, the essential question is whether it is practicable to provide Mr McGuirk with a copy of each cartridge with the irrelevant and exempt matter deleted. If it is found not to be practicable, in my opinion, the correct and preferred decision would be to grant Mr McGuirk access to the relevant and non exempt matter by him viewing the CCTV video cartridge, pursuant to paragraph 57(1)(c) of the FOI Act by reason of paragraph 57(2)(a) of that Act. This will be an interrupted viewing so that the exempt matter is not disclosed. 36 What is practicable is a question of fact and will depend on the circumstances of each application. 37 It is accepted that to make a copy of CCTV footage with exempt matter deleted may be more time consuming and costly than making a copy of a written document with exempt matter deleted. However, this on its own may not be sufficient to establish that it is not practicable to make a copy of the CCTV footage. 38 While the Commissioner bears the onus of proof that his determination is justified (see section 61 of the FOI Act), the role of the Tribunal is to determine the correct and preferred decision having regard to the applicable law and the relevant facts: see sub-section 63(1) of the Administrative Decisions Tribunal Act 1997. In making its determination, the Tribunal is also required to ensure that all relevant material is disclosed to it so as to enable it to determine all of the relevant facts in issue: see paragraph 73(5)(b) of the Administrative Decisions Tribunal Act 1997. 39 In my opinion, as there is insufficient material before the Tribunal in order to determine whether it is practicable to provide Mr McGuirk with a copy of the CCTV video cartridges with the irrelevant and exempt matter deleted, it is appropriate to remit the Commissioner's decision in regard to these videos for reconsideration in accordance with these reasons for decision. However, in light of the history of this matter, it is also appropriate that this aspect of the Commissioner's determination be remitted pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 and that the Tribunal makes orders which brings this aspect of the decision back before the Tribunal at an early date. 40 In the meantime the Tribunal encourages the parties to endeavour to seek a resolution in regard to these CCTV video cartridges, particularly as there may be a considerable amount of the footage, which Mr McGuirk may not wish to have a copy of. Item 6: Oral complaint made by Mr McGuirk, pages 124 and 125 41 As mentioned above the term 'exempt document' is defined in paragraph 6(1)(b) of the FOI Act to include a document that contains matter which relates to the function of an agency which by virtue of section 9 of the Act is exempt from the operation of the Act. Section 9 of the FOI Act provides as follows: 9 Certain bodies etc exempt from operation of Act A body or office identified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this Act. 42 In the list of exempt agencies (bodies and offices) in Schedule 2 is the office of Ombudsman and the functions that are listed in that schedule for that office are complaint handling, investigative and reporting functions of that office. 43 Part 3 of the Ombudsman's Act 1974 deals with investigations of complaints that are made to the Ombudsman. Section 12 of that Act deals with the right to complain to the Ombudsman about the conduct of a public authority, including police conduct. Once a complaint is made, the Ombudsman is given power to decide to investigate the complaint (section 13), conduct preliminary enquiries (section 13AA), conciliate or refuse to investigate or deal with the complaint by conciliation (section 15(1)(b)(i)). 44 In Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147 at [19], Simpson J explained the operation of section 9 of the FOI Act as follows: What section 9 does is (in relation to the functions specified in Schedule 2) exempt the body or office from "the operation of [the FOI ] Act ". That is, once the documents are categorised as section 9 documents, the FOI Act has no further application to that body or office. That includes section 24. 45 On their face, 124 and 125 of Item 6 appear to relate to the investigatory functions of the Ombudsman and would therefore, by reason of the definition of 'exempt document' in paragraph 6(1)(b) of the FOI Act, be exempt. 46 As mentioned above, these two pages are the last two pages of all documents held by the Commissioner in regard to a complaint made by Mr McGuirk about his detention in August 2006. Mr McGuirk has been given access to all the other documents held by the Commissioner. These documents indicate that Mr McGuirk made his complaint directly to the Commissioner and not the Ombudsman. It is noted that sub-section 130(2) of the Police Act 1990 provides that where a complaint is made about the conduct of police to the police and the complaint is a 'notifiable complaint', the Commissioner is required to cause a copy of the complaint to be sent to the Ombudsman. It is assumed that Mr McGuirk's complaint was a 'notifiable complaint'. Whether, the notification of Mr McGuirk's complaint to the Ombudsman under the Police Act 1990, makes the complaint fall under the Ombudsman's complaint handling, investigative and reporting functions is not altogether clear. 47 As I have not heard argument on this issue it is appropriate for the Commissioner's decision in regard to these two pages of Item 6 also be remitted for further consideration. Again that remittal should be made pursuant to sub-section 65(1) of the FOI Act. Conduct of Commissioner's delegate - section 58 48 While these reasons for decision do not finally dispose of Mr McGuirk's application, I wish to make some preliminary observations in regard to section 58 of the FOI Act. 49 That section provides that where, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on him/her by or under that Act, the Tribunal may bring the matter to the attention of the responsible Minister for the Agency. 50 On the material available to the Tribunal the relevant responsible officers are (a) D Stuart, Co-ordinator of the Freedom of Information Unit, who made the initial determination, and (b) Deputy Director J Scholz, Deputy Director, Compliance Law Division, Legal Services, who made the internal review determination. In my opinion there is no material before the Tribunal to indicate that either officer failed to exercise in good faith the functions conferred on them under the FOI Act. The fact that the Tribunal has reached a different conclusion to that set out in the determinations and the reasons for the determinations does not mean the officers in question failed to exercise their functions in good faith. In this application the issues are not necessarily that straight forward. Orders For the reasons set out above the Tribunal orders: 1. The decision of the Commissioner in regard to the deletions in the documents falling within Item 1 (duty rosters) is set aside and remitted for reconsideration by the Commissioner in accordance with these reasons for decision, pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997. 2. The decision of the Commissioner in regard to the CCTV video cartridges (Item 5), and pages 124 and 125 of Item 6, is remitted to the Commissioner for reconsideration, in accordance with these reasons for decision, pursuant to section 65 of the Administrative Decisions Tribunal Act 1997. 3. On or before 27 March 2008 the Commissioner to file and serve his decision, following his reconsideration, in regard to the documents referred to in order 2 above. 4. The matter, insofar as it relates to the Commissioner's decision in regard to the documents referred to in order 2 above, is set down for further directions on Tuesday, 15 April 2008 at 11:00am.

McGuirk v Commissioner of Police, New South Wales Police

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