Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120
• Hearing dates: On the papers
• Decision date: 19 June 2012
• Jurisdiction: General Division
• Before: S Montgomery, Judicial Member

Decision

1. The decision under review is set aside.

2. The decision is made that the document entitled "Standard Operating Procedures Stationary Speed Enforcement - LIDAR & RADAR" dated March 2007 is to be released to the Applicant.

3. This order is to take effect 28 days from the date of this decision

• Catchwords: Access to information - information affecting responsible and effective government - information affecting law enforcement and security
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Government Information (Public Access) Act 2009
• Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180; 64 ALR 97; Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19; Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286; Johnston v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 82; Johnston v Commissioner of Police, NSW Police Force [2008] NSWADT 191; Leech v Sydney Water Corporation [2010] NSWADT 298; Neary v State Rail Authority [1999] NSWADT 107; RT v Commissioner of Police, NSW Police [2005] NSWADT 270; Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; 16 AAR 281; 108 ALR 163.; UC v Commissioner of Police, NSW Police [2005] NSWADT 272; XZ v Commissioner of Police, NSW Police Force [2009] 11 NSWADTAP 2
• Category: Principal judgment
• Parties: Peter Roy; Commissioner of Police, NSW Police Force
• Representation: Peter Roy (Applicant in person); C Tipene, (Respondent)
• File Number(s): 113252
• Publication restriction: S75 of the Administrative Decisions Tribunal Act applies to paragraph 66 which is not to be released to the Applicant or the public

REasons for decision

1 GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): By a letter date 2 June 2011 the Applicant requested access to particular information from the NSW Police Force pursuant to the Government Information (Public Access) Act 2009 (NSW) ("the GIPA Act"). The request was as follows:

"Under the Government Information (Public Access) Act 2099 and FOI Acts I would like to receive from you a copy of the NSW Police Operations Manual, as it applies to the traffic matters. You have already supplied the Lidar Training Workshop Manual, but what I am seeking is the manual that sets out the rules that the NSW Police apply to the use of mobile cameras on our roads. In order to clarify my request I enclose that document issued by Victorian Police, extracted from their website. The Queensland Police have a similar paper, also on the Internet."

2 The Respondent determined, under section 58(1)(b) of the GIPA Act, to refuse to provide the information on the basis that the Respondent does not hold information relating to traffic or mobile traffic cameras.

3 The Applicant made an application, under section 82 of the GIPA Act, for an internal review that Decision. The Respondent again determined to refuse to provide the information on the basis that the Respondent does not hold the information.

4 The Applicant applied to the Tribunal for review of the Respondent's decision.

5 During the course of the proceedings, the Applicant indicated that he sought access to information relating to LIDAR and RADAR devices (not speed cameras) and correspondence was exchanged between the parties seeking to clarify the information to which access was sought.

6 The Respondent subsequently identified a document entitled "Standard Operating Procedures Stationary Speed Enforcement - LIDAR & RADAR" dated March 2007 ("the Procedures Manual") as being information relating to LIDAR and RADAR devices that had not previously been disclosed to the Applicant.

7 Notwithstanding that the Procedures Manual is dated March 2007, it continues to be used by Police officers in the conduct of LIDAR and RADAR operations in NSW.

8 The Applicant confirmed access is sought to the Procedures Manual.

The Applicable Law

9 Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

10 A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.

11 Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

12 Under section 9(1) of the GIPA Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act, unless there is an overriding public interest against the disclosure of the information.

13 Section 12 of the GIPA Act states that there is a general public interest in favour of disclosing government information and nothing in the GIPA Act limits the public interest considerations in favour of disclosure that may be taken into account when determining whether information is to be disclosed.

14 An overriding public interest in disclosure is demonstrated if section 13 of the GIPA Act is satisfied. Section 13 provides:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

15 Section 14 deals with the issue of what public interest considerations against disclosure are permissible to be relied upon. Section 14 provides::

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

...

16 This is not a case to which s 14(1) applies. Subsections 14(3) and 14(4) are not relevant.

17 Section 14(2) mandates that an agency can only rely on considerations listed in the section 14 Table in justification of a refusal to allow access. The agency has the burden of establishing that the decision is justified: section 97(1). The section 14 Table sets out the public interest considerations against disclosure that may be taken into account when determining whether or not to provide access to government information.

18 In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Deputy President Higgins stated:

19 Accordingly, in all cases other than those falling under the terms of Schedule 1, the public interest test under the GIPA Act involves the following:

(a) identifying the public interest in favour of disclosure;

(b) identifying the public interest against disclosure; and

(c) determine where the balance lies.

20 The public interest considerations against disclosure are limited to those set out in the table to section 14 of the GIPA Act.

19 The Tribunal's Appeal Panel recently considered the approach to be taken in determining matters of this kind in the matter of Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19. The Appeal Panel stated at paragraphs [24] - [25]:

24 Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

25 The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

20 The Respondent contends that the relevant public interest considerations against disclosure are those in section 14, Table 1(f)), 2(b) and (2)(d). Those provisions are:

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

...

(f) prejudice the effective exercise by an agency of the agency's functions,

...

2 Law enforcement and security

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

...

(b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,

...

(d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person,

...

The Respondent's case

21 The Respondent submits that the following public interest considerations against disclosure are relevant:

(a) disclosure of the Procedures Manual could reasonably be expected to prejudice the effective exercise by NSW Police Force of NSW Police Force's functions;

(b) disclosure of the Procedures Manual could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law; and

(c) disclosure of the Procedures Manual could reasonably be expected to endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person.

22 The Respondent submits that on balance, taking into account the public interest considerations both for and against disclosure, there is an overriding public interest against the disclosure of the Procedures Manual to the Applicant.

The Respondent's evidence

23 In support of its decision to refuse to disclose the Procedures Manual to the Applicant, the Respondent relies on the statement of Senior Sergeant Ronald Charles Dorrough, dated 16 December 2011. In his statement Senior Sergeant Dorrough stated:

I understand, following discussions between the Applicant and the Commissioner's legal representative that the Applicant has confirmed he is seeking access to a document entitled "Standard Operating Procedures Stationary Speed Enforcement- LIDAR & RADAR" dated March 2007 (SSE SOPs).

The SSE SOPs is an operational document that is used by Police officers on a day-to-day basis for safe work practices when operating under 'Planned Operations' for LIDAR and/or RADAR use. The SSE SOPs contain detailed operational information about the location selection and stopping of offending vehicles when using LIDAR and/or RADAR.

The SSE SOPs contain information that, upon release, may place Police in precarious situations when operating LIDAR and RADAR equipment.

The SSE SOPs are not publicly available and at the time the SSE SOPs were developed they were not intended to be publicly available.

The SSE SOPs were introduced by the NSW Police Traffic Services Branch to provide a detailed document as guidance to Police in an attempt to set out a detailed process that would assist with 'safely stopping' vehicles detected exceeding the speed limit.

The SSE SOPs are not widely available to Police officers they were developed for use by Highway patrol personnel when using Lidar/Radar on planned operations. Access is generally restricted to Police officers who have cause to access the SSE SOPs for the performance of LIDAR and/or RADAR operations.

If the SSE SOPs were to be released, the reader may be able to circumvent Police systems for detecting speeding vehicles which in turn could be detrimental to Police operations and the safety of the general public.

There is a potential for vehicles detected travelling in excess of the prevailing speed limit to engage in dangerous driving by accelerating to higher speeds than initially detected to avoid being stopped by Police; especially when members of the public are made aware of 'preclusion zone' and 'selection zones' including distances utilised by Police when determining the viability to stop vehicles. This has the potentially to seriously compromise the safety of Police officers and the general public.

The release of the SSE SOPs would also provide the general public with knowledge that certain geographical characteristics may impede enforcement therefore increasing the possibility of drivers to exceed the speed limit and endangering other members of the public and Police.

The SSE SOPs were created to ensure the safety of Police officers and members of the public when Police enforce the law. I consider the disclosure of this document would jeopardise the safety of members of the community and Police and prevent the Police from effective law enforcement and detection of illegal behaviour by motorists.

24 Senior Sergeant Dorrough indicated that he had been shown documents on which the Applicant relies. Those documents are:

a) an extract from a Queensland Police document entitled "Speed Detection" ("the Queensland manual");

b) a document entitled "Victorian Police Traffic Camera Office - Mobile Road Safety Camera Policy & Operations Manual" dated 2010 ("the Victorian manual"); and

c) a document entitled "Tasmania Police - Road Safety Camera Site Selection / Operating Criteria" dated 26 August 2010 ("the Tasmania manual").

25 It is not in dispute that those documents are publicly available on the internet.

26 In relation to the Queensland manual Senior Sergeant Dorrough observed that:

only three paragraphs of the document (paragraphs 6.5.1 to 6.5.3) relate to the operation of speed detection devices such as LIDAR and RADAR. These three paragraphs are general in description and do not contain the level of detail contained in the SSE SOPs for the safe operation of LIDAR & RADAR in NSW.

27 In relation to the Victorian manual and the Tasmania manual Senior Sergeant Dorrough observed that:

these documents relate to mobile road cameras, not stationary LIDAR or RADAR.

NSW Police Force is not the agency responsible for the installation and management of mobile or fixed speed cameras in NSW, this is the responsibility of the Roads and Maritime Services (formerly the Roads and Traffic Authority).

28 Senior Sergeant Dorrough further stated that:

generally speaking speed camera devices have a different purpose from LIDAR and RADAR and operate under completely different systems and circumstances. Speed cameras are designed to detect and record a driver exceeding the speed limit. A photograph is taken of a vehicle so identified, and the photograph is used to support the issuance of a traffic infringement notice.

LIDAR and RADAR devices, on the other hand, are used by Police to enable Police officers to identify a driver exceeding the speed limit and taking immediate action to apprehend the driver. Because LIDAR and RADAR devices are used to enable the Police to take immediate steps to carry out law enforcement, I consider different considerations apply to the proposed disclosure of the SSE SOPs to the public.

The Respondent's submissions

29 The Respondent refers to an earlier application for access to the Procedures Manual under the Freedom of Information Act 1989 ("the FOI Act") and decision of the Tribunal in Johnston v Commissioner of Police, NSW Police Force [2008] NSWADT 191 ("Johnston"). In Johnston, the Tribunal affirmed the Respondent's decision to refuse to disclose the Procedures Manual on the basis of an exemption for law enforcement and public safety, set out in clause 4 of Schedule 1 of the FOI Act. Senior Sergeant Dorrough gave evidence on behalf of the Respondent in that matter.

30 An appeal from that decision was dismissed: Johnston v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 82. In regard to Senior Sergeant Dorrough the Appeal Panel observed at paragraphs [24] - [25]:

24 In our view, Sgt Dorrough was sufficiently experienced and senior to be a credible witness on a question of the kind to which cl 4(1)(e) refers as it relates to traffic law enforcement instructions relating to the use of radar devices.

25 In this instance the Tribunal was satisfied that the burden was met. It gave clear reasons for accepting Sgt Dorrough's evidence.

31 The Respondent submits that disclosure of the Procedures Manual could reasonably be expected to prejudice the effective exercise of the NSW Police Force's law enforcement functions - in particular, its role in the detection and investigation of drivers exceeding the legal speed limit. Ms Tipene, Solicitor for the Respondent, submits that the words "could reasonably be expected" are to be given their ordinary meaning, as opposed to a meaning that is irrational, absurd or ridiculous. In support of that submission she relies on the decisions in Attorney-General's Department v Cockcroft (1986) 10 FCR 180; 64 ALR 97 and Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; 16 AAR 281; 108 ALR 163.

32 Ms Tipene also referred to comments that I made in my decision in Leech v Sydney Water Corporation [2010] NSWADT 298 where I summarised the applicable principles at paragraph [25]:

25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

33 Deputy President Higgins adopted this approach at paragraphs [40] to [41] in Flack v Commissioner of Police.

34 Ms Tipene submits that this calls for an objective assessment as to whether the claimed effects could be expected to arise, from the standpoint of the reasonable administrator, on the evidence before the Tribunal and the circumstances in each case. However she submits that care must be taken not to enter into a "balance of probabilities calculus". She relies on views expressed by the Tribunal's President in Neary v State Rail Authority [1999] NSWADT 107 at paragraph [35] where he stated:

An objective view must be brought to bear on an agency's claim that release will have an adverse impact ... The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - `expect' - carries a firmer connotation than words such as `anticipates', it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances.

35 The Respondent contends that disclosure of the Procedures Manual could reasonably be expected to prejudice the effectiveness of the NSW Police Force's conduct of law enforcement by use of LIDAR and/or RADAR devices. Disclosure of this information would enable members of the public to decipher areas where LIDAR/RADAR checks may not be conducted and use those areas to evade Police detection. This would effectively create "safe speed" zones where members of the public could circumvent effective law enforcement.

36 The Respondent further contends that disclosure of the Procedures Manual will enable members of the public to be able to determine when it is unsafe for Police officers to apprehend a vehicle that has been detected as exceeding the speed limit. This could encourage drivers who have been identified as exceeding the speed limit to drive at unsafe speeds so as to avoid apprehension by Police officers.

37 The Respondent submits that this will put other road users, Police officers and members of the public more broadly, at risk of harm and could reasonably be expected to prejudice the effectiveness of LIDAR and/or RADAR operations for law enforcement.

38 The Respondent submits that the public interest consideration against disclosure set out in paragraph 2(b) to the section 14 Table is designed to protect methods of preventing, detecting, investigating or dealing with contraventions or possible contraventions of the law by recognising there is a public interest against the disclosure of this information. It argues that the Procedures Manual contains specific and detailed information relating to the methods and risk factors in the methods used by Police officers in RADAR and LIDAR operations. The information is highly sensitive and of great value to operational Police officers in the course of performing their duties of public safety and law enforcement.

39 The Respondent submits that the disclosure of the Procedures Manual could reasonably be expected to prejudice the NSW Police Force's method of using LIDAR and RADAR devices to detect and enforce speed limits. If members of the community learn of certain geographical areas or conditions which impede the use of LIDAR and/or RADAR devices, drivers may exploit the opportunity to exceed the legal speed limit without fear of detection. Further, if drivers learn of those circumstances in which it is unsafe for Police officers to apprehend a vehicle that has been identified as exceeding the legal speed limit, this will encourage drivers who have exceeded the speed limit to continue to drive at unsafe speeds so as to avoid detection. This will negatively impact on the effectiveness of Police LIDAR and RADAR operations as a method of law enforcement.

40 Ms Tipene submits that the public interest considerations set out in paragraphs 2(b) and 2(d) of the section 14 Table are intended to achieve the same outcome as the provisions considered in Johnston. That is, to preserve the ongoing effectiveness of methods used by agencies, such as NSW Police Force, in preventing, detecting, investigating or dealing with actual or possible contraventions of the law and the protection of the public.

41 She argues that there is a strong public interest in ensuring law enforcement agencies are able to maintain the integrity of methods used to detect and investigate illegal behaviour. She submits that this public interest is well recognised by the Tribunal in the context of right to access information legislation.

42 In UC v Commissioner of Police, NSW Police [2005] NSWADT 272 the Tribunal considered the exemption in clause 4(1)(e) of Schedule 1 of the FOl Act in regard to whether disclosure 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. The Tribunal observed at paragraph [33]:

"... 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".

43 See also Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 at paragraph [17]. Further, in RT v Commissioner of Police, NSW Police [2005] NSWADT 270 at paragraphs [35] to [36] the Tribunal stated:

"35 ... The exemption operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods: Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231.

36 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 contravention 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".

44 The Respondent submits that the same considerations apply with respect to the application of the public interest consideration against disclosure in paragraph 2(b) to the section 14 Table. The Procedures Manual is not "commonplace" or "well known". It is not publicly available and is not widely available to Police officers other than those Police officers who require access for the performance of LIDAR and/or RADAR operations: see the Appeal Panel's comments in XZ v Commissioner of Police, NSW Police Force [2009] 11 NSWADTAP 2 at paragraph [21].

45 Further, the Respondent submits that notwithstanding the Applicant has identified documents relating to speed camera, LIDAR and RADAR operations in other jurisdictions, the content of the Procedures Manual remain confidential to the Respondent and there is a strong public interest against their disclosure.

46 Ms Tipene argues that there is a difference between general information about law enforcement operations being known to members of the community and the disclosure of a law enforcement agency's own policy or method of law enforcement. She referred to the Administrative Appeals Tribunal decision in Re Raymond John Mickelberg and Australian Federal Police [1986] AATA 199 (22 July 1986) in respect of the equivalent provision of the Commonwealth Freedom of Information Act 1982 which cited with approval the decision in Re Timothy Edward Anderson and Australian Federal Police [1986] AATA 79 (21 March 1986) that:

"... Thus, the disclosure of a document containing information that, on the face of it, is purely factual, may nevertheless be information known only to a chosen few members of a particular group. To reveal that information ... may equally serve to confirm what may otherwise be suspected, namely the methods or procedures for preventing or detecting possible breaches or evasions of the law employed by the Police in order to meet a perceived threat. I agree, in this regard, with the views expressed by a different constituted Tribunal in Re Mickelberg and Australian Federal Police (1984) 6 ALN N176 where it was said that:

"... it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies' own documents or in the proceedings of a Tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them"".

47 The Respondent submits that the Applicant's access to documents that generally relate to speed camera, LIDAR and RADAR operations in other jurisdictions does not diminish the significant public interest in the Procedures Manual being protected from disclosure to the public because of the prejudicial effect of disclosure on law enforcement.

48 The Respondent submits that disclosure of the Procedures Manual will prejudice the lawful method and procedures used by Police officers in protecting both Police officers performing LIDAR and RADAR operations and the safety of the public (in particular, road users). It says that the procedure set out in the Procedures Manual for detecting and apprehending drivers exceeding the speed limit ensures the safety of other Police officers, road users, and the public disclosure of the Procedures Manual could reasonably be expected to prejudice the effectiveness of the LIDAR/RADAR operations in speed detection and enforcement and will ultimately impact on the effectiveness of these operations to ensure public safety.

49 Ms Tipene submits that the public interest consideration set out in paragraph 2(d) of the section 14 Table is similar to the exemption contained in clause 4(1)(f) of Schedule 1 to the FOI Act in that both the public interest consideration against disclosure, and the exemption, are designed to preserve methods or procedures for protecting the safety of the public.

50 The equivalent provision of the Commonwealth Freedom of Information Act has been considered by the AAT on a number of occasions. In Re Thiess and Department of Aviation (1986) 9 ALD 454 at paragraph [37] the AAT found that "'public safety' in section 37(2)(c) does not extend beyond safety from violations of the law and breaches of the peace". Further, in Re Parisi and Australian Federal Police (1987) 14 ALD 11 at paragraph [25] the AAT stated:

"In our view the words "public safety" ought not to be confined to any particular situation. They would certainly not be confined to what might be described as civil emergencies, such as bushfires or floods.... They should not be confined in our view even to court cases involved in the enforcement of lawful methods ...".

51 The Respondent submits that the Procedures Manual concerns a law enforcement procedure that enables the safe and effective conduct of LIDAR and RADAR operations. Further, it submits that the safe and effective conduct of LIDAR and RADAR operations has the effect of ensuring the health and safety of Police officers conducting LIDAR and/or RADAR operations in accordance with the Procedures Manual, and ensuring the safety of road users and the general public. It contends that disclosure of the Procedures Manual could reasonably be expected to endanger the public, because the NSW Police Force's ability to effectively police and enforce the speed limit may be impeded.

The Applicant's case

52 The Applicant argues that the Respondent's decision to refuse his request is unacceptable, against the public interest and outside the rule of natural justice. He relies on the fact that the Queensland manual, the Victorian manual and the Tasmania manual are publicly available as support for his submission that the Respondent's case is without merit.

53 He submits that as the Police Forces of Queensland, Victoria and Tasmania publish their respective operations manuals on their web sites, making them totally, easily and freely available to the general public, it is apparent that those organisations do not agree with the Respondent's argument that knowledge of police protocols would enable citizens to "circumvent police systems".

54 He further submits that while there is a lack of conformity in describing the devices, the protocols relating to all the speed detection devices are very similar. He argues that it can be safely assumed that they were drawn up in conjunction with the various manufacturers to safeguard the motorist from unfair site locations.

55 The Applicant argues that the public is entitled to expect that Police are open and accountable in all their undertakings. He says that the Forces of Queensland, Victoria and Tasmania agree with this axiom. However, he submits that the NSW Police Force demands that it is allowed to continue to operate as a secret society and only those within that Force may be privy to their protocols.

56 He submits that the NSW Police Force is taxpayer funded, answerable to the public, and not a secret society. As such the public are entitled to have free access to the protocols employed by the police in our service.

He further submits that little weight should be given to the evidence of Senior Sergeant Dorrough as he is a time served police officer and it is in his interest to maintain the status quo. He contends that the argument that public knowledge of the regulations regarding the placement of speed detection devices will allow motorists to "circumnavigate" the system is absurd. He also disagrees that there is any practical difference between different types of speed detection devices. He argues that they are all designed to do the same job.

57 He further submits that information available on the internet suggests that a copy of the Procedures Manual is already held by an organisation "police speed camera.info". He submits that if that claim is correct then the Procedures Manual ceases to be a secret internal document.

Discussion

58 I agree with the Respondent that the cases decided under the FOI legislation are of some assistance in this matter to the extent that they have dealt with similar information and similar terminology. However, as has been noted, each case must be decided on its own facts.

59 It is necessary that I weigh the public interest considerations against disclosure against the public interest considerations in favour of disclosure. This is done in the context in which section 12 of the GIPA Act states that there is a general public interest in favour of disclosing government information.

60 I note the Appeal Panel comments in Johnston in regard to Senior Sergeant Dorrough. Senior Sergeant Dorrough has extensive experience in regard to speed detection devices. I note his evidence in regard to the differences between the devices and I also note that the Applicant has disputed that evidence. The Applicant has not provided any evidence in support of his assertion that there is no practical difference between different types of speed detection devices. In the circumstances I accept Senior Sergeant Dorrough's evidence on that point.

61 I also accept Senior Sergeant Dorrough's evidence in regard to the Respondent's use of the Procedures Manual.

62 However, I am not persuaded that the disclosure of the information could reasonably be expected to have the consequences that the Respondent contends. I accept that some risk exists that the effects outlined might follow from the disclosure.

63 I accept that the risk that the procedures may be less effective could be increased if a person endeavouring to evade them has access to the Procedures Manual.

64 I also accept that the risk of danger referred to in the section 14 Table (2)(d) includes danger to Police officers conducting these procedures.

65 However, I am not persuaded that there is more than a mere risk. I do not accept that it "could reasonably be expected" to lead to those consequences asserted by the Respondent.

66 [Not to be disclosed to the Applicant or the public]

67 I also note that copyright is asserted in regard to the Procedures Manual and accordingly the use to which the Applicant may put the Procedures Manual is therefore restricted.

68 I accept that there are significant differences between the content of the Procedures Manual and that of the Queensland manual, the Victorian manual and the Tasmania manual. Notwithstanding those differences, in my view it is reasonable to expect that the same degree of risk would be associated with the availability of those manuals, in those other States, as would exist if the Procedures Manual were released. No evidence has been provided to suggest that the availability of those manuals has had any affect on the effective exercise of the functions of Police forces in those states, that it has prejudiced the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, or that it has endangered, or prejudiced any system or procedure for protecting, the life, health or safety of any person.

69 As noted above, it is necessary to weigh the public interest considerations against disclosure that have been identified by the Respondent and those in favour of disclosure and to determine where the balance lies.

70 On the evidence before me I am not persuaded that the risks associated with the release of the Procedures Manual are such that there is an overriding public interest against disclosure of the Procedures Manual.

71 In my view, the correct and preferable decision is that the Procedures Manual should be released. Accordingly the decision is set aside.

72 In the circumstances, it is appropriate that the Procedures Manual should not be released until after the period for lodging any appeal has expired.

Order

1. The decision under review is set aside.

2. The decision is made that the document entitled "Standard Operating Procedures Stationary Speed Enforcement - LIDAR & RADAR" dated March 2007 is to be released to the Applicant.

3. This order is to take effect 28 days from the date of this decision

**********

Amendments

11 June 2013 - Orders set aside on appeal, by consent. See [2013]NSWADTAP 6

Decision last updated: 11 June 2013