Odisho -v- Chief Executive, Roads and Traffic Authority [2001] NSWADT 49

CITATION: Odisho -v- Chief Executive, Roads and Traffic Authority [2001] NSWADT 49 DIVISION: General Division APPLICANT PARTIES: Macko Odisho RESPONDENT Chief Executive, Roads and Traffic Authority FILE NUMBER: 003389 HEARING DATES: 15/03/01 SUBMISSIONS CLOSED: 03/15/2001 DATE OF DECISION: 03/26/2001

BEFORE: Hennessy N (Deputy President) APPLICATION: access to documents - law enforcement & public safety MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 LEGISLATION CITED : Road Transport (General) Act 1999 Road Transport (Vehicle Registration) Act 1997 Road Transport (Vehicle Registration) Regulation 1998 Department of Health v Jephcott (1985) 8 FCR 85 Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 Watkins v Chief Executive Roads and Traffic Authority [2000] NSWADT 11 Re McKenzie and Department of Social Security (1986) 65 ALR 645 Re Gold and Australian Federal Police (1994) 37 ALD 168 CASES CITED: Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35 (12 May 1999) Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 Connelly -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 64 (28 April 2000) Heider -v- Director-General, Department of Community Services [2000] NSWADT 94 (13 June 2000) Latham -v- Director General, Department of Community Services [2000] NSWADT 58 (12 May 2000) Bennett -v- Vice-Chancellor, University of New England [2000] NSWADT 8 Simpson -v- Director General, Department of Education and Training [2000] NSWADT 134 (21 September 2000) Vincent Neary v State Rail Authority [1999] NSWADT 107 (9 November 1999) APPLICANT REPRESENTATION: In person RESPONDENT T Robertson, barrister ORDERS: 1. The decision of the agency to refuse access to Document 1 and to give access to a copy of Document 2 from which the name and address of the informant has been deleted is affirmed.

Background

1 Mr Odisho applied to the Tribunal for a review of a decision by the Chief Executive, Roads and Traffic Authority (RTA) not to provide him with certain documents under the Freedom of Information Act 1989 (FOI Act). There are two documents in dispute. The first is a fax from a person (the informant) to the RTA advising that Mr Odisho's vehicle is not roadworthy (document 1). The second document is a letter from D Jones, an Operations Manager with the RTA, to the informant thanking him or her for bringing the matter to their attention (document 2).

2 At the hearing the RTA provided Mr Odisho with a copy of Document 2 with the name and address of the informant deleted. The RTA submitted that Document 1 is exempt in its entirety and the name and address in Document 2 is exempt on two grounds. Briefly, those grounds were that the documents are documents affecting law enforcement (under Cl 4(1)(b) of Schedule 1 to the FOI Act) or that they are documents containing confidential information (under Cl 13(b) of Schedule 1 to the FOI Act).

Jurisdiction

3 The Tribunal has jurisdiction to review the RTA's decision to refuse access to a document or part of a document under s 53 of the FOI Act and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act). There was no dispute about the Tribunal's jurisdiction to review the agency's decision. But the question of how the Tribunal should deal with an application when the agency claims that a document is a "restricted" document is more problematic.

4 Restricted documents are those which fall within the exemptions in Clauses 1, 2 or 4 of Schedule 1 to the FOI Act. The most recent of the Tribunal's decisions on this question is Kennedy v Commissioner of Police, NSW Police Service [2001] NSWADT 39, 14 March 2001. Rather than asking the Tribunal to revisit this issues in the present proceedings, Mr Robertson, counsel for the RTA, suggested that the application be dealt with on the merits under s 63 of the ADT Act. Mr Robertson qualified this suggestion in one important respect and that was that if the Tribunal came to a provisional view that the documents were not restricted documents and should be released, then the hearing should be reconvened to allow the parties to be heard on the question of the interpretation of s 57 of the FOI Act and s 124 of the ADT Act. I agreed with Mr Robertson's suggestion and the hearing proceeded as a merits review of the RTA's decision under s 63 of the ADT Act. Relevant legislation 5 One of the objects of the FOI Act, as set out in s 5(1)(a), is to "extend, as far as possible, the rights of the public to obtain access to information held by the Government." This object is achieved, in part, "by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government." (See FOI Act s 5(2)(b).) The burden of proof lies on the agency or Minister to establish that the determination is justified. (See FOI Act s 61.)

6 Section 25(1) of the FOI Act allows an agency to refuse access to an exempt document. That sub-section states that: (1) An agency may refuse access to a document: (a) if it is an exempt document 7 So far as is relevant to these proceedings, an exempt document is defined in s 4 to mean "a document referred to in any one or more of the provisions of Schedule 1." The RTA relied on the exemptions in Clause 4(1)(b) and Clause 13(b) of Schedule 1. Clause 4(1)(b) states that: (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: .... (b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained. 8 Certain exceptions to this exemption are set out in Clause 4(2).

9 Clause 13(b) states that: A document is an exempt document: (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest. 10 Section 25(4) of the FOI Act requires an agency to provide access to an exempt document if it is practicable to give access to the document with the exempt material deleted. That sub-section states that: (4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate): (a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) if it appears to the agency (whether 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. Issues 11 In view of the exemptions relied on by the agency and the Tribunal's interpretation of the law in previous cases, (See Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93) the issues to be resolved in this case are as follows: a) Do either of the two documents in dispute contain matter the disclosure of which could reasonably be expected to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained? b) Is it relevant if the information is false or provided maliciously? c) Do any of the exceptions set out in Clause 4(2) apply? d) If one or both of the documents are not exempt under Clause 4(1)(b), do either of the documents contain matter the disclosure of which would disclose information obtained in confidence, and disclosure could reasonably be expected to prejudice the future supply of such information to the Government or to an agency and would, on balance, be contrary to the public interest? e) If one or both documents contain exempt material, is it practicable to give access to the document with the exempt material deleted? f) If one or both documents contain exempt material, should the Tribunal nevertheless exercise its discretion to override the exemption and provide access? Evidence

12 The documentary evidence in these proceedings consisted of: + Document 1, namely a fax from the informant to the RTA advising that Mr Odisho's vehicle is not roadworthy; (confidential exhibit 1) + Document 2, namely a letter from D Jones, Operations Manager with the RTA, to the informant thanking him or her for bringing the matter to their attention; (confidential exhibit 1) + confidential affidavit from the informant dated 13 March 2001; (confidential exhibit 2) + affidavit of Greg Child, Field Manager of the RTA's Heavy Vehicle Inspection Station at Wetherill Park, dated 28 February 2001; + affidavit of Vegi Solangaarchchi, Inspector, Heavy Vehicle Inspection Station at Wetherill Park, dated 28 February 2001; + defect report relating to Mr Odisho's vehicle; and + invoice from Colchester GR Pty Ltd trading as Shell Greenfield Park Auto Care to Mr Odisho dated 15 July 2000.

13 Oral evidence was given by Mr Child, Mr Solangaarchchi, Mr Odisho and Mr Mead. Much of the evidence given by these witnesses was not disputed.

14 Mr Child described the system that is used by the RTA to deal with notifications about the roadworthiness of vehicles. He said that people generally ring in on an inquiry line and are told that they should put the information in writing if they want it to be followed up. The RTA officer handling the enquiry also assures the informant that their identity can be treated confidentially. When the information is received in writing, it is given to a Field Manager (in this case Mr Child) for action. Mr Child said that the practice he adopts when dealing with queries of this kind is to advise all informants that the information they give, as far as possible, will be treated in confidence and their identity will not be disclosed.

15 In this case, Mr Child looked at the information provided by the informant and gave it to Mr Solangaarchchi with instructions to inspect the vehicle concerned and report back to him.

16 Mr Solangaarchchi inspected the vehicle on 25 July 2000. There is a dispute about what Mr Solangaarchchi said to Mr Odisho when he went to his house that day. Mr Odisho says that Mr Solangaarchchi told him that one of his neighbours had made the complaint. Mr Solangaarchchi denies saying that. He gave evidence that he said that another road user made the complaint. This was a critical conflict in the evidence from Mr Odisho's point of view because there are only five other houses in his street and he wants to confirm that none of his neighbours was the informant. Mr Mead, Mr Odisho neighbour of nine years and a former RTA employee, was also keen to clear his name with Mr Odisho.

17 I do not need to make a finding in relation to the conflict in evidence between Mr Solangaarchchi and Mr Odisho. Although this issue was very important to Mr Odisho, and to his neighbour Mr Mead, it is not a fact that is relevant to whether or not the documents are exempt.

18 Mr Solangaarchchi did admit that he told Mr Odisho that another road user had made the complaint. To ensure that a misunderstanding of this kind does not arise again, I suggest that RTA officers be instructed not to give any details whatsoever, even a generic description, of a confidential informant. Such a policy would minimise the kind of suspicion and conjecture that was clearly generated in this case.

19 After inspecting Mr Odisho's vehicle, Mr Solangaarchchi issued a defect notice in respect of the vehicle. The defect was categorised as "major" and a yellow label was issued. The defects recorded on the defect notice were as follows: (1) both steer tyres insufficient tread (2) drive axle right rear tyre insufficient tread (3) engine oil leak (4) transmission oil leak from gearbox area (5) steering rack mounts rubbers worn and ex movement and (6) rear shock absorbers inoperative.

20 Mr Odisho said that a week before the RTA inspector came to his house he had taken his car to Shell Greenfield Park Auto Care and that they had not mentioned bald tyres. Mr Odisho tendered an invoice from the service station which stated that: "Road test car could not go over 60 km because suspension is too bouncy." A number of comments were made on that invoice including: "thermo fan for radiator is noisy and possibly causing fuses to blow, motor has intermittent electrical fault either at the dissy or coil, inlet manifold has slight vacuum leak, suspension needs major repair."

21 Mr Mead said that Mr Odisho should have access to the documents in dispute to exonerate himself and his other neighbours from any suspicion that they were the informant. Mr Mead told the Tribunal that if the informant's identity was revealed, neither he nor Mr Odisho would make that information publicly known.

22 Mr Mead also maintained that the test carried out by the inspector was unprofessional. I told Mr Mead that that was not an issue that was relevant to the question of whether access to the documents should be granted.

23 Mr Child gave evidence that in his estimation, approximately 95% of complainants who ring the RTA to report unroadworthy vehicles ask for their identity to be kept confidential. Mr Child did not confirm this estimate with any documentary evidence. He also said that about half the complaints about vehicles came from the members of the public and half from the motor vehicle repair industry. According to Mr Child, the RTA also has a policy to keep complaints confidential. He did not produce a copy of any such policy and said that it was conveyed to Customer Feedback staff. He said that in 90-95% of cases information about the roadworthiness of vehicles is sufficient to warrant some action by the RTA following inspection of the relevant vehicle.

24 Finally, Mr Child expressed the opinion that if it became general practice for the identity of informants to be freely released, he anticipated that there would be fewer complaints forwarded to the RTA and that this would have an adverse effect on the RTA's ability to detect unroadworthy vehicles.

25 Some evidence was received and submissions made in the absence of Mr Odisho and the public in accordance with s 55 of the FOI Act. The confidential affidavit of the informant was tendered. The only part of that affidavit which I can reveal without disclosing exempt matter is that the informant stated that he or she would not have been prepared to continue with the complaint unless his or her identity was kept confidential. Mr Odisho's submissions

26 Mr Odisho had three major concerns. Firstly he says that Mr Solangaarchchi told him that the complaint had been made by one of his neighbours. He does not believe that he or his neighbours can discount that possibility unless they see the document for themselves. He wants to "clear" his neighbours.

27 Mr Odisho's second concern was that he believes that he knows the identity of the informant and in his opinion the complaint was made maliciously to "humiliate him," "stab him in the back" and "hurt him financially." Mr Odisho did not tell the Tribunal who he thought the informant was. While he would not take the law into his own hands, he did want to get some legal advice about whether he had a cause of action against the informant for what he regards as a malicious notification. Mr Odisho believes that the public interest in discouraging malicious notifications outweighs any other public interest which may arise.

28 Mr Odisho's third concern was that a barrister had been briefed to represent the RTA while he had been told that he did not need legal representation and that the hearing would be conducted informally.

29 Each of these concerns will be discussed below. Respondent's submissions 30 Mr Robertson on behalf of the agency, submitted that the notifications or complaints about the roadworthiness of vehicles relate to the enforcement or administration of the law. He outlined the relevant provisions of the Road Transport (General) Act 1999 (the General Act), the Road Transport (Vehicle Registration) Act 1997 (the Registration Act), and the Road Transport (Vehicle Registration) Regulation 1998 (the Regulation). The long title of the General Act is "an Act to provide for the administration and enforcement of road transport legislation . . ." Mr Robertson outlined both verbally and in written submissions the key provisions relevant to the administration and enforcement of the law relating to "defective registrable vehicles." That term is defined in s 4 of the Registration Act to mean "a registrable vehicle that does not comply with a vehicle standard that is prescribed by the regulations." "Vehicle standard" is defined in the same section to include "a standard or other requirement relating to the construction, design or equipment of a registrable vehicle." Section 26 of the Registration Act provides that: (1) A police officer, or the Authority, may inspect a registrable vehicle (whether or not on a road or road related area) for the purpose of deciding its identity, condition or the status of any registration or permit relating to the vehicle. (1A) A registered operator or owner of, or any person in charge of or having the custody of or selling or having in possession for sale or otherwise of the registrable vehicle must afford the police officer or the Authority all reasonable facilities for making such an inspection. Maximum penalty: 20 penalty units. (1B) Without limiting subsection (1), for the purposes mentioned in that subsection and in connection with any inspection, a police officer or the Authority may: (a) enter in or on the vehicle on a road or road related area, or (b) enter in or on any premises ordinarily used for the sale of registrable vehicles and in or on such a vehicle on those premises, or (c) enter in or on any other premises if the officer or the Authority has reasonable cause to believe a registrable vehicle is for sale, held in possession for sale or in a damaged condition as a result of an accident, and may enter in or on any such vehicle on those premises. (2) A police officer, or the Authority, may, in accordance with the regulations, on discovering a defective registrable vehicle: (a) issue a warning or a defect notice, or (b) impose conditions on the use of the vehicle, or (c) prohibit the use of the vehicle. (3) A defect notice may be withdrawn or cleared in accordance with the regulations. (4) After inspecting a registrable vehicle, a police officer, or the Authority, may seize any device, plate or document in or on the vehicle if it is suspected on reasonable grounds that the device, plate or document is being used in committing an offence against this Act or the regulations. (5) In this section, inspect in relation to a registrable vehicle includes observe the vehicle's performance, with or without the use of instrumentation.

31 Under s 20 of the Registration Act, it is an offence to use a registrable vehicle contrary to conditions or a prohibition imposed under section 26.

32 The vehicle standards for a registrable vehicle are specified in Schedule 4 to the Regulation (See Clause 56). Under Clause 57(1): (1) A person must not use a registrable vehicle on a road or road related area unless: (a) the vehicle complies with the applicable vehicle standards for the vehicle, and (b) the vehicle and its parts and equipment are suitable for safe use and are in a thoroughly serviceable condition. Maximum penalty: 20 penalty units. 33 Under Clause 77 of the Regulation, a defect notice may be a major or minor vehicle defect notice. It is an offence by virtue of Clause 84(2) of the Regulation, to use or permit the use of a registrable vehicle in breach of a condition of the defect notice.

34 On the basis of these provisions, Mr Robertson submitted that: The information provided by the informant disclosed the existence of a defective registrable vehicle. That in turn triggered an investigation as to whether the vehicle was defective. That investigation occurred in the exercise of statutory powers conferred for the purpose of the enforcement of the road transport legislation of NSW. The outcome of the investigation was to produce a notice, a legally enforceable instrument. It must necessarily follow that the information was provided "in relation to" the enforcement of the law.

35 Mr Robertson also submitted that the notification is in the informant's handwriting and is signed by the informant whose address is given. In Mr Robertson's view, it is doubtful whether partial disclosure would protect the identity of the informant. Findings, reasons and decision 36 Each of the issues outlines above at paragraph 11 will be dealt with in turn. The first issue will be discussed in two parts.

37 Could disclosure reasonably be expected to enable the existence or identity of any confidential source of information to be ascertained? The RTA did not seek to keep secret the existence (as opposed to the identity) of the confidential source of information. In Department of Health v Jephcott (1985) 8 FCR 85 the Full Court of the Federal Court (Forster, Keely and Davies JJ) held that in relation to section 37(1)(b) of the Freedom of Information Act 1982 (Cth) (the equivalent of Clause 4(1)(b) of the FOI Act) that a "confidential source" is one where the information provided from that source was given with an express or implied pledge of confidentiality. (See Forster J at 89 and Keely J at 90.)

3 8 In Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 at 371 the Information Commissioner of Queensland listed the factors which, in his opinion, are relevant in determining whether the information was supplied confidentially. One of those factors relevant to this case is "whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed."

39 Mr Odisho gave evidence that he would seek legal advice about whether he has any action against the informant if he could ascertain his identity. It would be a detriment to the informant if he or she was to have legal action brought against him or her as a result of making a complaint.

40 The confidential affidavit of the informant states that the information he or she disclosed was provided on the condition that his or her identity would be kept confidential. I accept that evidence and find that the informant did not want his or her identity revealed. If Mr Odisho's suspicions about the identity of the informant are correct, this finding is supported by the evidence that the informant could suffer some detriment if his or her identity was revealed. The finding is also supported by the evidence concerning the practices and polices of the RTA in advising people who ring in with information that their identity can remain confidential. It should be noted however, that it is not necessary in order to comply with Cl 4(1)(b), for the RTA to show that there is a reasonable expectation of prejudice to the future supply of such information. In Annotated Freedom of Information Act New South Wales , LBC Information Services 1997, at 269 Cossins points out when discussing the meaning of Cl 4(1)(b) that "Either a source of information is confidential or it is not and, if it is considered to be, that is sufficient for there to be a reasonable expectation that disclosure will reveal the existence or identity of a confidential source of information and for the first element of the exemption to be satisfied."

4 1 Each document contains the informant's name and address. There is no doubt that the identity of the informant, a confidential source of information, would be revealed if the documents were disclosed in full. Consequently, the first element of Clause 4(1)(b) has been satisfied.

42 Does the information provided relate to the enforcement or administration of the law? The legislative scheme governing the investigation of defective vehicles and the legal consequences if defects are found were set out in detail by Mr Robertson in his written and oral submissions. I agree with his description and analysis of these provisions. As a result of the notification, an investigation was triggered which resulted in Mr Odisho being issued with a defect notice. Non-compliance with the conditions in that notice is an offence. I am satisfied that the documents were concerned with the process of the enforcement of legal rights or duties and that consequently the information was provided "in relation to" the enforcement of the law.

43 This conclusion makes it unnecessary for me to consider whether the information also relates to the administration of the law. The Tribunal discussed that issue in Watkins v Chief Executive Roads and Traffic Authority [2000] NSWADT 11. In that case the Tribunal decided that confidential information raising doubts as to a person's medical fitness and competency to drive did not fall within the law enforcement exemption in Clause 4. The Tribunal concluded that there was no suggestion that the person concerned was in fact, or was suspected of being, in breach of any law or legal obligation. In Watkins , the Tribunal gave the words "administration of the law" a narrow meaning which requires the documents to be "concerned with the process of the enforcement of legal rights or duties." There is no need for me to express a view on the Tribunal's conclusion in that case. I am satisfied that the disputed documents in this case are concerned with the process of the enforcement of legal rights or duties.

44 This conclusion is more obvious in relation to Document 1 (the notification) than Document 2 (the letter from the RTA to the informant.) The RTA has already disclosed Document 2 to Mr Odisho with the informant's name and address deleted. Disclosure of the name and address would reveal the identity of a confidential source of information. The information provided by that confidential source relates to the enforcement or administration of the law. It is not a requirement of the Clause 4(1)(b) that the information contained in the document must relate to the enforcement of administration of the law. Consequently the informant's name and address contained in Document 2 meets the requirements of Clause 4(1)(b).

45 Is it relevant if the information is false or provided maliciously? Mr Odisho believes that he knows the identity of the informant and says that the complaint was made maliciously to "humiliate him," "stab him in the back" and "hurt him financially." There was no evidence that the information provided by the informant was false. On the contrary, the fact that the RTA officer carried out an inspection and a major defect notice was issued, suggests that the information was correct. I make no specific finding on that issue.

4 6 Mr Odisho maintained that the information was provided maliciously. There was no evidence given to support this contention. I assume that Mr Odisho, not being legally represented, did not appreciate that he would have to make a statement or at least give some oral evidence which would substantiate his allegation before I could make any finding about whether the informant had malicious motives. Nevertheless, it may help Mr Odisho to understanding the law and the reasoning in this decision if I discuss the relevance of any malicious motives, if they had been established.

47 The relevance of any malicious motives for disclosing information has not been finally determined in any decision in relation to Clause 4(1)(b) of the FOI Act. In Re McKenzie and Department of Social Security (1986) 65 ALR 645 at 649 the Federal Court (interpreting s 37(1)(b), the equivalent provision in the Commonwealth FOI Act) held that the allegations were false and the information provided included malicious comment about the person who was the subject of the complaint. Even in this situation, the Court affirmed the agency's decision not to disclose the informant's identity. (See also Re Gold and Australian Federal Police (1994) 37 ALD 168.)

48 In Annotated Freedom of Information Act New South Wales , LBC Information Services 1997, at 272-273, Cossins questions whether this degree of protection is appropriate under New South Wales provisions. Her argument is that if Clause 4(1)(b) is interpreted in accordance with the objectives of the FOI Act, "there is scope for arguing that the public interest is best served by an interpretation of Clause 4(1)(b) which protects the public interest in protecting informants, as opposed to those who merely seek to cause trouble."

49 T hese issues were explored by the Tribunal in Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35 (12 May 1999). In that case the Tribunal concluded that the allegations in question were not false or malicious. In those circumstances the Tribunal did not have to come to a view about whether the exemption would apply if the allegations were false or malicious.

50 The fact that the RTA issued a defect notice suggests that the informant was justified in drawing the matter to the RTA's attention and that he or she was not merely seeking to cause trouble. The fact is that Mr Odisho's vehicle was not roadworthy and the RTA took action, on the advice of the informant, to rectify that situation.

51 Do any of the exceptions set out in Clause 4(2) apply? None of the exceptions in clause 4(2) apply. In particular, the notification was not a report under Cl 4(2)(iv). That provision states that a document is not an exempt document if it merely consists of: (iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law)

52 Neither the notification nor the letter to the informant from the RTA is a report prepared in the course of a routine law enforcement inspection or investigation by the RTA. The notification triggered a report, namely the defect notice, but the disputed documents are not reports prepared by the agency and do not come within the exception in Cl 4(2)(iv) or any other exception in Clause 4(2).

53 Is it practicable to give access to the document with the exempt material deleted? Section 25(4) of the FOI requires that an applicant must be given access to documents with the exempt material deleted if certain conditions are satisfied. These conditions are that it must be practicable to do so and it must appear to the agency that the applicant would wish to be given access to such a copy. The RTA has given Mr Odisho access to Document 2 with the exempt material deleted. Document 1 contains the informant's name and address as well as one handwritten paragraph. There was no evidence as to whether the person's identity could reasonably be expected to be ascertained from their handwriting. However, the paragraph includes the informant's name and other information which I am satisfied could reasonably be expected to enable the informant's identity to be ascertained. I cannot reveal the nature of the information contained in that paragraph or the reasoning for my conclusion because to do so would disclose exempt material in breach of s 55(a) of the FOI Act.

54 Having concluded that Document 1 and the name and address on Document 2 are exempt pursuant to Clause 4(2)(b) of Schedule 1, there is no need to consider whether they would also be exempt pursuant to Clause 13(b) of Schedule 1 to the FOI Act.

5 5 Should the Tribunal nevertheless exercise its discretion to override the exemption and provide access to either or both of the documents? The nature of the override discretion in relation to exempt material generally was discussed by the Tribunal in Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 at [90] and [91]: 90 In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)). 56 In this case I am satisfied that the proper administration of the RTA's activities requires that it be able to assure informants that their identity will be kept confidential. In the circumstances of this case, the evidence establishes that if the informant's identity was not kept confidential the complaint would not have been made. In that case Mr Odisho may have continued to use his vehicle when it was not roadworthy thereby posing a safety risk to himself and other road users. In this case the public interest in ensuring that Mr Odisho's vehicle was roadworthy outweighs his interest in knowing who made the complaint. Consequently there is nothing about the information itself or the surrounding circumstances which persuades me that the exemption relied on should not be claimed.

57 At the hearing Mr Robertson gave his consent to the Tribunal assuring Mr Odisho that the informant was not one of his neighbours. I can assure Mr Odisho, having looked at the documents in dispute, that the informant is not one of his neighbours. The person's address is not the same as Mr Odisho's street address.

58 Finally, Mr Odisho was concerned by the fact that he was told that he did not need legal representation but that the RTA was represented by a barrister. I understand Mr Odisho's concern. It must be difficult and intimidating for unrepresented people to be faced with legal submissions and evidence which they do not fully understand. There are two points I would like to make in response to Mr Odisho's concerns.

59 Firstly, the Tribunal is obliged under s 73(4) of the ADT Act to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions. The Tribunal must also take measures to ensure that parties have the fullest opportunity practicable to be heard and have their submissions considered in the proceedings. I endeavoured to meet those requirements at the planning meeting and during the hearing of this case. The Tribunal's approach is that no party should feel obliged to obtain legal representation. In accordance with s 73(3) of the ADT Act, the Tribunal is to act with as little formality as the circumstances of the case permit.

60 Secondly, in FOI cases the onus is on the agency to establish that its determination is justified. In this case, the agency had the burden of proving each element of the exemptions they were relying on. Applicants in FOI cases can be successful without presenting evidence or legal argument. There have been numerous cases where the Tribunal has set aside, or partially set aside, an agency's decision where the applicant has not been legally represented. (See for example, Connelly -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 64 (28 April 2000), Heider -v- Director-General, Department of Community Services [2000] NSWADT 94 (13 June 2000) Latham -v- Director General, Department of Community Services [2000] NSWADT 58 (12 May 2000) Bennett -v- Vice-Chancellor, University of New England [2000] NSWADT 8; Simpson -v- Director General, Department of Education and Training [2000] NSWADT 134 (21 September 2000), and Vincent Neary v State Rail Authority [1999] NSWADT 107 (9 November 1999). Orders 1. The decision of the agency to refuse access to a copy of Document 1 and to give access to a copy of Document 2 from which the name and address of the informant has been deleted is affirmed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated.