Turner v Director of Public Prosecutions

Issue 11The issue to be determined by the Tribunal is whether the Applicant has made a valid access application.

Applicable Legislation 12Section 43 of the GIPA Act provides that an access application cannot be made to an agency for access to excluded information of the agency and such an application is not valid to the extent that the application is made in contravention of the section. 13Information is excluded information of an agency if it relates to any function specified in Schedule 2 to the GIPA Act in relation to the agency. Clause 1 of Schedule 2 to the GIPA Act provides that information that relates to the prosecuting functions of the Respondent is excluded information. 14Clause 6 of Schedule 1 to the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure).

The Respondent's Case 15The Respondent submits that the information sought is clearly part of the Respondent's prosecution function and therefore excluded information of the Respondent. 16In support of this contention it relies on the decision in Miller v Director of Public Prosecution [2012] NSWADT 38. In that case the Tribunal determined that documents in relation to a complaint about the conduct of a prosecution were 'excluded information' because they contained factual information, legal analysis and legal opinion that is integral to the prosecution of the matter. It is submitted that in the case of Miller the request for information was less clear-cut than in this present application. 17The Respondent relies on an affidavit of Mr George Galanis sworn on 29 March 2012. Mr Galanis is the Managing Lawyer of the Court of Criminal Appeal Unit at the Office of the Respondent. 18Mr Galanis stated that in March 2009 the Applicant was convicted of maliciously inflicting grievous bodily harm. The Applicant filed a Notice of Intention to Appeal against his conviction and sentence with the Court of Criminal Appeal in July 2009. The Notice was filed in time. 19Mr Galanis set out details of the process involved in dealing with the Applicant's matter, referred to the relevant contents of the Respondent's prosecution file and itemised the documents provided to the Applicant. He also indicated that the Respondent does not hold some of documents that the Applicant has sought while others have not been provided. 20Mr Galanis indicates that some material sought by the Applicant would be subject to a claim of legal professional privilege. The Respondent does not rely on a claim for legal professional privilege in respect of this application. Its argument is simply that the information sought is "excluded information of the agency" pursuant to GIPAA, and there is no need to consider any secondary argument. The Respondent notes that the practice of the Respondent is to claim legal professional privilege, in response to all requests for documents in the nature of internal memorandum, notes, and submissions. This includes for instance, requests made in the course of the prosecution of a matter by the defence or by another party in unrelated litigation (e.g. subpoena for production). 21The Respondent further notes that it has, independently of the ambit of GIPA Act, provided the Applicant with all relevant material that it holds in regard to the Applicant's potential appeal to the Court of Criminal Appeal. It contends that there is no obligation on the Respondent to obtain, on behalf of the Applicant, material that the Respondent does not hold, such as court recordings or transcript.

The Applicant's Case 22The Applicant made detailed submissions. For the most part, the Applicant's submissions do not address the issue of whether the access applications were valid. The submissions largely relate to what he regards as deficiencies in the prosecution of the matter for which he was convicted and the proposed appeal against his conviction and sentence. 23He disputes that the Respondent has provided all the material to him and rejects the Respondent's contention in regard to legal privilege. 24The Applicant also rejects the Respondent's contention that the information he seeks is 'excluded information' for the purposes of the GIPA Act. He contends that the information he is seeking is clearly within the boundaries of the GIPA Act however he does not provide any argument to support his assertion. He contends that the case of Miller has no application in this matter.

Consideration 25The scope of the exemption asserted by the Respondent was considered in some detail in Miller. In that matter Judicial Member Isenberg considered the provisions in section 9 and Schedule 2 of the Freedom of Information Act 1989 ("the FOI Act"), the forerunner to the GIPA Act. Section 9 and Schedule 2 of the FOI Act provided for an exemption from the operation of that Act with respect to the prosecuting functions of the Respondent. The Judicial Member considered decisions made in relation to those FOI Act provisions as well as the principal functions and responsibilities of the Respondent as set out in the Director of Public Prosecutions Act 1986. 26In relation to the meaning of 'prosecution functions' Judicial Member Isenberg stated: In DF v Director General, Attorney General's Department [2002] NSWADT 164, President O'Connor considered documents related to the DPP's prosecuting functions. There, the applicant, who had been the subject of an assault, brought a private prosecution which was taken over by the Crown, but the defendants were acquitted by direction. The applicant was dissatisfied with the outcome, because of what he saw as the failure of police. The President noted at [9] that: "The applicant, as is usual in these cases, is faced with the difficulty that he can only make general submissions as to the applicability of the heads of exemption claimed for the documents. The documents have been supplied to the Tribunal as a confidential exhibit. The Tribunal has inspected the documents in light of the exemptions relied upon." The President was satisfied that an advice to the DPP from the relevant Crown Prosecutor in relation to the conduct of a trial was "reasonably connected with the conduct of the 'prosecuting functions' of the DPP" and thus exempt from the FOI Act by virtue of s. 9 and Schedule 2. His Honour then said in relation to the scope of the exemption: "24 It is not necessary, in my view, in this case to attempt an exhaustive definition of the meaning of 'prosecuting functions' in order to reach that conclusion. This is not a document which might be said to lie at the boundary between the 'prosecution functions' and the FOIA-covered 'non-prosecution' functions of the Office. In the practice of criminal law, the term 'prosecution' refers to the conduct of criminal proceedings (see, for example, Osborn's Concise Law Dictionary, def. of 'prosecution'; Mozley and Whiteley's, Law Dictionary, def. of 'prosecution'.) 'Prosecution' in the context of Schedule 2, item (ii) refers at least to the conduct of criminal proceedings by the Director, his officers and other persons (such as private practitioners) engaged by him. 25 The 'functions' connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal)." The President formed the same view about a letter from the DPP to the respondent in those proceedings rendering an advice in relation to aspects of the prosecution (at [40]) and about a report prepared by the relevant Crown Prosecutor to the DPP providing the foundation for that advice and containing extensive annexures (at [41]). In Cianfrano v NSW Ombudsman [2007] NSW ADT 273, the Tribunal again considered the breadth of the s. 9 and Schedule 2 exemption, albeit in a case in relation to the Ombudsman's functions. The Tribunal referred (at [15]) to Raethel v Director-General, Department of Education & Training [1999] NSW ADT 108 where the President had said (at [33]): "33 The expression 'functions relating to' these matters is a broad one." The Tribunal then referred approvingly to the passage from [25] in DF quoted above and concluded (at [26]): "26 It is apparent from various authorities that have considered the expression 'relating to' and similar expressions that ... the words are of the widest import: See for example Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111." 27In my view, those comments are equally applicable in the circumstances of this matter.

Does the information relate to the Respondent's prosecuting function? 28The Respondent regarded these documents as 'excluded information' because the documents that the Applicant has requested are concern issues he has raised about the conduct of a prosecution. The documents were said to form part of the prosecution file and contain information that is integral to the Respondent's prosecution of the matter. 29The OIC accepted the Respondent's contention in regard to the information that was the subject of the Respondent's 14 April 2011 decision. 30It is apparent from the contents of the Applicant's submissions that the information he is seeking relates to a prosecution. 31Miller, and the decisions referred to in Miller, support the view that the expression "prosecuting functions" should be given a wide meaning. In the circumstances of this matter I am satisfied that all the information that is the subject of the requests relates to the prosecuting functions of the Respondent. It is information that is connected with the prosecution case, covering all the professional and administrative tasks connected with its outcome including review of the outcome and the taking of any further action in respect of the case: DF v Director General, Attorney General's Department. 32Accordingly, the information that the Applicant is seeking is 'excluded information' for the purposes of the GIPA Act. 33Pursuant to clause 6 of Schedule 1 to the GIPA Act, unless the agency consents to disclosure, it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information. The Tribunal cannot order the Respondent to provide the Applicant with the information he seeks. Because the applications were invalid I am unable to deal with the issues of legal privilege or sufficiency of search that the Applicant has raised. 34It follows that the Respondent has correctly determined that the Applicant had made invalid applications, having sought access to 'excluded information'. Those determinations are the correct and preferable decisions and should be affirmed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2012