Mokbel v Queensland Police Service
[2023] QCATA 158
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- Unreported Judgment
- Mokbel v Queensland Police Service[2023] QCATA 158
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Mokbel v Queensland Police Service[2023] QCATA 158
Mokbel v Queensland Police Service[2023] QCATA 158
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Mokbel v Queensland Police Service [2023] QCATA 158 |
PARTIES: | horty mokbel (applicant/appellant) v queensland police service (respondent) |
APPLICATION NO/S: | APL017-22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 15 December 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – OTHER STATES – Queensland – appeal on a question of law – documents sought comprise exempt information – prejudice to police methods of surveillance, intelligence or investigation – whether breach of natural justice by Commissioner – whether error of law in findings – no error of law shown Information Privacy Act 2009 (Qld) s 121, s 132, Schedule 3 s 10. Commissioner of the Police Service v Shelton [2020] QCA 96 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
Applicant: | Self-represented |
Respondent: | M D Nicolson instructed by the Queensland Police Service Legal Unit |
REASONS FOR DECISION
- [1]This is an appeal from a decision of the Information Commissioner.[1] On 7 December 2021 the Commissioner varied a deemed decision of the respondent, and found that a particular page did not contain the appellant’s personal information and was therefore outside the scope of the application, that access can be refused to the information in issue under s 67(1) of the Information Privacy Act 2009 (Qld) (“the IP Act”) and s 47(3)(a) of the Right to Information Act 2009 (Qld) (“the RTI Act”) as it comprises exempt information, and that access to any further information may be refused under s 67(1) and under s 47(3)(e) of the Acts on the basis that it is non-existent or unlocatable. On 12 January 2022 the appellant filed in the Tribunal an application to appeal from that decision.
- [2]The IP Act s 132 and the RTI Act s 119, which are relevantly in the same terms, provide for an appeal from a decision of the Information Commissioner to the Appeal Tribunal. By those sections, the appeal is only on a question of law, and may only be by way of a rehearing. The appeal provided by s 132, because it is confined to a question of law, is in the nature of judicial review.[2] The appeal does not provide a mechanism for reconsidering any issue of fact decided by the first respondent, except on the narrow ground that, as a matter of law, the decision on the issue was not open on the material before the first respondent, a ground not raised by the appellant. The only issue is whether an error of law was made by the Commissioner.[3]
- [3]The appeal was heard on the papers, pursuant to a direction of the President of the Tribunal on 5 September 2023, confirming earlier directions. The appellant filed submissions in support of the appeal on 9 September 2022, some submissions in reply dated 9 November 2022, and further submissions in reply dated 25 December 2022. The respondent filed submissions on 7 October 2022, and submissions in reply on 7 December 2022.
Background
- [4]By an application received by the respondent on 27 August 2019, the appellant applied under the IP Act to access personal information held about himself, including all information in QPRIME.[4] The respondent did not make a decision within the time limited by the Act, and was therefore deemed to have refused access to the requested information.[5] The appellant then applied to the Office of the Information Commissioner to review the deemed refusal. In the course of the review, some documents were disclosed to the appellant, generally with redactions. The appellant sought unredacted disclosure of the information which had been redacted, and the Commissioner identified 117 pages of information which was in issue, being undisclosed in whole or in part. The appellant raised a general concern that the respondent had not located all relevant documents.
- [5]The Commissioner, having examined the contents of one of the pages produced by the respondent, concluded that it did not contain any personal information, and was therefore outside the scope of the request. The Commissioner, after examining the content of the information in issue, concluded that its disclosure could reasonably be expected to prejudice particular methods and procedures used by the respondent in relation to surveillance, intelligence or investigation. As well, disclosure could reasonably be expected to reduce the effectiveness of the methods and procedures referred to in the information in issue. The Commissioner also considered that the information in issue did not consist of matter revealing that a law enforcement investigation had exceeded imposed legal limits. Accordingly the Commissioner found that the information in issue was exempt information.
- [6]The Commissioner also found that the respondent undertook comprehensive searches of locations where it would be reasonable to expect that the types of information requested in the access application would be found, and that enquiries were made of relevant staff, and that there was nothing to indicate that further relevant documents existed. Hence the third part of the decision of the Commissioner.
Grounds of appeal
- [7]The appellant in the Application for Appeal stated as the grounds of appeal that the Commissioner had:
- Breached natural justice and erred in law by deciding that the appellant was able to properly respond to the Commissioner, and had been afforded due process in the review.
- Erred in law by not applying s 59 of the IP Act.
- Erred in law by finding that no documents were missing from those provided by the respondent to the appellant.
- Erred in the application of s 121(3) of the IP Act by not describing information for which exemptions apply.
- Incorrectly applied the methods and procedures exemption of Schedule 3 s 10(1)(f) of the RTI Act.
- Incorrectly applied Schedule 3 s 10(2) of the RTI Act.
- Erred in law by finding the respondent took all reasonable steps to locate the relevant information.
Submissions of the appellant
- [8]The appellant submitted that the Commissioner had erred in failing to provide the appellant with a full list of the purported exempt documents. It was submitted that the description of a document was not itself exempt information, and that it was not subject to the exemption under the Acts, and that such disclosure was consistent with the principles of open justice. Reference was also made to the decision in Marke v Victoria Police [2006] VCAT 1364, where a list of relevant documents was provided to enable the applicant properly to respond to an agency’s claim of exemption.
- [9]It does appear to be the practice for VCAT to provide lists of documents relevant to cases about disclosure of information, although some examples of such lists describe the relevant documents in very general terms.[6] Indeed, the Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 49 requires a schedule of documents in issue with a detailed statement of the basis for any exemption claimed to be provided by the agency; but there is no equivalent provision in Queensland. Under the IP Act s 108(1)(a) the procedure in the external review is a matter for the Commissioner, and the IP Act s 121 authorises the Commissioner to give directions to prevent disclosure to someone in the position of the appellant of information claimed to be exempt, and prohibits the Commissioner from disclosing in a decision or reasons information claimed to be exempt.
- [10]The Commissioner was correct in saying that there is no requirement under the IP Act to provide such a list. Indeed, the IP Act s 59 permits an agency to refuse to deal with an application, where all the documents within the terms of the access application are comprised of exempt information, without identifying all or any of the documents.[7] That did not in terms apply, since there were some documents which did not comprise only exempt information, but it reflects an approach to exempt information which is consistent with the procedure adopted by the Commissioner.
- [11]I do not accept that the description of a document is necessarily not exempt information; information that a document of a particular description is in the possession of an agency may well be information which is within the scope of an exemption. The terms of s 121 indicate that there is no obligation to provide such information, and it is a matter for the discretion of the Commissioner as to the extent to which information about what documents claimed to be exempt are in existence, and to what extent the access applicant is to be provided with access to them. It has not been shown that that discretion miscarried.
- [12]The appellant’s argument was based on the proposition that natural justice, otherwise known as procedural fairness, required such a list. The requirements of natural justice in a particular case depend on the circumstances. In particular, where there is a provision in a statute for a merits review, the way in which natural justice operates in such a review will depend very much on the terms of the statute. In the present case, it is clear that the legislative focus was on the protection of the right to access information by means of a merits review by an independent specialist Commissioner who was able to examine the relevant material and decide whether or not there was a right to access in accordance with the Act. That is reinforced by the fact that the only appeal available from decisions of the Commissioner is by a process of judicial review. I consider that natural justice did not require that the appellant be provided with a list with a description of the documents claimed to be exempt. I have not been cited any authority in support of the appellant’s argument, and am not aware of any. It has not been shown that there was any error of law in this respect.
- [13]The appellant complained about the adequacy of the basis stated by the respondent on which the documents were claimed to be exempt; but this is not a matter which gives rise to a question of law in an appeal from the decision of the Commissioner. This was a matter where the Commissioner was reviewing a deemed decision of the respondent, and what matters is whether the appellant can show an error of law on the part of the Commissioner in the decision on the merits.
- [14]Reference was made to the decision in Commissioner of the Police Service v Shelton [2020] QCA 96. In that matter the respondent, a former police officer, requested the dates of searches done on her in the QPRIME database, and the identify of those who conducted the searches, and whether any amendments had been made to her file, within a period of four years: [6]. Her concern was whether there had been unauthorised access to her file. On the review, the Commissioner refused to deal with the request on the ground that all the information requested was exempt, applying the IP Act s 59. The Appeal Tribunal set aside this decision, holding that the Commission had erred in law in the application of s 59, and in a consideration of whether the information was or was likely to be exempt information, but this was set aside by the Court of Appeal, which reinstated the decision of the Commissioner.
- [15]The Court[8] at [44] said that, for the purposes of applying s 59, “in order for it to appear . . . that all of the documents to which the application relates are comprised of exempt information, their contents must fall within one of the categories set out under schedule 3 to the” RTI Act. In the case of documents in the “law enforcement or public safety information” category, there is a need to consider both s 10(1) and s 10(2), and the Court said at [45]:
The important distinction between the sub-sections is that while s 10(1) is concerned with the characterisation of information by the (reasonably expected) effects of its disclosure, s 10(2) focusses on what the information in question actually consists of; whether it is matter or a report with a specified content. The difficulty with taking the 59(2) approach of not identifying the documents in question is that while the enquiry as to what may reasonably be expected from disclosure lends itself to that approach, and to a conclusion drawn by reference to the nature of the documents, the second enquiry, as to whether their actual content meets a particular description, inevitably requires consideration of the documents themselves.
- [16]In the particular case, the Commissioner had not erred in her approach to these requirements. As to the first, the Court said at [50]:
If the Commissioner was satisfied that disclosure of the kind of information ordinarily to be found in activity reports could reasonably be expected to prejudice lawful police methods, she was entitled to take that view in relation to the information to which the first respondent’s application related, to be found in the activity report concerning her. Her finding, which was made in respect of that activity report, indicates that she did.
- [17]As to the second, the Court said at [51] that the Commissioner had correctly emphasised the need to consider the material itself, and was entitled to find that it did not disclose that any law enforcement investigation had exceeded proper bounds. The Court had earlier, at [22], noted that this finding of the Commissioner had been made on the basis of the evidence available to her. Although it was said that the decision did not have to be made in a vacuum, it is clear that it was sufficient if the available evidence did not reveal this, and it was not necessary for the agency to demonstrate positively that illegality had not occurred.[9] It is clear that suspicion of illegality on the part of the access applicant is not enough.
- [18]For present purposes, it is clear enough that there is nothing in the reasons in Shelton which suggest that natural justice required that the relevant documents being considered by the Commissioner be listed and described. Indeed, when something was said at [19] about some evidence before the Court which had not been shown to the respondent, it was described in extremely general terms. An issue of natural justice was also raised in Coughlan v Queensland Police Service [2023] QCATA 112, on a different basis, but it is clear from the reasons at [60] that there had been material before the Commissioner in that case also which had not been disclosed to the access applicant.
- [19]As to ground (e) above, the categories of exempt information in Schedule 3 to the RTI Act include s 10(f), which provides that “Information is exempt information if its disclosure could reasonably be expected to … prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law) … .” This was the finding made by the Commissioner at [31], but the appellant submitted that the Commissioner had failed to apply this test.
- [20]This submission was advanced on the basis that there is a great deal of information published by the respondent which discloses its methods and procedures, and other information which has been made public in other ways from time to time. It was submitted, in effect, that because of the amount of information already in the public domain about police methods and procedures, which it was said did not prejudice the effectiveness of the particular lawful methods and procedures disclosed, disclosure of the information in question could not be reasonably expected to have that effect.
- [21]The Commissioner was conscious of the fact that a good deal of information about these matters is already in the public domain, as stated at [31], so that, to the extent that this was a relevant consideration, it was taken into account. But the fact that some, or even a lot, of information about police methods and procedures is currently available does not mean that there is not other information which is not currently available, and which could prejudice the effectiveness of police methods and procedures if disclosed. It would be unsurprising if investigative methods and procedures which are undisclosed are useful and effective in gathering background information, or even in investigating specific offences, and that their usefulness is dependent to a degree, possibly to a large degree, on their remaining undisclosed. I do not consider that this submission demonstrates that this finding by the Commissioner involved any error of law.
- [22]The appellant submitted that QPRIME audit reports had been disclosed in the past, but it does not follow that all such reports are subject to disclosure. Under the IP Act, it is open to an agency to disclose exempt material.[10] But if material which is exempt is not disclosed, that decision is not open to review by the Commissioner.[11] It may be that the policy about relying on this exemption for such material has changed at some point, but that does not affect the operation of the exemption provisions in the IP Act, or the legal framework within which the Commissioner conducts a review. In Shelton the Court had no difficulty with the finding of the Commissioner that the information sought in that matter fell within s 10(1)(f) of Schedule 3. As the appellant’s submission pointed out, the concept of disclosing police methods or procedures is a broad one, as shown by the decision of the Administrative Appeals Tribunal in Re Anderson and the Australian Federal Police (1986) 11 ALD 355 at 364.
- [23]The appellant submitted that the time frame in the request meant that the information sought was essentially historic, but it does not follow that information disclosing police methods or procedures at that time is no longer relevant. Reference was made to a different approach in Victoria, but the Commissioner is required to apply Queensland law, as am I, and any policy considerations in other states are irrelevant.
- [24]The appellant submitted that there had been evidence of unauthorised access to information held in QPRIME, but that is also not a relevant consideration. The motivation of the applicant in Shelton was to see if there had been unauthorised access to her information, but the finding that that information was exempt was upheld by the Court.
- [25]It was also submitted that the respondent may have received or acted on unlawfully obtained information, because of certain police conduct which occurred in Victoria, but the relevance of this to the exempt material does not give rise to any question of law. The Commissioner considered the material found to be exempt for the purpose of considering whether it was excluded from exempt material by s 10(2)(a) of Schedule 3 of the RTI Act, as “matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law”, and found that the information in issue did not consist of such matter. This was done in the way held to be correct in Shelton, and the appellant’s suspicions do not demonstrate that there was any error of law in that process.
- [26]The appellant also complained that there had been delays in the process of the external review, because of delay on the part of the respondent in responding to requests for information from the Commissioner. But in circumstances where the Commissioner has examined the documents in question personally, and is therefore in a position to make a decision about the relevant issues, and in particular whether the documents contain exempt information, this does not show any error of law on the part of the Commissioner.
- [27]The appellant also referred to the Human Rights Act 2019 (Qld) s 21(2). This matter was addressed by the Commissioner in the reasons for decision at [13]. It has not been shown that the approach by the Commissioner to that Act was wrong. No authority was cited inconsistent with that approach. Reference was also made to the implied freedom of political communication in the Australian Constitution. I do not consider that that implied freedom has anything to do with this issue.
- [28]No argument was developed in relation to Ground of Appeal (a). The Commissioner did not apply the IP Act s 59 in the decision, so this ground does not arise. Because some parts of the information requested by the appellant was not exempt, it was not appropriate to apply s 59.
- [29]No error of law has been identified in the conclusion that the respondent took all reasonable steps to locate the relevant information. This seems to be no more than a complaint about a finding of fact, from which no appeal lies.
- [30]In submissions in reply the appellant submitted that the Commissioner incorrectly applied the Contrary to Public Interest provision of the RTI Act. It was not relevant for the Commissioner to consider this provision, because, if information is exempt information, it is not necessary also to consider whether its disclosure may be refused on this basis. That was the position here.
- [31]It follows that there is no substance to any of the grounds of appeal relied on by the appellant, or to any of the submissions advanced by the appellant. The appeal is dismissed. The respondent sought orders as well that the decision of the Commissioner be confirmed, and an order for costs. In view of the wording of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 146, for the avoidance of doubt I will also confirm the decision of the Commissioner.
- [32]As to costs, these are governed by the QCAT Act s 100 and s 102. I refer to my discussion of this topic in Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107. The appellant did not address this issue in submissions in reply. The default position under these provisions is that there be no order for costs, so the respondent has to show that that position should be departed from. In the circumstances, I will give directions for submissions as to costs.
Footnotes
[1] For convenience I shall refer to Mr Mokbel as the appellant, and to the Queensland Police Service as the respondent.
[2] Osland v Secretary, Department of Justice (2010) 241 CLR 320; Powell v Queensland University of Technology [2018] 2 Qd R 276 at [42] – [46]. Powell involved the IP Act s 132.
[3] As to the identification of an error of law, see also Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202.
[4] These matters are taken from the reasons for decision of the Commissioner. It is not necessary to set out the full terms of the appellant’s request. The general nature of QPRIME was described by Daubney J, the then President of the Tribunal, in SJN v Office of the Information Commissioner [2019] QCATA 115 at [1].
[5] IP Act s 66(1).
[6] See for example Appendix 1 to the decision of Bell J in XYZ v Victoria Police [2010] VCAT 355.
[7] This relates to identifying in the course of assessing the access application, rather than identifying to the applicant: Commissioner of the Police Service v Shelton [2020] QCA 96 at [43].
[8] Holmes CJ, with whom the other members of the Court agreed.
[9] See also Coughlan v Queensland Police Service [2023] QCATA 112 at [45], [70].
[10] IP Act s 64(4).
[11] IP Act s 118(2).