JJK v SA POLICE [2023] SASCA 73

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE MCDONALD) CIV-22-000444 Applicant: JJK Counsel: MR A TOKLEY KC WITH MR P BATLEY - Solicitor: PETER O’BRIEN, O’BRIEN CRIMINAL & CIVIL SOLICITORS Respondent: SA POLICE Counsel: MR T GOLDING KC WITH MS E FERGUSON - Solicitor: FIONA MCDONALD, CROWN SOLICITOR’S OFFICE Hearing Date/s: 13/06/2023 File No/s: CIV-22-14231 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. JJK v POLICE [2023] SASCA 73 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David) 29 June 2023 ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS CONCERNING THE OPERATIONS OF AGENCIES ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS SUBJECT TO CLIENT LEGAL PRIVILEGE ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL The applicant applied under s 13 of the Freedom of Information Act 1991 (SA) (FOI Act) for a range of documents relating to an incident involving the applicant and two SA Police officers on 22 December 2019 (the FOI application). The respondent determined not to release any documents falling within the scope of the FOI application, on the basis that they were ‘exempt documents’ under cl 12 of Schedule 1 of the FOI Act, by reason that their disclosure would constitute an offence against s 45 of the Police Complaints and Discipline Act 2016 (SA) (PCD Act). Following an internal review, this determination was upheld. The applicant applied for external review by SACAT, pursuant to s 40 of the FOI Act and s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA). The applicant argued; first, that disclosure would not constitute an offence under s 45(1) of the PCD Act because the applicant had a right to disclosure of the documents under s 12 of the FOI Act, and hence disclosure was ‘required or authorised by this or another Act’ for the purposes of s 45(2)(f) of the PCD Act; and secondly, that the protection provided by s 45(1) (and s 45(3)) expires once the relevant complaint and investigation have been finalised. -- 1 of 29 -- The Member rejected the first argument on the basis that the “legally enforceable right” to access to documents under s 12 of the FOI Act is a right to be given effect “in accordance with this Act”, and hence subject to the various restrictions upon that right contained within the FOI Act. The second argument was accepted by the Member. Accordingly, he set aside the decision under review and referred the matter back to SA Police for reconsideration. SA Police appealed to a single judge of this Court. In that appeal, the applicant conceded that the Member erred in law in his construction of s 45 of the PCD Act; that there is no textual or contextual support for reading in a temporal expiration of that section. However, the applicant maintained that disclosure would not have been an offence against s 45(1) of the PCD Act because the FOI Application did not call for disclosure by a person who ‘is or has been engaged in the administration of’ the PCD Act. Accordingly, the documents were not ‘exempt documents’ within the meaning of the FOI Act. The single judge rejected the construction advocated for by the applicant. Accordingly, her Honour allowed the appeal and set aside the Member’s decision. The applicant seeks permission to appeal to this Court on two grounds, contending that the primary judge erred in wrongly deciding: 1. that officers of SA Police processing the applicant’s application were persons who were, or had been, “engaged in the administration” of the PCD Act, such that it would be an offence under s 45 of the PCD Act to disclose to the applicant the documents sought; and 2. that it would be an offence under s 45 of the PCD Act for officers of SA Police to disclose to the applicant information generated in the course of ordinary policing activities on the basis that the information had been subsequently considered by the IIS in the course of the processing of a complaint under the PCD Act. Held (per the Court), granting permission to appeal but dismissing the appeal: 1. an FOI officer responding to a request for documents containing information about a complaint made under the PCD Act is a person engaged in the administration of that Act. The language of s 45(1) is broad and flexible, protecting from disclosure by any person “engaged in the administration” of the PCD Act; 2. section 45(1) applies to disclosure of “information” as opposed to documents. The prohibition upon disclosure under s 45 relates to the information, regardless of the means by which, or location in which, it is recorded or retained. Freedom of Information Act 1991 (SA) ss 3, 3A, 4 12, 13, 19, 20, 29, Sch 1 cl 12(1), Sch 2; Independent Commissioner Against Corruption Act 2012 (SA) s 54; Legislation Interpretation Act 2021 (SA) s 19(1); Police Act 1988 (SA) s 19; Police Complaints and Discipline Act 2016 (SA) ss 5, 6, 8, 10, 13, 14, 30, 44, 45, 46, 48; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 34, referred to. Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469; Bell v The Queen (2020) 286 A Crim R 501; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; News Corporation Ltd v National Companies & Securities Commission (No 4) (1984) 1 FCR 64; Police v JK [2022] SASC 144; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Victorian Public Service Board v Wright (1986) 160 CLR 145; White v State of South Australia (2007) 96 SASR 581, considered. -- 2 of 29 -- JJK v POLICE [2023] SASCA 73 Court of Appeal – Civil: Lovell, Doyle and David JJA 1 THE COURT: The applicant seeks permission to appeal from the decision of a single judge of this Court.1 2 The effect of the single judge’s decision was to allow an appeal from a decision of a member of the South Australian Civil and Administrative Tribunal (SACAT), and to uphold or restore a decision of SA Police to refuse access to documents that had been requested by the applicant under the Freedom of Information Act 1991 (SA) (the FOI Act). The basis for refusing the request was that the documents sought were exempt from disclosure under cl 12(1) of schedule 1 of the FOI Act by reason that disclosure of them would constitute a criminal offence under s 45 of the Police Complaints and Discipline Act 2016 (SA) (the PCD Act). Background 3 On 22 December 2019, there was an incident involving the applicant and two SA Police officers in Coober Pedy. On 15 January 2020, the applicant made a complaint about the conduct of the two police officers. The complaint was assessed under ss 13 and 14 of the PCD Act. On 29 January 2020, Chief Inspector Paul Isherwood, from the SA Police Internal Investigation Section, wrote to the applicant, advising her that her complaint had been assessed, that the conduct of the officers had been found to be appropriate in the circumstances, and that the complaint file would be closed. 4 On 4 June 2021, the applicant made an application under s 13 of the FOI Act for access to various documents within SA Police records. The application sought disclosure of the following categories of documents: 1. The COPS database event related to the arrest, detention of [the applicant] on 22 December 2019 at the Painters Road Coober Pedy at approximately 12.30am by the South Australian Police Force officer Constable [redacted] (‘the incident’). 2. Inspection or a copy of audio or visual footage, such as BWV footage or CCTV footage, held or obtained by the South Australian Police in relation to the incident; 3. Police notebook entries completed by the South Australian Police Force in relation to the incident; 4. Use of force forms held by the South Australian Police Force in relation to the incident; 5. Inspection or copy of in-car video footage held by the South Australian Police Force in relation to the incident, depicting [the applicant] and/or South Australian Police Force officers; 1 Police v JK [2022] SASC 144. -- 3 of 29 -- [2023] SASCA 73 The Court 2 6. A copy of any complaints submitted to the South Australian Police Force regarding the conduct of the South Australian Police Force in detaining, arresting, prosecuting or otherwise dealing with [the applicant] during the course of the incident; 7. Custody management records in relation to [the applicant] on 22 December 2019; 8. CAD Incident Log for the South Australian Police Force attending the incident; 9. Police VKG radio (in all available formats) from 22 December 2019 referring to the incident and/or: 1. Police vehicle LAC 2. Constable [redacted] and/or other police officers involved on 22 December 2019 10. Any Witness Statements or notes taken in order to prepare witness statements in relation to the incident; 11. Police Brief of Evidence (including any court report, subpoena, affidavit of service or other information); 12. Warnings in relation to the Plaintiff relevant as of 22 December 2019. 5 As mentioned, this request for access to documents under the FOI Act was refused on the basis that the documents sought were exempt from disclosure under cl 12(1) of schedule 1 of the FOI Act by reason that disclosure of them would constitute a criminal offence under s 45 of the PCD Act. However, before coming to address SA Police’s response to the request for access in more detail, it is convenient to interrupt the narrative at this point to summarise the relevant provisions of the FOI Act and PCD Act. The FOI Act 6 By way of overview, the FOI Act creates a right of access to information held by government agencies, defines exemptions from access documents of certain kinds, imposes obligations on agencies in relation to the determination of applications for access to documents, gives qualified rights to members of the public to amend information about them contained in records held by government agencies, and provides internal and external review processes for decisions relating to access to documents and amendment of information. 7 The objects and principles governing the administration of the FOI Act are set out in ss 3 and 3A: 3—Objects (1) The objects of this Act are, consistently with the principle of the Executive Government's responsibility to Parliament— (a) to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and -- 4 of 29 -- [2023] SASCA 73 The Court 3 (b) to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies. (2) The means by which it is intended to achieve these objects are as follows: (a) ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and (b) conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and (c) enabling each member of the public to apply for the amendment of such government records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading. (3) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law. 3A—Principles of administration (1) It is the intention of the Parliament— (a) that this Act should be interpreted and applied so as to further the objects of this Act; and (b) that a person or body exercising an administrative discretion conferred by this Act exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals. (2) Agencies are to give effect to this Act in a way that— (a) assists members of the public and Members of Parliament to exercise rights given by this Act; and (b) ensures that applications under this Act are dealt with promptly and efficiently. 8 The essential right to access documents held by a government agency is contained in s 12: 12—Right of access to agencies’ documents A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act. -- 5 of 29 -- [2023] SASCA 73 The Court 4 9 It can immediately be seen that a person’s right to access an agency’s documents is qualified in the sense that it is a right to access documents “in accordance with this Act”. As elaborated upon below, there is no presumption in favour of disclosure, nor is there a presumption against disclosure. The extent of a person’s right to access documents falls to be determined by reference to the terms of the FOI Act. 10 An “agency” for the purposes of the FOI Act is defined in s 4 to include a Minister, a person holding a statutory office, an administrative unit of the Public Service, a council, a statutory body that exists for a public purpose, a person or body declared by regulations to be an agency, and, relevantly for present purposes, the SA Police. The definition of agency expressly excludes an “exempt agency”, which in turn is defined to mean a body or person referred to in schedule 2 of the Act (see below), or otherwise declared by regulation to be an exempt agency. 11 An application for access to an agency’s documents may be made under, and in accordance with, s 13. The application is then dealt with under s 14. Under s 14, the application must be dealt with on behalf of an agency by an accredited FOI officer of that agency, and must be dealt with as soon as practicable (and, in any case, within 30 days) after it is received. 12 Section 19 provides that, after consideration of an application for access to a document, the agency must determine whether to permit access, and any charge payable in respect of access. 13 Section 20 sets out the circumstances in which an agency may refuse to provide access to a document held by that agency: 20—Refusal of access (1) An agency may refuse access to a document— (a) if it is an exempt document; or (b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge; or (c) if it is a document that is usually and currently available for purchase; or (d) if it is a document that— (i) was not created or collated by the agency itself; and (ii) genuinely forms part of library material held by the agency; or (e) if it is a document that came into existence before 1 January 1987. (2) … -- 6 of 29 -- [2023] SASCA 73 The Court 5 (4) If— (a) it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and (b) it appears to the relevant agency (either from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy, the agency must not refuse to give access to the document to that limited extent. 14 It is to be noticed that s 20(1) entitles an agency to refuse access to a document if it is an exempt document. Under s 4, “exempt document” is defined to mean a document that is an exempt document by virtue of schedule 1. 15 Schedule 1 sets out various categories of documents that are “exempt documents” for the purpose of the FOI Act. These include categories such as cabinet documents; executive council documents; intergovernmental communications; documents affecting law enforcement and public safety; documents relating to the internal workings of the Government, a Minister or an agency; documents subject to legal professional privilege; documents relating to judicial functions or the proceedings of a court or tribunal; documents the subject of secrecy provisions (see below); documents containing confidential information; documents affecting the economy of the State; documents affecting the financial or property interests of the State or an agency; documents concerning the operations of an agency; documents containing matter the disclosure of which would involve a contempt; documents arising out of companies and securities legislation; and private documents in public library or archival collections. 16 Relevantly, cl 12 of schedule 1 provides: 12—Documents the subject of secrecy provisions (1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act. (2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is made, would constitute such an offence. 17 SA Police relied upon this provision in refusing to provide the applicant with the documents she requested. 18 It is noteworthy that in addition to the categories of exempt documents listed in schedule 1, schedule 2 lists various agencies as exempt agencies. This list is wide ranging and includes the Independent Commissioner Against Corruption, the Office for Public Integrity, the Auditor-General, and the Ombudsman. Also -- 7 of 29 -- [2023] SASCA 73 The Court 6 included within the list of exempt agencies (paragraph (p) of schedule 2) are various sections of SA Police:2 (p) South Australia Police in relation to information compiled by— (i) the former Special Branch; or (ii) the former Operations Planning and Intelligence Unit; or (iii) the Operations Intelligence Section (or a body substituted for the Operations Intelligence Section); or (iv) the Anti-Corruption Branch (or a body substituted for the Anti-Corruption Branch); 19 The general right of access to documents under s 12 of the FOI Act does not apply to these exempt agencies. The PCD Act 20 The PCD Act establishes a regime by which complaints about the conduct of members of SA Police can be made and investigated, and allegations of unlawful conduct or breaches of discipline determined. 21 Part 1 of the PCD Act addresses various preliminary matters, and provides for the establishment of: a separate section within SA Police (the Internal Investigation Section or IIS) to carry out investigations under the Act into the conduct of designated officers (which is defined to include members of SA Police) (s 5); a complaint management system to record information relating to complaints under the PCD Act (s 6); and a code of conduct for designated officers. It also sets out the powers of the Office of Public Integrity (OPI) in overseeing complaints, and the operation and enforcement of the PCD Act. 22 As for the structure of the balance of the PCD Act, Part 2 governs the making of complaints and reports; Part 3 provides for the resolution of certain matters by management resolution; Part 4 provides for formal proceedings for breaches of discipline; Part 5 provides for oversight by the OPI; Part 6 provides for appeals; and Part 7 establishes the Police Disciplinary Tribunal and defines its powers and procedures. 23 Part 8 of the PCD Act addresses various miscellaneous matters, including, relevantly for the purposes of this case, a confidential regime provided for in ss 44, 45 and 46: 44—Limitation on requirement to divulge information Despite any other Act or law, a person who is, or who has been, engaged in the administration or enforcement of this Act or the repealed Act cannot be required to divulge 2 Freedom of Information Act 1991 (SA) sch 2 (p). -- 8 of 29 -- [2023] SASCA 73 The Court 7 information disclosed or obtained in the course of an investigation under this Act or the repealed Act except where such a requirement is made— (a) in proceedings before a court or the Tribunal in respect of— (i) an offence; or (ii) a breach of discipline, relating to a matter the subject of the investigation; or (b) in proceedings under the Royal Commissions Act 1917; or (c) by the ICAC or the OPI; or (d) by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order. 45—Confidentiality (1) Except as required or authorised by this Act or by the Commissioner, the ICAC or the OPI, a person who is or has been engaged in the administration of this Act must not, directly or indirectly, disclose information in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment or investigation under this Act. Maximum penalty: $2 500 or imprisonment for 6 months. (2) Despite subsection (1), a person engaged in the administration of this Act may disclose information— (a) for the purposes of the administration or enforcement of this Act; or (b) for the purposes of a criminal proceeding or a proceeding for the imposition of a penalty; or (c) for the performance of the functions of the Commissioner, the ICAC or the OPI under another Act; or (d) in accordance with an order of a court; or (e) if the information relates to the person and is disclosed by the person to a close family member of the person; or (f) as otherwise required or authorised by this or another Act. (3) A person who receives information knowing that the information is connected with a matter that forms or is the subject of a complaint, report, assessment or investigation under this Act must not disclose that information unless— (a) the person is authorised in writing by the Commissioner, the ICAC or the OPI, or by a person approved by the Commissioner, the ICAC or the OPI, under this section to give an authorisation; or -- 9 of 29 -- [2023] SASCA 73 The Court 8 (b) the disclosure of that information is for the purpose of— (i) dealing with a matter under this Act by the Commissioner, or under this or the Independent Commission Against Corruption Act 2012 by the ICAC or the OPI; or (ii) a criminal proceeding, a proceeding for the imposition of a penalty or disciplinary action; or (iii) a person obtaining legal advice or legal representation or for the purposes of determining whether a person is entitled to an indemnity for legal costs; or (iv) a person obtaining medical or psychological assistance from a medical practitioner or psychologist. Maximum penalty: $2 500 or imprisonment for 6 months. (4) … 46—Publication of information and evidence (1) A person must not, except as authorised by the Commissioner, the ICAC, the OPI or a court hearing proceedings for an offence against this Act, publish, or cause to be published— (a) information tending to suggest that a particular person is, has been, may be, or may have been, the subject of a complaint, report, assessment or investigation under this Act; or (b) information that might enable a person who has made a complaint or report to be identified or located; or (c) the fact that a person has made or may be about to make a complaint or report; or (d) information that might enable a person who has given or may be about to give information or other evidence under this Act to be identified or located; or (e) the fact that a person has given or may be about to give information or other evidence under this Act; or (f) any other information or evidence publication of which is prohibited by the Commissioner, the ICAC or the OPI. Maximum penalty: (a) in the case of a body corporate—$150 000; (b) in the case of a natural person—$30 000. (2) In this section— publish means publish by— -- 10 of 29 -- [2023] SASCA 73 The Court 9 (a) newspaper, radio or television; or (b) internet or other electronic means of creating and sharing content with the public or participating in social networking with the public; or (c) any similar means of communication to the public. 24 Relevantly for the purposes of the present case, ss 44 and 45 are expressed as applying to a person who is “engaged in the administration or enforcement of this Act”. 25 Section 44 prevents such a person from being required to divulge information disclosed or obtained in the course of an investigation under the PCD Act, except in the listed circumstances (being essentially where the requirement is imposed by a court, Royal Commission, the ICAC or the OPI). 26 Section 45(1) makes it an offence for such a person to disclose information in relation to a matter that forms or is the subject of a complaint or investigation under the PCD Act, except as required or authorised under the PCD Act or by the Commissioner, the ICAC or the OPI. 27 The operation of s 45(1) is qualified, however, by s 45(2), which provides that such a person may disclose information for certain listed purposes (being essentially for the purposes of the PCD Act, court proceedings or performance of the functions of the Commissioner, ICAC or the OPI). 28 Section 45(3) provides a second layer of protection for information connected to a matter that forms or is the subject of a complaint or investigation under the PCD Act. It applies to a person who receives information knowing it is information of this nature, and prevents them from disclosing that information otherwise than with an authority under s 45(3)(a), or for the limited purposes listed under s 45(3)(b). 29 Section 46 prevents the publication of certain information relating to complaints or investigations under the PCD Act, except as authorised by the Commissioner, the ICAC, the OPI or a court hearing proceedings for an offence under the PCD Act. 30 The confidentiality regime provided for in ss 44, 45 and 46 is plainly intended to serve a range of important and well recognised purposes and interests that arise under the PCD Act. In considering the confidentiality provisions of the predecessor to the PCD Act3 in White v State of South Australia,4 Doyle CJ summarised the relevant purposes and interests:5 I have already referred to the fact that the CDP Act has a number of provisions that emphasise the confidential aspect of investigations undertaken by the PCA and by the 3 Police (Complaints and Disciplinary Proceedings) Act 1985 (SA), s 48. 4 White v State of South Australia (2007) 96 SASR 581. 5 White v State of South Australia (2007) 96 SASR 581 at [46]-[47] (Doyle CJ). -- 11 of 29 -- [2023] SASCA 73 The Court 10 internal investigation branch under the CDP Act. There are no doubt a number of reasons for this. First, there may be a need to protect complainants. Confidentiality may also be required to encourage complainants to come forward, in the knowledge that their complaint will be treated as confidential. In some cases there will be a need for the fact of investigation, and its scope, to be kept confidential. If it is not, the persons under investigation might have the opportunity to destroy or to conceal relevant material, or to put their heads together. An investigation under the CDP Act will usually involve the scrutiny of the internal operations of the police force, and there may be aspects of this that should be treated as confidential. There may also be a need to keep confidential the investigation methods used by the internal investigation branch. It is also possible that disclosure of information acquired in the course of an investigation might prejudice the investigation of crimes by the police force: see s 48(3) of the CDP Act (above). Bearing all those factors in mind, it is not surprising that there should be secrecy obligations imposed by the CDP Act. Nor is it surprising that the standard set by s 48(7)(c) is as stringent as it is. The Court must be satisfied that there are “special reasons requiring the making” of an order, and in addition “that the interests of justice cannot adequately be served except by the making of” an order. SA Police response to applicant’s request for access to documents 31 Returning to the narrative commenced earlier in these reasons, the applicant’s FOI application was received by the FOI Unit within SA Police on 10 June 2021. A file (reference number 21/2412) was created. On 16 June 2021, the file was reviewed by an administrative support officer within the FOI Unit. He requested that checks be undertaken with the IIS to determine whether it held any relevant documents. 32 On 28 June 2021, the file was further reviewed by a research officer within the FOI Unit. The research officer accessed the current mainframe system used by SA Police, known as the Shield database. A document entitled ‘Detailed Occurrence Report’ that related to the incident involving the applicant was located within that database. Reports of this kind are used and can be accessed by several areas within SA Police to comment upon, or upload documents related to, the events that are the subject of the report. 33 Following the location of this report, the FOI research officer sent a further request to the IIS to ascertain whether it held any complaint files in relation to the incident that was the subject of the FOI application. 34 Chief Inspector Joanne Sharman was the Officer in Charge of the IIS at the relevant time. In that role she was responsible for overseeing breaches of discipline relating to all SA Police employees. She held a delegation from the Commissioner of Police under s 19 of the Police Act 1988 (SA) in relation to authorising the disclosure or release of information that may fall within the scope of the PCD Act. Her role thus included making decisions about whether or not such information was to be authorised for disclosure or release. 35 Chief Inspector Sharman received the email that was sent from the FOI Unit of SA Police on 28 June 2021. Inquiries by staff within IIS identified that a -- 12 of 29 -- [2023] SASCA 73 The Court 11 complaint had been made in relation to the incident involving the applicant. From reviewing the electronic file held by IIS (with reference number C2020-1292) on the IAPRO system, she confirmed that a complaint had been made under the PCD Act in connection with the incident involving the applicant. The IAPRO system is the electronic complaint management system established by IIS in accordance with s 6 of the PCD Act. It stores information relevant to complaints received by IIS. 36 Chief Inspector Sharman determined not to exercise her delegation to authorise release of information relating to the complaint. As we understand it, this was a determination not to exercise the Commissioner’s power (recognised in the opening words of s 45(1)) to authorise the disclosure of information which it would otherwise be an offence to disclose under s 45(1). 37 On 1 July 2021, Chief Inspector Sharman sent an email to the FOI Unit of SA Police confirming that the FOI application received by them related to the IIS complaint file C2020-1292, and advising that she was not authorising the release of the material relating to the complaint pursuant to the PCD Act. 38 On 8 July 2021, as a result of being advised that there was an IIS complaint file relating to the incident that was the subject of the FOI application, and that the release of information was not authorised by the Commissioner, the manager of the FOI Unit, Senior Sergeant Tracey Gentgall, determined not to release any of the documents sought by the FOI application. The basis for this determination (the original determination) was that all such documents constituted exempt documents pursuant to cl 12 of schedule 1 of the FOI Act, by reason that their disclosure to the applicant would result in an offence under ss 45(1) and (3) of the PCD Act. 39 The original determination was communicated to the applicant by letter dated 8 July 2021. 40 On 9 July 2021, the FOI Unit received a response from the applicant’s solicitor. The solicitor argued that because there was a right to the documents under the FOI Act, it would not involve an offence under s 45(1) of the PCD Act to disclose the documents. It would not involve an offence because s 45(2)(f) permitted disclosure where this was required or authorised under another Act (here, the FOI Act). The solicitor also sought to rely upon an exception to the s 45(3) prohibition against disclosure in the case of disclosure for the purposes of a person obtaining legal advice (s 45(3)(iii)). The letter concluded with a request for “the expeditious release of the material requested by [the applicant], or a new Notice of Decision articulating the reasons for refusal of disclosure pursuant to the FOI Act”. 41 Following receipt of this letter, Senior Sergeant Gentgall made a further determination (the second determination). She once again determined not to release the documents, with the basis for that decision being the same as the -- 13 of 29 -- [2023] SASCA 73 The Court 12 original determination. The second determination was communicated to the applicant by letter dated 16 July 2021. Internal review by SA Police 42 On 3 August 2021, the applicant submitted an application for internal review of the second determination under s 29 of the FOI Act. The application was forwarded to the FOI Unit, and in turn to the Internal Review Officer, Ms Debbie Smith. 43 Ms Smith undertook the internal review and determined to confirm the second determination (the internal review decision). 44 The internal review decision was recorded in a letter from Ms Smith to the applicant dated 6 August 2021. The letter noted that the refusal to release the documents was by reason of them being exempt documents under cl 12 of schedule 1 of the FOI Act, and the operation of ss 45(1) and (3) of the PCD Act. The letter explained that, having reviewed the file, the earlier determination was confirmed. Ms Smith said that she was satisfied that the determination had been made in line with the legislation and the information available, and that the basis upon which it had been made was as outlined in the earlier determination letter. External review by SACAT 45 On 2 September 2021, the applicant made an application for external review by SACAT, pursuant to s 40 of the FOI Act and s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA). The application was accompanied by a letter contending that the internal review decision was wrong. It was argued that the documents sought were not exempt documents under cl 12 of schedule 1 of the FOI Act because no offence would be committed by disclosing them to the applicant. 46 In relation to s 45(1) of the PCD Act, it was argued that the decision maker was not “a person … engaged in the administration” of that Act, and so no offence would be committed by disclosing the documents. Alternatively, disclosure was permitted under s 45(2)(f) by reason of the applicant’s right to the documents under the FOI Act. 47 In relation to s 45(3), it was argued that the documents were sought for the purposes of the applicant seeking legal advice in connection with a civil action against the SA Police, and hence disclosure was permitted under s 45(3)(b)(iii). 48 By October 2021, Sergeant Sandra Watson was relieving in the position of Manager of the FOI Unit of SA Police. In preparation for the SACAT hearing, she located and reviewed the documents said to be exempt documents, referred to as ‘Exempt Documents 1-34’ in a schedule prepared for SACAT. In an affidavit prepared for the purposes of the SACAT proceedings, Sergeant Watson said that she reviewed these documents and considered that they all fell within the scope of the FOI application, as documents relating to the incident the subject of that -- 14 of 29 -- [2023] SASCA 73 The Court 13 application; and that disclosure of the documents would involve the disclosure of information in relation to or connected with a matter that forms the subject of a complaint under the PCD Act. 49 Sergeant Watson explained that a decision was made, however, to provide the applicant with seven documents (referred to as ‘V2 Documents 20-26’) which SA Police had previously claimed were exempt. These documents included the applicant’s initial complaint, and were documents which had already been disclosed to the applicant or which were created by the applicant. These documents were no longer claimed to be exempt on the basis that further provision of them to the applicant would not be to “disclose” information to the applicant. 6 Sergeant Watson added, however, that disclosure of these documents to a person other than the applicant would still constitute an offence under s 45(1) of the PCD Act. 50 Sergeant Watson deposed that she considered that, in her capacity as the Manager of the FOI Unit assessing the applicant’s FOI application to obtain access to information in relation to a matter that formed the subject of a complaint under the PCD Act, she was relevantly engaged in the administration of the PCD Act for the purposes of s 45(1) of that Act. She explained that, given the advice from the Officer in Charge of IIS (Chief Inspector Sharman) that disclosure of the documents sought had not been authorised by the Commissioner for the purposes of s 45(1), her view was that disclosure of Exempt Documents 1-34 to the applicant would involve an offence under the PCD Act. She therefore considered the documents to be exempt documents pursuant to cl 12(1) of schedule 1 of the FOI Act. 51 Sergeant Watson also addressed, and rejected, the possibility of providing redacted versions of the documents, as contemplated by s 20(4) of the FOI Act. She explained that the scope of the documents the subject of the FOI application was connected explicitly to their relevance to ‘the incident’ as defined in the FOI application, and that she understood that the complaint made under the PCD Act related to the same incident. She said that, in light of the terms of s 45(1), and save for the documents already disclosed to the applicant, there was no information relating to the incident that was capable of falling within the scope of the FOI application but outside the scope of s 45(1) of the PCD Act. 52 The external review by SACAT was heard by Member Reilly. 53 During the hearing before SACAT, counsel for the applicant made two alternative arguments in support of a right to disclosure of the documents. 54 The first argument relied upon by the applicant was that disclosure of the requested documents would not constitute an offence under s 45(1) of the PCD Act because the applicant had a right to disclosure of the documents under s 12 of the 6 In the sense, it would seem, that it would not be to “first reveal” the information to the applicant. -- 15 of 29 -- [2023] SASCA 73 The Court 14 FOI Act, and hence disclosure was “required or authorised by this or another Act” for the purposes of s 45(2)(f) of the PCD Act. 55 This argument was rejected by Member Reilly. It was rejected on the basis that the “legally enforceable right” to access to documents under s 12 of the FOI Act is a right to be given effect “in accordance with this Act”, and hence subject to the various restrictions upon that right contained within the FOI Act. This included the restriction contained in cl 12(1) of schedule 1 of the FOI Act, which exempts documents on the basis that to disclose them would constitute an offence. The Member reasoned that there was a circularity to the applicant’s argument; it involved elevating the entitlement to disclosure under the FOI Act, by ignoring the very limitations created by that Act. 56 The second argument advanced by the applicant before SACAT relied upon a contended temporal limitation upon the offence created by s 45(1) of the PCD Act. It was argued that the protection provided by s 45(1) (and s 45(3)) in respect of information “in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment or investigation under this Act” expires once the relevant complaint and investigation have been finalised. 57 In accepting this argument, Member Reilly acknowledged that the text of s 45 was not clear. It could be read as applying to information the subject of a complaint or investigation for all time, and hence regardless of the status of the complaint or investigation. Alternatively, it could be read as applying only to information the subject of an active or ongoing complaint or investigation. In favouring the latter interpretation, the Member was influenced by a view that it would be a curious result were the applicant’s conduct in making a complaint to result in a refusal of access to the relevant documents for all time. Rather, in the Members view, the justification for confidentiality did not exist once a complaint or investigation was finalised. 58 As the Member explained: The breadth of the confidentiality offence in s 45 and the serious consequences for its breach indicate that its scope was intended to be time limited to prevent it from over- reaching its purpose. The applicant pointed out that the confidentiality provision has the seemingly curious effect that the applicant’s complaint itself triggered the confidentiality provisions in s 45 that prevented her from gaining access to information in relation to the incident the subject of her complaint. It was the lodgement of the complaint by the applicant that created a barrier to her FOI application. This may be unremarkable while a complaint is being assessed or investigated. It is common for investigatory bodies to prevent disclosure of information during the course of investigations. Confidentiality is necessary to ensure that investigations are not compromised by key information being disclosed during the process of the investigation that reveals, among other things, the details of persons involved in complaints. It both protects parties to the inquiry and maintains the integrity of the inquiry. The same justification for confidentiality does not exist once a complaint is finalised. -- 16 of 29 -- [2023] SASCA 73 The Court 15 It would seem a curious result that a complaint is barred for all time from accessing information that directly related to them except in the context of criminal proceedings, or some other statutory investigatory procedure outlined in s 45(2). A complainant may wish to access the information for a number of reasons. In the present case, the applicant wished to seek legal advice in relation to the incident. Alternatively, a complainant may wish to view records of the incident for therapeutic purposes, or simply to ensure their memory of the incident is accurate. Furthermore, in line with the principles of open government, and free access to information promoted by the FOI Act, and the underlying purpose of the PCD Act to promote efficiency and transparency in processing complaints with SAPOL, it is unlikely that Parliament intended access to information related to complaints to be permanently barred from members of the public interested in reviewing the performance and integrity of SAPOL. If s 45 were interpreted to require confidentiality for all time, researchers and policy makers would never be able to access information in relation to complaints for research purposes. A narrower interpretation is warranted to avoid the provision having a chilling effect on the accessibility of information related to police complaints. Finally, a narrow construction of s 45(1) is consistent with the principle of construing criminal offences strictly. 59 The Member found that the “correct and preferable”7 decision was that the information that related to a complaint that was finalised was not protected by the confidentiality provisions of s 45 of the PCD. Accordingly, he set aside the decision under review and referred the matter back to the SA Police for reconsideration. The primary judge’s decision 60 SA Police sought, and was granted, permission to appeal to a single judge of this Court (referred to hereafter as the primary judge). 61 On that appeal, the applicant accepted that Member Reilly erred in his construction of s 45 of the PCD Act; that he erred in accepting the temporal limitation upon the protection afforded by that section that had been contended for by the applicant. 62 Having noted that concession, the primary judge described it as an appropriate concession to have made. Her Honour added that an ordinary reading of the words in s 45 of the PCD Act did not reveal any textual or contextual support for reading in a temporal expiration of the section and the protection it affords; and that the Member erred in concluding otherwise.8 63 The applicant relied instead upon an argument raised through her notice of alternative contention. The argument was that, because the applicant’s FOI application did not call for disclosure of information by a person “who is or has been engaged in the administration of” the PCD Act, disclosure would not involve 7 South Australian Civil and Administrative Tribunal Act 2013 (SA) s 34(4). 8 Police v JK [2022] SASC 144 at [46]. -- 17 of 29 -- [2023] SASCA 73 The Court 16 an offence under s 45 of that Act, and hence the documents sought were not exempt documents under cl 12(1) of schedule 1 of the FOI Act. 64 The applicant’s notice of alternative contention had raised a second ground; namely, the argument unsuccessfully pursued before SACAT to the effect that, because s 12 of the FOI Act provided a right to access the documents, their disclosure would (by reason of s 45(2)(f)) not involve any offence under s 45(1). This argument was abandoned prior to the hearing of the appeal before the primary judge.9 65 In addressing the first ground raised in the applicant’s notice of alternative contention, the primary judge commenced by addressing the relationship between the FOI Act and the PCD Act. Her Honour rejected the applicant’s contention that there was any conflict or inconsistency between the operation of the two Acts that needed to be resolved, or that they shared a field of operation that meant it was necessary to somehow strike a balance between the operation of each. Her Honour explained that, while there was an interaction between the two Acts, they could operate harmoniously:10 The legislation central to the resolution of this appeal equally does not share the field or conflict in the manner suggested by the respondent. There is an interaction rather than an overlapping. There is no inconsistency between the two Acts, rather, one in its operation limits the application of the other. The FOI Act, with a broader and more generic application, allows for the application of the very type of confidentiality provision contained within the PCD Act. The words of the FOI Act could not be clearer. The FOI Act endeavours to provide openness and transparency by government agencies, yet at the same time allowing for the protections for other competing rights. That includes the right of that agency or a member of that agency to not disclose information in circumstances in which to do so would amount to the commission of an offence.11 The public policy underpinning such an exemption is self-evident. 66 In turning to the proper construction of s 45, the primary judge observed that there was no doubt that it made the disclosure of certain documents an offence. The category of information protected from disclosure was broad, encompassing “information in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment or investigation”.12 67 Her Honour said that it was noteworthy that the prohibition related to the disclosure of “information” as opposed to documents or materials. Her Honour considered this an answer to the applicant’s submission13 to the effect that s 45 was only intended to protect documents brought into existence in the course of handling 9 Police v JK [2022] SASC 144 at [48]. 10 Police v JK [2022] SASC 144 at [72]. 11 Freedom of Information Act 1991 (SA) sch 1, cl 12. 12 Police v JK [2022] SASC 144 at [73]. 13 Advanced as an aspect of the ground of her notice of alternative contention dealing with the meaning of a person “engaged in the administration” of the Act in s 45(1) of the PCD Act. -- 18 of 29 -- [2023] SASCA 73 The Court 17 a complaint or coming into the hands of those engaged in the administration of the PCD Act. Her Honour explained:14 It is also of note that the prohibition relates to the disclosure of “information” as opposed to documents or materials. The significance of this is that it is not an option under the PCD Act to compartmentalise on the basis of where documents are held within SAPOL as was suggested by the respondent. That is because it is the “information” that is the subject of the prohibition. It follows that it is not open to suggest that a document containing information that is stored at IIS is subject to confidentiality whilst another version of the same document or record retained elsewhere is disclosable. The prohibition relates to the information regardless of the means by which it is retained or recorded. This is yet a further feature of the language employed in the section that reflects the intended breadth of its operation. 68 The primary judge next addressed the meaning of the words in s 45(1) of the PCD Act critical to the resolution of the appeal, namely “a person who is or has been engaged in the administration” of the Act. Her Honour noted the applicant’s contention that these words were to be read narrowly as relating only to those employed in the IIS or, at the most, to those employed in the bodies and sections specifically identified in the PCD Act, namely the IIS (s 5), the OPI (s 8) and the Police Disciplinary Tribunal (Part 7). 69 Her Honour said that a difficulty with this submission was that if Parliament had intended to limit the category of individuals captured by the s 45(1) confidentiality provision, it could have done so in those terms. But it did not do so.15 70 Her Honour also observed that the applicant’s construction was somewhat artificial because whilst those bodies and sections are specifically referred to in the PCD Act, the Act clearly contemplates that others will have a role in the various functions that may be undertaken once a complaint has been made. In her Honour’s view, the applicant’s construction would thus undermine the intent behind the confidentiality regime.16 71 The primary judge noted that while there had not been any judicial consideration of the reference to a person “engaged in the administration” of the Act in s 45 of the PCD Act, some support for a broader interpretation could be found in the Full Court’s reasons in Bell v The Queen.17 In that case, the confidentiality obligation in question was s 54 of the Independent Commissioner Against Corruption Act 2012 (SA), which included an equivalent reference to “a person who is or has been engaged in the administration of this Act.” In that context, the Full Court observed that the confidentiality obligation applied to the 14 Police v JK [2022] SASC 144 at [74]. 15 Police v JK [2022] SASC 144 at [75]. 16 Police v JK [2022] SASC 144 at [75]. 17 Bell v The Queen (2020) 286 A Crim R 501 at [231] (Kourakis CJ, Peek and Blue JJ). -- 19 of 29 -- [2023] SASCA 73 The Court 18 Commissioner, the Deputy Commissioner, the Commissioner’s staff, investigators, examiners, and the Office’s staff.18 72 On the primary judge’s reasoning,19 it was necessary to determine who made the decision whether to disclose the information sought by the applicant in her FOI application. Her Honour explained that, at least in the first instance, it was the determination of Chief Inspector Sharman who held the delegation from the Commissioner. Her role related to ascertaining whether the matter had been subject of a police complaint and then, based on the results of that enquiry, evaluating whether the information should be released. She determined that it should not. 73 The primary judge acknowledged that Chief Inspector Sharman then conveyed her decision to Senior Sergeant Gentgall from the FOI Unit, who made the ultimate decision as to what information was to be disclosed. However, her Honour also pointed out that, given the superior rank of Chief Inspector Sharman and the delegation with which she had been provided, her assessment and decision would seem to have been the basis upon which both the original and second determinations were made. Her Honour added that whilst it was difficult to understand precisely what occurred on the limited evidence before the Court, it was also likely to have been a relevant consideration in Ms Smith’s consideration of the matter in arriving at the internal review decision. 74 The primary judge reasoned that there was no doubt that Chief Inspector Sharman was a person “engaged in the administration” of the Act, given her role and the fact she was a member of IIS. Her Honour added that, on one view, the subsequent decisions made by a member of the FOI Unit and the internal review officer were in reality merely the decision of Chief Inspector Sharman being carried into effect.20 75 However, the primary judge ultimately decided the matter on the basis that the notion of a person “engaged in the administration of the Act” was not confined to individuals working within IIS. Her Honour concluded that on the plain reading of those words, any of the individuals involved in each of the decision-making processes were involved in the administration of the PCD Act, regardless of where they were located within SA Police. It followed that the SA Police employees within the FOI Unit were captured by s 45 of the PCD Act, and the documents were exempt from the FOI Act.21 76 The primary judge concluded her reasons by addressing s 45(3) of the PCD Act. Her Honour accepted the SA Police argument that that section created a second ring of protection in the event that someone has received information pursuant to one of the exceptions in s 45(2) to the general prohibition against 18 Police v JK [2022] SASC 144 at [76]. 19 Police v JK [2022] SASC 144 at [77]. 20 Police v JK [2022] SASC 144 at [78]. 21 Police v JK [2022] SASC 144 at [78]. -- 20 of 29 -- [2023] SASCA 73 The Court 19 disclosure in s 45(1). But on her Honour’s reasoning, each of the SA Police personnel involved in assessing the FOI application were persons “engaged in the administration” of the PCD Act under s 45(1), rather than persons who “receive[d] information” under s 45(3).22 As such, there was no occasion for her Honour to consider the exceptions to s 45(3), and in particular disclosure for the purposes of the applicant seeking legal advice fell within s 45(3)(b)(iii). Grounds of appeal 77 The applicant seeks leave to appeal on two grounds, contending that the primary judge erred by wrongly deciding: 1. that officers of SA Police processing the applicant’s application for access to documents under s 13 of the FOI Act were persons who were, or had been, “engaged in the administration” of the PCD Act, such that it would be an offence under s 45 of the PCD Act to disclose to the applicant the documents sought; and 2. that it would be an offence under s 45 of the PCD Act for officers of SA Police to disclose to the applicant information generated in the course of ordinary policing activities on the basis that the information had been subsequently considered by the IIS in the course of the processing of a complaint under the PCD Act. 78 The respondent opposes any grant of leave to appeal. The application for leave to appeal was referred for hearing in conjunction with the appeal. Leave to appeal 79 In deciding whether to grant leave to appeal, the Court acts in the interests of justice, having regard to whether the decision sought to be challenged is attended by sufficient doubt to warrant its reconsideration on appeal; whether allowing the decision to stand would work a substantial injustice to the applicant; and whether the proposed appeal raises an issue of principle or general importance.23 The Court will pay particular attention to these matters where, as here, leave is sought to appeal from a decision of a single judge of this Court hearing an appeal from some other court or tribunal. 80 In support of her application for leave to appeal, the applicant said that if the decision below were allowed to stand she would suffer substantial injustice in being denied access to material she needs to consider in order to determine whether she has reasonable prospects of success in an action for assault, battery and false imprisonment against SA Police. The respondent countered this by pointing out that, by the time the matter came on for argument, the applicant’s contemplated claim had been resolved between the parties. While the applicant acknowledged 22 Police v JK [2022] SASC 144 at [79]. 23 McDonald v Attorney-General for the State of South Australia [2022] SASCA 43 at [21] (Livesey P and Bleby JA). -- 21 of 29 -- [2023] SASCA 73 The Court 20 that there was an agreement in principle, she asserted that the agreement was subject to it being properly documented and was not yet binding. She also explained that the terms of the agreement contemplated that the applicant would remain entitled to pursue her FOI application, including through an appeal before this Court. The respondent did not accept that the agreement was not binding between the parties, but argued that, in any event, whatever remaining interest the applicant had in accessing the documents was a lesser interest than she had originally asserted. 81 In addressing the weight that should nevertheless be attached to her desire to pursue her FOI application, the applicant submitted that, quite apart from whatever remaining interest she had in seeking access to documents for the purposes of her contemplated claim, she was entitled to pursue her right to access documents under s 12 of the FOI Act. The exercise of her right to access documents under s 12 of the FOI Act was not dependent upon the applicant identifying any particular use to which those documents would be put. Whilst the identification of an intended use might be relevant to the weight to be attached to any injustice the applicant might suffer from being shut out of the exercise of this right, it was not a pre- condition to the exercise of that right. 82 In the circumstances, we accept that the applicant has established an appropriate interest in pursuing her appeal. Allowing the appeal to stand would expose her to at least some prejudice. 83 Further, having now heard full argument and considered the matter in some detail, we are satisfied that the applicant’s proposed appeal is reasonably arguable. Equally significantly, we are satisfied that the appeal raises issues of principle, and of some general importance, in relation to the proper construction of s 45 of the PCD Act, and hence the scope of exempt documents under cl 12 of schedule 1 of the FOI Act. 84 In all the circumstances, we are satisfied that it is in the interests of justice that the applicant be granted leave to appeal on her two proposed grounds of appeal. Consideration 85 In construing the relevant provisions of the FOI Act and PCD Act, the objective is to give the relevant provisions the meaning the legislature is taken to have intended them to have.24 It involves consideration of the text of those provisions, but having regard to their context and purpose.25 86 In the present case, the applicant relies upon her general right of access to documents under s 12 of the FOI Act. But as she acknowledges, that right is one 24 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 25 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). -- 22 of 29 -- [2023] SASCA 73 The Court 21 that is, by the terms of s 12 itself, qualified by the other provisions of the FOI Act. In particular, s 20(1)(a) provides that an agency may refuse access to documents which are exempt documents. The list of exempt documents in schedule 1 of the FOI includes those falling within cl 12 of that schedule, being documents containing matter the disclosure of which would constitute an offence. 87 The applicant emphasises the importance, when construing the provisions of the FOI Act, of having regard to the statement of objects and principles of administration in ss 3 and 3A of that Act. She refers, in this respect, to the following passage from the reasons of the High Court in Victorian Public Service Board v Wright,26 in relation to similar provisions in the equivalent Victorian legislation:27 In the light of these sections it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information. It is, in our view, evidence that such a purpose would not be promoted by adopting a narrow construction of the appellate functions of the County Court under the Act or by imposing any limitation upon the effect of its decisions beyond any limits plainly imposed by the Act itself. 88 The applicant accepts, however, that the objects and principles of administration do not create any presumption in favour of disclosure in the interpretation of the provisions of the FOI Act which exempt documents from the right of access otherwise provided for under s 12 of that Act.28 She accepts that what is called for is a consideration of the balance struck between the right of access and the exemptions, having regard to the language of the relevant provisions. As the Full Court of the Federal Court said in relation to the Commonwealth freedom of information legislation in News Corporation Ltd v National Companies & Securities Commission (No 4):29 In construing our Act we do not favour the adoption of a leaning position. The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act. 89 Understood in this way, the focus of the construction task under the FOI Act relevant to the determination of the present case must be the words used in cl 12 of schedule 1 of the FOI Act. In this respect, the applicant emphasises the need to read cl 12(1) in conjunction with cl 12(2). Whilst cl 12(1) provides that a document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, cl 12(2) provides that a document will not be an exempt document unless disclosure of the matter contained in the 26 Victorian Public Service Board v Wright (1986) 160 CLR 145. 27 Victorian Public Service Board v Wright (1986) 160 CLR 145 at 153-154 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ). 28 Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469 at [67]-[73] (Tate, Kyrou and Niall AJJ). 29 News Corporation Ltd v National Companies & Securities Commission (No 4) (1984) 1 FCR 64 at 66 (Bowen CJ and Fisher J). -- 23 of 29 -- [2023] SASCA 73 The Court 22 document to the person by whom the application is made would constitute an offence. Reading these two sub-clauses together, a document will be an exempt document under cl 12 of schedule 1 if disclosure of the document to the person making the FOI application (here, the applicant) would constitute an offence. 90 Here, the offence provision relied upon by SA Police in refusing access is s 45 of the PCD Act. It follows that the scope of the cl 12 exemption from access falls to be determined by reference to the proper construction of s 45 of the PCD Act. As the primary judge correctly recognised, this is not to suggest any inconsistency or conflict between the FOI Act and PCD Act that needs resolution. Rather, it is merely to recognise the intended interaction between the two Acts, with the intended scope of the exemption under cl 12 of schedule 1 of the FOI Act to be determined by reference to the proper construction of the relevant offence provision (here, s 45 of the PCD Act). 91 In construing the provisions setting out the confidentiality regime under ss 44-46 of the PCD Act, it is relevant to have regard to the purposes and interests described in the passage quoted earlier from the reasons of Doyle CJ in White v State of South Australia.30 However, the focus must once again remain upon the text of s 45. 92 The heading of cl 12 of schedule 1 of the FOI Act refers to documents the subject of ‘secrecy provisions’, whereas s 45 of the PCD Act is headed ‘confidentiality’. Whilst headings now form part of the relevant legislation,31 we do not think anything turns on this difference in terminology. The text of cl 12 of schedule 1 of the FOI Act is directed towards provisions which make the disclosure of matter contained in a document an offence, and s 45(1) of the PCD Act makes the disclosure of certain information an offence. We see no reason to doubt that the latter is an offence provision intended to inform the scope of the former. 93 As the applicant submits, the confidentiality obligation under s 45(1) of the PCD Act is not at large. First, it is imposed only upon a person “who is or has been engaged in the administration” of the PCD Act. Secondly, it applies only to the disclosure of “information in relation to or connected with a matter that forms or is the subject of a compliant, report, assessment or investigation” under the PCD Act. 94 The applicant’s grounds of appeal allege two errors in the primary judge’s construction of s 45(1), one addressed to each of the above limitations upon the scope of s 45(1). Person engaged in the administration of the PCD Act 95 The applicant’s argument in support of her first ground of appeal is that the primary judge erred in rejecting her submission below to the effect that the phrase 30 White v State of South Australia (2007) 96 SASR 581 at [46]-[47] (Doyle CJ). 31 Legislation Interpretation Act 2021 (SA) s 19(1). -- 24 of 29 -- [2023] SASCA 73 The Court 23 “a person … engaged in the administration” of the PCD Act applies only to those persons who perform functions under the PCD Act within the agencies or sections identified in that Act; namely, the IIS (s 5), the OPI (s 8), the ICAC (s 30) and the Police Disciplinary Tribunal (Part 7). On the applicant’s argument, disclosure of information (of the type contemplated by s 45(1)) to the applicant by an FOI officer32 would not involve disclosure by a person engaged in the administration of the PCD Act, and hence not constitute an offence under s 45(1). In responding to an FOI request, an FOI officer is performing a role or function under the FOI Act; he or she is not involved in any decision-making process under s 45 of the PCD Act, or otherwise performing any role or function under the PCD Act. 96 We do not accept this argument. We consider that it takes an artificially narrow view of s 45(1). 97 As the primary judge reasoned, if Parliament had intended to confine the confidentiality obligation under s 45(1) to the persons working within the agencies or sections mentioned in the PCD Act, it could easily have done so. Instead, it chose to use the language of a person “engaged in the administration” of the PCD Act, which is naturally susceptible of a broader or more flexible meaning. 98 Related to this, the primary judge also observed that the PCD Act clearly contemplates that persons outside the agencies or sections mentioned in the PCD Act will have a role in some of the functions undertaken once a complaint has been made. An obvious example is the person identified in s 10(3) of the PCD Act as the permitted first recipient of a complaint. 99 We agree with the applicant’s submission that it is not necessary to determine precisely who made the decision whether to disclose the documents sought in the present case. In our view, the issue is to be approached in a more general or objective manner by considering whether disclosure of the relevant documents to the applicant, in response to her FOI application, would constitute an offence under s 45(1). 100 Speaking generally, s 45(1) protects from disclosure of information that relates to a complaint made under the PCD Act. Assuming for present purposes that the applicant’s FOI request sought documents containing information of the type specified in s 45(1) (an issue addressed in the context of the applicant’s second ground of appeal), there seems to be no doubt that it would be an offence under s 45(1) for any person working within the IIS to disclose those documents to the applicant. Further, that would seem to be so regardless of whether he or she did so in response to an FOI request or otherwise. 101 On one view, it would be curious if, by reason of the fact that the person responding to the FOI request works in a separate FOI Unit (within SA Police, but not with the IIS) rather than IIS, a different outcome were to be reached. As the 32 Employed by SA Police, but not working within the IIS. -- 25 of 29 -- [2023] SASCA 73 The Court 24 respondent put it, the purposes and practical utility of s 45(1) might be undermined by the mere happenstance that those tasked with administering the confidentiality provisions of the PCD Act in the context of FOI applications are not administratively located within the IIS. That said, we accept that it is appropriate to focus upon the text of s 45(1) rather than approaching the construction task by reference to how one might expect the confidentiality obligation in s 45(1) to operate. 102 In our view, an FOI officer responding to a request for documents containing information about a complaint made under the PCD Act is a person engaged in the administration of that Act. While he or she is plainly fulfilling a role under the FOI Act, this does not mean they are not also undertaking a role or function under the PCD Act. Insofar as their role involves determining whether the request seeks information of the type protected by s 45(1), and indeed whether the Commissioner intends nevertheless to disclose that information, the FOI officer is fulfilling a role or function in relation to the operation of the confidentiality regime provided for under the PCD Act. In our view, that is enough to conclude that the FOI officer is engaged in the administration of the PCD Act. 103 For completeness, we would add that even if an FOI officer responding to a request for documents containing information about a complaint made under the PCD Act were not a person engaged in the administration of that Act for the purposes of s 45(1) of the PCD Act, he or she would (in accessing documents sought by an FOI request) be a person who receives information knowing that the information is connected with a matter that forms, or is the subject of, a complaint or investigation under s 45(3). As such, the information would be protected by what we have described earlier as the second layer of protection for information connected to a matter that forms, or is the subject of, a complaint or investigation under the PCD Act. It would be an offence under s 45(3) for the FOI officer to disclose the information. 104 We do not think any of the exceptions in ss 45(3)(a) and (b) would apply in the present case. The Commissioner did not authorise disclosure. And we do not think s 45(3)(b)(iii) would assist the applicant. In permitting the disclosure of information for the purposes of a person obtaining legal advice, that subsection permits a person who receives the information under s 45(3) to disclose that information for the purpose of that person obtaining legal advice; it does not permit a person who receives the information under s 45(3) to disclose that information to another person for the purpose of that other person obtaining legal advice. By way of explanation, it seems to us that the typical operation of ss 45(3)(b)(iii) (disclosure for legal advice) and (iv) (disclosure for medical or psychological assistance) will be where information is disclosed to a person involved in the complaint process under s 45(2). Upon receipt of that information, that person would be bound by the general non-disclosure obligation under s 45(3), but would be entitled to disclose that information for the purposes of seeking legal advice, or medical or psychological assistance. However, that person would not be entitled -- 26 of 29 -- [2023] SASCA 73 The Court 25 to disclose that information for the purpose of someone else seeking such advice or assistance. Information that exists independently of any complaint considered by IIS 105 The applicant’s second ground of appeal involves a contention that the primary judge erred in holding that it would be an offence under s 45 of the PCD Act to disclose information generated in the course of ordinary policing activities on the basis that the information had subsequently been considered by the IIS in the course of processing a complaint under the PCD Act. The applicant makes a related contention that the primary judge erred in reasoning that it was not open to suggest that a document held by IIS was confidential whilst another version of the same document held elsewhere within SA Police was disclosable.33 The applicant argues that the information prohibited from disclosure under s 45 of the PCD Act is the information held in the IIS file; that the prohibition against disclosure does not extend to information collected by police officers in the course of their policing activities and hence which was created, and exists, independently of the complaint. 106 In support of this argument, the applicant points out that it is not unknown for the law to treat separate versions of the same document differently (for example, when dealing with legal professional privilege). The applicant argues that there is no reason to treat documents which have an independent existence as quarantined from disclosure by the simple fact of a complaint. Indeed, to do so would, the applicant argues, have the unexpected outcome that her own complaint has prevented her accessing documents which she would otherwise be entitled to access through an FOI request. The applicant contends that the purposes and interests that justify the confidentiality regime under the PCD Act do not extend to the protection of information created and existing separately from the documents held by IIS. 107 The respondent complains that the applicant did not contend for this construction of s 45 before the primary judge, and so should not now be permitted to do so. We do not agree. Whilst not the subject of a specific ground of appeal before the primary judge, a form of the argument now sought to be made was made before the primary judge. As outlined above, the primary judge expressly addressed and rejected an argument similar to the one now sought to be made.34 Further, the argument is the subject of a separate ground of appeal before this Court. The respondent has made submissions in response. It is appropriate that this Court consider the argument. 108 The primary judge rejected the applicant’s argument on the basis that s 45(1) applies to disclosure of “information” as opposed to documents. As her Honour explained,35 it was therefore not open to suggest that a document containing information that is stored at IIS is subject to confidentiality whilst another version 33 Police v JK [2022] SASC 144 at [74]. 34 Police v JK [2022] SASC 144 at [74]. 35 Police v JK [2022] SASC 144 at [74]. -- 27 of 29 -- [2023] SASCA 73 The Court 26 of the same document or record held somewhere else within SA Police is not subject to confidentiality and hence can be disclosed. The prohibition upon disclosure under s 45 relates to the information, regardless of the means by which, or location in which, it is recorded or retained. 109 We agree with this reasoning. But we would also emphasise that ss 45(1) and (3) apply to information in relation to “a matter that forms or is the subject of a complaint, report, assessment or investigation under this Act”. Focusing upon these words, it is apparent that the confidentiality regime expressly assumes or contemplates that, upon the occurrence of a triggering event (such as a complaint or report), pre-existing information in relation to a particular matter will become the subject of the confidentiality regime. In other words, ss 45(1) and (3) expressly assume or contemplate that the making of a complaint will result in information which has a separate existence becoming the subject of the s 45 confidentiality regime. 110 For these reasons, we do not consider that the applicant’s second ground of appeal survives close attention to the text of s 45. 111 Further, and in any event, we do not regard the construction of s 45 which we have preferred as extending beyond the rationale for the confidentiality regime provided for under that section. The applicant’s construction would not only permit disclosure of pre-existing (or separately existing) information to a complainant after a complaint has been made, but would also permit him or her to use that information and disclose it to others. Disclosure of that information, including through media or social media, might jeopardise the confidential consideration of complaints contemplated by s 45. 112 It is also relevant to bear in mind in this context that a complainant, such as the applicant, may have other avenues, outside of the FOI Act, for accessing the information in question. If a person who makes a complaint under the PCD Act is minded to pursue a legal claim in respect of an incident the subject of their complaint, then they may be able to obtain access to relevant documents through pre-action discovery, or ordinary discovery processes if a claim is issued. Temporal limitation upon confidentiality under s 45 113 In one of the final paragraphs of her written submissions, the applicant also submitted that s 45 can be construed, as it was by SACAT, as not applying to information once a complaint has been finalised. This temporal limitation upon the confidentiality provided for under s 45 was said to be based upon its use of the present tense (“forms” rather than “formed”; “is” rather than “was”; and “investigation under” rather than “investigated”). 114 The respondent opposed the applicant’s reliance upon this argument in circumstances where it was not only expressly abandoned before the primary judge, but was also not the subject of any ground of appeal before this Court. When the applicant sought to maintain reliance upon this argument in the course -- 28 of 29 -- [2023] SASCA 73 The Court 27 of oral submissions, the respondent maintained its objection, with counsel informing this Court that he was not in a position to develop submissions on the issue. 115 In support of her attempt to rely upon this argument, the applicant’s counsel emphasised that it was a legal argument that did not raise any factual or evidential issues, and hence would not occasion any prejudice. Indeed, it was an argument that related to the construction of the very section of the PCD Act which this Court was required to construe. While there is authority which supports the ability to pursue fresh arguments of this type on an appeal, these authorities generally assume that the argument is at least the subject of a ground of appeal. 116 In our view, the applicant ought to have sought leave to amend her notice of appeal to raise this argument as a separate ground of appeal if she wished to rely upon it. Despite the difficulty with her approach being raised on the hearing of the appeal, her counsel did not seek to do so. 117 All of that said, we do not think the procedural difficulty with the applicant’s approach ultimately matters because we do not agree with the temporal limitation sought to be placed upon the operation of s 45 of the PCD Act. The applicant’s argument makes too much of the use of the present tense in s 45. Information in relation, to or connected with, “a matter that forms or is the subject of a complaint, report, assessment or investigation”, remains information that meets that description even after the complaint, report, assessment or investigation has been finalised. We do not think the text, context or purpose of s 45 supports the applicant’s contended temporal limitation upon the operation of s 45. Redaction 118 During the course of oral argument, counsel for the applicant suggested that the possibility of providing redacted documents under s 20(4) of the FOI Act had not been addressed. However, as mentioned earlier, this was a matter considered by Sergeant Watson in the lead up to the external review hearing in SACAT. Once again, if this was a matter to be relied upon on appeal, it ought to have been the subject of a ground of appeal. In any event, on the material before this Court, we see no basis for impugning Sergeant Watson’s decision to reject the possibility of redaction in the present case. Conclusion 119 For the reasons set out, we grant leave to appeal but dismiss the appeal. -- 29 of 29 --