Crang v Commissioner of Police [2010] NSWADT 5 (5 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Crang v Commissioner of Police [2010] NSWADT 5


DIVISION:
GENERAL DIVISION

PARTIES:
Applicant:
Jessica Maree Crang

Respondent:
Commissioner of Police, NSW Police Force




FILE NUMBERS:
093085

HEARING DATES:
on the papers

SUBMISSIONS CLOSED:
22 September 2009



DATE OF DECISION:
5 January 2010

BEFORE:
Wilson R - Judicial Member





LEGISLATION CITED:
Freedom of Information Act 1989

CASES CITED:


TEXTS CITED:


APPLICATION:
Access to documents. Exemptions by reason of disclosure of confidential source of information; personal information; and information given in confidence.

MATTER FOR DECISION:



REPRESENTATION:
Applicant Representative:
In person
Respondent Representative:
Ms J Windsor

PUBLICATION RESTRICTION:
The applicant is not to be provided with a copy of exhibit ADT 1 until further order of the Tribunal.

ORDERS:
1.The Registrar is directed to provide the respondent with a copy of exhibit ADT 1 at the time that these reasons are published. 2.The respondent is directed to file any submissions it wishes within two weeks of receipt of exhibit ADT 1 as to the excised information and to serve a copy of those submissions upon the applicant, deleting any confidential submissions as may be appropriate.
3.The respondent is granted leave to file any evidence and submissions it should wish in relation to the letter to the applicant from Senior Constable Butler contained within exhibit A1 within two weeks of receipt of exhibit ADT 1 and to serve a copy thereof upon the applicant, deleting any confidential materials as may be appropriate.


Reasons for Decision:

REASONS FOR DECISION

1 The applicant commenced these proceedings seeking access to documents which had been refused by the respondent upon internal review under the Act. No jurisdictional issues were raised. At the last planning meeting the parties agreed that a hearing was not necessary as the matter could be decided upon the submissions filed.

2 By consent the only document requiring the Tribunal’s determination is a single intelligence report (No. 131693389) consisting of two folios (exhibit R1), an exhibit which the applicant has not seen. The respondent filed documents relating to the internal review (exhibit R2), primary submissions dated 20.08.09 (exhibit R3), submissions in reply (exhibit R4), a confidential statement of evidence (exhibit R5) and confidential submissions (exhibit R6). The applicant has not seen exhibits R5 and R6.

3 The applicant filed submissions dated 25.09.09 with two letters annexed (exhibit A1). The applicant’s submissions have been thoughtfully drawn and have been expressed with notable precision and care, given that the applicant has not had the advantage of seeing significant exhibits. The several points made in those submissions take a well balanced approach and have been of assistance to the Tribunal.

4 The respondent’s submissions however must carry the day. They have of course been formulated with detailed knowledge of the contents of the document under review. The respondent relies upon clause 4(1)(b) (disclosing identity of confidential source of information), clause 13(b) (disclosing confidential information) and clause 6(1) (unreasonable disclosure of personal affairs) of Schedule 1 to the Act. It is clear from exhibits R1 and R5 that the information contained in that document involves information passed to the respondent by an informant and that the information concerned law enforcement. The informant had a history of supplying such information and, more likely than not, the details supplied would enable the existence of the source of information, and possibly the identity of the informant, to be ascertained to some degree. Also, the information was supplied by way of a confidential communication and it is likely that future supply of similar information could be adversely affected by disclosure of the entire document. This would be contrary to the public interest in the circumstances should the whole document be released, essentially by reason of the possible disclosure of the source and the personal information therein. These exhibits also demonstrate that part of the information in the document concerned the personal affairs of a person other than the applicant and that to disclose this information to the applicant would be unreasonable. The Tribunal is of course not able to here set out in detail the evidence establishing such findings as to do so would reveal the information that renders the document exempt on these three grounds.

5 This finding gives rise to the Tribunal’s powers to excise the exempt material on the one hand and to grant access to the document on discretionary grounds on the other. Perusing the document itself (exhibit R1) persuades the Tribunal that granting access to the whole document on discretionary grounds is not the preferable course. The applicant, of course, has a strong interest in obtaining the document as it affects her employment position to a significant degree, or at least has done so in the past. If the applicant is able to access this document it may well enable her to rectify this particular employment problem that she is facing. The basis for this is well set out in the applicant’s submissions. Clearly, the public interest is well served if a person in such a position is able to obtain information which is being used, or has been used, adversely against that person in circumstances where that person is not advised of the information itself. There is no possibility that good answer, if available, could be given in such circumstances.

6 However, the public interest in keeping the source of the information, as well as the personal information in the document, confidential is of equal weight and for this reason the Tribunal is persuaded that excision of the material that is exempt on these two grounds is the better course. The third ground for exemption, clause 13(b) is considered further hereunder.

7 Section 25(4) provides that access shall not be refused to an exempt document if it is practicable to excise the exempt material in a way that is acceptable to an applicant. The applicant’s submission acknowledges that she does not wish access to the identity of the source of the information nor to any person information concerning any other person. Consequently, excision of the information that is exempt on the first and third grounds is acceptable to the applicant and, upon perusal of the document, the Tribunal is persuaded that excision of such exempt material is practicable. The Tribunal has undertaken this exercise, see confidential exhibit marked ADT 1. As the respondent did not address this question in submissions it is appropriate to allow opportunity to do so prior to making final orders. Appropriate directions will be made to achieve this.

8 It is not possible to exercise this power of excision in relation to the second ground, namely, that information in the document that is exempt by reason that it was provided in confidence (clause 13(b)), as to do so would remove all of the information from the document. Whilst the Tribunal has held that it would not grant access to the entire document on discretionary grounds, this was because it contained material exempt under clauses 4((b) and 6(1). The fact that the document contains information provided in confidence added minimal weight to the public interest consideration. If this exempt material is excised however the discretionary considerations change significantly.

9 By excising the exempt material concerning the source of the information and the third party personal information the weight to be attributed to the fact that the information was given in confidence becomes minimal. On balance, the public interest described above favouring the grant of access to an excised copy of the document must necessarily be preferred. This is so by reason of the disclosures that have been made in the letter from Senior Constable Butler to the applicant dated 15.07.09 (contained in exhibit A1). By that letter the substance of the information provided in confidence has been disclosed, although not the source of the information nor the personal information of the third party.

10 Consequently, the determination proposed by the Tribunal is that the applicant be given access to a copy of the subject intelligence report excised as indicated in exhibit ADT 1.

11 It would be appropriate for the Tribunal to allow the respondent an opportunity to put any submissions it wishes in relation to exhibit ADT 1 before final orders are made. For this purpose the Tribunal Registrar is directed to provide the respondent with a copy of exhibit ADT 1 at the time that these reasons are published. The respondent is directed to file any submissions, in relation to the excised information, it wishes within two weeks of receipt of exhibit ADT 1 and to serve a copy of those submissions upon the applicant, deleting any confidential submissions as may be appropriate.

12 The Tribunal noted that the letter from Senior Constable contained in exhibit A1 is evidential in nature, rather than being a submission alone. As noted above, this letter has been significant to the Tribunal’s determination. It is possible that the respondent may wish to address this letter by way of evidence or submission, given that it had no notice that this letter would be relied upon by the applicant. For this purpose leave is granted to the respondent to file and serve any evidence and submission it wishes in relation to this letter. This should be done within two weeks of receipt of exhibit ADT 1. After this period expires the Tribunal will reserve its final determination and issue final orders in accordance with these reasons in due course.