Simring v Commissioner of Police, NSW Police [2002] FCA 55 | Case summary

REASONS FOR DECISION 1 13 May 200 the applicant applied under the Freedom of Information Act 1989 (FOI Act) for access to the following documents: "Everything pertaining to myself in NSW Police files, from 1989 to present date, including: briefs advices statements memorandum acknowledgments interviews etc" 2 On 23 February 2005 the respondent advised the applicant that a search had been carried out on the NSW Police Computerised Operational Policing System (COPS) and printouts obtained. Inquiries had been directed to Rose Bay Local Area Command Joint Investigation Response Team (JIRT) Redfern. Twenty documents were identified, falling into three groups (A, B and C). Nineteen in group A (numbered 1-7 and 16-27) were released subject to deletions on the ground of exemptions under clauses 6(1) and 12(1) of Schedule 1 to the FOI Act. Eight in group B (numbered 1-8) were released subject to deletions on the grounds of the exemptions in clause 6(1) and 13(b) of Schedule 1. Three documents in group C (numbered 1-3) were released subject to deletions on the ground of the exemption in clause 6(1) of Schedule 1. 3 On 15 March 2005 the applicant wrote to the respondent noting that there were no documents 8-15 in group A, and stating that he had not received documents 6 and 17, nor any of the 8 documents in group B. The applicant referred to his letter of 23 November 2004 in which he requested that priority be given to processing the request for access to briefs, advices, memorandum, acknowledgments and interviews, and if time permitted, to processing the request for access to statements. 4 On 22 March 2005 a Supplementary Notice of Determination was issued, in which 16 documents in Group A (numbered 1-16) were released subject to deletions on the grounds of the exemptions in clauses 6(1) and 12(1). The eight documents in group B were not to be released on the ground of the exemptions in clauses 6(1) and 13(b) of Schedule 1. Three documents in group C were released subject to deletions on the ground of the exemption in clause 6(1) of Schedule 1. 5 The applicant requested internal review. On 4 August 2005 the respondent notified the applicant that further searches had been undertaken and an additional 18 documents had been received. Five of those documents (group D) were released in full. Ten (group E) were released subject to deletions on the grounds of the exemptions in clauses 6, 13(b) and 12(1) of Schedule 1. One document (described as a confidential report of Dr Jonathon Phillips dated 27 July 1999) was not released, on the ground that it was exempt under clauses 6(1) and 13(b) of Schedule 1. The final two additional documents were not released, as they were available for purchase from the District Court of New South Wales. The original determination, as advised in the Supplementary Notice of Determination, in relation to the documents in groups A, B and C, was affirmed. 6 In his application to the Tribunal for review, the applicant stated that he is seeking the documents numbered B 1-8, and that he is seeking the documents "that have not been acknowledged or determined: briefs, advices, memorandum, acknowledgments and interviews". 7 In his letters to the respondent dated 15 March 2005 and 5 April 2005 the applicant stated that he had previously sighted documents provided under subpoena that had not been identified in the respondent's determinations. At an initial Planning Meeting the applicant provided details of the Supreme Court matters in which two folders of documents had been produced under subpoena, and the respondent's representative undertook to make further inquiries. At subsequent Planning Meetings the respondent's representative outlined those further inquiries. The matter was set down for hearing, the two issues still in dispute being the exemptions claimed for documents B 1-8, and the failure of the respondent to locate any further documents. Relevant law 8 Under s16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency's documents. This right is subject to other provisions of the FOI Act, in particular s25(1)(a), under which an agency can refuse access to a document if it is an exempt document, and s25(1)(c), if it is a document that is usually available for purchase. Schedule 1 to the FOI Act lists the categories of exempt documents. Under s25(4)(b) an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that the applicant would wish to be given access to such a copy. 9 Under s55 of the FOI Act, the Tribunal is required to ensure that it does not disclose any exempt matter. Because of the nature of the exemptions claimed, and my conclusions on those exemptions, part of this decision will only be made available to the respondent and its legal representatives. The remainder of the decision will be available without restriction. Evidence 10 The respondent filed written submissions, and affidavits from Sergeant Mark Maddox, the original decision-maker, dated 20 December 2005 and 26 June 2006. The respondent provided copies of those documents to the applicant, and noted in a covering letter that reliance was also placed on the exemption provided in clause 4(1)(a) and (e) of Schedule 1. The respondent filed with the Tribunal, on a confidential basis, copies of the eight documents identified as B 1-8 and further confidential written submissions. 11 The applicant participated in the hearing by telephone. Oral evidence was given by Sgt Maddox, and he was cross examined by the applicant. Adequacy of search 12 In his affidavit of 20 December 2005 Sgt Maddox outlined the practice within the Freedom of Information Unit (FOI unit) in processing an application under the FOI Act, and the specific steps taken in responding to the applicant's request. Sgt Maddox was the Co-ordinator of the FOI Unit at the time the applicant's request was received. In his affidavit of 26 June 2006 Sgt Maddox outlined his search of the NSW Subpoena Section records, and his subsequent inquiries. Sgt Maddox gave oral evidence concerning his knowledge of practices concerning the timing of, and the creation of documents concerning, police interviews, acknowledgements, memoranda, advices and briefs. Sgt Maddox gave evidence as to his practice concerning the taking of notes during interviews, and the variable factors which might warrant video recording of an interview, and who might be present; the making of a written acknowledgment of receipt of certain items; use of internal memoranda and emails; the seeking of advice from, and the provision of a brief of evidence to, the Director of Public Prosecutions; and what documents would, or would not, generally be part of the brief provided to the DPP. 13 Sgt Maddox was questioned about the respondent's procedures for responding to subpoenas for production of documents in court. Sgt Maddox's evidence was generally confined to the period when he was the co-ordinator of the Subpoena Unit for approximately 12 months before 2004. The subpoena unit had three or four staff, and its role was to process subpoenas, and also to act as a contact point for people unhappy about responses. The Unit deals with approximately 8,000 subpoenas each year. The co-ordinator of the unit was also responsible for deciding if objections were to be raised. Documents could be forwarded through the Subpoena Unit, and individual units would also send relevant documents directly to courts. Sgt Maddox stated that he had checked the databases which indicated that in the applicant's matter there had been three subpoenas served on the respondent. The database at that time was poor, and there was little detail about these subpoenas other than that they had been sent to the units identified in his affidavit of 23 June 2006. Sgt Maddox stated that he had checked those units and received the responses outlined in his affidavit. There was no record kept on the database of compliance. There was no central collation of documents. Documents returned from court would be checked and if there were no original documents, would be disposed of in a secure bin for shredding. Original documents would be returned to the relevant local area command or appropriate police officer. The current procedure is for court staff to destroy copies. 14 In his oral submissions the applicant stated that in his view additional documents falling within his request must exist. They were located when subpoenas were issued in 2003. Even if the copies have been destroyed, they must have been copied by someone, and if the originals had been found in 2003 they should be able to be found again. The applicant relied on the decisions of the Tribunal in Beesley v Commissioner of Police [2000] NSWADT 52; Miriani v Commissioner of Police [2005] NSWADT 187; and Chapman v Commissioner of Police [2004] NSWADT 35. 15 The respondent's representative relied on the affidavits and evidence of Sgt Maddox as to the inquiries that had been undertaken, and submitted that the respondent had made all reasonable efforts to locate any documents the subject of the application. 16 In Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 the President of the Tribunal, O'Connor DCJ, held that where an applicant raises an argument that an agency has failed to locate relevant documents, and puts before the Tribunal some credible material or submissions which persuade the Tribunal that an arguable case exists, the Tribunal has jurisdiction to determine whether the agency has failed to address all documents in its possession. 17 In his affidavit of 20 December 2005 Sgt Maddox states that he was the co-ordinator of the Subpoena Section from February 2003 to February 2004, and co-ordinator of the FOI Unit from February 2004 to September 2005. Sgt Maddox's written statements and oral evidence concerning the inquiries he, and others in the FOI unit, undertook in response to the applicant's request, were comprehensive. In cross examination Sgt Maddox stated that the information provided in the affidavit of 26 June 2006 was based on what was recorded on the Subpoena Section database. Sgt Maddox's evidence addressed the deficiencies in the information recorded in the database. I accept Sgt Maddox's evidence. Based on that evidence, I find that following receipt of the applicant's request for access under the FOI Act inquiries were made with the Rose Bay Local Area Command and the officer in charge of the arrest of the applicant, and that documents were obtained which were the subject of Sgt Maddox's initial determination. Further inquiries were made with the Rose Bay Local Area Command, and the brief of the arrest and charging of the applicant was located and provided to the FOI unit. Those additional documents were considered as part of the internal review. A search of the Archives Unit was undertaken. Following the discussion at the initial Planning Meeting concerning the subpoenaed documents, Sgt Maddox searched the Subpoena Section records, which disclosed that three subpoenas had been served on the respondent in 2003. The database indicated that these documents had been forwarded to Human Resources, Joint Investigation Team Kogarah, and Detective Annette Bell, respectively, and further inquiries were made. Those inquiries failed to reveal any further documents. In his affidavit of 26 June 2006 Sgt Maddox concluded: I am unable to determine what documents were produced (if any) to the Supreme Court of New South Wales in response to Subpoena 'A', 'B' or 'C'. 18 I am satisfied that the search efforts made by the agency to locate documents falling within the terms of the applicant's request are reasonable in all the circumstances, and that the search it has undertaken was sufficient. While the applicant is understandably aggrieved that documents which were produced in 2003 have not been located in response to his request, I am satisfied that all reasonable steps have been taken within the limitations of the systems in place. Documents B 1-8 19 Documents B 1-8 are described in the respondent's determinations in the following terms: 1. Event No E3640427 (narrative) 2. Statement of witness (dated 15/02/1990) 3. Statement of victim (dated 19/01/1990) 4. Statement of victim (dated 22/07/1997) 5. Statement of victim (dated 02/12/1997) 6. Statement of victim (dated 13/03/1998) 7. Statement of victim (dated 07/03/2000) 8. Statement of witness (dated 15/02/1990) 20 The respondent has claimed that the exemptions in clauses 6(1), 13(b) and 4(1)(a) and (e) of Schedule 1 to the FOI Act apply to these documents. In relation to the exemptions claimed for documents B1-8 the respondent relied on the written submissions. 21 The applicant submitted that in applying clause 6(1) of Schedule 1 regard should be had to the wishes of the persons whose personal information is contained in the document. The applicant submitted that for clause 4(1)(a) and (e) to apply, more than the mere possibility of prejudice is required, and the currency of the information is relevant. The applicant submitted that there is a legally enforceable right of access to the documents. The respondent's representative made further oral submissions in the absence of the applicant. Clause 6 -Personal Information 22 Clause 6 of Schedule 1 states: (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. 23 In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 ( Perrin 's case), Kirby P held that the words "personal affairs" mean "the composite collection of activities personal to the individual concerned". In Gilling v Hawkesbury City Council [1999] NSWADT 43 at paragraph 33, Deputy President Hennessy said the purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. Section 31 of the FOI Act requires the agency to take "such steps as are reasonably practicable" to consult any person whose personal affairs may be disclosed by providing access to a document. 24 I have examined documents B1-8 and I am satisfied that they contain information or opinion about the applicant, and information about individuals other than the applicant. Disclosure of these documents would reveal the identity of the authors of the documents, and identify others, as well as reveal the personal reasons for the creation of the documents. As such, disclosure of these documents would involve disclosure of personal information about persons other than the applicant: Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55. 25 With regard to whether the disclosure of information would be unreasonable, in Martin v Commissioner of Police, NSW Police [2005] NSWADT 23, the Tribunal cited Saleam v Director General, Department of Community Services [2002] NSWADT 41, at paragraph 38, where the President followed the approach adopted by the Commonwealth Administrative Appeals Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, at paragraph 51: "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 being obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance." 26 The Tribunal went on to state that the public interest recognised by the FOI Act in the disclosure of information in documentary form held by an agency must be balanced against the public interest in protecting the personal privacy of a third party. 27 Documents 2-8 are statements provided in the context of criminal proceedings against the applicant, and document B1 is an Event narrative. 28 Subject to suppression order 29 Documents B1-8 were prepared for the purpose of the investigation and subsequent prosecution of the applicant. The information contained in the documents is particularly sensitive. The proceedings against the applicant have been concluded. Having regard to the nature of the information contained in the documents and the limited purpose for which the information was provided, I am satisfied that disclosure of the information would be an intrusion into the personal privacy of persons identified in the documents which would not be outweighed by any public interest in access to information held by a government agency. I am satisfied that documents B1-8 are exempt under cl 6 because they contain matter the disclosure of which would involve an unreasonable disclosure of information concerning the personal affairs of persons other than the applicant. 30 This conclusion makes it unnecessary to decide whether the documents are also exempt under clauses 13(b) and 4(1)(a) and (e) of Schedule 1, and I make no findings in that regard. Decision (1) The decision under review is affirmed. (2) Paragraph 28 of these reasons be made available only to the respondent and its legal advisors, and not be made available to the applicant or published by the Tribunal.

Simring v Commissioner of Police, NSW Police

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