Search This Blog

Tuesday, February 24, 2009

Exemption arguments dry up on the steps of the Tribunal.

Since July last year I have been representing the Sydney Morning Herald in two appeals to the NSW Administrative Decisions Tribunal against decisions by the NSW Police to refuse access under the Freedom of Information Act to the names of licensed premises and other details of incidents recorded in a data-base developed as part of the Alcohol Linking Program.

The appeals-one application goes back to 2006,the other to an application for similar information made last year- were scheduled for hearing in March after much procedural delay. The Herald withdrew both last week after the Police agreed to release all the information in dispute. The Australian Hotels Association (NSW) who had been joined in the proceedings as an interested party and who claimed its members business interests were involved had withdrawn from the case a couple of months earlier.

The SMH reported on what was revealed on Saturday-here's the quick summary:

"Assaults involving drinkers from pubs and clubs are running at levels up to twice those of official government figures, according to information contained in a confidential state-wide police database.The database of 77,000 crimes and other incidents, obtained by the Herald after a three-year fight using freedom-of-information laws, details 13,086 separate assaults involving drinkers from pubs and clubs in the 11 months to last July."

The related coverage section in the link includes the complete 9mb data-base with information on all the hotels and clubs involved, and separately other details ranking the clubs and hotels according to the number and type of incidents, and the levels of intoxication of the person concerned. Check out your locals!

Matthew Moore in his column on Saturday gave some background on the applications and the Police exemption claims: that the names of the venues and other details of incidents, if disclosed, could be expected to prejudice investigation of possible contraventions of the law and prejudice the effectiveness of methods for preventing or detecting possible contraventions of the law; and that the names of the venues was information concerning business affairs of the clubs and hotels and disclosure would have an unreasonable adverse effect on those affairs or prejudice the future supply of this type of information

The Police submitted three affidavits, each replacing the other, from officers involved in the program (the first officer went to work for the AHA after his affidavit had been lodged, the second went on long sick leave and wouldn't be back until after the hearing originally scheduled for January) outlining why in their opinion the Program would collapse through lack of co-operation from hotels if this information was disclosed; why they wouldn't be able to investigate incidents or conduct secret audits of named hotels; and why the game would be up for the Random Breath Testing program because motorists would twig to likely places where they would encounter a RBT unit. NSW Police also supported three affidavits from publicans who pointed out instances where the data unfairly had worked against hotels that reported incidents on or nearby their premises, and who claimed that the value of their hotels would suffer if this information linking them to incidents was disclosed. (The RBT and business affairs claims were shelved towards the end)

We were prepared to argue that the Police evidence didn't substantiate the claims of adverse effects of disclosure on their investigations or methods, particularly in the light of changes in NSW Government policy enacted last year, including the public naming of the 48 top problem hotels, which meant that any adverse effect on co-operation from hotels had already occurred. At this stage some of the information is almost three years old. We submitted that the Police had not made the case that information would dry up, given the fact that no-one is compelled to tell the Police when questioned where they had last had a drink. The business affairs exemption claim had always seemed particularly weak as the information revealed nothing remotely like the sensitive commercial information contemplated by the exemption.

We had also been prepared to argue that should the Tribunal find for the Police on the exemptions regarding adverse impact on their operations, the public interest override powers should be exercised to order disclosure, and relied on affidavits in support regarding the importance of access by a community activist on alcohol related issues, a local government leader and a prominent academic with research interests in this field.That was until two decisions by the Tribunal Appeal Panel in December that suggested the Tribunal had no such powers when cabinet documents and law enforcement documents were concerned.We were still developing arguments to contest this when out of the blue the Police indicated they were prepared to release everything as long as the Sydney Morning Herald agreed to withdraw and not seek an order for costs. After three years the Herald was happy to do the deal.

Just how many last minute concessions of this kind by government agencies take place in the shadows of the Tribunal steps we don't know as the Tribunal does not publish statistics or comment on the topic. My bet is quite a lot- all at great expense to the NSW taxpayer who funds the agency preparations, often as in this case, involving a major law firm which doesn't come cheap; to the applicants who initiate the proceedings; and to the taxpayer again who pays for the time spent by Tribunal members on matters that end up resolving themselves.

Everyone concerned would be better off if, rather than seeing the light at half a minute to midnight at the Tribunal, agencies improved judgment right back at the beginning of the process reflecting the public right to know about programs carried out ostensibly for our benefit and about what is being achieved, qualified only where there are real prospects of harm to important public and legitimate personal or business interests.


  1. These settlements on the steps of the Tribunal or even after many interlocutory hearings have taken place can be viewed in two lights. One is that at the last second someone with some clearer vision has stepped in and blown the "stop this" whistle. In most state government cases this is either a senior Minister or such a person and a more recently briefed and less partisan barrister. The internal departmental people get afraid of making a decision to release in many cases, more so when the politics are so murky. Everyone knows the liquor industry is a major Labor Party source of donations. Many former senior Labor figures are or have been involved in pubs. Interal legal, FoI and other advisers would know only too well the career limiting [or even terminating] move associated with an decision to release this material. The less professionally dangerous path is to say 'no' to disclosure so when eventually the decision to release is made, it is by someone who is not reliant on continued paid employment in the Public Service is to leave the controversial decisions to outside legal Counsel, an MP and/or an external Tribunal. There are of course, massive incidental costs to the FoI applicant when their application is allowed to be managed in this fashion. Sometimes those costs are used as a deterrent and other times it is simply collatoral damage to save people's careers.

  2. George- I'm sure the points you raise are factors that mitigate against disclosure in many instances.I think the more instances like this are exposed publicly the better. Someone should be asking how much time and public money was chewed up in the process.The Tribunal and the Ombudsman should also be bringing to ministerial and public attention examples of matters where the applicant gets the run around only to get substantial concessions at the last gasp. And there should be some scope for costs in the most serious cases-now only available in tightly defined special circumstances.At the end of the day the much awaited culture change is the only and best hope.