Noonan v Victoria Police (General) [2006] VCAT 1918

1 Mr Noonan was a member of the Victorian police force. His last position was the officer in charge of the Special Operations Group, a group which handles sensitive matters including anti-terrorist matters. Whilst he was in charge of the group, it underwent a review.

2 As I understand it, one of the outcomes of the review has been to change the group's reporting line. The officer in charge will now report to a superintendent rather than direct to a commander as had been the practice. There have also been changes to some of its procedures.

3 This application arises from Mr Noonan's interest in what initiated that review. He applied to Victoria Police for all documents since January 2004 about his position or work performance as the officer in charge of the group.

4 There are only two documents to which Mr Noonan now seeks access. The first comprises some notes made by Commander James Hart, the Commander in charge of the Specialist Support Department with responsibility for the group. Those notes are notes of a meeting he had with another police member on 13 December 2004, during which he received information which impacted on management and personnel issues within his Department and in particular the group. According to Commander Hart, who gave evidence at the hearing of this application, after consulting and deliberating about those issues, a consultant was engaged to conduct an assessment of the group. The outcome of that process, as I understand it, led to the changes referred to earlier.

5 The second document is an anonymous letter sent to the Chief Commissioner some time after 13 December 2004 and after the review commenced.

6 Mr Noonan says he has only ever been given scant details about the contents of those two documents and is aggrieved he has never had the opportunity to respond to what may have been said about him. He believes he is entitled to the full details of those documents as "a matter of procedural fairness and natural justice".

7 It would be fair to say that the Commander's notes and the anonymous letter, which because of its contents must have come from a subordinate, contain comment about Mr Noonan's management style mixed in with detail concerning the management practices of the group. As Commander Hart confirmed, they do not raise any matters about Mr Noonan of a disciplinary or criminal nature.

8 Victoria Police claims the documents are exempt from release under various sections of the Freedom of Information Act 1982 including sections 30(1), 31(1)(d), 33(1) and 35(1)(b).

9 My task on review is to decide whether a document is exempt from release under the Act or not. It is not my role to decide whether or not Mr Noonan should have been told what the comments were, if, as he claims, he has not been told.

10 Turning to the documents.

11 Under s 35(1)(b) of the Act a document is exempt from release if the following two conditions are satisfied :

(a) disclosure of the document would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister; and

(b) disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

12 First, do the notes contain material obtained in confidence?

13 Commander Hart gave evidence which was unchallenged that the information was communicated to him in confidence. I accepted that evidence.

14 Further, the police member who had the meeting with the Commander was notified of this application under s 53A of the Act. That member responded to the notification, advising the information was given to the Commander in the belief it was given on a confidential basis. I find that the information was communicated in confidence. The first limb of the exemption is therefore satisfied.

15 Secondly, would disclosure be contrary to the public interest because disclosure would be reasonably likely to impair the ability of Victoria Police to obtain similar information in the future?

16 Commander Hart gave evidence which was unchallenged that it was important to keep such information confidential, so that members of Victoria Police could communicate freely with their superiors about any issues relating to management and/or security issues without fear of any perceived repercussions.

17 That is not enough to satisfy the exemption. I must be satisfied that release would be reasonably likely to impair the ability of Victoria Police to obtain similar information in the future and that such an outcome is contrary to the public interest.

18 There was compelling evidence given in confidence by the s 53A intervening party about the effect release would have. The party wrote that if they "had believed that the contents of this discussion were to be made public and available to Mr Noonan at some subsequent time [they] would not have approached Commander Hart with the information".

19 In light of that evidence and evidence given by Superintendent Allen, Chief of Staff to the Chief Commissioner, which was unchallenged and which I also accepted, about the importance of being able to raise such issues confidentially and about the negative impact release of such information would have on the ability of Victoria Police to effectively manage its internal management issues, I am satisfied that release would be reasonably likely to impair the ability of Victoria Police to obtain similar information in the future and that that would be contrary to the public interest.

20 I am satisfied that Commander Hart's notes are exempt from release under s 35(1)(b) of the Act.

21 An anonymous letter is different from notes of a confidential meeting. Whilst the author of such a letter wants their identity to be secret, it is not so clear that they would want the contents of their communication to be confidential.

22 Victoria Police claims this document is exempt from release under s 31(1)(d) of the Act.

23 A document is exempt under this provision if its disclosure would or would be reasonably likely to disclose methods and procedures for preventing, detecting, investigating or dealing with matters arising out of breaches of the law, the disclosure of which would or would be reasonably likely to prejudice the effectiveness of those methods or procedures.

24 In his submissions, Mr Gipp, counsel for Victoria Police, observed that both documents contained information relating to a specialist body involved in sensitive areas of policing, including anti-terrorism. I have inspected the documents and agree that that is the case, the more so with respect to the anonymous letter. Noting that, I accept the evidence of Commander Hart, given particularly in relation to his notes, which was that they contained matters pertaining to particular operations and methodologies utilised by the group whilst performing its duties. Further, I accept his evidence that if this information were released, it would disclose methods and procedures for law enforcement utilised by the group and that to disclose that would prejudice the effectiveness of those methods and procedures.

25 Mr Noonan questioned Commander Hart about these claims, saying he had been provided with a large number of documents which talked about operations and mentioned names, and queried whether there was a difference. Commander Hart responded that these particular documents were different in that they very specifically related to management of the group.

26 Whilst Mr Noonan may have received other material, and himself would be familiar with any methods or procedures referred to, it is beside the point in the context of an application for access under the Act. This is because, as Mr Gipp submitted, any disclosure under the Act involves release to the world at large.

27 Having inspected the documents and in light of Commander Hart's evidence which I accepted, I am satisfied that the letter is exempt from release under s 31(1)(d), even though the information might not disclose the procedures and methods in full.

28 I have considered whether under s 25 of the Act it is practicable to delete from the document material that, if released, would have an impact on the effectiveness of those methods and procedures thus making the document no longer an exempt document. Whilst the document does make reference to what might be described as Mr Noonan's management style, those comments are so intertwined with, for example, references to how matters arising out of breaches of the law were or should be dealt with, to delete such material would be impracticable because it would make the document devoid of context or coherent meaning.

29 Whilst I have found the documents exempt from release under s 31(1(d) and s 35(1)(b), I still have a discretion under s 50(4) of the Act to release them if the public interest so requires.

30 Mr Noonan had provided no statement of public interest and did not press the point. He said he did not believe that there were any public interest arguments.

31 In those circumstances, I am not satisfied the public interest requires the release of the documents.

32 The decision of the respondent is affirmed.