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[2005] VCAT 962
Victorian Civil and Administrative Tribunal
2005-05-26
Original judgment source is linked above.
Freedom of Information Act 1982 - application for access - exemptions sections 30, 33, 35 and 38
At the expiration of 30 days the respondent is to release the two documents in their edited form as provided by the Tribunal.
Mr Niall of counsel instructed by Maurice Blackman Cashman
Background
1 The applicant is a senior constable in Victoria Police. She has been in the force since 1995 and is presently based at the Dandenong Sex Offenders and Child Protection Unit and has been there for the past 18 months.
2 From 7 September 2000 to the end of 2001, Ms Porter was employed in the Witness Security Unit ("WSU"), a part of the Force Response Unit ("FRU").
3 At that time the officer in charge of the WSU was Senior Sergeant Paul Weller who in turn reported to Superintendent Peter Halloran. The unit comprised a senior sergeant, five sergeants and five senior constables.
4 In 2001, the applicant was one of the officers assigned to protect a witness who was to give evidence against some police officers. In May 2003 the applicant was called to give evidence in relation to some aspect of those prosecutions and during cross-examination she was questioned about activities within the unit and matters relevant to the particular protected witness. The thrust of the cross-examination was quite puzzling to her until the following exchange ensued:
Have you been provided with at any time a statement made in October 2002 by Senior Sergeant Weller?....No.
You haven't read it?...I haven't seen any statement from Senior Sergeant Weller.
5 From the tenor of the cross-examination, the subsequent objection of the prosecutor and from the exchange between the bench and bar, it was obvious to Ms Porter that whatever was the subject matter of the document in question, it was critical of her.
6 The applicant feels aggrieved that such a document has circulated among members of the force (as well as outside the force) and that she has never seen a copy of it. As a result she sought access to a range of documents pursuant to the freedom of information legislation. Access was granted to 15 pages, part access to a further 14 pages, and access was denied in relation to a further 16 pages. However, for the purposes of this review, the request is in relation to two documents only.
7 In the respondent's section 49 statement, those documents were described as follows:
Memorandum from Senior Sergeant Paul Weller, Witness Security Unit to Superintendent Halloran dated 25 October 2002. (3 pages)
Statement of Senior Sergeant Paul Weller, Witness Security Unit compiled on 9, 10, 21 & 22 October 2002. (8 pages)
8 The respondent claims exemptions pursuant to sections 30, 33 and 35(1)(b) in relation to the first document, and sections 30, 33, 35(1)(b) and 38 for the second document. In relation to the claims made under section 33 and 38, the applicant concedes that she does not require any personal information, or indeed anything that would identify protected witnesses or other officers.
The evidence
9 The Tribunal heard from Ms Porter and her two statements with exhibits were tendered in evidence. The Tribunal also heard from Senior Sergeant Weller, Superintendent Alan Maclean and Detective Inspector Steven Buckle. Each made statements which were confirmed and received into evidence.
10 Senior Sergeant Weller told the Tribunal that during the latter part of Ms Porter's tenure at WSU he became concerned about her suitability to work in the unit but that these concerns were dealt with on a day to day basis until her eventual departure from the unit in late 2001. According to his evidence, some time in 2002 he realised that Ms Porter was still attached to FRU and as he perceived matters, she was continuing to complain, presumably about her time in the Witness Security Unit. It was his view that any possibility of her reassignment would be inappropriate. Accordingly he spoke with Superintendent Halloran who advised him to put his concerns in writing. This he did, and the documents sought by the applicant are the product of that chain of events. At paragraph 11 et seq of his written statement he said -
11. The purposes of preparing the statement and the report was solely for the purposes of advising Superintendent Halloran of what I considered to be legitimate management concerns for the WSU. The information I conveyed in those documents were in the form of identifying certain incidents and expressing opinions from a management perspective.
12. Whilst the report and the statement address issues in respect of the applicant, it also refers to details of other staff members and a client of the WSU. Further, the documents were prepared solely for the purpose of advising my superior officer of matters which I considered relevant to the efficient operation of the WSU and I considered that the information was highly confidential.
13. At the time of handing these documents to Superintendent Halloran, at no time was there any intention on my part that they should be included on an ESD file nor that they are provided to the applicant. My intention in preparing the documents and handing them to Superintendent Halloran was solely related to dealing with management issues at the WSU.
11 Detective Inspector Steven Buckle is presently attached to the Ethical Standards Department ("ESD") of the respondent. Mr Buckle explained the course of events that led to the Weller documents turning up in court. He said that in October 2001 ESD commenced an investigation into allegations made by an informer against three members of the Armed Offenders Squad that they had falsely obtained money for the maintenance of the informer. Both Senior Sergeant Weller and the applicant were involved in the management of that informer. During the investigation concerns were raised that members of the Armed Offenders Squad had become aware of the allegations against them and as a matter of course, all persons having any knowledge were interviewed or investigated. According to Inspector Buckle, that was the only investigation carried out by ESD in relation to Senior Sergeant Weller. In May 2004 the Chief Commissioner was notified by the Deputy Ombudsman regarding an investigation conducted by him pursuant the Whistleblowers legislation where there had been some reference to the Weller documents which in turn referred to the applicant, to the particular informer and other police officers. In his report the Deputy Ombudsman referred to the Weller documents and he recommended "counselling Detective Senior Sergeant Weller for his inappropriate actions in preparing and submitting a highly subjective report in relation to Senior Constable Lola Porter."
12 Senior Sergeant Weller was subsequently counselled by Commander Hart although it is clear the commander did not ever sight the documents in question. Indeed if the evidence given before me is to be believed, the counselling was risible.
13 From the evidence of Inspector Buckle the passage of the documents can be charted. Superintendent Halloran forwarded them to Assistant Commissioner Shuey who in turn forwarded them to the Assistant Commission of ESD who decided against commencing any investigation for a variety of reasons. And there, it seems, they stayed.
14 It is not necessary to go into the detail of how the Weller documents came to be included in the ESD file produced to the court pursuant to subpoena save to say their inclusion in the file was the result of an oversight or carelessness.
15 Superintendent Alan Maclean is the superintendent in charge of the force's Freedom of Information and Privacy Division and is also the freedom of information officer. In his written statement he summarised his objections to release on the basis that the documents contained -
a. The unfettered opinions of a member of police for the internal consultation and deliberation of senior officers;
b. Personal information, the disclosure of which [he considered] to be unreasonable;
c. Information communicated by various officers in confidence; and
d. Information which is prohibited from disclosure under a particular enactment, namely the Witness Protection Act 1991.
16 The thrust of the evidence given by Senior Constable Porter is that it is manifestly unfair that there is in existence a report that is said to be critical of her, that is written by one of her superior officers in circumstances where she has not had an opportunity to respond to it or correct matters in it. In her viva voce evidence she told the Tribunal that she had raised the matter with Superintendent Halloran in November 2002 and that he dismissed the report as useless. According to her, when she quizzed Superintendent Halloran a second time (after the court cross-examination) he told her he had given it back to Mr Weller. That appears to be incorrect but Superintendent Halloran is not available to affirm or deny or explain. Further it as odds with Ms Porter's written statement wherein she said that when she confronted Halloran after the cross-examination he told her the document was kept in a locked drawer in his officer and was not going to be used. He said the document had no status and was simply something Senior Sergeant Weller had prepared to "get off his chest".
17 Ms Porter informed the Tribunal that at the expiration of her twelve months probationary period in the Witness Security Unit, her position was appropriately confirmed on the recommendation of Senior Sergeant Weller. That recommendation, which was exhibited to her statement, appears more than satisfactory in its terms and was signed off by Weller on 4 July 2001.
18 From her particularly confused evidence I gather that at the time Senior Sergeant Weller penned his reports, she was either at Box Hill or on the FRU floor. In either case she was not working at WSU and it is abundantly clear that she had no desire to return there. Indeed on the evidence before me, if the preparation of the reports had its genesis in Senior Sergeant Weller's fears that Ms Porter was to return to the WSU, those fears were groundless.
The competing public interest grounds
19 The applicant's public interest grounds centre around there being a public interest in members of the force against whom allegations are made being given a fair and reasonable opportunity to respond to allegations, in ensuring all members of the force discharge their duties without fear or favour and free from extraneous pressures, and in ensuring that information about force members is accurate, responsible and not influenced by inappropriate motives or personal enmity.
20 In relation to the public interest to be considered pursuant to section 50(4) of the Act, the applicant also posited the view that the documents act to undermine the force's performance appraisal system and that further, they contain unsubstantiated, biased and untested allegations and should be the subject of correction under section 39 of the Act.
21 For its part, the respondent submits there is a public interest in the need to protect information which is conveyed in confidence and to encourage and enable members of the force to communicate freely to their superiors -
a. Any concerns that are held about the conduct of subordinate members;
b. Any comment upon, or to respond to criticism of their own conduct; and
c. To enable and facilitate deliberations by superior officers to manage and to resolve such issues.
22 The first question for consideration is whether the documents can properly be categorised as internal working documents. Section 30 provides -
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -
(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer of Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative functions involved in the function of an agency or Minister or of the government; and
(3) This section does not apply to a document by reason only of purely factual material contained in the document.
23 Clearly the documents on their face would are neither opinion nor recommendation. Would disclosure reveal advice? In re City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170 Deputy President Macnamara held that a document "by which one officer informs another of a sequence of events is not exempt within s 30(1)(a) of the FOI Act as release would not disclose matter in the nature of opinion advice, or recommendation and also because of s 30(3) of the Act". I take Deputy President Macnamara to be saying that "advice" must be something better than mere "informing" and applying his test, the documents fail on the first limb of the section. Furthermore the exemption in relation to the second document in dispute would in any event fail under ss (3) because it is, in the main, a recounting of events that are said to have occurred. And to my mind, the material in the document does not cease to be factual simply because there might be some future debate about its accuracy.
24 Alternatively, would disclosure of the documents reveal consultation or deliberation between officers in the course of the deliberative functions of the agency? It was the evidence of Senior Sergeant Weller that he had spoken to his superior (Halloran) voicing his apprehension about Senior Constable Porter and that Halloran had asked him to put something in writing. That of course, gave rise to the documents in question.
25 Within that context, can it be said that disclosure of the documents would reveal consultations between officers occurring in the deliberative processes of the agency? It has often been said that the term "deliberative processes" has a wide meaning. In Re Waterford v Department of Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at 606 the term was a described as something "wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency.....In short.....its thinking processes - the process of reflection, for example, upon the wisdom and experience of a proposal, a particular decision or a course of action."
26 In De Souza-Daw v Gippsland Institute of Technology (1987 2 VAR 6 Member Smith (as he then was) indicated his view that a report written by a senior academic on the suitability of a candidate seeking an advertised position was for the purposes of the deliberative processes involved in the functions of the Institute.
27 Those decisions (and the myriad others on the subject) indicate a central requirement to their characterisation as part of the deliberative processes - they contemplate for instance the process of particular decision-making, the formulation of policy, the process of investigation in certain circumstances, comment on the effect of future contemplated legislation, medical and psychiatric reports commissioned by agencies for regulatory purposes, internal audit investigations and are even wide enough to contemplate the placement of prisoners within the prison system.
28 But in my view, that cannot be said to be the position in the case before me. On the evidence before me the applicant was not in the process of being assessed for promotion or demotion, she was not the subject of any contemporaneous performance assessment, her suitability for a nominated position was not in contemplation and she was not the subject of any contemplated or ongoing departmental investigation. In my view the presentation of the two documents by Weller to Halloran in the circumstances outlined to me cannot be said to have been part of the deliberative processes of the agency. They are certainly not part of the thought processes of the agency or of any reflective consultation. Frankly, the more common nomenclature of this type of document is one of complaint. It follows that it is not necessary for me to consider the operation of section 30(1)(b) because the documents do not fall within the description provided in s 30(1)(a).
29 The next exemption claimed is that arising under section 35(1) which relevantly provides as follows-
A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -
(b) the 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.
30 In his written statement Senior Sergeant Weller said that he considered the information he gave his superior was highly confidential. In his viva voce evidence he told the Tribunal that the rationale for the documents was that Halloran would know that, were the applicant to return to his unit, there were concerns about her, and Weller asserted all of those concerns were legitimate management concerns. He said that the document was designed for Halloran's knowledge only and it certainly was not intended for the applicant's personnel file. I accept that the information was provided in confidence. But of course, that alone is not enough to avail the respondent of the exemption. For it to apply, it must be shown that disclosure would be reasonably likely to impair the agency's ability to obtain similar information in the future.
31 Sergeant Weller did not say in his evidence that were these documents to be released, he would not provide similar information in the future.
32 Superintendent Maclean in his written statement expressed the view that, in his opinion, disclosure would create a general reluctance in members, through fear of repercussions, fully and frankly to communicate their views and thereby impede an effective resolution of this type of disputation.
33 It was his view that Senior Sergeant Weller's views were expressed in a very candid and forthright manner and were not intended for wider dissemination. Whether or not that was his intention, they have had a quite an airing already. At the very least they have been seen by officers Halloran, Maclean and Buckle, by staff at the Ombudsman's office, by members of ESD, by Assistant Commissioner Shuey, by Mr Chettle of senior counsel and presumably by his instructing solicitors Kenna Croxford. In addition, part of the context of the documents was aired in cross-examination in the open court proceedings referred to earlier.
34 The force (along with all public sector agencies) has processes for dealing with unsatisfactory performance and these processes have, according to the evidence before me, operated satisfactorily for decades. There was no evidence to suggest that, for instance, in the formal performance review process, that is, a transparent review process, superior officers felt constrained in expressing views about the performance of their subordinates. And that absence of constraint is of course consistent with the oath taken by all police officers to serve "without favour or affection malice or ill-will".(See Police Regulation Act 1958)
35 The "full and frank" argument has been the subject of consideration for years and in most cases has been found to be a less than compelling argument. And so it is less than compelling in this case. There may be many circumstances where the need for confidential dissemination of information between police officers will attract the full force of the "frankness and candour" argument and thus the applicable exemption, but this is not one of them. However (as an aside) it is to be hoped that the unique circumstances of this case will not recur.
36 The Tribunal received no direct evidence that disclosure of these documents would be even remotely likely to impair the ability to obtain similar information in the future. Superintendent Maclean's evidence did not persuade me there would be any impairment to the force's ability to obtain such information. There may be some constraint as he suggested but that is not what is required by s 35(1)(b) - there must be a reasonable likelihood of impaired ability. To my mind officers of Victoria Police are a robust group of individuals not easily cowed by threats of disclosure and that was certainly the impression I took from the officers who gave evidence before me.
37 Because I am not persuaded there will be any impairment to the provision of similar information in the future it follows that I am not persuaded that the section 35 exemption is made out.
38 That takes me to the exemptions claimed pursuant to sections 33 and 38. Counsel for the applicant informed the Tribunal that the applicant does not seek the identity of persons referred to in the document, nor does she seek any information that would identify others or infringe what I will generally call "whistleblower" legislation. That concession relieves the Tribunal of its obligation to consider the effect of s 33(3) of the Act.
39 The applicant's counsel had the opportunity at the commencement of proceedings to inspect the documents (subject to the usual undertakings as to confidentiality) and he did not make any submissions concerning the deletion of any information that was personal to the applicant. As a result I have made deletions from the documents of names and events or descriptions that would be likely to identify all persons other than the applicant.
40 The order I will make is that at the expiration of 30 days, the respondent is to release the documents in the form as edited by the Tribunal and now provided to the respondent.
# Porter
Victoria Police