Crowther-Wilkinson v Commissioner of Police, NSW Police [2009] NSWADT 31 (12 February 2009)

Last Updated: 15 April 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Crowther-Wilkinson v Commissioner of Police, NSW Police [2009] NSWADT 31


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Simon Crowther-Wilkinson

RESPONDENT
Commissioner of Police, NSW Police



FILE NUMBERS:
083152

HEARING DATES:
17 September 2008

SUBMISSIONS CLOSED:
17 September 2008



DATE OF DECISION:
12 February 2009

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Freedom of Information Act 1989

CASES CITED:
Cianfrano v Director-General, Premiers Department [2007] NSWADT 216
D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171
Department of Health v Jephcott (1985) 62 ALR 421DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215
Gardiner v R [2006] NSWCCA 190Lees v Commissioner of Police, New South Wales Police Service & Anor [2003] NSWADT 215
Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSW ADT 35
University of New South Wales v McGuirk [2006] NSWSC 1362
McKinnon v Secretary, Department of Treasury [2006] HCA 45
R v Abdullah & Ors [1999] NSWCCA 188
Re Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266

TEXTS CITED:


APPLICATION:
Freedom of Information Act - access to documents - law enforcement & public safety - Confidential material

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
J Mattson, solicitor

PUBLICATION RESTRICTION:
1. The disclosure of any material that identifies, or may lead to the identification of, the community source is prohibited.
2. The publication or broadcast of the confidential parts of these reasons for decision is prohibited.

ORDERS:
The Respondent’s decision to refuse access to the uncensored statement is affirmed.


Reasons for Decision:

REASONS FOR DECISION

Background

1 Mr Crowther Wilkinson ("the Applicant") applied to the Respondent under the Freedom of Information Act 1989 ("the FOI Act") requesting the following:

"A copy of a statement taken on 13-2-03 as part of Strike Force SARI and during the trial of R v Crowther-Wilkinson and Cowie".

2 Strike Force Sari was the name given to the team of NSW Police Force officers that investigated the murder of Mr Greame Andrew Adams. An informant ("the community source") provided information to the NSW Police Force ("the police") as part of that investigation but refused to make a formal written statement. The Applicant was found guilty of the murder and was sentenced to twenty years imprisonment. His appeal to the Court of Criminal Appeal was dismissed.

3 During the trial, the Applicant was given a copy of a file note that recorded discussions with the community source. The file note had been redacted so that it did not reveal information that might identify the community source. That file note, in its complete

form, is the statement ("the uncensored statement") now sought by the Applicant.

4 The Applicant clarified his request as follows:

"The statement referred to is in relation to a number of emails sent to the Police on 10-7-00. Detective Morgan took the statement but at the time of the trial the name of the person who made the statement was withheld.

I am now requesting the uncensored version including the identity of the person in question."

5 The Respondent failed to determine the Applicant’s request within the time permitted by the FOI Act and was deemed to have refused to grant him access to the uncensored statement. The Applicant sought an internal review of that deemed refusal. The internal review determined to refuse to provide access to the document.

The internal review

6 The statement of reasons provided to the Applicant in regard to the internal review determination stated (citations omitted):

Reasoning Process regarding the Exemptions:

I have [considered] carefully the document to which your application relates. In reaching a decision, I have considered various issues of fact and law, which are canvassed below.

Clause 4(1)(b) of Schedule 1 of the Act operates to protect the anonymity of people who supply information to the police or other authorities.

This exemption is based on the fact that there is a public interest in maintaining the flow of information from informants to assist in the law enforcement activities of government agencies. A guarantee of anonymity is regarded as essential to people's willingness to pass information to the police. When information is given by informers and witnesses to the Police, it must be presumed that the information was given on a confidential basis.

An exemption under this provision of the Act is applicable where disclosure of a document could reasonably be expected to reveal:

(a) the existence or identity of a source of information that is confidential; and

(b) that the information supplied relates to the enforcement or administration of law.

The statement under review was given by a confidential source to NSW Police. I am of the opinion that it is expected that generally the identity of any informer will be kept confidential.

Further, I believe that there is a reasonable expectation that the disclosure of the information might reveal the identity of a confidential source of information. I have reviewed the documents sought and considered the nature of the information supplied, the means by which the information was supplied, the fact that NSW Police normally treats such information in a confidential manner and the reliance placed by NSW Police on sources of information for its proper functioning and the administration or enforcement of the law including the provisions of the Police Act 1990.

Consequently, I find that the disclosure of the information as recorded in the statement taken on 13 February 2003 would involve the disclosure of confidential sources and is exempt by virtue of Clause 4(1)(b).

Exemption pursuant to Clause 13(b) -Confidential material

I have also determined that it is appropriate to consider the documents under review in light of the exemption listed at Clause 13(b) of Schedule 1 of the Act.

The function of Clause 13(b) is to preserve and protect the flow of confidential information to government and that the provider of information should be protected from any harm or detriment that would occur if certain information were disclosed, in circumstances where there is an express or implied obligation of confidence on the agency entrusted with the information.

I am of the view that the correct interpretation of this exemption is that confidentiality need not be expressly agreed upon between the parties, but in fact may be implied subsequently. Confidentiality should be implied only after considering all the circumstances surrounding the provision of the statements to the Police, the subject matter and the relationship between the Applicant and those making the statements.

Law enforcement bodies such as NSW Police rely on the receipt of information from a variety of sources to facilitate principally its function of detection and prevention of crime. In my view, it would not be in the public interest for a situation to prevail whereby individuals were not confident that sensitive information provided by them to NSW Police would be treated confidentially in appropriate circumstances.

Unless the information were treated in a confidential manner, then in my view, there would be a reasonable (as opposed to an irrational, absurd or ridiculous) prospect that the flow of such information to NSW Police would be adversely affected, with the result that the proper functions of NSW Police in relation to investigation would be restricted.

I am also of the opinion that the disclosure of the information contained in the documents would have a detrimental effect that would be contrary to the public interest. In light of the importance of confidential sources to the smooth running of this agency, I am of the view that the greater public interest demands that the persons providing the confidential information contained in the document under review should be free to provide full information, confident in the knowledge that the information would be treated on a confidential basis and not be disclosed to the persons who may be the subject of their opinion and recommendations.

I consider that the Applicant's "right to know" the information contained in the documents is outweighed by the right of the individuals to assume that the information supplied to NSW Police would be dealt with confidentially and only released in pursuance of legal proceedings or on their express authority. I also consider that the interests of the public at large in the proper operation of government or the proper working of agencies outweighs the desire of individuals or groups for access to documents and the rights of the individual must be subordinate to the interests of the public at large.

Consequently, I find that the disclosure of the information as recorded in the statement taken on 13 February 2003 would involve the disclosure of confidential material and is exempt by virtue of Clause 13(b).

The external review

7 The Applicant applied to the Tribunal for review of the determination to refuse to grant him access to the document that he is seeking.

Relevant legislation

8 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government.

9 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act.

10 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(4)(a) provides, in part, that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted. Pursuant to section 61 of the FOI Act, the agency has the burden of establishing that its determination was justified.

11 Clause 4(1)(b) of Schedule 1 of the Act provides as follows:

4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

...

(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained

12 Clause 13(b) of Schedule 1 of the Act provides as follows:

13 Documents containing confidential material

A document is an exempt document:

...

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.

The Respondent’s case

13 The Respondent’s case is essentially as outlined in the statement of reasons provided to the Applicant in regard to the internal review determination. The Respondent contends that the uncensored statement is an exempt document pursuant to clauses 4(1)(b) and 13 of schedule 1 to the FOI Act and that the correct and preferable decision is to affirm its decision to refuse access to the document.

14 The Respondent relies on two statements by Detective Sergeant Steven Morgan. Detective Sergeant Morgan was a homicide investigator assigned to Strike Force Sari. He worked as part of a team dealing with the investigation of the murder of Mr Adams and was one of two officers that charged the Applicant with the murder of Mr Adams.

15 One of Detective Sergeant Morgan’s statements was served on the Applicant. The second statement was filed on a confidential basis and I made an order that it not be disclosed to the Applicant or to the pubic. The Respondent also filed and served written submissions.

16 Detective Sergeant Morgan’s open statement outlines the background to criminal proceedings involving the Applicant and the circumstances in which the uncensored statement came into existence.

17 Detective Sergeant Morgan’s evidence is that he and another officer met with the community source in February 2003. The community source did not instigate the meeting and was very reluctant to meet. The community source did not want their identity revealed and only agree to meet after being given a guarantee of anonymity. Detective Sergeant Morgan obtained approval for that guarantee from his supervisor. There is no documentary evidence of that approval. The community source refused to make a formal written statement and Detective Sergeant Morgan prepared the uncensored statement as a record of what was discussed with the community source.

18 Detective Sergeant Morgan stated that the uncensored statement is kept secured by the police and is sealed in an envelope separated from other documents created and obtained as part of Strike Force Sari. His recollection is that the Supreme Court held that the uncensored statement was subject to public interest immunity to protect the identity of the community source. He has not been able to find a judgment or record to confirm that recollection.

19 Detective Sergeant Morgan stated that the release of the uncensored statement would permit the identity of the community source to be ascertained.

20 (subject to a suppression order)

21 (subject to a suppression order)

22 (subject to a suppression order)

23 Detective Sergeant Morgan identified a number of benefits that informants provide to the police and stated that it is his opinion that there are many benefits from protecting the identity of informants.

24 He identified the benefits that informants provide as including:

- it encourages the flow of information to the police to assist in the fighting of crime;

- it protects informants against fear of reprisal and physical and property harm;

- it encourages citizens to report crimes and provide information to the police in confidence;

- it provides the police with a valuable pool of information to access in its crime fighting functions; and

- it enables the police to investigate crimes without causing hostility and bad feelings amongst citizens.

25 He identified potential consequences of the disclosure of the identity of an informant as including:

- it would discourage the flow of information about crimes to the police;

- it would act as a deterrent to other potential community sources giving crucial information to the police;

- it would result in an inability for the police to fight crime with a valuable source of information;

- it would result in reprisals against informants; and

- it would result in the police breaking a confidence it gives to informants and informants will not cooperate with the police any further.

26 Detective Sergeant Morgan identified what he sees as the potential consequences of the disclosure of the uncensored statement.

27 (subject to a suppression order)

28 The Respondent contends that the Tribunal ought not to provide the Applicant access to the uncensored statement for the reasons espoused in the public interest immunity doctrine: R v Abdullah & Ors [1999] NSWCCA 188. That doctrine provides that generally, as a matter of public policy, the identity of a police informer has been protected against disclosure. The rationale is that if the identity of an informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. There is an exception to the rule, in that disclosure of the identity of the informer will be ordered when required to establish the innocence of an accused person. However, the Respondent points to the decision in Gardiner v R [2006] NSWCCA 190 where McClellan CJ observed at paragraph [98]:

"Courts have been reticent to allow the disclosure of the name or identity of an informant."

29 The Respondent contends that the uncensored statement is an exempt document pursuant to clause 4(1)(b) of schedule 1 to the FOI Act and submits that to establish that exemption it is only necessary to show that (i) there is a confidential source of information; (ii) the information which the confidential source has supplied relates to the enforcement or administration of the law; and (iii) the disclosure of the document, or part of the document, could reasonably be expected to either enable the existence of the confidential source of information to be ascertained or enable the identity of the confidential source of information to be ascertained.

30 The public interest is not a factor to be considered in determining whether a document is an exempt document under clause 4(1)(b): Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSW ADT 35 at [33].

31 In Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421 the Full Federal Court held that in respect of a similar provision in section 37(1)(b) of the Commonwealth Freedom of Information Act 1982, a "confidential source" is one where the information provided from that source was given with "an express or implied pledge of confidentiality".

32 The Respondent contends that the second element of clause 4(1)(b) is satisfied as the information in the uncensored statement was obtained in direct connection with the administration of the criminal law. It was obtained for the purposes of the police investigation and the criminal proceedings that were occurring at the time.

33 With respect to the third element of clause 4(1)(b), the Respondent submits that the confidential statement of Detective Sergeant Morgan establishes a sound and rationale basis for which it can be said that the disclosure of the uncensored statement could reasonably be expected to identify the identity of the confidential informant.

34 Accordingly, the Respondent submits that the uncensored statement is an exempt document under clause 4(1)(b).

35 With respect to the Applicant’s submission that the uncensored statement is not capable of protection under either clause 4(1)(b) or clause 13(b) because it contains false information, the Respondent points to the views expressed in Lees v Commissioner of Police, New South Wales Police Service & Anor [2003] NSWADT 215. The Tribunal said:

"Clause 4(1)(b) contains no qualification in relation to the kind of information which is covered. Confidential information does not cease to be confidential information if it is incorrect or made with a malicious motive. Furthermore, unlike several other exemptions in the FOI Act, there is no public interest qualification in Cl 4(1)(b).

The weight of authority supports the plain meaning of s 4(1)(b). It has been accepted by Muirhead J of the Federal Court of Australia in McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 and by the Victorian AAT in Re Richardson and Commissioner for Corporate Affairs (1987) 2 VAR 51 at p.52-53 that the Commonwealth and Victorian equivalents of Cl 4(2)(b) of the NSW FOI Act are not concerned with whether the confidential source of information supplies information which is false or erroneous. (See also Re Gold and Australian Federal Police [1994] AATA 382; (1994) 37 ALD 168 (Commonwealth AAT)."

36 The Respondent concedes that decisions of this Tribunal in Mauger at paragraphs [43] to [47] and DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 at [48] suggest a different position. . However, in both of those cases, the Tribunal’s President said:

"A Tribunal should ordinarily accept the judgment of the law enforcement agency as to the question of whether a complaint was made knowing it to be false, or maliciously, unless there is significant independent evidence to challenge its judgment. I accept the agency's assessment here that it does not regard this situation as involving a false complaint, in the sense of a complaint being made knowing it to be false."

37 The Respondent contends that in this case there is no basis to say that the community source’s information was given maliciously or knowing it to be false.

38 The Respondent also contends that the uncensored statement is an exempt document pursuant to clause 13(b) of schedule 1 to the FOI Act. The Respondent submits that to establish that exemption it is only necessary to show that the uncensored statement contains information the disclosure of which (i) would disclose information obtained in confidence; and (ii) could reasonably be expected to prejudice the future supply of such information to the police; and (iii) would, on balance, be contrary to the public interest.

39 The Respondent relies on the same argument as presented in relation to clause 4(1)(b) to assert that the information obtained from the community source was obtained in confidence.

40 The Respondent submits that in considering whether the future supply of such information could reasonably be expected to be prejudiced by the disclosure, the Tribunal must take into account any relevant evidence that is before it and any relevant arguments that have been advanced: McKinnon v Secretary, Department of Treasury [2006] HCA 45 per Hayne J at paragraph [63]. The word 'prejudice' should be given its common, dictionary meaning -that is 'to cause detriment or disadvantage': Re Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266.

41 The Respondent also submits that there can be no doubt that the disclosure of the uncensored statement would prejudice the supply of future information to the police. In support of this contention he relies on the rationale for the common law doctrine of public interest immunity and on the open statement of Detective Sergeant Morgan. The Respondent also submits that disclosure is contrary to the public interest. The public interest lies with ensuring the law enforcement functions are not prejudiced or injured and that confidential sources of information are protected. The public interest favours the protection of confidential informants: R v Abdullah & Ors.

42 The Respondent concedes that the Tribunal is bound to follow the decision in University of New South Wales v McGuirk [2006] NSWSC 1362 ("McGuirk"). In that matter the Supreme Court held that the Tribunal has a power to release documents even if they were exempt, if to do so is the correct and preferable decision. However, the Respondent submitted that any exercise of that discretion must take account of the balance which the FOI Act has already struck between the public interest in citizens being informed of the processes of government on the one hand, and the restrictions reasonably necessary for the proper administration of government (which the statutory exemptions reflect) on the other. There must be "strong grounds" to order the disclosure of an otherwise exempt document. The Respondent submits that in the circumstances of this case, there are no "strong grounds" for the release of the uncensored statement.

43 For these reasons, the Respondent submits that the correct and preferable decision is to affirm the decision to refuse to release the uncensored statement.

The Applicant’s case

44 The Applicant relies on his own evidence and also provided written submissions. He asserts that he needs the uncensored statement for use in his efforts to prove his innocence. He argued that the Police Crime Stoppers received an anonymous email from the community source accusing the Applicant of killing Mr Adams three days before Mr Adams’ body was located. He submits that this shows that the community source was aware that Mr Adams had been killed prior to the discovery of the body and had intimate knowledge of Mr Adams’ disappearance. He says that the community source must be in possession of information that could assist in proving the Applicant’s innocence.

45 The Applicant disputes the assertion that the Supreme Court held that the uncensored statement was subject to public interest immunity to protect the identity of the community source. He says that the Crown had indicated that it would not be relying on the document in the trial and therefore the Applicant’s counsel had not sought access to the document.

46 He relies on the decision in R v Abdullah & Ors as authority for the principle that there is an exception to the rule that the identity of a police informer is protected against disclosure. The disclosure of the identity of an informer will be ordered when it is required to establish the innocence of an accused person. In R v Abdullah & Ors Barr J, with whom Spigelman CJ and Grove J agreed, stated at paragraph [22] –[23]:

22 There is an exception to the rule, in that disclosure of the identity of the informer will be ordered when required to establish the innocence of an accused person: Marks v Beyfus at 498 and 500; D v National Society for the Prevention of Cruelty to Children [[1978] AC 171] at 218 and 232; Sankey v Whitlam at 42. See also Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667, in the judgment of Hunt CJ at CL beginning at 669, but particularly at 674 and 675.

23 This exception was dealt with in the judgment of McHugh J in Cain v Glass (No 2) at 246 and 247. His Honour referred to the judgment of Lord Diplock in D v National Society for the Prevention of Cruelty to Children at 218:

By the uniform practice of the judges which by the time of Marks v Beyfus 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except whereupon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.

47 The Applicant argues that the exception applies in this matter and that it is in the public interest that he is provided with access to the uncensored statement.

48 The Applicant argues that the uncensored statement is not an exempt document pursuant to either clauses 4(1)(b) or 13 of Schedule 1 to the FOI Act.

49 He says that clause 4(1)(b) is rendered inapplicable for the same reason that public interest immunity is not applicable. He submits that it is necessary to distinguish between situations where the information provided from a confidential source is given with an express or implied pledge of confidentiality and situations where the information was given anonymously. He submits that while the former situations may attract an exemption under clause 4(1)(b), the latter situations will not. He points to Detective Sergeant Morgan’s account of the circumstances leading to the creation of the uncensored statement and argues that it falls outside the scope of the situations that may attract an exemption under clause 4(1)(b). He suggests that the community source’s reluctance to speak to the police was not because of their fear of their identity becoming known, but rather their fear of the police learning of their involvement in the death of Mr Adams.

50 The Applicant also argues that the uncensored statement is not an exempt document pursuant to clause 4(1)(b) because the content of the emails between the community source and the police and that of the uncensored statement is false and the uncensored statement was made knowing it to be false.

51 He says that the information provided by the community source can be demonstrated to be false as required by DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 at [48]. He points to evidence given by Detective Brown as it appears in the transcript, dated 04/02/03, from the Applicant’s trial. The transcript reads:

Q. Firstly, in relation to the contents of those e-mails, what you did in your investigation at this time, what was your attitude in relation to the e-mail itself?

A. At that point in time I attached little or no weight. There was little or no corroboration or supporting information to support what was said in those e-mails.

52 The Applicant submits that the police would have extensively investigated the e-mails and the uncensored statement. Therefore, for a detective to say that there was "little or no corroboration or supporting information to support what was said in those e-mails" is positive proof that the claims made were false. He further argues that he would need to be granted access to the uncensored statement to prove that the information was given with malicious intent.

53 The Applicant disputes the Respondent’s assertion that the case against the Applicant was compelling and provided examples of errors that he contends are contained in Detective Sergeant Morgan’s account of the evidence. He submits that given the weaknesses in the circumstantial evidence against him other hypotheses still exist and that the uncensored statement may well lead to one of them.

54 The Applicant also argues that the uncensored statement is not an exempt document pursuant to clause 13(b) because false information should not be given protection by the FOI Act.

55 He says that there is no indication or evidence that the disclosure of the identity of the community source could reasonably be expected to prejudice the future supply of such information to the Government or to an agency. He says that this is confirmed by the fact that the information is false and that the supplier of the information may be guilty of concealing a crime.

56 He further argues that it is in the public interest that an accused person be given every opportunity to prove their innocence.

57 The Applicant submits that the uncensored statement is not an exempt document under any clause of the FOI Act. However, in the event that the Tribunal finds an exemption clause does apply, the Tribunal should exercise its discretion to release the document. He disputes the Respondent’s contention that there are no strong grounds for the release of the uncensored statement. He says that the public interest is on the side of releasing the document as doing so could help to show that he was innocent of the offence: D v National Society for the Prevention of Cruelty to Children at 218.

58 He says that the police have not addressed the fact that the community source knew that Mr Adams was dead three days before Mr Adams’ body was located. He says that this indicates that the community source knew something that no-one lese knew in relation to Mr Adams’ death. He says that is not expected that the police would investigate this matter any further and therefore it is up to him to identify and access new material.

59 He says that the correct and preferable decision is to release the information contained in the uncensored statement.

Findings

60 The issue to be determined is whether or not the correct and preferable decision is to release the information contained in the uncensored statement.

61 The Respondent’s decision was based on the contention that the uncensored statement is an exempt document pursuant to clauses 4(1)(b) and 13 of Schedule 1 to the FOI Act.

Clause 4(1)(b)

62 It is necessary to ascertain whether in the circumstances the information recorded in the uncensored statement can be said to have been obtained in confidence i.e. whether it was given with an express or implied pledge of confidentiality: Department of Health v Jephcott. The relevant time at which the confidentiality of the document must be assessed is the time that the information was obtained.

63 The evidence relevant to this issue is that provided by Detective Sergeant Morgan. I note that the Applicant is not privy to much of that evidence and he was therefore unable to challenge it. Nevertheless, I accept Detective Sergeant Morgan’s evidence on this issue.

64 In Mauger the President of the Tribunal said, at paragraph 34, that:

"External review tribunals and commissioners in other jurisdictions have consistently supported an interpretation of the law enforcement exemption which protects the identity of informants. A convenient summary of the approach that has been adopted is provided by the Information Commissioner of Queensland in Re McEneiry and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 at 371 -

‘The determination of whether the relevant information was supplied by the informant and received by the respondent on the implicit understanding that the informant's identity would remain confidential (and hence whether the informant qualifies as a confidential source of information ...) requires a careful evaluation of all the relevant circumstances including, inter alia, the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer ..., whether it could reasonably have been understood by the informant and the recipient that the appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential ... ’"

65 It is not in dispute that the community source's identity could not be ascertained from the emails originally sent to the police. I do not agree that the community source’s wish to remain anonymous precludes the finding that the information recorded in the uncensored statement was obtained in confidence. In my view it is more likely than not that the information that the community source provided to Detective Sergeant Morgan was information provided from that source with "an express or implied pledge of confidentiality".

66 The material before me indicates that the police contacted the community source; the community source did not contact the police. This supports the view that the community source wished to remain anonymous. Detective Sergeant Morgan’s evidence is that the community source would not meet with the police without a guarantee of anonymity. The police agreed to that condition prior to the meeting and this guarantee was repeated at the meeting. The meeting took place away from the police station to protect the community source's identity. The community source would not give a formal written statement because of his wish to remain anonymous.

67 I am satisfied that it is reasonable to conclude that the person who supplied information in this case, having regard to the nature of the police operation, would have done so in the context of an operation which carried with it a pledge of confidentiality. I am therefore satisfied that the first element of clause 4(1)(b) has been satisfied as there was a confidential source of information.

68 There is no dispute that the information was supplied to the police as part of the investigation of the murder of Mr Adams. I am satisfied that the information that the confidential source supplied relates to the enforcement or administration of the law and therefore the second element of clause 4(1)(b) has been satisfied.

69 A copy of the uncensored statement was filed and I have examined the document. I have no doubt that the disclosure of the information that has been withheld from the Applicant would reveal the identity of a confidential source of information or enable the identity of the confidential source of information to be ascertained. That being the case, the third element of clause 4(1)(b) has been satisfied.

70 With respect to the Applicant’s contention that the uncensored statement contains false information, I agree with the views expressed by the President in Mauger that a tribunal should ordinarily accept the judgment of the law enforcement agency as to the question of whether a complaint was made knowing it to be false, or maliciously, unless there is significant independent evidence to challenge its judgment. I accept Detective Sergeant Morgan’s assessment of the circumstances in which the information was provided. In my view, the evidence given by Detective Brown at the Applicant’s trial does not assist the Applicant’s contention. Detective Brown’s evidence addressed his initial reaction to the emails he had received. It does not address the issue of whether or not there was corroboration or supporting material at a later stage. I do not consider that there is any basis on which I could form the view that this situation involved an informant providing information, knowing it to be false.

71 I note the Applicant’s submission that he seeks the disclosure of the identity of the community source to assist him to establish his innocence. I am unable to determine whether or not the Supreme Court held that the uncensored statement was subject to public interest immunity to protect the identity of the community source. As the authorities noted above make plain, the identity of an informer will only be revealed where it may assist a person to establish their innocence. In the present case it is my view that there was nothing to suggest that it would assist the Applicant’s cause if he knew the identity of the community source.

72 In my view, the uncensored statement is an exempt document pursuant to clause 4(1)(b) of Schedule 1 to the FOI Act.

73 In McGuirk the Supreme Court confirmed that the Tribunal has discretion to order access to be given to documents which are exempt documents. The approach to be taken by the Tribunal in exercising that discretion has been discussed in several decisions. In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the Tribunal’s President noted that there should be strong grounds justifying the exercise of this residual discretion to grant access to a document that is found to be exempt. At paragraph [27] the President set out some of the factors relevant to the exercise of the discretion. He stated:

27 Practical circumstances that might influence the Tribunal to exercise the discretion include:

- whether the exempt matter was, by other means, in the public domain

- whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant

- the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity

- the public interest in an informed debate on issues of significance to the community

- whether there were adverse consequences for the proper administration of government, and their extent

- whether any adverse consequence is remote or innocuous.

74 In my view, there are no strong grounds justifying the exercise of the residual discretion to grant access to the uncensored statement. I agree with the Respondent that the public interest favours the protection of confidential informants and ensuring the law enforcement functions are not prejudiced or injured and that confidential sources of information are protected. The disclosure of the uncensored statement would be counterproductive of the public benefits that flow from protecting the identity of confidential informants.

75 Having formed this view it is unnecessary that I determine whether the uncensored statement is also an exempt document pursuant to clause 13 of schedule 1 to the FOI Act. I note however that I have found the Respondent’s arguments on this issue persuasive.

76 In the circumstances it is my view that the correct and preferable decision is to affirm the Respondent’s decision to refuse access to the uncensored statement.

Decision

The Respondent’s decision to refuse access to the uncensored statement is affirmed.