Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 (1 February 2000)

Last Updated: 29 February 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11

PARTIES: APPLICANT

Thomas Douglas Watkins

RESPONDENT

Chief Executive, Roads and traffic Authority

FILE NUMBERS: 993220

HEARING DATES: 29/11/99

SUBMISSIONS CLOSED: 17/01/2000

DECISION DATE: 01/02/2000

BEFORE: Smith MB - Judicial Member

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93

Department of Industrial Relations v Burchill [1991] FCA 616; (1991) 33 FCR 122

Australian Doctors' Fund Ltd v Commonwealth of Australia [1994] FCA 177; (1994) 49 FCR 478

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145

Accident Compensation Commission v Croom [1991] 2 VR 322

D v National Society for the Prevention of Cruetly to Children [1977] UKHL 1; [1978] AC 171

Attorney General's Department v Cockcroft (1986) 10 FCR 180

Maugher v General Manager of Wingecarribee Shire Council [1999] NSWADT 35

APPLICATION: Review of decision to refuse access to documents (or part thereof)

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

K Eastman (barrister)

Bilbie Dan Hickey (solicitors)

RESPONDENT REPRESENTATIVE: RESPONDENT

T F Robertson (barrister)

ORDERS: 1. The reviewable decision is affirmed.

Reasons for Decision:

Reasons for Decision

Introduction

1 This appeal under s 53 of the Freedom of Information Act 1989 (NSW) requires me to balance public interests in circumstances which are troubling. The background facts and the fundamental issue can be summarised very briefly.

2 On 21 October 1998, the RTA wrote to the applicant's 86 years old father telling him that "information has been received which raises a doubt as to your medical fitness and competency to drive". The letter required him in peremptory terms to produce a medical certificate and undergo a special driving test within 21 days. The father was shocked and extremely distressed by this letter, particularly since in May and June 1998 he had been certified medically fit to drive and had successfully passed a road test under normal procedures applicable to persons of his age. After protest by the applicant and consultation with the family doctor, the RTA wrote on 29 October 1998 saying "it is considered that it is no longer necessary for you undergo a medical examination or complete a driving test. Please ignore the RTA's letter of 21 October 1998". However, the applicant's father had collapsed with a "stroke" before receiving this letter, and he died on 5 November 1998.

3 When the applicant suggested that the RTA had acted unwisely and asked to see the information upon which it had acted, it claimed that it was exempted from showing its records because its informant had sought and been given an undertaking of anonymity. It argues that revealing its source in cases such as this would deter bona fide informants coming forward to volunteer information upon which it relies to locate unfit drivers.

4 Against a public interest favouring non-disclosure, the applicant attempted to persuade me that he has already identified the informant (whom I shall call "the suspect") and that his or her statements were false and made maliciously. If this claim could be made out, then there would seem to be a stronger public interest in exposing the person, so as to deter other persons from similar public mischief. Unfortunately, as I shall explain, on the material before me I am not satisfied that the informant's identity has already been revealed, nor that the informant gave information which was either objectively or knowingly false, nor that the informant was motivated by a desire to inflict suffering to the applicant's father or his family.

5 Perhaps anticipating my above conclusions, the applicant attempted a more refined balance of public interests, suggesting that disclosure of the informant's identity was justified in his father's special circumstances (or non-disclosure could not be justified) by reason of mishandling by the RTA of the information. However, I have decided that this argument also fails, that the public interest in preserving the anonymity of the informant should prevail against the applicant's request for access under the FOI Act, and that I should affirm the decision under review.

6 I shall below attempt a more adequate examination of the relevant law, facts and reasoning leading to this conclusion. In this process, I am constrained by s 55 of the FOI Act "to ensure that (I do) not, in the reasons for (my) decision or otherwise, disclose any exempt matter." I must throughout these reasons maintain the mystery of whether indeed the RTA informant was or was not the applicant's suspect. A further constraint is that it is appropriate in these published reasons to avoid identifying the subject of the applicant's suspicions, since this person was not a party to the case nor was called as a witness by either party. The suspect had only a limited opportunity to answer the applicant's criticisms and suspicions in the course of consultations by the respondent on the applicant's FOI request.

The FOI decisions

7 The applicant's FOI request is dated 11 November 1998 and requested documents concerning "any information concerning the late Thomas Albert Watkins' medical fitness and competency to drive which resulted in the letter dated 21.10.1998 being sent by the RTA to Thomas Albert Watkins."

8 After consultation with the informant, the RTA on 17 December informed the applicant that "four documents were identified as relating to your application. I have on 14 December 1998 determined that part of one and all of three of the documents are considered exempt under clauses 4(1)(b) and 13(b) of the FOI Act." It explained:

"The RTA relies on information from people to indicate motor vehicle drivers who may not drive safely. This information is only used to trigger investigations and it is the result of any investigations and/or examinations that determine if any action should be taken. The release of the documents may identify the informant and could seriously affect the ability of the RTA to detect such cases in the future."

9 This decision was affirmed on internal review, and complaints to the Ombudsman and to the Minister for Transport produced no change to the decision. The applicant then sought review by the Tribunal. No issue arises as to my jurisdiction, and it is unnecessary to examine this.

The documents

10 The documents in question were produced to me after I indicated the opinion required by s 57(3) (see below), and the respondent also consented to the applicant's legal representatives being permitted to inspect the documents pursuant to a non-disclosure order under s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW). I consider they are most accurately and appropriately identified as only two "documents" within the meaning of that word as used in the FOI Act. The first is a four page record of a facsimile transmission from a RTA Local Registry to the RTA Medical Unit in Sydney sent on 8 October 1998. I consider that it is appropriately described in total as "a facsimile unsafe driving report" from a local Registry to the Medical Unit in respect of Thomas Albert Watkins.

11 The first page of this document reproduces an official facsimile sheet. The second page reproduces an official form headed "unsafe driving report" which has been completed by the informant with further annotations by officers of the local Registry and is dated 8.10.98. There is reference on that form to "my letter", which appears to be a reference to the last two pages of the facsimile which reproduce a letter signed by the informant and addressed to "RTA Manager" which bears the same date.

12 The RTA called no witnesses from the local Registry explaining how this facsimile came to be sent, nor what had happened to the originals of its constituent pages. I assume, since they were not located in response to the applicant's FOI request, that they have been destroyed or lost. I therefore did not need to consider whether they would have constituted individual "documents" which may have required different treatment under the FOI Act. The characterisation of the facsimile to the Medical Unit as one "report" may be significant if the application of Sch 1 cl 4(2)(a)(iv) or (v) of the FOI Act came to be considered. However, as will appear, I have decided the case without needing to consider these provisions.

13 The second document which was identified by the RTA in answer to the FOI request was a hand-written record dated 20 October 1998 which was made by an officer of the RTA Medical Unit, Mr Betland. It contains information on a conversation he had with the informant and also his opinions on that information as to what action should ensue. I shall refer to it as "the file note". On the same day, Mr Betland also made annotations on the bottom half of the front page of the facsimile document. This part of the facsimile was the part document to which access was given to the applicant. It records a call by Mr Betland to Charlestown Police "to confirm statement in unsafe driving report", and a subsequent response which indicated that "nothing known on records of COPS".

The documents' context

14 Mr Corrin, the manager of the RTA Medical Unit, said that the Unit was responsible for administering the RTA's responsibility for ensuring that drivers were medically fit and competent to drive. This was done by means of procedures for self-disclosure on renewal and application forms. An advanced age system required persons reaching 80 to undergo a medical examination and, from 85 years, a medical examination and a driving test annually. The RTA also received reports from police service and medical professionals and also, from time to time, members of the public. During "this calender year" the RTA Medical Unit had received approximately 130 reports from informants. After receiving a report its genuineness was determined, usually by a personal contact with the informant, before the driver was approached. A very small number of reports were found to be malicious, and no further action was taken on these. The Medical Unit had the power to direct licensed drivers to undertake medical tests or fresh driving tests, and it exercised the authority to refuse or cancel a license on grounds of medical unfitness. There was a right of appeal against any such decision. It never prosecuted people.

15 In the present case, although a complete picture of what happened is impossible on the evidence before me, I think the

following can be concluded from the content of the documents and the evidence of the two witnesses called by the RTA. The informant has attended on 8 October 1998 at the local Registry with his (or her) letter and had conversations there with RTA officers about its contents. These have led him (or her) to complete an unsafe driving report form. An officer has made some inquiries in relation to the informant's statements, and has concluded that it had sufficient substance to require a reference to the Medical Unit. The officer's Manager has concurred and on the same day the facsimile document was sent to the Medical Unit for any appropriate further action.

16 On Mr Corrin's evidence, the officials at the local Registry were not authorised to take further steps in relation to examining the medical fitness of Mr Watkins. This power was centralised in the Medical Unit. The facsimile report was given to Mr Betland for further action, and as indicated in his file note and in his annotations on the facsimile he made inquiries of the Police and spoke to the informant on the phone. Mr Betland may also have obtained copies of Mr Watkins' March 1998 application under the mobility parking scheme and of his May 1995 annual medical review. On this material, he decided to send, and sent, the letter of 21 October 1998 which so upset Mr Watkins. There are some differences in recollection between Mr Betland and Mr Corrin as to whether the latter was directly involved in directing these inquiries and deciding to send the letter, but I do not consider that anything turns on these differences.

17 After the letter was sent, Mr Corrin received a phone call from the applicant who indicated his concerns. At the applicant's suggestion Mr Corrin spoke to his father's medical practitioner, who agreed to report on Mr Watkin's medical fitness in the light of his findings at an appointment some days latter. These conversations caused Mr Corrin to withdraw the requirements communicated in the letter to Mr Watkins.

The relevant legislation

18 Section 16 of the FOI Act gives a legally enforceable right to be given access to an agency's documents "in accordance with this Act". The right is given to "each member of the public" (c.f. s 5(2)(c)), without the need to demonstrate any personal interest in having the document. Once a proper application is received, it must be determined according to ss 24 and 25. One of the grounds for refusing access is that the documents "is an exempt document" according one or more of the categories described in the Schedule 1. The burden of proving that a refusal of access was justified falls on the agency (see s 61).

19 In the present case, the respondent sought to justify refusing access by reference to cll 4(1)(a) and 13(b) of Sch 1. Since some questions of construction arise concerning the application of these provisions, I shall set out the whole terms of each of the clauses, highlighting the provisions of particular interest.

"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:

(a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or

(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, or

(c) to endanger the life or physical safety of any person, or

(d) to prejudice the fair trial of any person or the impartial adjudication of any case, or

(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or

(f) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety, or

(g) to endanger the security of any building, structure or vehicle, or

(h) to prejudice any system or procedure for the protection of persons or property, or

(i) to facilitate the escape from lawful custody of any person.

(2) A document is not an exempt document by virtue of subclause (1):

(a) if it merely consists of:

(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or

(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or

(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or

(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or

(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and

(b) if disclosure of the document would, on balance, be in the public interest.

(3) A document is an exempt document if it is a document that has been created by:

(a) the Information and Intelligence Centre of the Police Service or the former State Intelligence Group, or

(b) the Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence.

(4) In this clause, a reference to the law includes a reference to the law of the Commonwealth, the law of another State and the law of another country.

13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(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.

20 It will be noted that if a document falls within cl 4(1)(b) but does not answer one of the further descriptions in cl 4(2)(a), it is an "exempt document" without having to pass through the public interest test provided in cl 4(2)(b). However, in that situation the agency decision-makers could, in the absence of a "conclusive" Ministerial certificate under s 25(3) and 59 of the FOI Act, still consider whether there was some overriding reason for not claiming the exemption, in accordance with my reasoning in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [12]- [17] and [90]-[91].

21 In Mangoplah I considered that the Tribunal on review of a decision refusing access to a document on the ground that it is an exempt document ordinarily also has the function of reviewing the merits of exercising the override discretion. However, Mangoplah did not concern a claim relating to Part 1 of the Schedule, i.e. that a document was a "restricted document". I left for another day whether the Tribunal's usual review function was limited in relation to such claims by reason of the special provision made in s 57 of the FOI Act.

22 (As a footnote to that case, I maintain my opinions stated therein notwithstanding the present respondent's submissions to the contrary. They were applied by the President of the Tribunal in X v Director-General, Department of Community Services [1999] NSWADT 141 at [73-76]. I consider that what I said as to the override discretion and its application to the legal professional privilege exemption is consistent with Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [24-26] and [55], and with Egan v Chadwick [1999] NSWCA 176 per Spigelman CJ at [80-85] and Priestley JA at [143]).

23 Since the present case includes a claim that a document is a restricted document, I invited submissions from the parties as to the effect of s 57 on the Tribunal's procedures and powers.

The effect of s 57 of the FOI Act

24 Section 57 provides:

"57 Consideration of restricted documents

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:

(a) the public, and

(b) the review applicant, and

(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.

(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.

(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings."

25 Some of the effects of this section are clear. Subsection (i) excludes's the Tribunal's power to examine a claim that a document is a restricted document if it is subject to a Ministerial certificate. The review of such a claim is given to the Supreme Court under ss 58A and 58B.

26 Subsections (2), (3) and (4) contain special procedural directions aimed at protecting the confidentiality of the documents while the matter is before the Tribunal. These include requiring the Tribunal, at some appropriate preliminary stage in its hearing, to consider in terms of subs. (3) whether it can uphold the claim without seeing the document.

27 Subsection (6) makes the Minister administering the FOI Act, who at present is the Premier, automatically a party to the proceedings. Subsection (5) requires the Tribunal to ensure that he has an opportunity to be heard "in relation to the matter". I take the reference to "the matter" to include, at least, the issue of whether the claim to exemption under Part 1 should or should not be rejected, but it may extend to the whole matter before the Tribunal. Under subs. (2) the Premier is also expressly entitled to request the Tribunal to make confidentiality orders.

28 In the present matter, I took the view that s 57(5) required me to ensure that the Premier had been notified of the matter before the commencement of the Tribunal's hearing, so that he could determine whether he wished to intervene and the extent of his participation. His representative appeared, indicated that the Premier did not wish to participate, and was excused from further attendance. He suggested that it may have been sufficient for the Premier to have been notified and given an opportunity to be heard only if, and after, the Tribunal formed an opinion that the claim for exemption should be rejected. However, in my opinion, this would plainly not result in the Premier having "a reasonable opportunity" to be heard on the issue, if only because of the appearance of pre-judgment. It would also be disruptive of the Tribunal's proceedings and increase the parties' costs. I suggest that in all cases where a claim for an exemption under Part 1 of Sch 1 is raised in contested proceedings before the Tribunal, it is desirable that the parties should ensure that the Premier is served with an appropriate notification in sufficient time before the hearing for him to decide whether he wishes to intervene and to communicate his intentions to the Tribunal. Unwelcome adjournments will result if evidence of notification is not available at the hearing.

29 The provision remaining for discussion is s 57(4). Whether this is more than a procedural provision and restricts the substantive review function of the Tribunal in a application involving a claimed restricted document, raises some problems. It is clear that it directs the Tribunal "to reject the claim" if it is "not satisfied that there are reasonable grounds for the claim" after looking at the documents. However, does this imply that it must not reject the claim if it has been satisfied that there are "reasonable grounds" for the claim? In other words, is the Tribunal's merits review function limited to considering the existence of "reasonable grounds" and not the ultimate merits of the claim? Moreover, does s 57(4) imply that if the claim is not rejected by the Tribunal, it is obliged to affirm the refusal of access to the document without considering the exercise of the decision-maker's override discretion?

30 It is well established under the Commonwealth FOI Act that being satisfied as to "reasonable grounds" for a claimed exemption may be easier than being satisfied as to the applicability of the exemption as a matter of fact, and that it does not involve taking account of public interest considerations not raised by the language of the exemption (see Department of Industrial Relations v Burchill [1991] FCA 616; (1991) 33 FCR 122 and Australian Doctors' Fund Ltd v Commonwealth of Australia [1994] FCA 177; (1994) 49 FCR 478). I consider that these authorities should be applied to the NSW FOI Act when deciding whether the Tribunal is "not satisfied that there are reasonable grounds for the claim".

31 I am inclined to think that s 57(4) carries an inference of a reverse direction: that the Tribunal's review function is completed once it considers there are reasonable grounds for claiming a exemption under Part 1 of Sch 1. Without reading such an implication, it is difficult to explain the intended effect of s 57(4). If so, the Tribunal is placed in the same position as the Commonwealth Tribunal under s 58 of the Commonwealth Act when reviewing a "conclusive certificate". The Tribunal could not examine the actual merits of applying the exemption and the discretion to claim it. However, the absence of an express provision to this effect in the NSW FOI Act may leave room for doubt, and it may be arguable that s 40(2) of the ADT Act requires an interpretation which would not limit the Tribunal's review function under s 63 of the ADT Act. The situation is different under the Victorian Act (see s 50(5) of its Act and Victorian Public Service Board v Wright [1986] HCA 16; (1985) 160 CLR 145).

32 I received helpful written submissions from the parties upon these issues, but as will appear below my reasoning has led me to affirm the decision without forming a concluded opinion upon them.

No reasonable grounds for cl. 4(1)(b) exemption claim

33 The parties' submissions explored the language used in cl 4(1)(b) and (2)(a)(iv) and (v). Guidance on some of the words can be gained from authorities from other jurisdictions, but these should be used cautiously since novel aspects of cl 4 and the NSW FOI Act in general produce significant differences of context. The words used and their context must be the starting point for construction (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381). However, the High Court accepts that in FOI legislation "it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information" (Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145 at 153, see also Commissioner of Police v District Court of NSW (1993) 31 NSWLT 606 at 627 and Accident Compensation Commission v Croom (1990) 2 VR 322 at 323).

34 I have concluded that the respondent's claim to rely on cl 4(1)(b) should be rejected because I am not satisfied that there are reasonable grounds for concluding that the present informant was a source of information "in relation to the enforcement or administration of the law" within the true construction of that phrase. In my opinion, its true construction requires this phrase to be read narrowly, and as having a meaning which could not "reasonably" be applied to information in the present documents concerning the RTA Medical Unit's investigation of Mr Watkins' fitness to drive.

35 The respondent argued that although the information was not "in relation to the enforcement ... of the law", it was "in relation to the...administration of the law". It suggested that par (b) related to two types of informants and that a connection with "law enforcement" was not necessary. The absence of a law enforcement aspect to the respondent's investigation then provided one reason for excluding the application of cl 4(2)(a)(iv) or (v), so as to avoid the public interest balance required by cl 4(2)(b).

36 The respondent's counsel referred me to Accident Compensation Commission v Croom [1991] 2 VR 322, which concerned a Victorian FOI exemption referring to prejudice to "the enforcement or proper administration of the law in a particular instance". The court was considering the application of the exemption to medical and investigator's reports obtained by a statutory authority in connection with its management of an accident compensation scheme. Young CJ said at 324:

"Exemption was claimed under the "administration of the law" but in my opinion that phrase in the context is quite inapt to protect what the appellant here seeks to protect. Disclosure of the documents could not prejudice the proper administration of the law for they are in no way concerned with that administration. It is sufficient to say that the reports are not concerned with the proper administration of the law. It is better not to attempt to define "administration of the law" or to replace one vague word with another, but the administration of the law indicates something concerned with the process of the enforcement of legal rights or duties. I agree, with respect, in O'Bryan J's observation that to fall within s 31 a document should have a connection with the criminal law or with the process of upholding or enforcing civil law. In so doing I have not overlooked the words "in a particular instance" but those words cannot control the category or class of documents intended to be exempted."

37 I agree with the submission that this case provides appropriate guidance for interpreting cl 4(1)(b) of the NSW FOI Act. However, I consider that it does not support the application of that exemption to the present documents, but indeed the contrary. In my opinion, it indicates that the words "administration of the law" should be given a narrow meaning which requires the documents to be "concerned with the process of the enforcement of legal rights or duties."

38 The words "administration of the law" have no established or fixed meaning, and if given a broad reading are capable of encompassing most activities of any government authority. In my opinion, the statutory context of the words shows that such a reading was not intended.

39 The immediate context is the collocation with "enforcement of the law". I am inclined to think that cl 4(1)(b) is referring to only one type of document, for which "enforcement or administration of the law" provides a composite description of one element. Even if two alternative elements are referred to, "administration of the law" takes colour from the other element. The two elements share a connection with "law enforcement" in a broad sense of referring to the policing of criminal laws or civil obligations. The language of the exemption is directed at establishing for FOI purposes an exemption comparable with the "police informer" privilege in courts, with the reference to "or administration of the law" reflecting the extension of the privilege to informers not only to police agencies but also in some analogous situations (c.f. D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 218, 230, 232, 241).

40 The broad context of the words is a group of exemptions which, by appearing in Part 1 of Sch 1, are given special designation and protection as "restricted documents" so as to mark the documents in question as having particular sensitivity to government. The exemption criteria for most restricted documents do not contain a public interest balance test, and there is an inference that they concern documents for which a justification for secrecy is generally manifest. Not all confidential information coming to government is intended to be covered since, outside Part 1, cl 13 gives a general exemption covering confidential information and includes express protection for the confidential supply of information to government. Documents coming within cl 13 are subject to a public interest balance: either within the equitable doctrines governing actions for breach of confidence; or expressly via cl 13(b)(iii).

41 Although the exemption provisions stand independently, I consider that the construction of one exemption can be influenced by the existence of another exemption which seems more aptly to concern the documents in issue. I consider that in the whole context of the Act cl 4(1)(b) can be given proper effect without adopting the broadest meaning which its words can carry when read in isolation.

42 A further reason for reading the elements of cl 4(1)(b) as being directed at documents which have a connection with the activities of agencies by way of "law enforcement" is to give a rational operation to cl 4(2)(a)(iv) and (v) and (b). It would seem anomalous if a report arising from investigations by a non-criminal law agency could be subject to a balance of public interests test if it concerned the enforcement of penal sanctions, but one of a similar nature would always be mandatorily exempt if it concern the agency's broad activities in "the administration of the law". It seems unreal to suggest that Parliament thought that the latter, but not the former, reports are so obviously sensitive that there could never be a countervailing public interest in favour of their disclosure.

43 In the present situation, in my opinion the documents in issue were not concerned with a process of enforcement of legal rights or duties. Mr Watkins had been lawfully licenced to drive and at all relevant times remained so. There is no suggestion in the material that he was in fact, or was suspected of being, in breach of any law or legal obligation. I find that an investigation of breaches of criminal law or other legal obligations on Mr Watkins did not form any real part of the inquiry which was conducted by the Medical Unit. On such evidence as is before me, the RTA local office processed and sent the material in the facsimile to the Medical Unit with the sole purpose of furthering an investigation by that Unit as to Mr Watkin's current medical fitness to continue to be licensed. There was no question of a possible prosecution or proceeding for a civil sanction or remedy. The inquiries anticipated by the Medical Unit held, at most, the possibility that a discretionary administrative cancellation of the licence might be contemplated in the future under reg 10(1)(c) of the Motor Traffic Regulations 1935 (NSW). In my opinion it could not reasonably be concluded that any of the information sent to the Medical Unit or recorded in Mr Betland's file note, including information as to the source of that information, was "in relation to the enforcement or administration of the law" within cl 4(1)(b).

44 For these reasons I am not satisfied that there are reasonable grounds for the respondent's claim that the documents are restricted documents, and reject that claim in accordance with the direction in s 57(4) of the FOI Act. Assuming that I have power to do so, I find that the exemption in cl 4 does not apply to the documents. I do not, therefore, need to consider the other elements of cl 4(1)(b) nor the applicability of cl 4(2)(a)(iv), (v) or (b).

The cl 13(b) exemption applies

45 This claim requires me to address the three issues listed in cl 13(b). The "matter" which the respondent wishes to protect from disclosure is everything in the documents which would disclose "information obtained in confidence". All of the information given by the informant comes within this category, particularly if it is information which could reveal the identity of the informant.

46 The first question is whether the information was "obtained in confidence". The principal evidence as to this is contained in the information itself and in the informer's response to the RTA notification of the FOI request.

47 Mr Corrin gave evidence that non-official informants to the Medical Unit usually requested confidentiality, and did so because "if they are family members or next door neighbours or that, they don't want to be seen to be causing trouble but they do have a genuine concern ... and they insist on, you know, will my name remain confidential" (transcript p 19). Although there was no publicised invitation for informers to come forward, there was a standardised procedure for receiving information and doing so on a confidential basis. The form used to record their information did not itself offer or undertake any confidentiality, but he said "the RTA does treat them as such". Mr Betland said that it was his normal procedure to advise people that he spoke to that any information supplied to the RTA was confidential, and that most members of the public did not want their information released.

48 This evidence was somewhat vague in content and foundation, and would not of itself persuade me that in all circumstances RTA informants of the present type either request or are given undertakings of confidentiality. However, in the present case the informant's original written statement contains an express request for anonymity. In response to notification of the FOI request, the informant said: "I was assured of my confidentiality by RTA & a gentleman who phoned me to verify same". I accept this statement as true.

49 I find on the evidence that it is probable that at all material times the informant has requested and thought that he or she was given an undertaking of anonymity. On all the evidence I also consider that it is more probable than not that an officer at the RTA local office expressly gave such an undertaking to the informant, and that Mr Betland probably said something to the informant in his conversation on 20 October which confirmed that undertaking. In the light of this undertaking, I consider that the documents contain "information obtained in confidence" being, in particular, anything in the documents which might assist the discovery of the informer's identity.

50 The second question is whether disclosure of the information "could reasonably be expected to prejudice the future supply of such information to the ... agency." I accept that these words should be understood and in the manner explained in Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190:

"The words ... were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like."

51 The RTA witnesses before me gave evidence that a significant proportion, if not most, investigations conducted by the Medical Unit originate in a report based on information given bona fide and in confidence, particularly by relations or friends of an elderly driver. I accept the respondent's submission, which accord with common sense in the context in which the Medical Unit functions, that the supply of this information is likely to be prejudiced if it were known that undertakings of confidence could not be relied upon. I consider that disclosure in the present case could reasonably be expected to have this effect.

52 A reason for resisting this conclusion in the present case would be if the information had ceased to be confidential, i.e. if the informant's identity was already public knowledge or if the informant no longer sought anonymity. The applicant attempted to establish these facts in his evidence as to the person he suspected to be the informant.

53 The applicant attempted to identify the suspect as someone in relation to whom there was a history of conflict with his parents and himself at the time. He claimed that on the part of the suspect the conflict was characterised by the making of false allegations about himself and about his parents and by meddlesome intrusion into the affairs of his parents. Assuming that all his allegations are true - which is something on which I make no findings - I consider that they raise only a suspicion falling short of a probability that the suspect was the present informant to the RTA.

54 In 1999, after the events involving the RTA, this conflict produced "AVO" proceedings in a Local Court in which the allegations were raised against the suspect. One of the particulars was that: "in September/October 1998 the defendant contacted Roads and Traffic Authority stating that the late Mr Watkins was unfit to drive." There is in evidence before me a signed statement by the suspect in response to this allegation. This statement was forwarded to the applicant's solicitor, but it is unclear whether it was ever tendered in the court proceedings, which were settled on agreed terms. The applicant claims that the suspect subsequently circulated the statement to other people on at least one occasion. His evidence on this was limited and I am not prepared to find that the suspect has, in effect, published the statement to the world. However, I shall assume so for the purposes of these reasons.

55 The applicant argues that the statement, in effect, admits the allegation. I shall not recite the relevant paragraphs. It is enough for me to say that, in my opinion, they do not carry this admission, but should be read as containing a denial of the allegation. On the evidence before me, I find that the suspect has not admitted either publicly or privately that he or she was the RTA's informant, and I would not infer this fact from the contents of the statement.

56 An alternative submission by the applicant was that "the unique circumstances of this case would suggest that disclosure of the documents would have no impact on the RTA's ongoing duty." This was put in the context of balancing the public interest, but it also would negate satisfaction as to cl 13(b)(ii). The features which it was submitted made the case unique were: that no action was (ultimately) taken on the information; that Mr Watkin's death now made any issue of his fitness irrelevant; that there was no evidence of a risk of retribution or concern for the informant. I do not accept that these features allow the circumstances to be described as "unique". Even if they were, I do not consider that they negate a reasonable expectation that dishonouring the undertaking as to confidentiality in this case could prejudice the future supply of information on driver fitness. I do not think it "irrational, absurd or ridiculous" to expect that some potential informers would be deterred from coming forward if they knew that an undertaking as to confidentiality on which they relied might be set aside under FOI procedures over their objections in any circumstances. I consider that it quite likely that some, if not all, anonymous informers would refuse to supply information if they were told that their identities could be disclosed to the world if their information was not used whether by reason of its subject dying or otherwise. For these reasons, the submitted "unique" features of the present case do not, in my opinion, negate a reasonable expectation of prejudice to the supply of confidential information to the RTA, nor provide an answer to the public interest in maintaining that supply by honouring undertakings of confidentiality.

57 The above discussion has confirmed my satisfaction as to cl 13(b)(ii) and also taken me into the third question raised by cl 13(b), which is whether disclosure in the particular circumstances of the present case would "on balance be contrary to the public interest". In my opinion, it would. I shall try to explain shortly the principal considerations which lead me to this conclusion.

58 I consider that the public interest in protecting the supply to the Medical Unit of communications such as in the present case from informants to whom it undertakes confidentiality is clear and weighty. In my opinion this is obvious and does not need much elaboration. The medical fitness of drivers is a matter of undoubted public concern, and one which requires sensitive supervision by the regulator, particularly in relation to elderly drivers. No doubt most unfit drivers arrive voluntarily at that conclusion with the assistance of advice from their family, friends and medical advisors. The system of compulsory medical and driving testing for elderly drivers encourages this. However, I accept that some drivers do not discover their unfitness without intervention by the RTA Medical Unit, and that this intervention often requires the Unit to receive information from informants who would be unwilling to come forward without an unconditional undertaking of confidentiality.

59 I do not accept the applicant's submission to the effect that this public interest should be diminished or given lesser weight by reason of the absence of legislation specifically requiring members of the public to inform on unfit drivers and extending to them a cloak of secrecy. It would be surprising - and alarming - to find such a law. In its absence, I have no difficulty accepting that "the proper administration of the Government" (c.f. s 5(2)(b) of the FOI Act) in its regulation of driver fitness depends significantly on the ability to receiving information volunteered by members of the public in exchange for an undertaking of confidentiality.

60 I accept the respondent's submission that the public interest in honouring such undertakings is supported by the statutory protection now given in s 31(4) of the Road Transport (Driver Licensing) Act 1998 (NSW). This protects from civil or criminal liability a person who reports "in good faith" "information that discloses or suggests that ... another person is or may be unfit to drive ...".

61 This provision's requirement of "good faith" is also useful in pointing to the qualification or boundary of the public interest in honouring confidentiality. In this respect, I would understand the requirement of "good faith" as requiring an informant to honestly believe on reasonable grounds that the driver "may be" unfit to drive. If such a belief is held at the time that the information is given, then the motives which attended the giving of the information are irrelevant.

62 If the "good faith" of an informant is found be absent, then the public interest in protecting his or her anonymity will usually be absent. I consider that an overriding public interest favouring disclosure arises when it is found that confidentiality was been given to an informer who has knowingly peddled falsehood to government (c.f. Maugher v General Manager of Wingecarribee Shire Council [1999] NSWADT 35 at [47] and X v Director-General, Department of Community Services (supra) at [30]). The countervailing interest arises from the values of a free and open society, of which the FOI Act is itself an expression. It might also be located in the consideration that it is contrary to good government that an agency should be fruitlessly distracted and brought into disrepute by a mischief maker, and that this should be deterred by exposure of the person to the world.

63 In the present case, the difficulty for the applicant is that I am not satisfied that the present informer acted with a lack of good faith in the sense I indicated above. The informer's motives for giving information may or may not have been admirable, but this, in my opinion, is irrelevant. On balance, I find that the informer probably thought that Mr Watkins may have become unfit to drive and had some grounds for thinking this. Moreover, objectively, the question of his fitness in September 1998 was, in my opinion, reasonably open to doubt. On the evidence before me, I do not find that in fact Mr Watkins was fit to drive in September 1998, notwithstanding his successful examination and test earlier that year. My conclusion in this respect rests on the contents of the documents in question, and also the contents of the informer's letter to the RTA when consulted in relation to the FOI request. I have also taken into account all the material put before me by the applicant.

64 The applicant attempted to raise an alternative basis for swinging the balance of public interest in favour of disclosure. This was not clearly articulated, but was based on an argument that the Medical Unit was at fault in acting on the information by sending the letter of 21 October 1998 to Mr Watkins. The suggestion seems to be that, taking into account the evidence of Mr Watkins' May and June successful testing, the officers of the Unit should have decided not to send a letter requiring further medical and driving tests. It was also, perhaps, suggested that some less preremptory approach should have been taken, for example by an informal contact with Mr Watkins or his doctor. It was not argued that the information was used unlawfully or improperly according to any standard applied in administrative law.

65 I reject these submissions for two alternative reasons. First, I doubt that, in the context of the regulatory system in question here, an overriding interest favouring disclosure could arise by reason of the inappropriate use of information which was relevantly and properly obtained under an undertaking of confidentiality. The proper response to such conduct by an administrator would seem to be by reconsideration, apology or other compensation, rather than by the "outing" of the informant via the FOI Act.

66 More importantly, I would not draw the conclusion in the present case that the RTA letter of 21 September 1998 was sent wrongly in any sense of that word. In hindsight its sending was unfortunate and a more sensitive communication with Mr Watkins or his doctor might have been desirable. However, on all the evidence, I would make no criticism of the action taken by the Medical Unit. The officers concerned took steps to consider the genuineness of the informant's report, and arrived at their decision to send the letter after an independent consideration of all the information available to them. I accept the accuracy of the explanation for their decision which was subsequently given by the respondent's chief executive in his letter to the applicant dated 22 January 1999:

"While it is acknowledged that your late father had an excellent driving record over an extensive period, which is commendable, the medical records show that at the time the information was received he was suffering from significant medical problems that could effect (sic) his driving. An application for a mobility parking authority issued in March 1998 indicated that your late father suffered from a cardio-vascular and neurological condition that was of a permanent nature and had effected (sic) his mobility. Given your late father's age, the information reported and his medical condition, it was assessed that his health may have deteriorated and that further investigations were warranted."

67 The applicant also submitted that the public interest against disclosure was displaced by reason of the fact that the applicant's father was expressly informed in the letter of 21 September that "information has been received which raises a doubt as to your medical fitness". I do not accept this submission. The letter indicated no more than that undisclosed information had triggered an inquiry which would be determined by reference to a proposed medical examination and driving test. The principles of natural justice would have required at least the gist of that information to be disclosed to Mr Watkins if it was proposed to rely on it when making an ultimate decision on whether to cancel the licence or to defend such a decision on appeal. However, this was not the situation. Moreover, even if principles of natural justice arose in favour of disclosure to Mr Watkins, the public interest which they reflect does not extend to raising an interest in disclosure to Mr Watkins' son nor to the world at large under the FOI Act.

68 The applicant's final submission was as follows:

"Please remember the facts of this case show that what was done to an outstanding citizen with an outstanding driving record. This matter is all about the late Mr Thomas Albert Watkins who was denied peace when he needed it most."

69 I understand the applicant's feelings reflected in this submission. However, taking account of all the circumstances I am not persuaded that they justify overriding the public interest in maintaining the undertaking of confidentiality given to the informer in this case.

70 Taking into account all the submissions made on behalf of the applicant, I consider that on balance the disclosure under the FOI Act of the withheld material in the documents in question would be contrary to the public interest.

Conclusion

71 The respondent has made out its claim that the documents are exempt documents within cl 13 of Sch 1. The power to refuse access therefore arises under s 25(1)(a) of the Act. Since my consideration of the exemption itself has involved a full consideration of the public interest in its fullest extent, I consider that exercise of the discretion to refuse access is fully justified by reason of the exemption and that no further matter arises for examination in the context of the override discretion. I consider that the respondent's refusal of access was the correct and preferable decision, and therefore affirm the decision under review.

72 I should indicate that before reaching this conclusion I considered, pursuant to s 25(4) of the FOI Act whether it would be practicable to give access to additional parts of the documents with deletion of exempt matter. I concluded that it would not, for reasons which should be apparent on examination of the documents. In my opinion, any attempt to remove all the material which might assist the identification of the informant would produce documents which would be so emasculated as to be useless to the applicant. I agree with the respondent that this material includes notations indicating the location of the local RTA office involved and all the written statements of the informant.