Adams v Commissioner for Police - [2022] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Adams v Commissioner for Police [2022] NSWCATAD 178
Hearing dates: 5 and 6 November 2020
11 February 2021 - submissions closed
Date of orders: 31 May 2022
Decision date: 31 May 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Decision:
(1) (a) The decision of the Commissioner regarding the withheld information in Bundle 2, at pages 419, 420, 441, 444, 445, 463, 464, 467, 468, 469, 472, 473, 474, 510 (second deletion), 511, 518 519, 520 and 521 is remitted for reconsideration under s 65 of the Administrative Decisions Review Act 1997.
(b) Within 20 working days of the publication of this decision the Commissioner is to provide the Tribunal and the Applicant with his decision, and reasons for decision regarding the withheld information in the abovementioned pages. In the event the Commissioner decides to refuse access to the withheld information (in whole or part), the Commissioner is to provide the Tribunal and the Applicant with a Schedule that lists each email chain, the date of the email, the name of the sender and recipient of the email and the subject matter of the email.
(c) Within 20 working days after having received the Commissioner’s decision on reconsideration, the Applicant is to inform the Tribunal and the Commissioner if he wishes to withdraw his application or presses his application regarding the withheld information for which access has been refused (if any). In the event the Applicant presses his application, the Applicant is to include grounds on which his application is pressed.
(d) The Applicant’s application in regard to the abovementioned withheld information is listed for further directions on a date to be fixed.
(2) The decision of the Commissioner regarding the following withheld information in Bundle 1 and Bundle 2 is set aside and in substitution of that decisions a decision is made to provide the Applicant with access to that information:
Bundle 1: the 16 un-numbered pages; and
Bundle 2 – pages 3, 4, 13–23, 25 (first deletion), 27 (all deletions other than the last deletion), 29 31, 34, 35, 36 (first three deletions), 38, 39, 41, 42, 45, 46, 49, 50, 57, 58, 59, 60, 61, 62, 97, 99, 100, 101, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112, 114 (first and second deletion), 116 (first and second deletion), 118 (all deletions except the last deletion), 120, 123, 124, 125 (first deletion), 127, 128, 130, 131, 137, 141, 145, 148, 151, 154, 160, 190, 191, 192, 193, 194, 195, 196, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 358-366, 402-406, 436, 465, 498-504, 510 (first deletion);
(3) For abundant caution, the decision of the Commissioner regarding the withheld information in Bundle 2 at pages 27, 28, 30, 32, 33, 36 and 37, 39 and 40, 118 and 119, 121 and 122 and 125 and 126 that is a duplicate of the information on page 25 or 72 that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCATAD 178
Decision Date: 31 May 2022

CaseChat Overview and Summary

In the case of Adams v Commissioner for Police, the applicant sought access to certain documents held by the Commissioner for Police under the Government Information (Public Access) Act 2009. The Commissioner had withheld some of the information, leading to the applicant challenging this decision. The case was heard in the Administrative Appeals Tribunal.

The primary legal issues in the case centred around whether the Commissioner's decision to withhold information was justified under the Government Information (Public Access) Act 2009. Specifically, the court had to consider whether the public interest in withholding the information outweighed the public interest in disclosure, and whether the decision resulted in an unreasonable and substantial diversion of resources.

The Tribunal found that the Commissioner's decision to withhold some of the information was not justified. The Tribunal held that the overriding public interest considerations did not apply, and that dealing with the access application would not require an unreasonable and substantial diversion of resources. Consequently, the Tribunal set aside the Commissioner's decision regarding the withheld information and ordered the Commissioner to provide access to that information. In cases where the Commissioner decided to refuse access, a detailed schedule of the withheld information was to be provided. The applicant was also given the opportunity to press their application and include grounds for doing so.

The court ordered the Commissioner to reconsider the withheld information in specific pages of the bundles, and to provide a decision within 20 working days. Additionally, the Tribunal set aside the Commissioner's decision regarding certain other withheld information and ordered that the applicant be provided with access to that information within 28 days of the publication of the decision.

Orders

Orders of the court

(1) (a) The decision of the Commissioner regarding the withheld information in Bundle 2, at pages 419, 420, 441, 444, 445, 463, 464, 467, 468, 469, 472, 473, 474, 510 (second deletion), 511, 518 519, 520 and 521 is remitted for reconsideration under s 65 of the Administrative Decisions Review Act 1997.

(b) Within 20 working days of the publication of this decision the Commissioner is to provide the Tribunal and the Applicant with his decision, and reasons for decision regarding the withheld information in the abovementioned pages. In the event the Commissioner decides to refuse access to the withheld information (in whole or part), the Commissioner is to provide the Tribunal and the Applicant with a Schedule that lists each email chain, the date of the email, the name of the sender and recipient of the email and the subject matter of the email.

(c) Within 20 working days after having received the Commissioner’s decision on reconsideration, the Applicant is to inform the Tribunal and the Commissioner if he wishes to withdraw his application or presses his application regarding the withheld information for which access has been refused (if any). In the event the Applicant presses his application, the Applicant is to include grounds on which his application is pressed.

(d) The Applicant’s application in regard to the abovementioned withheld information is listed for further directions on a date to be fixed.

(2) The decision of the Commissioner regarding the following withheld information in Bundle 1 and Bundle 2 is set aside and in substitution of that decisions a decision is made to provide the Applicant with access to that information:

Bundle 1: the 16 un-numbered pages; and

Bundle 2 – pages 3, 4, 13–23, 25 (first deletion), 27 (all deletions other than the last deletion), 29 31, 34, 35, 36 (first three deletions), 38, 39, 41, 42, 45, 46, 49, 50, 57, 58, 59, 60, 61, 62, 97, 99, 100, 101, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112, 114 (first and second deletion), 116 (first and second deletion), 118 (all deletions except the last deletion), 120, 123, 124, 125 (first deletion), 127, 128, 130, 131, 137, 141, 145, 148, 151, 154, 160, 190, 191, 192, 193, 194, 195, 196, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 358-366, 402-406, 436, 465, 498-504, 510 (first deletion);

(3) For abundant caution, the decision of the Commissioner regarding the withheld information in Bundle 2 at pages 27, 28, 30, 32, 33, 36 and 37, 39 and 40, 118 and 119, 121 and 122 and 125 and 126 that is a duplicate of the information on page 25 or 72 that was provided to the Applicant pursuant to order 1 made on 6 November 2020, is set aside and in substitution thereof a decision is made that the Applicant be provide with access to that information within 28 days of the publication of this decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Adams v Commissioner for Police [2022] NSWCATAD 178
Hearing dates:	5 and 6 November 2020 11 February 2021 - submissions closed
Date of orders:	31 May 2022
Decision date:	31 May 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1) (a) The decision of the Commissioner regarding the withheld information in Bundle 2, at pages 419, 420, 441, 444, 445, 463, 464, 467, 468, 469, 472, 473, 474, 510 (second deletion), 511, 518 519, 520 and 521 is remitted for reconsideration under s 65 of the Administrative Decisions Review Act 1997. (b) Within 20 working days of the publication of this decision the Commissioner is to provide the Tribunal and the Applicant with his decision, and reasons for decision regarding the withheld information in the abovementioned pages. In the event the Commissioner decides to refuse access to the withheld information (in whole or part), the Commissioner is to provide the Tribunal and the Applicant with a Schedule that lists each email chain, the date of the email, the name of the sender and recipient of the email and the subject matter of the email. (c) Within 20 working days after having received the Commissioner’s decision on reconsideration, the Applicant is to inform the Tribunal and the Commissioner if he wishes to withdraw his application or presses his application regarding the withheld information for which access has been refused (if any). In the event the Applicant presses his application, the Applicant is to include grounds on which his application is pressed. (d) The Applicant’s application in regard to the abovementioned withheld information is listed for further directions on a date to be fixed. (2) The decision of the Commissioner regarding the following withheld information in Bundle 1 and Bundle 2 is set aside and in substitution of that decisions a decision is made to provide the Applicant with access to that information: Bundle 1: the 16 un-numbered pages; and Bundle 2 – pages 3, 4, 13–23, 25 (first deletion), 27 (all deletions other than the last deletion), 29 31, 34, 35, 36 (first three deletions), 38, 39, 41, 42, 45, 46, 49, 50, 57, 58, 59, 60, 61, 62, 97, 99, 100, 101, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112, 114 (first and second deletion), 116 (first and second deletion), 118 (all deletions except the last deletion), 120, 123, 124, 125 (first deletion), 127, 128, 130, 131, 137, 141, 145, 148, 151, 154, 160, 190, 191, 192, 193, 194, 195, 196, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 358-366, 402-406, 436, 465, 498-504, 510 (first deletion); (3) For abundant caution, the decision of the Commissioner regarding the withheld information in Bundle 2 at pages 27, 28, 30, 32, 33, 36 and 37, 39 and 40, 118 and 119, 121 and 122 and 125 and 126 that is a duplicate of the information on page 25 or 72 that…