Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 (14 February 2005)

Last Updated: 14 February 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Martin v Commissioner of Police, NSW Police [2005] NSWADT 23


PARTIES: APPLICANT
Freida Joan Martin
RESPONDENT
Commissioner of Police, NSW Police




FILE NUMBERS: 043275

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 12/11/2004



DECISION DATE: 14/02/2005

BEFORE: Higgins S - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989

CASES CITED: Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429
Commissioner of Police v District Court of New South Wales (Perrin's Case)(1993) 31 NSWLR 606
Commonwealth of Australia and Road Traffic Authority (1989) 19 FOI Rev 7
Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43
Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133
Re B (1994) 1QAR 279
Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9
Re Dale and Australian Federal Police (1997) 47 ALD 417
Re Eccleston [1993] QICmr 2; (1993) 1 QAR 60)
Re Green and Overseas Telecommunications Commission [1992] AATA 252; (1992) 28 ALD 655
Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647
Re Scholes and Australian Federal Police (1996) 44 ALD 299
Re Stewart v Department of Transport [1993] QICmr 6; (1993) 1 QAR 227
Saleam v Director General, Department of Community Services and Ors [2202] NSWADT 41
Wiseman v the Commonwealth (unreported, Full Federal Court, 24 October 1989)
Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253
Young v Wicks (1986) 13 FCR

APPLICATION: access to documents - confidential material
access to documents - personal affairs
Freedom of Information Act - access to documents - confidential material
Freedom of Information Act - access to documents - personal affairs

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
P McLaughlin, solicitor

ORDERS: 1. In respect of COPS Event Summary No. E:19496440:
a) the Commissioner's decision in respect of the deletions relating to the victim's name and address and the victim's and witness' CNI Number and sex is set aside and in substitution thereof a decision that the applicant be granted access to that information
b) the Commissioner's decision in respect of the deletions relating to the name and address of the witness and the victim's and witness' date of birth, driver licence number, home telephone number and mobile telephone number is affirmed, and
c) within 28 days of this decision the Commissioner is to provide the applicant with a further copy of the Event Summary with the matters referred to in (a) above being disclosed and the exempt matters referred to in (b) above being deleted
2. In respect of the Statements :
a) pursuant to s. 63(3)(d) the Commissioner's decision is set aside and remitted for reconsideration in accordance with the reasons and findings of the Tribunal as set out in this decision, and
b) within 28 days of this decision the Commissioner is to provide the applicant with his reconsidered decision in respect of the statements.


Reasons for Decision:

REASONS FOR DECISION

Background

1 This is an application by Mrs Martin ("the applicant") seeking review of a decision of a delegate of the Commissioner of Police ("the Commissioner") to refuse her access to documents that she requested pursuant to the Freedom of Information Act 1989 ("the FOI Act"). The grounds relied on by the Commissioner to refuse the applicant access to documents are those set out in cl 6(1) (personal affairs) and cl 13(b) (confidential material) under Schedule 1 of the FOI Act.

2 On 27 November 2003, the applicant made a written request for access to documents concerning allegations of assault that were brought against her by her neighbour following an incident that occurred on 19 November 2003. In that request, the applicant requested access to the following documents:

"This is an application to request full copies of all reports, [my own statement and faxed attachment, and my witnesses statement inclusive], duty book entries, copies of log sheet entries and COPS entries relating to the reporting of and police investigation conducted of the incident including any witness statements made in conjunction to that incident or in support of the said allegations of assault".

3 On 18 February 2004, a delegate of the Commissioner ("the Commissioner’s original delegate") made a decision in respect of the applicant’s FOI application. In his Notice of Determination, he said that he had decided the following:

(a) to refuse access to two 3 page statements dated 19 November 2003 on the basis that they were exempt under cl 6(1) and cl 13(b) of Schedule 1 of the FOI Act

(b) to release, with deletions:

- COPS Event Summary No. E19496440, dated 19/11/2003; and

- the relevant entries of a police notebook (i.e. pages 113 to 117), which was a contemporaneous record of an interview with the applicant.

In each case the deletions were claimed to be exempt under cl 6(1) of Schedule 1 of the FOI Act; and

(c) to release a copy of a letter, dated 21/11/2003, sent by facsimile, by the applicant to Constable Ruth Castelli.

4 Following this determination the applicant was provided with a copy of the letter dated 21/11/2003, a copy (with deletions) of COPS Event Summary No. E19496440 and a full copy of the relevant entries in the police notebook. A full copy of the latter would appear to have been given in error. Although it was not argued in this application, I note that an inadvertent release may not necessarily destroy a subsequent claim for exemption (see Re Scholes and Australian Federal Police (1996) 44 ALD 299 at 302).

5 On 16 March 2004, the applicant requested the Commissioner to undertake an internal review of the abovementioned determination. In her request for internal review, the applicant submitted that the material to which she had been refused access was material relating to her own personal affairs and that the Commissioner had misapplied the provisions of the FOI Act.

6 On 17 March 2004, the applicant made some amendments to her application for internal review.

7 On 22 June 2004, another delegate of the Commissioner finalised the internal review determination. In the reasons for decision, the Commissioner’s delegate affirmed the decision of the Commissioner’s original delegate in respect of the two statements dated 19/11/2003 and varied the decision of the Commissioner’s original delegate in respect of the deletions to COPS Event Summary No. E19496440. In varying the decision the Commissioner’s delegate only sought exemption for the information relating to the name, the CNI Number, date of birth, sex, driver licence number, address, home telephone number and mobile telephone number of the victim and the witness referred to in the Event Summary.

8 The Tribunal has jurisdiction to hear and determine this matter pursuant to s.53 of the FOI Act and s.38 of the Administrative Decisions Tribunal Act 1997.

9 The matter came before the Tribunal at a planning meeting on 21 September 2004. At that meeting, the parties agreed to a timetable for the filing of written submissions. The parties also agreed that the matter should be dealt with on the papers.

Relevant Legislation

10 The legislation relevant to this application is the FOI Act. Part 3 of that Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (s.17 FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24 FOI Act). Access can only be refused on specified grounds (s.25 FOI Act).

11 Section 25(1)(a) of the FOI Act provides that an agency may refuse access to the document where the document is an "exempt document". The term "exempt document" is defined in s.6 of the FOI Act to mean the following:

"exempt document means:

(a) a document referred to in any one or more of the provisions of Schedule 1."

12 In this case, the exemptions relied on are those contained in cls 6 and 13(b) of Schedule 1 of the FOI Act. These exemptions, so far as they are relevant, provide as follows:

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.

13. Documents containing confidential material

A document is an exempt document:

(a) ...

(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".

13 Where a document contains information concerning the personal affairs of a third party to the FOI request, s.31 of the FOI Act provides that an agency is not to give access to the document unless it has taken such steps as are reasonably practicable to obtain the views of the relevant third party (i.e. the person whose personal affairs are referred to in the document for which access has been requested).

14 Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document where it is practicable to give access to a copy of the document from which the exempt matter is deleted and the FOI applicant wishes to be given such a copy.

15 Section 55 of the FOI Act provides that the Tribunal, when determining a review application, is to ensure that it does not, in its reasons for its decision or otherwise, disclose any exempt matter.

16 Section 61 of the FOI Act provides that in proceedings for external review, the burden of establishing that the determination of the agency is justified lies on the agency or the Minister.

Evidence

17 On 21 September 2004, the Commissioner filed a bundle of documents in respect of the applicant’s application. That bundle contained copies of the following documents:

- the applicant’s FOI request, dated 27 November 2003

- the Commissioner’s determination dated, 18 February 2004, together with a copy of COPS Event Summary No. E:19496440 (with deletions)

- Police notebook entries pages 113-117 (without any deletions)

- the applicant’s application for internal review, dated 16 March 2004; and

- the Commissioner’s internal review determination dated 22 June 2004, together with a copy of COPS Event Summary No. E:19496440 (with deletions).

18 Included in the Commissioner’s bundle of documents were copies of the following documents, which were provided to the Tribunal on a confidential basis:

- A signed witness statement dated 19 November 2003

- an unsigned witness statement; and

- COPS Event Summary No. E:19496440 (without deletions).

19 On 12 November 2004, the applicant filed detailed written submissions in support of her application.

Issues

20 There are only three documents, which are at issue in this application. They all relate to the incident that occurred on 19 November 2003 and, as mentioned above, they are:

(a) a signed witness statements dated 19 November 2003

(b) an unsigned witness statements; and

(c) the deletions (i.e. the name, the CNI Number, date of birth, sex, driver licence number, address, home telephone number and mobile telephone number of the victim and the witness) in COPS Event Summary No, E:19496440.

21 The question is whether:

(a) the abovementioned statements, in their entirety, are exempt under cl 6 and cl 13(b) of Schedule 1 of the FOI Act; and

(b) the deletions (i.e. the name, the CNI Number, date of birth, sex, driver licence number, address, home telephone number and mobile telephone number of the victim and the witness) in the abovementioned COPS Event Summary are exempt under cl 6 of Schedule 1 of the FOI Act.

Reasons and Decision

22 The role of the Tribunal is to determine whether the decision of the Commissioner is the correct and preferred decision having regard to the relevant facts and the applicable law: see s.63 Administrative Decisions Tribunal Act 1997.

23 As mentioned at [16] above the Commissioner bears the onus to satisfy the Tribunal that the grounds (i.e. the exemptions) on which he has refused the applicant access to documents or part of documents do in fact apply.

24 The principles underlining the introduction of the FOI Act was to enshrine and protect three basic principles of democratic government, namely openness, accountability and responsibility (see A Cossins Annotated Freedom of Information Act New South Wales at [1.4.1]). The objects of the FOI Act (see. s 5) reflect these underlining principles by providing that members of the public be given a right to obtain information held by the Government and its agencies and to ensure that those records, which concern the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. It is well established that this right of access to information held by the Government and its agencies is in the public interest.

25 However, as referred to in the objects, this right is not unqualified in that the right is expressly stated to be only "so far as possible" (see s 5(1) of the FOI Act). That is, Parliament recognised that in certain circumstances the public interest does not lay in the disclosure of information held by the Government and its agencies. Some of these circumstances are those set out in the exemptions that are contained in Schedule 1 of the FOI Act.

26 The legal principles applicable to the exemptions in Schedule 1 of the FOI Act are now well established. It is convenient to briefly deal with these principles, so far as they relate to the exemptions relevant to this application.

a) Personal affairs exemption

27 The rationale for this exemption is to protect the privacy of individuals, which is a right recognised under international human rights law (see article 17 of the International Covenant of Civil and Political Rights). And the aim of cl.6 of Schedule 1 of the FOI Act is to protect information about the personal affairs of third parties held by a government agency that may be disclosed to an FOI applicant.

28 The clause provides for a two-stage process in determining whether information in a document is exempt. The first matter to be determined is whether the document does in fact contain "information concerning the personal affairs" of a person other than the applicant (see cl. 6(2) in [12] above, which provides that information concerning the personal affairs of the applicant are not exempt). If the document in question does contain "information concerning the personal affairs" of a third person then the document is prima facie exempt. If it does not then the document is not exempt under this particular clause.

29 Where it is determined that the document does contain "information concerning the personal affairs" of a person other than the applicant, the next matter for determination is whether the disclosure of this information would be "unreasonable".

30 It is well established that ultimately the question as to whether a document contains "information concerning the personal affairs" of a person is a question of fact that is determined from the circumstances of each individual case (see Commissioner of Police v District Court of New South Wales (Perrin’s Case)(1993) 31 NSWLR 606 and Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253).

31 The term "personal affairs" is not defined in the FOI Act, but it is generally accepted that it means "matters of private concern to an individual" (see Young v Wicks (1986) 13 FCR at 89) or "information that concerns or affects the person as an individual whether it is known to other persons or not" (see Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429 at 436 and Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 at 663). That is, such concerns need not be secret to the person concerned and even where a document contains statements about a person’s private life, which is widely known within the community, "this does not deprive it of the character of information relating to the person’s "personal affairs"" (Re Pfizer (supra) at [79]).

32 It has been held that information about family, marital and other relationships with emotional ties was information about the "personal affairs" of the people concerned (see Re Stewart v Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 at [79-80]).

33 In Colakovski (supra), at page 437, Lockhart J said that if viewed in the abstract he was inclined to the view that the name and telephone number of a person did not come within the term "information relating to the personal affairs of a person" (this was the wording of the equivalent provision of the Commonwealth Freedom of Information Act 1982 (Cth) at that time). He went on to say that the question must be approached, not in the abstract, but on the basis of the content of the relevant documents. In that case the FOI applicant had sought access to documents that the agency had created in the course of its investigation of nuisance calls that had been made to the applicant. These documents identified when calls were made, the telephone number from which they emanated, the name of the subscriber and in some cases the name of the caller and the reasons asserted for making the call. Lockhart J then said that the words "relating to" in that section should be widely interpreted and that on the basis of the confidential material before him he held that in that case the name and telephone number of the third persons named in the documents for which the agency claimed exemption came within the description of information that related to the "personal affairs" of those persons and was prima facie exempt.

34 In Perrin’s (supra) case at page 621 Kirby P (as he then was) said that the name of a person is personal to the subject. However, he went on to say at page 625 that in applying the test that "personal affairs" means the composite collection of activities personal to the individual concerned, that the disclosure of the names of police officers and employees involved in the preparation of reports as part of their official duties within the Police Service could not be categorised as information concerning the "personal affairs" of those officers and employees.

35 In the same case, at page 638, Mahoney JA said that a person’s name would not ordinarily be part of his personal affairs as it is that by which he is generally known. However, he went on to say that there may be circumstances where a person’s name is private but there was no evidence of such in that particular case. At page 644, Clarke JA said that he doubted whether a person’s name, as a matter of ordinary English, came within the concept of "personal affairs".

36 In Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43, at [44], the Deputy President Hennessy held that the names and addresses of persons who wrote letters objecting to a development application, lodged by the applicant, was "personal information" concerning these persons. In that case the agency had given the applicant access to the content of the letters of objection but had claimed exemption for the names and addresses of those objectors who had indicated that they did not wish this information to be disclosed as they feared harassment and intimidation from the applicant. After referring to Perrin’s case and the decision in Commonwealth of Australia and Road Traffic Authority (1989) 19 FOI Rev 7, which concerned the disclosure of the address of motor vehicle owners from the vehicle registration authority, the Deputy President said the following at [43]:

... Even if a person’s name in isolation is not necessarily part of their personal affairs, their name linked with their address, enables them to be contacted by people who have access to that information. This contact may be unwelcome and constitute an invasion of their privacy.

37 In my opinion the phrase "information concerning the personal affairs of a person" should not be interpreted narrowly. Nor should it be applied in a technical way. As the abovementioned cases of Young, Coloakovski, Re Pfeizer and Perrin’s case demonstrate, it is the contents of the document as a whole that is relevant and if it contains information about the private affairs of an individual then that information is "personal" and any other information in that document which enables the individual to be identified (i.e. name, address, telephone number, licence number etc.) is also information that concerns that individual and comes within the terms of cl. 6(1) of Schedule 1 of the FOI Act. Factors such as whether the FOI applicant will be able to contact the individual and invade that person’s privacy is in my opinion not relevant. Such factors, however are relevant to the next question as to whether disclosure of the information would be unreasonable.

38 In Saleam v Director General, Department of Community Services and Ors [2202] NSWADT 41, at [38] the President adopted the following approach in determining whether a disclosure would involve the "unreasonable disclosure" of information concerning the personal affairs of a person:

"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) ... 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 That is, in determining whether disclosure would be unreasonable requires a balancing between two public interests, the public interest in members of the public being given access to documents held by Government and its agencies and the public interest in preserving the privacy of third parties (see Re Scholes (supra) at p. 176). It has also been held that in balancing the two public interests, there is no "leaning" position in favour of disclosure (see Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 at [22 & 23].

40 Again it is the agency that bears the onus to advance material that establishes that the disclosure of the information is unreasonable (Re Scholes (supra)). Furthermore, the mere fact that the document in question contained personal information of a third person is not sufficient to establish the unreasonableness of the disclosure of the information.

41 As mentioned above, s. 31 of the FOI Act enables the agency to seek the views of the third person whose personal affairs are contained in the document for which access has been sought. If the agency determines to give the FOI applicant access to the information in the document then the agency is required to take all reasonable steps to consult the third party before releasing the information. Where consultation does take place and the third person indicates that he/she does not wish to have the information disclosed, this does not mean the information is automatically exempt. It is merely one of the factors to be taken into account in determining whether the disclosure would be unreasonable (see Re Dale and Australian Federal Police (1997) 47 ALD 417 at [23]).

42 In regard to the interest of the access applicant being given access to the information, in Saleam (supra) the President agreed with the approach adopted by the AAT in Re Green and Overseas Telecommunications Commission [1992] AATA 252; (1992) 28 ALD 655 and stated at [46 and 48] as follows:

"46 ... 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.

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"

b) Confidential material

43 The rationale for the exemptions in cl 13 of Schedule 1 of the FOI Act is to preserve and protect the flow of confidential information to Government and its agencies. Cl 13(a) applies in those circumstances where a disclosure of the information would amount to an action for a breach of confidence under the general law. Cl 13(b) applies where information was obtained in confidence but a disclosure would not amount to a breach of confidence. However, in order to satisfy this particular exemption, in addition to establishing that the information contained in the document was obtained in confidence, it must be established that:

(a) that disclosure of the information could reasonably be expected to prejudice future supply of such information to the agency; and

(b) on balance, it would be contrary to the public interest to disclose the information .

44 It is well established that in determining whether information in a document was "obtained in confidence" it is not necessary for the agency to establish that there was an express understanding or stipulation of confidentiality between the supplier and recipient at the time the information was communicated (see Wiseman v the Commonwealth (unreported, Full Federal Court, 24 October 1989)). This particular requirement will generally be satisfied where there is evidence of a common express or mutual understanding that information of a particular kind, which includes the information in question, would be or should be treated as confidential. That is, confidentiality may be inferred from the circumstances in which the information was obtained.

45 In determining whether disclosure of information obtained in confidence could "reasonably be expected to prejudice future supply of such information", the question is not whether the confider of the information in question would in future refuse to supply such information to the agency. It is question as to whether disclosure of the information could reasonably prejudice future supply of this type of information from those sources that are available or likely to be available to the agency (see Re B (1994) 1QAR 279 at 341).

46 If the abovementioned factors are satisfied the final matter for determination is where, on balance, the public interest lies. That is, as with determining whether a disclosure of personal information is unreasonable, it is question as to whether the public interest in disclosure is outweighed by the public interest in non-disclosure. Again this is a question of fact and will depend on the "nature and relative weight of the conflicting [public] interests" that are identified as being relevant to each particular case (see Re Eccleston [1993] QICmr 2; (1993) 1 QAR 60 at 80).

47 In considering whether or not disclosure would be contrary to the public interest, s 59A of the FOI Act specifically provides that it is irrelevant that the disclosure may cause embarrassment to the Government, loss of confidence in the Government, or that the FOI applicant may misinterpret or misunderstand the information in the document to which access is sought.

c) COPS Event Summary No. E:19496440

48 I will firstly deal with the deletions in the COPS Event Summary No. E:19496440 ("the Event Summary"). As mentioned above these deletions relate to the name, the CNI Number, date of birth, sex, driver licence number, address, home telephone number and mobile telephone number of the victim and the witness of the alleged incident that occurred on 19 November 2003. This particular document was created by a police officer as part of the police record of the incident, the substance of which the applicant has a copy.

49 I note that the Event Summary came into existence as a result of the victim voluntarily reporting the dispute to police for police action. This was clearly a dispute of a private nature and personal to the parties involved, namely the victim, the witness and the applicant. The police did take some action, which included conducting an interview with the applicant, but did not at any stage charge the applicant or indicate that the applicant would be charged in respect of the incident.

50 In respect of the CNI Number, there is no evidence before the Tribunal explaining what the CNI Number means and that it is information concerning the personal affairs of the victim and the witness. Accordingly, the Commissioner has failed to satisfy me that this information comes within the terms of cl. 6(1) of Schedule 1 of the FOI Act.

51 This leaves the deleted information relating to the name, address, date of birth, sex, driver licence number, home telephone number and mobile telephone number of the victim and the witness. As mentioned above, the information in the Event Summary relates to a private dispute, details of which the victim and witness provided to the police in their private capacity. Similarly, the applicant responded in her private capacity. Accordingly, the content of the Event Summary is personal information of the victim, the witness and the applicant. And for the reasons I have set out in [37] above, I find that the name and other identifying information (i.e. the deleted material other than the CNI Number) about these persons is information that concerns these persons and is prima facie exempt under cl. 6(1) of Schedule 1 of the FOI Act.

52 The real question for determination in respect of the deletions in the Event Summary is whether their disclosure would be unreasonable. As the Commissioner has not presented the Tribunal with any evidence, even on a confidential basis, from the officer who created the Event Summary or from the persons to whom the deleted information relates, I must rely on the contents of the document itself and the other documents that are relevant to this application and any inferences that can be drawn there from. Nor has the applicant filed any evidence indicating that she requires access to the information for a particular purpose.

53 In regard to consultation with the victim and the witness pursuant to s.31 of the FOI Act, at page 5 paragraph 2 of the internal review the Commissioner’s delegate said the following:

... It is not reasonably practicable for me to obtain the views of all persons who made a statement. The person whose view I have obtained does not consent to access to the person’s personal affairs being given.

54 This statement suggests that there has been some consultation with third persons. However, the Tribunal has not been informed, even on a confidential basis, who was consulted, when the consultation took place, the content of the consultation and the persons response. Furthermore, no material has been provided to the Tribunal as to why it was not practicable for the Commissioner to consult the persons concerned. Yet the information that has been provided suggests that consultation would have been relatively easy.

55 In respect of the sex of the victim and the witness, I note that this has been disclosed in any event in that part of the Event Summary that has been disclosed to the applicant. Accordingly, I do not see how the Commissioner can contend that, in this application, it would be unreasonable to disclose this information.

56 While it would appear that the applicant is fully aware of the name and address of the victim, I note that this was disclosed to the applicant during the course of her interview with the police following the incident. It was also disclosed in the police officer’s contemporaneous notes of that interview, a copy of which has been provided to the applicant. I note that this document was disclosed to the applicant in full even though exemption was claimed in respect of part of the document. However, there is no evidence before me as to what those deletions were.

57 In light of the name of the victim having already been disclosed to the applicant I find that it would not be unreasonable, in this application, to disclose this information in the Event Summary. In light of this finding and the fact that the applicant is fully aware of the address of the victim, being her neighbour, I also find that it would not be unreasonable to disclose the victim’s address.

58 However, there has been no disclosure of the remaining information. In this regard I note that the material before the Tribunal indicates that the identity of the witness is unknown to the applicant. On this basis and for the reasons set out above, I find that it would be unreasonable to disclose the deleted material relating to the witness as this is material that would enable him to be identified. In regard to the remaining deleted material concerning the personal affairs of the victim (i.e. date of birth, driver licence number, home telephone number, mobile telephone number).

d) The statements

59 Again, other than providing the Tribunal with a copy (on a confidential basis) of the two statements the subject of this application, the Commissioner has not filed any material in addition these statements, the Event Summary and the contemporaneous notes of the police officer who interviewed the applicant. Nor has the applicant given the Tribunal any indication of any particular need she has for access to these documents.

60 In respect of the Commissioner’s contention that these statements are exempt under cl. 13(b) of Schedule 1 of the FOI Act, I note that there is nothing written on the documents to indicate that the information contained in them was provided in confidence, nor is this readily inferred from the contents of the statements or from the Event Summary. The content of these documents could equally give rise to an inference that the maker of each statement provided the information on the basis that this information would become part of a public record.

61 The Commissioner’s delegate who made the internal review determination concluded that the information was provided in confidence. However, as it is the conclusions of the Commissioner’s delegate that are the subject of this review application and the role of the Tribunal is to consider the matter a fresh, these conclusions are of no relevance. What s.61 of the FOI Act requires of the Commissioner is to provide the Tribunal with material, which establishes that the information was provided in confidence. No such material was provided.

62 Even if it could be inferred that the information was provided in confidence the Commissioner has not placed any material before the Tribunal, other than the assertions of the Commissioner’s delegate who made the internal review determination, that release of the information would prejudice future supply of this type of information to the Police Service. The basis on which this particular delegate made the assertion was not explained. Accordingly, the Tribunal can place very little weight on that assertion.

63 Even if I am incorrect in the conclusions I have reached in [62 & 63] above, in my opinion, having regard to the content of the statements, as against the contents of the documents that have been released to the applicant (i.e. the Event Summary and the contemporaneous note of the police officer who interviewed the applicant), I am of the opinion that, on balance, in this particular application, the public interest rests on the release of the information in the documents.

64 The Commissioner has contended that the statements are also exempt on the grounds of cl.6 of Schedule 1 of the FOI Act. The Commissioner has not indicated which portions of the statements he contends are exempt under this particular clause. However, it is clear that exemption is not claimed in respect of all the information therein.

65 In my opinion, while the statements do contain information concerning the personal affairs of third persons, the majority of the information also concerns the personal affairs of the applicant. To the extent that they contain personal information about the applicant, this information is not exempt by reason of cl.6(2) of Schedule 1 of the FOI Act. Accordingly, the question is whether the information concerning the personal affairs of third persons is in fact exempt and whether it would be practicable to provide the applicant with a copy of the statement with this information deleted (s.25(4) FOI Act).

66 In my opinion, the information that concerns the personal affairs of the applicant, in particular the information that records the events involving the applicant on 19 November 2003 (which forms the bulk of the information in both statements) is not exempt under cl.6 of Schedule 1 of the FOI Act. The fact that this information is provided by a third party does not make it personal information of that third party exclusively.

67 For reasons similar to that I have already stated in regard to the Event Summary, I find that the only information contained in the statements that comes within the terms of cl. 6(1) of the FOI Act is the name, age, and occupation of the maker of each statement and the name of person’s other than the applicant in each statement. I also find that the information that relates to the relationship between the maker of the statement and a person other than the applicant comes within the terms of cl. 6(1).

68 On this basis my findings in [66] and [67] above, in my opinion, it is practicable to provide the applicant with a copy of the statement with this information deleted pursuant to s. 25(4) of the FOI Act. However, there is a remaining question in respect of the "personal information" of third persons and this is whether the disclosure of that information would be unreasonable. For the reasons I have already stated, in my opinion, it would not be unreasonable to disclose the name of the maker of the signed statement. However, it would be unreasonable to disclose the name of the maker of the unsigned statement.

69 In light of my findings in respect of the statements I propose to remit the Commissioner’s decision so that he can reconsider, in accordance with my findings, his determination in respect of the information in these statements that would come within cl. 6(1) of Schedule 1 of the FOI Act. When reconsidering his decision I suggest that the Commissioner consult the persons concerned pursuant to s. 31 of the FOI Act.

70 For the reasons set out above the Tribunal orders:

A: In respect of COPS Event Summary No. E:19496440:

(a) the Commissioner’s decision in respect of the deletions relating to the victim’s name and address and the victim’s and witness’ CNI Number and sex is set aside and in substitution thereof a decision that the applicant be granted access to that information

(b) the Commissioner’s decision in respect of the deletions relating to the name and address of the witness and the victim’s and witness’ date of birth, driver licence number, home telephone number and mobile telephone number is affirmed; and

(c) within 28 days of this decision the Commissioner is to provide the applicant with a further copy of the Event Summary with the matters referred to in (a) above being disclosed and the exempt matters referred to in (b) above being deleted.

B: In respect of the Statements :

(a) pursuant to s. 63(3)(d) the Commissioner’s decision is set aside and remitted for reconsideration in accordance with the reasons and findings of the Tribunal as set out in this decision; and
(b) within 28 days of this decision the Commissioner is to provide the applicant with his reconsidered decision in respect of the statements.