R v Saleam

1 The applicant has applied for review of a decision made by the Department of Community Services (Broken Hill office) under the Freedom of Information Act 1989 (the FOI Act) to refuse him access to various documents. 2 The Department and the Premier as the Minister Administering the FOI Act are the first and second respondents to the application. 3 The history of the FOI request giving rise to the application for review is a long one. In 1998 the applicant sought access to documents held by the Broken Hill office of the Department relating to a woman, BZ and her three children - C1 born 1979, C2 born 1982 and C3 born 1985. 4 This request was declined on 13 May 1998. The applicant sought an internal review of that decision on 13 March 2000, and the decision was confirmed by letter dated 22 March 2000 from Ms Hanns, Acting Manager, Broken Hill Cluster, for the Department. The application for review attached the relevant correspondence as well as letters dated 14 April and 5 May 2000 from Ms Wright, Assistant Manager, Broken Hill office of the Department declining access to files relating to the three children as they are child protection files. 5 The application for review was filed on 9 May 2000. The Department's letter of 22 March 2000 had contained no reasons for decision. Subsequent to the filing of the review application the Department agreed to issue reasons, and this was done by letter dated 11 July 2000 signed by the FOI Coordinator. The letter advised that the Department had 11 files in its possession on BZ's family, comprising approximately 2500 pages, and the majority of the documents related to Mrs BZ and her children. The Department advised that it had decided not to release the majority of the documents. It relied on various exemptions including cl 4(1)(b) (likely to reveal the confidential source of information in relation to the enforcement of the law), cl 6(1) (unreasonable disclosure of information concerning personal affairs), cl 12(1) (documents the subject of secrecy provisions, in particular limitations on disclosure found in s 115 of the Children (Care and Protection) Act 1987) and cl 13(b) (documents containing confidential material). 6 Subsequently the applicant narrowed the scope of the request. By letter to the Department dated 26 July 2000 he narrowed the request to - 'documents which refer to: (i) the alleged Spanish nationality of BZ (ii) the mental health of BZ (iii) the paternity of three children C1, C2 and C3, specifically whether the first two are fathered by man 'a' and the third by man 'b', or whether only the first is man 'a' and the other two by 'b'; 'a' is M1; 'b' M2 whether named or not (iv) the given age of BZ on any document (v) any document which refers to me and a legal proceeding in which BZ was a witness against me (vi) any document which on its face adversely affects the credit or credibility of a person (BZ) if it was called upon in a legal proceeding (i.e. evidence of criminal, improper or immoral - perverse conduct).' 7 It is this reformulated request and the agency's response that founds the application for review. In the application for review the applicant explained his interest in this material. He said that for some years he had been collecting evidence for an application to the Supreme Court for a Crimes Act 1900, section 474D/E inquiry into two related convictions made against him in February 1987. He said that the main prosecution evidence came from BZ. He said that she had alleged that while resident with him in 1984 she was the subject of a robbery organised by him for the purposes of an insurance fraud. His appeal against conviction and sentence was dismissed (in April 1989) and he served a term of imprisonment which expired on 31 October 1989. He referred in his application to various steps that he has since taken to have the conviction reopened. These included making an application for a pardon in January 1996 which was refused in August 1996. 8 Some of this history is recorded in R v Saleam (1989) 16 NSWLR 14 (allowing subpoena for production of documents to be pursued relating to investigation of these crimes and any reports into allegations of perjury on the part of Mrs BZ, in preparation for appeal); and R v Saleam [1999] NSWCA 86 (dismissing applications for orders for production of documents held by the Commissioner of Police and the Director of Public Prosecutions relating to a former wife said to be relevant to the question of whether a subsequent conviction and sentence in 1994 for conspiracy maliciously to damage property by fire). 9 The applicant's belief is that the Department's files relating to the BZ family will support his allegation that Mrs BZ was suffering from a mental disorder at the time she gave evidence against him, and that therefore her evidence was not reliable. He said that he understood that Mrs BZ's children had been removed from her care in 1988 by the Department, a matter confirmed by Mrs BZ at hearing. He considered it likely that the Department's files would contain material as to her situation at that time which would help him in having his conviction reopened. Various other concerns are outlined in the application for review, which will not be repeated here. 10 As to the Department's objection to release, he contended that some of the information was already known to him, and should be released. He said that he lived with Mrs BZ and her then two children, C1 and C2, from March 1983 to May 1984, and knew the 'general parameters' of the Department's case. 11 He said he had no interest as such in the personal affairs of the children. He believes that the files will support his allegation that Mrs BZ gave perjured evidence at the trial. He said that all he wished for was 'a controlled and supervised access to the files'. He said he wished 'to take notes and acquire certified copies of any relevant document. I am prepared to give any necessary (and legally enforceable) undertaking of confidentiality which the Tribunal considered appropriate.' 12 Following directions given on 25 October 2000, the Premier as Minister Administering the FOI Act, furnished written submissions dated 14 December 2000 to which the applicant replied in writing, reply dated 4 January 2001; and the Premier furnished a supplementary submission dated 17 October 2001. 13 By letter dated 29 January 2001 (Ex C), a legal officer of the Department wrote to the applicant and said it was 'willing' to supply the applicant with the information sought in the 'narrowed' request referred to above, 'with the exception of names and identifying details of notifiers and contact information for persons whose personal affairs are referred to in the documents, in particular, Ms BZ, her children, Mrs W1 and Mr M2'. The letter sought the applicant's response to this proposal, and also referred to the need to consult third persons affected by the intended decision. 14 The application was due to be heard by Judicial Member Robinson of the Tribunal on 1 February 2001. The hearing did not proceed on 1 February 2001. 15 Subsequently the hearing was relisted for 14 November 2001 before me as Judicial Member Robinson was unavailable. The Department of Community Services referred to its written submissions dated 25 October 2001. The Department also tendered at hearing a schedule first filed 3 October 2000 setting out by folio number documents to which access had been refused, together with the grounds of exemption. 16 The applicant on 30 October 2001 filed his reply to the Department's submissions and an affidavit in support of his application. In the affidavit, he again referred to his desire to obtain material to support his application for a Supreme Court inquiry. He detailed his history of contact with Mrs BZ since 1981, and refers to his concerns over various events involving her. He said that since 1991 he has made no effort to contact her, and there have been no threats. 17 As I understand this material, he is seeking to advance considerations as to why there is no danger to Mrs BZ and the children in him being given access to the material that he seeks. He also referred to events in 1998 including a phone call to him from Mrs BZ. In his review application he stated that he recorded this conversation, and that its contents provide part of the basis for his application for a further inquiry into his conviction. 18 Mrs BZ sought leave to become a party and be heard at the hearing. The Tribunal, being satisfied that her interests were affected by the reviewable decision, ordered that she be joined as a party to the proceedings, pursuant to s 67(4) of the Administrative Decisions Tribunal Act 1997. She is the third respondent. 19 Mrs BZ made oral submissions further to a letter to the Tribunal dated 6 November 2001. As she had not previously been involved in the matter, following the hearing further directions were made so as to ensure that Mrs BZ's objections to release of documents were fully considered. In consequence the Department filed further submissions on 22 and 26 November 2001. The applicant filed further written submissions dated 27 November 2001 in reply to Mrs BZ's submissions at hearing, and Mrs BZ filed written submissions in reply dated 4 December 2001. The Department lodged in an envelope marked confidential a copy of the documents over which exemption was claimed. 20 The Department also handed to the Tribunal letters from other persons named in the documents the subject of the claim for exemption: being W1, the maternal grandmother of C2; and M2 (who Mrs BZ said was the adoptive father of the second and third children). These letters comprise Ex A. Two letters from Mrs BZ dated 14 October and 6 November 2001 were tendered: marked Ex B. 21 Mr Hewitson, for the Department, advised that the current position of the Department as to release was not as reflected in the letter of 29 January 2001, but as stated in their submissions. 22 Mr Hewitson said that the legal officer who made the communication of 29 January 2001 was not an authorised officer in respect of release, and that in light of consultation with the third parties affected by release the Department decided not to release the documents. He relied on the schedule of 3 October 2000. 23 In relation to the narrowed request of 26 July 2000, the determining officer found that about 300 pages from the family files were covered by the request. (The files have 2680 pages in total.) Most of those documents have been refused. 24 The documents refused are divided as follows: (1) Family Casework File: 15 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs (2) File C3 Part 1: 14 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs; and in addition as to 1 of them (D69), Intake report, on the basis of cl 4(1)(b), law enforcement; cl 12(1), secrecy; and cl 13(b), confidential material (3) File C3 Part 2: 12 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs (4) File C3 Part 3: 9 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs (5) File C2 Part 1: 28 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs; and in addition as to 3 of them (D58, D51, D19), Intake reports, on the basis of cl 4(1)(b), law enforcement; cl 12(1), secrecy; and cl 13(b), confidential material (6) File C2 Part 2: 22 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs (7) File C2 Part 3: 26 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs (8) File C2 Part 4: 10 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs (9) File C1 Part 1: 8 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs (10) File C1 Part 2: 2 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs (11) File C1 Part 3: 5 documents subject to claim for exemption, all on basis of cl 6(1), personal affairs 25 The total number of documents refused is 151 documents. 26 The Department in its submissions added a further ground for exemption, the law enforcement exemption, cl 4(1)(c ) which permits agencies to refuse to release on the ground that to do so might endanger the life and physical safety of a person. That ground was added as the third parties consulted in relation to possible release had expressed concern as to their physical safety, if information relating to them was released to the applicant. The Department did not enumerate in the schedule before the Tribunal what documents were subject to this claim, and has not done so since. I have not found it necessary to consider that ground of exemption in reaching my decision. 27 In its submissions it referred to case law interpretations of the exemptions relied upon, and gave illustrative examples of how it applied the exemptions to the documents. 28 The agency said: 'Generally speaking, the documents contain information relating to DOCS involvement with a family and the welfare of children. The documents determined to be exempt include case notes, confidential letters, court reports, assessments, psychiatric/psychological reports, medical reports, file notes and personal details of third parties including phone numbers, addresses and matters relating to paternity and nationality. The agency asserted: 'The determining officer has taken into account all the relevant factors and determined on balance the documents identified as exempt documents should not be disclosed to the applicant.' 29 The Premier's submissions related only to the question of how s 57 of the FOI Act affects the proceedings. In a number of cases in the Tribunal (most recently reviewed in Kennedy v Commissioner of Police [2001] NSWADT 39) the Premier has contended that where an agency relies on one of the three categories of exemptions (cl 1, Cabinet documents; cl 2, Executive Council documents; cl 4, law enforcement documents, being those found in Part 1 of the Schedule to the Act, headed 'Restricted' Documents), the Tribunal's review jurisdiction is a limited one. In this case the agency relied in its schedule on cl 4(1)(b), (protection of the identity of informers). As already noted, in its submissions the agency also invoked cl 4(1)(c) (danger to life and physical safety) as a head of exemption but did not specify what documents it sought to have treated on that basis. 30 The Premier's contention here (and in other cases) has been that the Tribunal must only inquire into the question of whether the agency had 'reasonable grounds' for applying a restricted documents exemption, and is not entitled to go on to consider the question of whether the decision to refuse was the 'correct and preferable' one in the circumstances. The same submissions are under consideration by me in another case, N v Director General, Attorney General's Department (Premier as Intervener), Matter No. 13087/13088, decision reserved. In light of my conclusion below it is not necessary for me to dispose of these submissions in this case. 31 Mrs W1 said in her letter that under no circumstances did she want any information released to the applicant. She claimed that she had been threatened by him in the past. Similar objections were made by C2 and M2. 32 Mrs BZ gave detailed submissions. She denied the applicant's allegation that she had given false evidence, she referred to the concern she had for the development of the children if the information relating to them was released. She said she had been the subject of untrue statements by the applicant as to her mental health history. She referred to major criminal incidents in which she says the applicant was involved. She referred to a history of alleged activity by the applicant over several years seeking information about her from various authorities, as well as in relation to other members of the family. 33 I must be guarded in the weight I attach to the specific claims made by the four persons mentioned. I am not in a position to form any conclusions as to the truth or fairness of the various claims made against the applicant. 34 What they do reveal is apprehension as to their safety on the part of each of the four persons over release of the information held about them; and clearly that they will not give consent to release of the file information relating to them. Clause 6 Claim: All Documents 35 I will commence first with the personal affairs exemption, which is relied on in respect of all documents. 36 Clause 6 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.' 37 The applicant acknowledged that the kind of documents held by the Department in connection with its child protection responsibilities necessarily contain information concerning the personal affairs of the persons who are their subject. His case is essentially that having regard to the public interest in him being able to obtain reconsideration of his conviction it would not be unreasonable for him to be given access to the files, albeit on a controlled and supervised basis. 38 As to the general approach to be adopted in deciding whether an exemption should be applied on the basis that disclosure would involve the unreasonable disclosure of information concerning the personal affairs of a person, I agree with the views expressed by the Commonwealth Administrative Appeals Tribunal (AAT). In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, the AAT said: '(51) … [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. 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. Plainly enough what s 41 [the Commonwealth FOI Act exemption equivalent to cl 6] seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties. However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document: page N259.' 39 Discussing Wiseman v Commonwealth (Federal Court (Full Court), 637/89, 24 October 1989, Sheppard, Beaumont, Pincus JJ, unreported), the AAT in Re Zalcberg and Australian and Overseas Telecommunications Corporation (AAT, Senior Member Gibbs, No 8015, 12 June 1992, unreported said that it considered that 'whether or not disclosure would be unreasonable is a question of fact and degree which calls for a balancing of all the legitimate interests involved': paragraph (21). 40 More specifically, the AAT has considered the question of whether the revelation of a crime or other serious misconduct on the part of the person whose identity is protected by non-disclosure justifies a conclusion that disclosure would not be unreasonable in the circumstances. 41 In Colakovski v Australian Telecommunications Corporation (1991) 13 AAR 261 the applicant had appealed to the Full Court of the Federal Court against a decision made by a single judge of the Court that no error of law had been shown in relation to an AAT decision to affirm the refusal of Telecom to give him access to telephone records which he said disclosed nuisance calls, and therefore the commission of criminal offences. Jenkinson J noted: '32. If documents contain information which could provide valuable evidence or lead to evidence that would be useful or material in establishing the commission of an offence under the law, that is a matter which in my view may be taken into account in determining whether the disclosure of the information would be unreasonable under s 41(1). In this case it is clear from the transcript of proceedings before it that the Tribunal was aware of the provisions of s. 86 and that the Deputy President had this in mind when considering the question of unreasonable disclosure. 33. It was also argued on behalf of the appellant that considerations of public policy against concealing the identity of persons who commit offences under s 86 were not considered by the Tribunal in this case and the failure to do so vitiated its decision. Counsel relied for this argument upon the same arguments as those to which I have already referred with respect to s 86. The same reasons lead to the conclusion that this argument must be rejected.' 42 In Colakovski's case at 270 Lockhart J said: 'What is "unreasonable" disclosure of information for purposes of s 41 (1) must have as its core, public interest considerations. The exemptions necessary for the protection of "personal affairs" (s 41) and "business or professional affairs" (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. 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 ss 41 and 43 are satisfied.' 43 In Re Green and Australian and Overseas Telecommunications Commission (1992) 28 ALD 655 the access applicant submitted that the information sought directly related to his defence against criminal charges. He was charged with a number of counts of stealing from, assault of and making nuisance calls to a woman with whom, to use the words of the AAT, he had once enjoyed a warmer relationship. He believed that the woman had been the source of a number of nuisance and harassing calls to him, and wished to have access to call records in relation to those calls. These records would also assist him in challenging her credibility and motives at trial. The Tribunal acknowledged that if convicted of the charges he faced the possibility of imprisonment. 44 The access applicant in that case submitted that to withhold such information would be against the public interest in that it would frustrate the interests of justice. He submitted that it is in the public interest that any person charged with a criminal offence not be deprived of information genuinely necessary and absolutely vital to the preparation of his defence, that the trial court have available to it all relevant information and that a person not be able to give evidence in a trial which contradicts that given to a government authority or agency. 45 In this case, the AAT considered that the preponderance of Commonwealth authority pointed to the conclusion that no weight is given in assessing the case for disclosure of personal affairs information to the interest of the applicant in having access. The Tribunal said: '(31) In none of these cases is reference made to the person's interest in obtaining access under the FOI Act and it is not one of the factors to which reference is made in deciding whether disclosure is unreasonable. It would, instead, seem to be a factor which is not taken into account. Lockhart J in Colakovski's case expressly referred to the fact that the right to access under the FOI Act is given to the Australian community by virtue of s 3 and that the exemptions must have at their core public interest considerations. Jenkinson J reflected [at 272] that: 'no provision is made in the Act for restricting dissemination of information contained in a document to which access is granted. I say nothing as to whether in this case the use of such a provision, if it had existed, might have been appropriate. But it is not difficult to imagine circumstances in which the recipient of telephone calls of the kind made in this case, would be thought to have a strong moral claim to access to information about the caller's personal affairs which it would be unreasonable to disclose to other members of what s 3 of the Act calls "the Australian community". But nothing in the Act except s 91 (2) qualifies the recipient's freedom to disseminate throughout the community information contained in a document to which he has been granted access.' (32) It would seem to follow that the particular interests of the individual seeking access have not been a matter which has been weighed in the balance in considering whether disclosure of another person's personal affairs would be unreasonable. Since Colakovski's case was decided, s 11 (2) has been inserted in the Act and underlines that the individual's interest is not relevant: see para (23) above. [There is no equivalent provision in New South Wales expressly stating that the applicant's interests are not to be taken into account.] (33) On the evidence presented to us in the absence of Mr Green and his legal representatives, we are satisfied that the persons to whom the information relates, oppose its release. We are also satisfied that it is still "relevant information" in the sense that it is still current information. Disclosure of the information would disclose the persons who made the calls to Mr Green's telephone at the times specified in those documents to which he has already had access. We are also satisfied that the persons about whom that information is concerned object to its disclosure. (34) If these were the only matters to which we had regard, we would find that disclosure under the FOI Act would be unreasonable. In this case, we must consider Mr Jones' submission that justice would be frustrated by Mr Green's failure to be granted access. Whether or not justice is frustrated is a matter of public interest and is one of the considerations, together with questions of privilege and public interest immunity, taken into account when considering whether documents, which are the subject of a subpoena, must be produced in particular civil or criminal proceedings. Considerable weight is given to issues relating to the administration of justice and its possible frustration in the particular court proceedings in relation to which the subpoena has been issued…. (35) Having examined the FOI Act, we do not consider that the same degree of weight should be accorded to those issues in the context of the FOI Act. The FOI Act balances the Australian community's right of access to documents against a number of other public interests which it prescribes. Without giving an exhaustive list, the public interests include, in very general terms, those relating to matters of security and those which could generally be described as affecting the ability of government to govern. Also included are those affecting persons dealing with government so that documents affecting international relations, relations with States and personal privacy are exempted as are documents relating to business affairs and containing material obtained in confidence. Documents arising out of the companies and securities legislation are exempted. In so far as legal proceedings are concerned the FOI Act exempts documents the disclosure of which would be contempt of court, s 46, and those, subject to some exceptions, which are subject to legal professional privilege: s 42. It also exempts those which would, or could reasonably be expected to, prejudice the fair trial of a person or the impartial adjudication of the particular case: para 37 (2) (a). (36) In considering the exemption provisions to the general right of access given in the FOI Act, parliament has clearly turned its mind to the question of legal proceedings and made specific provisions for them. It has recognised that certain documents connected with legal proceedings raise particular concerns and require exemption from the Australian community's general right of access. (37) Having adopted that course in relation to the exemption provisions, we might have expected that parliament might have made some specific reference to persons seeking access to documents for use in legal proceedings had it intended that weight be given to that factor. Instead, parliament has stated not only that the person's reasons for seeking access are irrelevant but has also effectively stated that it has no interest in the use which is made of the information once it has been released. The only exceptions to that are found in s 91 (2) relating to defamation, breach of confidence and copyright. In stark contrast to the approach and philosophy of the FOI Act, questions relating to whether justice will be frustrated by the failure to produce documents in a particular case, require consideration of the interests of the person seeking their production in the proceedings and the relevance of those documents to the proceedings as well as other matters such as any privilege or public interest immunity considerations. Those interests and matters are among those taken into account by the trial court. Those issues cannot be determined by this tribunal and it would not only be an attempt to second guess the trial court's decision to do so but also inconsistent with the philosophy and requirements of the FOI Act. (38) … (39) While the question of whether or not an offence has been committed raises issues related to the administration of justice, we consider that they are quite distinguishable from the issues of the administration of justice raised in this case. Consideration of whether or not an offence may have been committed by the person who made the telephone calls does not require a consideration of the reasons why the information in the document is sought or the purpose to which it will be put by the person requesting it. It requires a consideration of the public interest in the administration of justice generally and whether a person's interests should continue to be protected in circumstances in which he or she may have committed an offence. As we have said, a consideration of issues relating to the administration of justice in the circumstances in which we have been asked to consider it would require a consideration not only of the issue generally but also a weighing of Mr Green's particular interests against those of the persons whom the information concerns. (40) The FOI Act does not seek to override or in any way vary the rules relating to the production of documents in the context of court proceedings. It adds to a person's rights to obtain access but does not in any way restrict his or her gaining access by other means. … (41) … (42) It follows from our view of the differences between disclosure under the FOI Act and production in accordance with the rules of evidence in court proceedings that considerations of whether or not justice will be frustrated in Mr Green's criminal trial are not matters to which we should give weight so as to tilt the balance in favour of disclosure under the FOI Act. Taking all the matters to which we have referred into account, we consider that to disclose under the FOI Act the documents to which access has been sought would involve the unreasonable disclosure of personal information about persons other than Mr Green.' 46 I agree with the approach adopted by the AAT in Re Green. The question of whether disclosure would result in the unreasonable disclosure of information concerning a person's personal affairs must be approached in a relatively abstract way. The nature and content of the information is the primary consideration. The wishes of the person to whom the information relates are relevant, though, not in my view, conclusive. The purpose of the third party can rarely, if ever, be given consideration. Ordinarily the motives or purpose of the access applicant have no relevance to the judgment required of an agency or the Tribunal (on review) in considering whether cl 6 should be invoked. The difficulty of according relevance to the third party's purpose is cogently explained in Re Green and well illustrated by the present case. 47 In the present case, consideration of the applicant's purpose would require the agency and the Tribunal (on review) to engage in an elaborate collateral inquiry before it could form any considered view on the reasonableness or otherwise of the applicant's claim that his conviction and sentence in 1988 may have been tainted because of the non-availability of information relevant to Mrs BZ's mental health. 48 The FOI Act sets a standard which is to apply as between citizens and government. Decisions to grant access under FOI should, to use an American expression, ordinarily be facially neutral. The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. But some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9; and generally Cossins, Annotated Freedom of Information Act New South Wales (1997), 313. 49 The applicant to some extent recognised the difficulty of his position in his submissions. He said in effect that he should get special treatment under the FOI law because of his need to gather information which he regards as relevant to his case that Mrs BZ's evidence was bad. He believed that the Department's records may contain information about her that would cast doubt on the satisfactoriness of her evidence against him. He recognised, as I perceived it, that release of the information relating to her would to any one else would not be appropriate. 50 For the reasons given, I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else's personal records, and under which agencies can make varying calculuses as to the 'reasonableness' of disclosure in that way. There is, for example, no mechanisms in the Act allowing for conditional or limited disclosure once a request is granted under FOI. Were there such mechanisms they would not be supported by sanctions for breach such as offence provisions punishing re-use or re-disclosure. (Of course it always remains open to an agency to use any powers or statutory discretions it might have apart from the FOI Act to give limited or conditional disclosure, or to transmit information of concern (that may have been identified through an FOI process) to other agencies for investigation or other action.) 51 In Queensland, the external review authority has indicated that it will examine the public interest claim of an applicant seeking access to personal records. There a person convicted of murder, who was seeking to appeal to the High Court, sought access to medical records relating to a witness at trial, which he believed would show that the witness suffered from bipolar disorder: Lovelock and Queensland Health Department: [2001] QICmr 2. The information had been refused and the applicant appealed to the Information Commissioner. The relevant Queensland exemption provides: ' 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.' 52 In that case the Information Commissioner said: '15. I acknowledge a public interest in enhancing the operation of the criminal justice system, and in persons in a position such as the applicant having access to matter which may assist in establishing that they should regain their liberty. However, in the present case, that public interest must be weighed against the public interest in protecting the legitimate privacy interests of the witness with respect to her medical records. I consider that it is appropriate (in assessing the weight to be accorded to the public interest considerations identified in the first sentence of this paragraph) to take into account the strength of the Crown case against the applicant, and the likelihood that disclosure of the matter in issue would assist the applicant to mount a reasonably arguable case that an appellate court should set aside his conviction.' 53 He examined the decision of the Queensland Court of Criminal Appeal dismissing the applicant's appeal against conviction, and he also examined the records in issue and observed: '19. In any event, I have examined the medical records of the witness which Queensland Health has located, and I am satisfied that they contain no information which could reasonably be expected to assist the applicant's challenge to his conviction. I note in that regard that the medical records predate the murder by a number of years. 20. Bearing in mind the substantial weight which ought properly to be accorded to the public interest in protecting the privacy of the witness's medical records, I am not satisfied that disclosure of the matter in issue to the applicant would, on balance, be in the public interest.' 54 There are, of necessity, many sensitive matters recorded in child protection files. The individuals affected have an interest in getting on with their lives, and not having reopened old memories and old events. It is plain that the objective of the applicant is to find material from the period around the time of his trial (1987) which may demonstrate that Mrs BZ, as the principal Crown witness and someone with whom he had once lived, was unreliable, had lied and may had a motive to fabricate her evidence. He considers that material relating to her and her children, and her relationship with others such as Mrs W1 and Mr M2 may help in that regard. 55 For the reasons that I have given, this is not a sufficient basis for allowing a person to be given access to child protection files with the result that the information can be used by the access applicant as he or she sees fit. 56 I have examined all the documents. I am satisfied that in all cases disclosure would be unreasonable in terms of cl 6. Claim in respect of Intake Reports 57 It will be seen from the summary of the heads of exemption claimed in respect of the 151 documents refused that 4 of them, described as Intake Reports, are the subject of three additional heads of claim, being cl 4(1)(b), law enforcement; cl 12(1), secrecy; and cl 13(b), confidential material. 58 The Intake Report is a key document in the exercise by the Department of its child protection responsibilities. It contains the 'child at risk' assessment from a responsible officer of the Department. It is the prelude to a decision to take action to remove children from their home. It will often include reference to the persons who contacted the Department to advise of their concerns as to the children. They may range from neighbours to people with a professional involvement with the children or the parents such as teachers, doctors or psychiatrists. Such reports would ordinarily be made in confidence. The law enforcement exemption and the confidential material exemptions could apply. 59 The law enforcement exemption relevant to this case, cl 4(1)(b) provides: ' 4. Documents affecting law enforcement and public safety (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: … (b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, …' 60 While the confidential material exemption as relevant to this case 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.' 61 Again in principle it is clear that child abuse notifications and the like if disclosed might prejudice the future supply of such information, by inhibiting people from coming forward for fear of being identified and then harassed or sued by the carer adversely affected by the notification. Ordinarily disclosure of such material would be contrary to the public interest. 62 The other exemption relied upon in respect of Intake Reports is cl 12 which provides: ' 12. Documents the subject of secrecy provisions (1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions. (2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence.' 63 The legislation to which the Department refers in this regard is s 254 of the Children and Young Persons (Care and Protection) Act 1998 which provides: ' 254. Disclosure of information (1) A person who discloses any information obtained in connection with the administration or execution of this Act is guilty of an offence unless the disclosure is made: (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act or the regulations, or (c) for the purposes of any legal proceedings arising out of this Act or the regulations, or of any report of any such proceedings, or (d) in accordance with a requirement imposed under the Ombudsman Act 1974, or (e) with other lawful excuse. Maximum penalty: 10 penalty units or imprisonment for a period not exceeding 12 months, or both.' 64 On its face the secrecy provisions exemption could apply to the information held in the Department's child protection files. An Intake Report would ordinarily contain 'matter the disclosure of which would constitute an offence against the Act'. 65 I have examined the four Intake Reports. These are D69 in the File of C3 (born 1985), and D19, D51 and D58 in the case of C2 (born 1982). 66 These Reports belong to the 1986-88 period, at a time when the family was living at [suburb of Sydney]. The Intake Report (D69) in the C3 file is from 1986 and includes the principal report, and related external and internal contact reports plus previous records. The first of the Intake Reports (D19) relating to C2 belongs to the same period and contains similar material. The second Intake Report (D51) relating to C2 is from 1988 and contains similar material. The third Intake Report (D58) generated a few days later in 1988 also contains similar material. 67 I am satisfied that all of the reports include notifier information, and that each of the additional exemptions claimed applies. It is, in my view, highly likely that revelation of the identity of notifiers of concerns in relation to the welfare of children would deter others in future from making similar reports. There is a high public interest in effective child protection measures. 68 I am also satisfied that it is material of the kind to which the secrecy provision (s 254 quoted above) applies; and that the exemption found in cl 12 is applicable. 69 If I have the jurisdiction so to decide, I would also be satisfied that the Reports contain material which would enable the disclosure of the identity of informants and that cl 4(1)(b) is applicable. (For clarity, I should note that the Premier's submission is that in regard to cl 4 claims, the Tribunal does not have jurisdiction to go any further than consider whether the agency has 'reasonable grounds' for such a claim. As noted earlier, I will deal with this issue in a forthcoming decision.) 70 Accordingly I am satisfied that all of the above claims to exemption are established. I have not assessed the claim under cl 4(1)(c), added late, in light of the third party replies. It is not necessary to do so in light of my other conclusions. In light of the sensitive nature of government's responsibilities for child protection, and the clear public interest in maintaining a high level of confidentiality in the administration of those responsibilities, this is not in my view a case where any power available to the Tribunal under s 25 of the FOI Act to override the application of the exemptions on public interest grounds should be used. 71 The result is that the applicant will have to press his claims for a reopening of his conviction without having access to such information via any FOI rights. Instead he will have to rely on the judgment of those who appraise his application for a fresh inquiry as to whether the child protection files should be reviewed, and as to what controls should apply to any such review. Order

1. Decision under review affirmed.

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