There will be some unhappy faces in Victoria Police, from Acting Chief Commissioner down to the FOI and legal officers involved in handling the application for the Safe Streets reports the subject of the investigation report by Victorian Ombudsman George Brouwer tabled in Parliament 1 September 2011. The report notes their disagreement with aspects of his findings and criticisms. Notwithstanding, the Acting Chief Commissioner accepted the recommendations-for an apology to Michael McKinnon of Seven Metwork for what had happened in processing the application, for some changes in approach to processing requests in Victoria Police, and for additional training concerning the conduct of internal review, and the Model Litigant Guidelines.
Some of the Ombudsman's observations about process generally and in this case in particular have relevance beyond the police, and beyond Victoria.
From the Executive Summary:
The Freedom of Information Act 1982 (the FOI Act) was intended to be interpreted in an open manner, reflecting a willingness to disclose information... Often, however, I have seen that the practices in agencies have not been consistent with this intention......The investigation identified poor practices and a less than open Freedom of Information attitude at Victoria Police. This can be seen from a series of errors in the handling of the request which include:
• a poor decision making process which involved a willingness to apply exemptions without sufficient material to justify those exemptions, .. without giving serious consideration as to whether Victoria Police could prove its position if tested, and a poor internal review process which did not properly review the initial decision
• a preparedness to conduct litigation without complying with the Model Litigant Guidelines.
The Initial decision
When told by an officer who had the documents "They’re secret. You can’t see them and I’ll tell you about them so you can apply the exemption"
34. The primary decision maker advised my investigators that he accepted that approach and did not press the Executive Advisor to see the documents. I consider that this was an error. The primary decision maker was performing a statutory function which requires him to assess documents against the assessment criteria in the FOI Act. It is not possible to perform that function without seeing the documents and their content. Accepting another’s word about the content and nature of the documents is not satisfactory.
On forming a view about the status of documents:
45. I consider that the analysis by the primary decision maker was unsatisfactory. The primary decision maker remains of the view that the SafeStreets documents were Cabinet documents. However, I consider that the results of his investigations and enquiries provided insufficient basis to claim that they were exempt pursuant to either section 28(1)(b)(cabinet documents) or section 30(1) (internal working documents) and, in my view, the evidence before him and his reasoning as at June 2010 did not justify refusing access to the documents.
Internal review
48. The process adopted in relation to the internal review was equally flawed. The internal reviewer relied on legal advice in conducting the review. That advice, dated 9 August 2010 incorporated a draft letter of decision. The internal reviewer adopted that advice and signed the draft letter on 10 August 2010. In my view, that advice was inadequate
49. To be a valid internal review, The internal reviewer was required by section 51(3) of the FOI Act to ‘review the decision and to make a fresh decision on the original application’. This, as Judge Dove VP in Towie v. Medical Practitioners Board (Vic)4 put it, requires ‘the decision-maker to conduct a review de novo and come to a decision unrestrained by any findings made by the initial decision-maker’...
52. In addition, the form of the letter that was provided with the advice was inadequate in that in that it failed to provide any reasons. Freedom of Information Practice Note 8: Decision Letters issued by the Department of Justice provides as follows:
"7. Is a statement of reasons needed for internal review decisions? Although section 27 does not apply to decisions on internal review, it is sound administrative practice for any statement of reasons to contain the types of matters referred to in section 27."
It is unfortunate that the internal reviewer was not advised to follow this sound administrative practice.
VCAT proceedings
55. On 19 October 2010, Mr Ron Gipp, Victoria Police’s barrister, orally advised Victoria Police’s solicitors, that ‘s.30 [was] difficult’ and that Victoria Police was ‘likely to lose’ on the public interest override provided for by section 50(4) of the FOI Act.6 Victoria Police paid little or no attention to that advice. It should have raised issues concerning the application of the Model Litigant Guidelines to this matter
57. Given Mr Gipp’s oral advice and consistent with the Guidelines, Victoria Police should have either:
• sought Mr Gipp to clarify his advice by written advice
• not sought to pursue the section 30 exemption, or
• formed a view as to why a section 30 argument should be presented despite Mr Gipp’s advice that Victoria Police was likely to lose.
58. It did none of those things, although my investigators were informed by Legal Officer B that the primary decision maker was advised of Mr Gipp’s advice. However, nothing indicates that this factor was considered in Victoria Police’s decisions in November 2010, December 2010 or January 2011.
59. By early November 2010, it was also apparent that it was not possible to locate witnesses to support a claim of exemption under section 28, with the result that Legal Officer B, after conferring with Mr Gipp of counsel and obtaining instructions from the primary decision maker, advised Mr McKinnon on 4 November 2010 that section 28 would not be relied on.
60. Had the Guidelines been seriously considered, Victoria Police would have had to face the question as to whether the documents should have been released in full as at 4 November 2010, once Victoria Police accepted and advised that it no longer would rely on section 28. That it failed to do so indicates a failure on the part of Victoria Police and its internal advisers to appreciate the significance and importance of the Model Litigant Guidelines and their application to Freedom of Information litigation.
Comments on all this from those involved follow in the report.
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