Ritson v Commissioner of Police, NSW Police Force [2010] NSWADT 22 (25 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Ritson v Commissioner of Police, NSW Police Force [2010] NSWADT 22


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Brendan Ritson

RESPONDENT
Commissioner of Police, NSW Police Force



FILE NUMBERS:
093097

HEARING DATES:
29 September 2009

SUBMISSIONS CLOSED:
29 September 2009



DATE OF DECISION:
25 January 2010

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Police Act 1990

CASES CITED:
Crowther-Wilkinson v NSW Police Force [2009] NSWADTAP 49
Department of Education and Training v GJ (GD) [2009] NSWADTAP 33
Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231
FA v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 7
IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79
McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321
McGuirk v UNSW [2007] NSWADT 204RT v Commissioner of Police, NSW Police [2005] NSWADT 270
UC v Commissioner of Police, NSW Police [2005] NSWADT 272
University of New South Wales v McGuirk [2006] NSWSC 1362
Victoria Police v Marke [2008] VSCA 218XZ v Commissioner of Police [2009] NSWADTAP 2

TEXTS CITED:


APPLICATION:
Freedom of Information - exempt document - law enforcement and public safety – Documents containing confidential material

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT

RESPONDENT



ORDERS:
The decision is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 The Applicant made an application to the Respondent under the Freedom of Information Act 1989 ("the FOI Act") for access to the documents held by the Respondent.

2 The Respondent did not make a determination within the 21 days allowed for by the FOI Act and was deemed to have refused the application. The Applicant sought an internal review of the deemed refusal. No determination was made within the 14 day statutory time period and the Applicant sought external review by this Tribunal.

3 The Respondent subsequently made decisions in relation to the Applicant's application. The Applicant has indicated that he only presses for full access to the documents referred to those parts of his FOI application which relate to Police complaint files ("the documents"):

PO601488 - Allegations of assault by Constable Brendan Ritson on 19 March 2006;

PO702087 - Allegations about off-duty conduct of Constable Brendan Ritson on 19 April 2007;

PO802631 - Allegations about off-duty conduct of Constable Brendan Ritson on 8 June 2008

Applicable legislation
4 Clause 4(l) of Schedule 1 to the FOI Act relevantly provides:

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, 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

5 Clause 6 of Schedule 1 to the FOI Act relevantly provides:

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.
6 Clause 7 of Schedule 1 to the FOI Act relevantly provides:

7 Documents affecting business affairs

(1) A document is an exempt document:

(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or

(a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or

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

(i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and

(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or

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

(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.

7 Clause 13 of Schedule 1 to the FOI Act relevantly provides:

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.

8 Clause 16(a)(iii) of Schedule 1 to the FOI Act relevantly provides:

16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

...

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel, or

...

The Respondent’s case
9 The Respondent argues that the documents are exempt under a number of grounds. He says that the investigation of the three complaints was "connected with the system for investigating internal complaints against police" and accordingly, the investigations were in connection with the enforcement or administration of the law. Therefore, it is submitted, the documents are exempt documents pursuant to clause 4 of Schedule 1 to the FOI Act.

10 The Respondent relies on the evidence of Inspector Rhonda Allen, Manager of the of the NSW Police Force Professional Standards Unit, Central Metropolitan Region. Inspector Allen provided open and confidential statements and also attended and gave evidence at the hearing.

11 As the Professional Standards Manager, Inspector Allen is aware of all officers attached to Commands within the Central Metropolitan Region who are subject of criminal proceeding or who are the subject of disciplinary proceedings before the internal Review Panel. Also, as Professional Standards Manager, she becomes aware of all officers who are charged with offences or who are the subjects of disciplinary proceedings. The Applicant falls within these categories. Inspector Allen has had ongoing contact with the Applicant over the past 18 months.

12 Inspector Allen stated that she has considered the schedule of documents for which exemptions are claimed and has also reviewed the documents. She said that all the documents over which exemption is claimed relate to three complaint files which concern investigations pursuant to Part 8A of the Police Act 1990 into conduct by the Applicant. All complaints were instigated by police officers. Pursuant to Part 8A of the Police Act 1990 a person may make a complaint about the conduct of a police officer. Dependent upon the circumstances, investigations into allegations relating to police conduct can be conducted as criminal investigations or departmental investigations. Inspector Allen stated that investigations under Part 8A are particularly sensitive. There are both legislation and policies that provide for protection of witness identity and the confidentiality of information. Guidelines that govern the way complaints under Part 8A are to be dealt with have been established by the Commissioner under section 169A of the Police Act. The Police Force has also put in place an Internal Witness Support Policy.

13 Inspector Allen stated that complaints by both members of the public and internal sources are made on the expectation that they will be confidential. It is standard procedure for a complainant's identity to be protected from disclosure from the subject officer no matter how obvious it may be as to where the complaint may have originated. To reveal the identity of a complainant, might subject a complainant to payback or intimidation. This would undermine the confidence members of the public and internal police complainants have in coming forward with information about police misconduct and prejudice the future supply of such information. The legislation and policies stress that complaint information must be managed so that its integrity is protected at all times. In Inspector Allen’s opinion, disclosure of the identities of complainants would undermine the reporting and detection of misconduct by police, to which Part 8A is directed.

14 She believes that it is important to maintain confidentiality over the identity of complainants and witnesses and the information provided even after Part 8A investigations are concluded. She believes that if such information were subsequently disclosed, complainants and witnesses would be reluctant to come forward with information and/or the quality of information would be adversely affected. She considers that as a result, future investigations under Part 8B would be adversely impacted as would management of officers.

15 In relation to complaint P0601488, an internal police witness made a complaint about the conduct of the Applicant. In relation to complaint P0702087, internal police witnesses were asked to provide reports in relation to the conduct of the Applicant. The evidence of Inspector Allen is that internal police complaints are made under an expectation that identity of the person making the complaint will remain confidential, although the substance of the allegations would be put to the police officer involved. PO601488 and PO702087 also potentially involve allegations of criminal conduct.

16 The Respondent argues that the fact that the Police carry out designated operations from time to time is well known. However, the means by which those operations are carried out, the number of personnel involved and the methodology of the operations are not well known, The evidence of Inspector Allen is that disclosure of this information would allow the effectiveness of police operations of this kind to be subverted.

17 The Respondent also argues that parts of the documents are exempt pursuant to clause 6 of Schedule 1 to the FOI Act in that the material includes information such as the names, addresses and personal information relating to persons other than the Applicant.

18 The Respondent says that disclosure of the information is unreasonable. It would involve the uncontrolled disclosure of highly personal information about a private individual, including allegations that he had committed a criminal offence and information about other matters that had come to the attention of Police.

19 The Respondent contend that parts of PO802631 are exempt pursuant to clause 7 of Schedule 1 to the FOI Act in that the material includes information which would have a detrimental impact on the reputation of a business if disclosed. He says that pages 13-39, 64, 181-183 & 189-209 of PO802631 are examples of this kind of intelligence. The Respondent says that disclosure of the information would not assist the Applicant's understanding of the police investigation or decision. It would however damage the reputation of the business involved. In circumstances where the material is not considered business information, but is simply Police intelligence, the Respondent says that the adverse effect on the business' business affairs would be unreasonable.

20 The Respondent also argues that parts of the documents are exempt pursuant to clause 13 of Schedule 1 to the FOI Act in that the material includes information that was obtained in confidence, its disclosure could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and its disclosure would be contrary to the public interest. She elaborated on her concerns in her confidential statement.

21 The Respondent submits that complaints or statements provided in the course of an investigation regarding the conduct of police officers are of a nature that would be characterised as confidential. Inspector Allen indicates that in her experience this is the case.

22 The evidence of Inspector Allen is that the internal police witnesses who gave statements or information in response to the three complaints did so on the express understanding that the statements or records of interview that they gave would be kept confidential. Furthermore, the evidence of Inspector Allen is that it is policy that the officer the subject of the investigation is provided with information regarding the allegation, the findings and the reasons, but that there is no assumption that the files in their entirety will be provided to the officer. Moreover, at paragraph 15 of her open statement, Inspector Allen indicates that it is policy to deal with investigations under Part 8A of the Police Act on a confidential basis.

23 The Respondent also argues that law enforcement bodies such as the NSW Police Force, rely on the receipt of information from a variety of sources not only in order to facilitate its function of detection and prevention of crime, but also to facilitate its internal personnel management and administrative processes. He says that there is a reasonable prospect that, should complaints not be treated in a confidential manner then the provision of complaints, or information to assist in investigations, may be adversely affected with the result that the Commissioner will be unable to properly manage his personnel as members of the public and internal informers may be reluctant to divulge similar confidential information to the Commissioner in the future.

24 The Respondent refers to findings of the Wood Royal Commission into the NSW Police Service that there has traditionally been a cultural reluctance on the part of police officers to report misconduct on the part of other officers and that one of the factors that allowed corruption to flourish in the Police Service was that there was nowhere a police officer could safely complain about improper/criminal behaviour: Royal Commission into the New South Wales Police Service, Final Report, May 1997

25 It is submitted that part of encouraging police to provide reports on one another's conduct is guaranteeing the confidentiality of those report.

26 The evidence of Inspector Allen is that the expectation of these witnesses is that their reports and identities would remain confidential. She said that while serving officers can be directed to give information against other serving officers, the quality and extent of the information given in response to a directive is different in character to the evidence that can be obtained when it is given voluntarily by an internal police witness who expects their reports to be kept confidential. Full and open co-operation with an investigating officer, including volunteering information that might be helpful to the investigation is significantly facilitated by offering that officer confidentiality. The Respondent submits that this is a legitimate reason for concluding that the flow of information would be impeded if confidentiality were not offered, despite the availability of compulsory powers.

27 It is argued that the fact that an officer’s evidence may ultimately need to be relied on in disciplinary proceedings is not a reason to presume that the officer does not expect to be treated as a confidential informant to the police at the time that the information is provided. Many complaints are investigated but do not proceed to formal disciplinary proceedings, so that in many instances, an officer’s report or record of interview would not be revealed to her or his fellow colleagues.

28 In relation to complaint P0601488, the Respondent says that the internal police witness has never been identified to the Applicant. In relation to complaint P0702087, the Respondent acknowledges that it is likely that the Applicant could have an educated guess at the identities of the internal police witnesses. However, the identities of the internal police witnesses has not been revealed to the Applicant and the extent and nature of the evidence of those witnesses has not been disclosed.

29 In relation to complaint P0802631, the Respondent says that the identities and some of the comments made by witnesses has been revealed to the Applicant, in that the investigator's report contains this information. However, the statements or records of interview that are attached to that investigation report provide considerably more detail than the extracts in the investigation report and there is fear of retribution if that were released.

30 The Respondent contend that the Applicant has received edited copies of many of the documents, so that he can understand the nature of the allegations which are made against him and the reasons for the response taken on the part of NSW Police management. It is submitted that the public interest in disclosure must be balanced against the public interest in ensuring that the NSW Police continues to receive the frank and full co-operation of serving officers when investigating allegations of misconduct on the part of other serving officers. The Respondent says that that balance has already been struck here and submits that the Tribunal should adopt the same approach.

31 The Respondent also argues that parts of the documents are exempt pursuant to clause 16(a)(iii) of Schedule 1 to the FOI Act in that the documents contains matter the disclosure of which would reasonably be expected to have a substantial adverse effect on the management or assessment by police of its personnel and would, on balance, be contrary to the public interest.

32 The Respondent submits that there would be prejudice or a substantial adverse effect from the disclosure of the documents for the same reasons canvassed in relation to clause 13 of Schedule 1. It is submitted that the documents that have not been disclosed are of a type that would impact on the ability of the Commissioner to effectively undertake the assessment and management of his personnel. Disclosure could reasonably be expected to hinder the ability of investigators to properly carry out his or her functions if internal informants were aware that their confidentiality would not be maintained. Indeed, the evidence of Inspector Allen indicates that informers may think twice before providing advice or information in the future.

33 The Respondent says that it is not in the public interest for the Commissioner's ability to investigate the conduct of his own officers to be jeopardised in this way. He says that the public interest in disclosure has already been satisfied as far as the Commissioner is able to do so and that the public interest in accountability is also served by the fact that the NSW Ombudsman reviewed the conduct and findings of the investigations.

34 The Respondent submits that once a Respondent has made out an exemption, the onus of proof shifts and the Applicant must persuade the Tribunal to exercise the discretion to release the documents identified by the Nicholas J in University of New South Wales v McGuirk [2006] NSWSC 1362 at [102]. In support of that submission the Respondent relies on my decision in McGuirk v UNSW [2007] NSWADT 204 at [29] and [39] in which I rejected the Applicant's submission that the onus of proof in relation to the residual discretion is on the Respondent pursuant to section 61 of the FO1 Act.
35 Ms Johnson submits that the Applicant has not raised any matters in support of the exercise of the residual discretion, and the Respondent is not aware of any matters that would enliven or support the exercise of the discretion in the circumstances.

36 The Respondent asserts that the CCTV footage relating to police complaint file PO601488 falls outside the ambit of the FOI application. The Respondent has searched for the second page of document 'FOI Ref Page No. 253' but has been unable to locate it. It is asserted that the Respondent does not hold the document. Ms Johnson submits that the Tribunal has no power to go behind those aspects of the determination. She submits that the Tribunal is unable to review those aspects of the process prior to the determination of the FOI request.

The Applicant’s case
37 The Respondent relies on his own evidence. He provided a statement and also attended and gave evidence at the hearing.

38 The Applicant says that complaint file PO601488 relates to a departmental investigation into an allegation that the Applicant used unreasonable force on a prisoner in police custody on 19 March 2006. Complaint file PO702087 relates to a departmental investigation into an allegation that the Applicant was disrespectful to police whilst off-duty and that he improperly interfered during the arrest of a person for a traffic offence on 19 April 2007. Complaint file PO802231 relates to a departmental investigation into an allegation that the Applicant was disrespectful to police whilst off-duty and that he disobeyed a direction from a senior officer to state his name on 8 June 2008.

39 The Respondent conducted an investigation under Part 8A of the Police Act. The Applicant says that in November 2008, he was notified that adverse findings had been made against him in respect to the allegations in police complaint files and that all three complaint files would be referred to the Internal Review Panel (IRP) of the NSW Police Force for consideration of appropriate management action. In March 2009 the IRP referred the Applicant’s matter to the Commissioner of Police for his consideration for the making of an order for the Applicant's removal from the NSW Police Force under section 181D of the Police Act.

40 The Applicant believes the investigations into the allegations in these three matters were inadequate and biased. He seeks a review of the findings made in police complaint files and seeks a full and thorough review of the complaint files prior to them being used in the prospective section 181D process with the view of having the findings overturned. He says that he requires full access to the source documents said to found the allegations in police complaint files so that he can conduct a thorough analysis of the source documents and identify the deficiencies within the investigation for the prospective review.

41 He also says that he requires full access to the source documents in order to obtain legal advice and, as a matter of procedural fairness, to respond to the allegations if the prospective review does not overturn the initial adverse findings.

42 The Applicant submits that the exemption in clause 4(l)(b) no longer applies to documents relating to officers whose identity has been disclosed. He identified two officers who fall into that category.
43 The Applicant submits that it is in the public interest that notions of procedural fairness are followed in disciplinary proceedings. In the current context, serious allegations of misconduct have been found against the Applicant. He requires the documents used to reach those findings so that he can seek a review of the adverse findings made against him and, if required, seek legal advice and respond to those allegations.

44 He also points to Clause 48 of the Police Regulation 2008 in support of his submissions that he has a legal entitlement to any information kept in relation to complaint files. He submits that the objective of clause 48 of the Police Regulation is to ensure notions of procedural fairness are followed by entitling police officers access to any information that may have been relied upon in making an order under section 173 of the Police Act i.e. action by the Commissioner with respect to a police officer’s misconduct or unsatisfactory performance. The recording of adverse findings pursuant to section 173 form the basis for the referral to the Commissioner of Police for his consideration for the making of an order for the Applicant’s removal from the NSW Police Force under section 181 D of the Police Act.

45 The Applicant submits that it is in the public interest to disclose the documents to him and that the Respondent has not made out the exemption under clause 4(l)(b).

46 The Applicant further submits that the disclosure of documents sought to be exempted pursuant to clause 6 would not be unreasonable as it is in the public interest that the documents be disclosed. He says that his motive for seeking access to the documents is relevant to the assessment of unreasonableness and that it is not unreasonable to disclose the documents for the purpose of the Applicant seeking a review of adverse complaint findings, seeking legal advice and responding to the allegations of serious misconduct.

47 The Applicant submits that the Respondent has not made out the exemption in clause 7 as he has failed to establish that the disclosure could reasonably be expected to have an unreasonable adverse effect on the business affairs of the business. He further submits that the intended non-commercial use of the documents negatives the likelihood of any adverse effect on the business concerned.

48 With respect to the Respondent’s claimed exemption pursuant to clauses 13 and 16 of Schedule 1 to the FOI Act the Applicant repeats his submissions in regard to the public interest argument and submits that it is in the public interest that notions of procedural fairness are followed in disciplinary proceedings. He says that the disclosure of the documents would not be contrary to the public interest in light of the intended use of those documents.

49 The Applicant further submits that the there are strong grounds in the present case to justify the Tribunal overriding the exemptions claimed by the Respondent. He believes that the investigations into the allegations in these three matters were inadequate and biased and that this is a continuance of harassment by senior police officers that has been occurring over the past three years. He says that he needs access to the documents to identify the deficiencies within those complaint files and that this is essential to seeking an internal review. He says that the failure to obtain all of the source documents would result in his being denied procedural fairness in answering the serious allegations subject of those complaint files and that this could lead to his unfair summary dismissal from the NSW Police Force.
50 The Applicant also requested the CCTV footage relating to police complaint file PO601488. It is the Respondent's view that the CCTV footage does not form part of police complaint file P0601488, and therefore does not fall within the ambit of the FOI application.

51 The Applicant also asserted that he has been provided with the first page of document 'FOI Ref Page No. 253' whereas the document indicates that it is a two-paged document. He requested that the second page be provided, as there is no exemption claimed in relation to that document.

Consideration
52 The Applicant is currently the subject of disciplinary proceedings before the Commissioner, pursuant to section 181D of the Police Act, as a result of Part 8A investigations. His application concerns access to the Part 8A investigations documents. He says that the documents are essential to his efforts to address defects in the proceedings under the Police Act. He alleges that internal processes within the NSW Police Force have denied him procedural fairness and he wishes to show that the investigations into allegations against him were inadequate and biased. It seems that he is attempting to obtain documents pursuant to the FOI Act because of defects in the processes under the Police Act.

53 This process is ongoing and no determination has yet been made by the Commissioner. Inspector Allen’s evidence is that if the Commissioner determines that he is going to serve the Applicant with a "Show Cause Notice" pursuant to s181D(3)(a) of the Police Act the internal protocols provide that the Applicant will be provided with the information relied on by the Commissioner in making his determination. Not all of the documents produced during the Part 8A investigation will necessarily form the basis of the Commissioner's determination.

54 While I accept that the Applicant is concerned about the adequacy of the processes under the Police Act and that he will be denied procedural fairness, it is my view that the Tribunal should not attempt to cure defects that might exist in those processes. The Applicant has other avenues available to him to address those issues if they arise.

55 The Tribunal’s role is to determine the correct and preferable decision in regard to the matter before it. In doing so, it is necessary to consider whether or not the Respondent has made out the exemptions that have been asserted and if so, whether the documents should nevertheless be released.

56 The Respondent has asserted that the documents are exempt pursuant to a number of clauses in Schedule 1 to the FOI Act. Firstly, the Respondent asserts that the exemption in Clause 4(l)(b) of Schedule 1 to the FOI Act applies. A document is an exempt document pursuant to that clause if it contains matter the disclosure of which could reasonably be expected 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.

57 The Respondent also asserts that the exemption in Clause 4(l)(e) of Schedule 1 to the FOI Act applies. A document is an exempt document pursuant to that clause if it contains matter the disclosure of which could reasonably be expected 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.

58 The approach to clause 4(1)(b) was dealt with by the Appeal Panel in XZ v Commissioner of Police [2009] NSWADTAP 2 at [26]:

26 Existence of a confidential source of information. A source of information is confidential if it is provided under an express or implied pledge of confidentiality: Department of Health v Jephcott [1985] FCA 370; (1985) 8 FCR 85 per Forster J at 89. In order to determine whether that is the case all the relevant circumstances need to be taken into account: Re McEneiry and Medical Board of Queensland [1994] QICmr 2; [1994] 1 QAR 349 at 371. We are satisfied, having read the document, that a confidential source of information exists. (The next two sentences are subject to a suppression order) We agree with Mr Pigott’s submission that the question of whether the source of the information is confidential must be ascertained at the time of the hearing but there is no basis for concluding that confidentiality has been lost or abandoned in this case: Ainsworth v Criminal Justice Commission (1999) QICmr 10 (17 December 1999) at 18.

59 However, where information has previously been disclosed, the exemption may no longer apply. In FA v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 7, the Appeal Panel noted that in respect of clause 4(1)(b):

41 Applying these principles to the present case, FA has a legally enforceable right to be given access to the disputed documents unless the agency can establish that those documents fall within the exemption in Cl 4(1)(b). The words "disclosure", "enable" and "ascertained" in that provision can either be interpreted as referring to the uncovering or exposing of that information regardless of whether it has previously been lawfully disclosed or they can be interpreted as being confined to cases where disclosure would reveal the information for the first time. The policy objective of Cl 4(1)(b) is to prevent the existence or identity of any confidential source of information being ascertained because to do so is likely to discourage informants from coming forward in the future. Parliament regarded this exemption as being "reasonably necessary for the proper administration of Government." However once the relevant information has been lawfully disclosed to the Applicant, would-be informants would not be discouraged from coming forward if the same information is disclosed to the same person again. The existence and/or identity of the informant have already been disclosed. Preventing further disclosure of the same information cannot be said to be "reasonably necessary for the proper administration of Government.

42 It follows that if some or all of the Issue 2 documents have previously been lawfully provided to FA, and they disclosed the existence or identity of a confidential source of information in relation to law enforcement, the Tribunal has made an error of law in relation to its ultimate conclusion that the agency made the correct and preferable decision in refusing access to the Issue 2 documents pursuant to Cl 4(1)(b).
60 The evidence suggests that the Applicant has been given some information regarding the identities of confidential sources of information. He has not been given information in regard to other sources nor the contents of that information. In my view, the Clause 4(l)(b) exemption applies to that which has not been released.

61 The basis of the clause 4(1)(e) exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods. For the exemption to apply, there is no need for an actual contravention of the law, since the exemption encompasses both actual and possible contraventions. The exemption is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law. The information contained in an exempt document might serve to disclose or confirm the lawful Police methods or procedures for preventing or detecting possible contraventions of the law: RT v Commissioner of Police, NSW Police [2005] NSWADT 270; UC v Commissioner of Police, NSW Police [2005] NSWADT 272; Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231. The exemption covers the disclosure of the methods or procedures themselves as long as they are not commonplace or well known. In XZ v Commissioner of Police, NSW Police Force the Appeal Panel stated at [21]

21 Notwithstanding Ms Johnson’s submissions, we have come to a conclusion which is consistent with our preliminary view. The exemption in clause 4(1)(e) undoubtedly covers the disclosure of the methods or procedures themselves as long as they are not commonplace or well known: Re Lawless and Secretary to Law Department (1985) 1 VAR 42; Re Russo and Australian Securities Commission [1992] AATA 228; (1992) 28 ALD 354 at 357. Ms Johnson conceded that the practice of obtaining information through informants whose identity remains confidential is so well known and routine that disclosure of that method or procedure could not reasonably be expected to prevent its effectiveness.

62 On the basis of the evidence before me, for the reasons argued by the Respondent, I am satisfied that the documents in issue are exempt documents pursuant to Clause 4(l)(b) of Schedule 1 to the FOI Act. Having formed this view, it is unnecessary that I consider the other exemptions argued by the Commissioner. However, I note that I am also of the view that the documents are exempt documents pursuant to Clause 4(l)(e) of Schedule 1 to the FOI Act.

63 The Appeal Panel in IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79 concluded that there is no scope for the exercise of the residual or override discretion in respect of exempt restricted documents i.e. documents that are exempt pursuant to Part 1 of Schedule 1 to the FOI Act. The Appeal Panel in Crowther-Wilkinson v NSW Police Force [2009] NSWADTAP 49 stated at paragraph [32]:

32 Release of restricted documents. In IPART v Services Sydney [2008] NSWADTAP 79 the Appeal Panel held that once the Tribunal finds that an agency has ‘reasonable grounds’ for claiming a restricted document is exempt, its jurisdiction is exhausted: FOI Act, s 57. ... we agree with the Appeal Panel’s conclusion in IPART that once material in a document is found to come within any of the exemptions in cl 1 to 4A of the FOI Act, the Tribunal is unable to disclose that document. This conclusion makes it unnecessary to deal with Mr Crowther-Wilkinson’s ground of appeal that the Tribunal erred by not disclosing the uncensored statement even though it was exempt under cl 4(1)(b).
64 I agree with that view. Accordingly, the correct and preferable decision is that the documents should not be released.

65 If I am wrong in that view, I note that it is also my view, for the reasons argued by the Respondent, that the documents are exempt pursuant to clause 13 of Schedule 1 to the FOI Act. I accept Inspector Allen’s evidence and I am satisfied that the documents contain matter that was obtained in confidence. I also accept Inspector Allen’s evidence as to the potential impact on the future supply of such information if it were to be released.

66 I also agree that parts of the documents are exempt pursuant to clause 6 of Schedule 1 to the FOI Act. I agree with the Applicant that an Applicant's motive may be relevant to the assessment of whether the release of a document would be unreasonable. In Department of Education and Training v GJ (GD) [2009] NSWADTAP 33, the Appeal Panel considered whether disclosure under the FOI Act was disclosure to the world at large. In doing so, it considered the Victorian Court of Appeal decision of Victoria Police v Marke [2008] VSCA 218 ("Marke"). The Appeal Panel decided that it should follow Marke and concluded:

49 Consequently, the FOI decision-maker (agency or review tribunal) must not, uncritically, exclude from its consideration matters pressed by the Applicant personal to the Applicant such as the purpose of the application and promises of limited use. As the Victorian Court noted, that does not mean that the decision-maker must give effect to the Applicant’s plea. The decision-maker may form a negative view as to the likelihood that the promise will be kept, and the attributes of the Applicant may militate against acceptance of the promise. The Victorian Court gave the following illustrations of this point: the Applicant who is a political activist, a journalist or a member of parliament, all of whom might reasonably be assumed to be likely to seek maximum publicity for the material released.

67 The facts of this case do not suggest that the Applicant is likely to seek maximum publicity for the material released. I accept that his motivation is to attempt to identify deficiencies within the complaint files, which in turn would assist him in securing a favourable review outcome.

68 Nevertheless, it is my view that on balance, it would be contrary to the public interest to release the documents. It is therefore unnecessary that I consider arguments regarding whether or not the Court of Appeal decision in the matter of McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321 affects the Tribunal’s power to order release of a document found exempt under clause 13 of Schedule 1 to the FOI Act.

69 For completeness, I note that I agree with Ms Johnson that the Tribunal has no power to review the Respondent’s assertion that the CCTV footage relating to police complaint file PO601488 falls outside the ambit of the FOI application and that it does not hold the second page of document 'FOI Ref Page No. 253'.

Order

The decision is affirmed.