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 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.

Catchwords:

ADMINISTRATIVE LAW – access to government information – overriding public interest consideration against disclosure of information sought (cl 1(d), 1(e), 1(f), 1(h) and 3(a) of the Table to s 14(2) of the Government Information (Public Access) Act 2009) – dealing with the access application would require an unreasonable and substantial diversion of resources

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Freedom of Information Act 1982 (Cth)

Freedom of Information Act 1989 (NSW) (repealed)

Government Information (Public Access) Act 2009 (NSW)

Government Information (Public Access) Amendment Act 2018

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Cameron v Commissioner of Police [2014] NSWCATAD 13

Cianfrano v Director General, Premier's Department [2006] NSWADT 137

Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130

Commissioner of Police v Danis [2017] NSWCATAP 7

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Hurst v Wagga Wagga City Council [2011] NSWCATAD 307

Leech v Sydney Water Corporation [2010] NSWADT 298

Luxford v Department of Education and Communities [2016] NSWCATAD 118

Macquarie University v Howell (No 2) [2009] NSWADTAP 19

McKinnon v Black Town City Council [2012] NSWADT 44

McLennan v University of New England [2013] NSWADT 113

Neary v State Rail Authority [1999] NSWADT 107

Raven v The University of Sydney [2015] NSWCATAD 104

Ruyters v Commissioner of Police [2020] NSWCATAD 223

Searle Australia Pty Ltd v PIAC [1992] FCA 241; (1992) 108 ALR 163

Woodhouse v Commissioner of Police [2022] NSWCATAD 41

Category:

Principal judgment

Parties:

Rodney Adams (Applicant)
Commissioner for Police, NSW Police (Respondent)

Representation:

Counsel:
P Lowson (Applicant)

Solicitors:
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2020/00087192

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis and to those paragraphs of these reasons identified as [NOT FOR PUBLICATION]. That material is not to be released to either the Applicant or to the public.

Reasons for decision

1. This is an application made by the Police Association of New South Wales (Police Association), on behalf of Mr Rodney Adams (the Applicant), seeking administrative review of the decisions of the respondent, the Commissioner for Police (Commissioner) of the NSW Police Force (NSWPF), made under s 58 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. The decisions of the Commissioner relate to the access application the Police Association had made, on 27 August 2019, on behalf of the Applicant, seeking access to eleven items of information concerning his 2019 deployment into a suitable trial placement within a Police Area Command located outside the Region of his substantive Area of Command. The background to this application is set out below.

3. The decisions of the Commissioner which are the subject of administrative review in this application are those made, during these proceedings, on 18 May 2020 and 1 June 2020, in which the Commissioner decided:

1. to refuse to provide the Applicant with access to some of the information sought within item 2 and item 4 of his access application because there was an overriding public interest against the disclosure of that information; and

2. to refuse to deal with item 3 of the Applicant’s access application because to do so would be an unreasonable and substantial diversion of his (the Commissioner’s) resources.

4. There is no dispute that:

1. the Tribunal has jurisdiction to hear and determine the Applicant’s application: Administrative Decisions Review Act 1997 (NSW) (ADR Act) s 7 and 9 and GIPA Act s 100;

2. the role of the Tribunal is to determine the correct and preferable decision having regard to the material before it and the applicable law: ADR Act s 63(1); and

3. in these proceedings, the onus (burden) of establishing that the reviewable decision is justified lies on the agency (in this case the Commissioner) that made the decision: GIPA Act s 105(1).

5. For the reasons that follow, I have made the following findings and decisions regarding the decisions of the Commissioner the subject of review:

1. the decision of the Commissioner to refuse access to the information that is personal information of a person other than the Applicant is the correct and preferable decision and should be affirmed (see at [72] and following):

2. the decision of the Commissioner to withhold the 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 ADR Act (see at [85]);

3. the decision of the Commissioner to refuse access to the remaining withheld information is not the correct and preferable decision and should be set aside and in substitution thereof a decision that the Applicant be provided access to that information (see at [72] and following); and

4. the decision of the Commissioner to refuse to deal with the information sought by the Applicant at item 3 of his access application on the grounds that dealing with this item would require an unreasonable and substantial diversion of the Commissioner’s and the NSWPF’s resources is the correct and preferable decision and should be affirmed (see at [150] and following).

Background

Generally

6. In early 2019, the Applicant, a member of the NSWPF, was medically assessed as having reached ‘Maximum Medical Improvement’ (MMI) as a result of a work-related injury. That is, the Applicant’s condition, resulting from his work-related injuries, was assessed to have reached a state where his condition could not be improved any further by treatment or otherwise.

7. Since joining the NSWP and at the time of his MMI assessment, the Applicant’s substantive position was with a local Police Area Command (PAC) in the North Western Metropolitan Region of the NSWPF (NWM Region).

8. Based on the Applicant’s MMI assessment, the Applicant was allocated to the Deployment Unit of the NSWPF.

9. The Deployment Unit is a Unit that is part of the Injury Management Unit (IMU) of the Workforce Safety Command (WSC) of the NSWPF. It is primarily responsible for assisting PACs in placing injured NSWPF officers and staff into suitable employment. It is my understanding that there is a single Deployment Unit within the NSWPF.

10. In assisting PACs, the Deployment Unit is tasked to provide 6 months support to injured police officers who have reached MMI. During this period of support (which can be extended) the Deployment Unit endeavours to find an alternate permanent role/position that is suitable for such officers. In doing so the Deployment Unit looks to see if there are any roles/positions within a PAC, within the NSWPF, that can be reasonably adjusted to meet the officer’s capabilities while not causing unjustifiable hardship to the PAC where that role/position is situated.

11. In early February 2019, the Manager of a local PAC within the South Western Metropolitan Region (SWM Region) of the NSWPF advised the Deployment Unit that the Command was interested in securing a second MMI Constable/Senior Constable to work in their Court Process Unit. The Manager went on to say that the Command was happy to agree to a trial placement ‘with a view to substantive transfer to a General Duty Constable position’.

12. The Deployment Unit identified the Applicant as being suitable for that placement, which he commenced, on a trial period, in late February 2019.

13. In early June 2019, the Manager of the local PAC where the Applicant was placed on trial, advised that Applicant that his trial placement had been successful and the PAC was able to accommodate him into the position on a permanent transfer basis. As the Applicant’s substantive position was not within that PAC or the Region of that PAC, the Applicant was required to apply for a transfer into that position. Hence, the Applicant was advised to complete the relevant transfer forms, which he did.

14. Subsequently, the Applicant’s transfer was placed on hold. At around the same time, an internal dispute arose as to the categorisation of the trial position in which the Applicant had been placed and whether it was a position the Applicant could be placed in on an ongoing basis.

15. Sometime in early to mid August 2019, the Police Association, on behalf of the Applicant, lodged an industrial dispute against the NSWPF, under the Crown Employee Police Award.

16. On 20 August 2019, the Applicant was advised that his trial placement had been terminated. The Applicant was also advised that the trial had been deemed not successful on the basis that the role and functions of his trial position were not at a Constable/Senior Constable level, but were administrative in nature. The Applicant was also advised that the PAC where he was placed on trial did not have any other positions available that were suitable to his position and capabilities as a police officer.

17. After being informed that his trial placement was unsuccessful, the Deployment Unit continued in its efforts to identify another suitable position for the Applicant. The Applicant’s deployment was subsequently finalised on 18 June 2020 and he was returned to the PAC where his substantive position was held. 

Applicant’s access request

18. In his 27 August 2019 access application, the information for which the Applicant sought access included the following:

Item 1 - NSWPF Injury Management File for all injuries

Item 2 -NSWPF Deployment file

Item 3 - All emails and communication relating to injury management, deployment and trail placement process including but not limited to, any communication to and from any party relating to the trial placement process including but not limited to, any communication to and from any party relating to the trial process

Item 4 - Emails relating to the trial placement between the Police Area Manager (X PAC), former Commander Supt Lennon (X PAC), current Commander Supt Weinstein, Regional HRM Elizabeth Hatfield, Deployment Unit (Daniel Bourke, Allyson Fenwick) and other email relating to same

Item 5 - Medical reports …

19. On 11 September 2019 the Commissioner determined the Applicant’s access application by deciding that the requested information was already available to him and could be accessed by contacting his supervisor, or manager directly. Two days later, the Police Association, on behalf of the Applicant, contacted the Applicant’s then supervisor seeking access to the information sought. The supervisor responded, on 24 September 2019, and advised that, as the Applicant’s GIPA application had been declined the requested information could not be provided at that time and the appropriate course was to seek internal review of the 11 September 2019 decision.

20. On 4 October 2019, the Police Association, on behalf of the Applicant, made an application, under s 82 of the GIPA Act, seeking an internal review of the Commissioner’s 11 September 2019 decision. On 29 November 2019, the Police Association, on behalf of the Applicant, made an application for external review by the Information Commissioner: see GIPA Act, s 89. That application was made after the Commissioner failed to make his internal review decision within the prescribed 15 working days of receiving the Applicant’s internal review application: GIPA Act s 86.

21. On 25 February 2020, the Information Commissioner determined the Applicant’s external review application and recommended that the Commissioner conduct an internal review.

22. On 4 March 2020, Jennifer Evans, A/Senior Advisory Officer of Infolink-Police Command sent an email to the Police Association in which she advised that ‘a new decision will be made and further searches have commenced. I will provide you with a new decision shortly.’

23. After a number of follow-up enquires, on 19 March 2020, the Police Association, on behalf of the Applicant, commenced these proceedings as the Commissioner had failed to make a decision, as recommended by the Information Commissioner.

Proceedings before the Tribunal

24. The Applicant’s administrative review application first came before the Tribunal, at a case conference, on 23 April 2020. At that case conference, the Tribunal made the following order:

(1) The Commissioner of Police is to give [the Applicant] a new decision and any information it determines is to be released by 07 May 2020. A copy of the new decision is to be provided to the Tribunal.

By 03 June 2020 [the Applicant] is to give the Tribunal and the Commissioner of Police an indication of whether he is continuing or withdrawing the application.

25. In the course of these proceedings, the Commissioner made three decisions in regard to the Applicant’s access request. These were made on 7 May 2020, 18 May 2020 and 1 June 2020.

26. Each of the abovementioned decisions were made by the Commissioner’s delegate, Jennifer Evans (Ms Evans). Ms Evans is a Team Leader, Review Team in the InfoLink, PoliceLink Command of the NSWPF.

27. In her decision of 7 May 2020, Ms Evans decided:

1. the information requested by the Applicant in items 1, 5, 6, 7, 8, 9 and 10 had already been provided to the Applicant on 11 December 2019 and 13 January 2020. These, Ms Evans noted, had been provided, on 26 November 2019, in response to a request, made, on behalf of the Applicant, by Slater and Gordon. Ms Evans also noted that this information was provided subsequent to the Commissioner’s initial decision of 11 September 2019;

2. the information requested at item 11 of the Applicant’s access request (Applicant’s personal file) was information available to him free of charge;

3. the information requested at item 2 of the Applicant’s access request (NSWPF Deployment File) was still being processed as she was awaiting advice from the Work Force Safety Command; and

4. dealing with item 3 and 4 of the Applicant’s access request would require an unreasonable and substantial diversion of resources. Ms Evans noted that a search of the NSWPF electronic Digital Technology and Innovation system had identified over 1,000 emails that could potentially fall within the terms of these items. Ms Evans also noted that a request had been made, under s 60(4) of the GIPA Act, for the Applicant to amend the terms of these items.

28. In her decision of 18 May 2020, Ms Evans dealt with item 2 of the Applicant’s access request (NSWPF Deployment File) and decided as follows:

1. to provide the Applicant with access to the information in three documents located in this file;

2. to refuse access, in part, to information that was personal information of a person other than the applicant on the grounds of the public interest considerations against disclosure in cl 3(a) of the Table to s 14(2) of the GIPA Act; and

3. to refuse access to the entirety of the remaining reports and emails located in this file on the grounds of the public interest considerations against disclosure in cls 1(e) and 1(h) of the Table to s 14(2) of the GIPA Act.

29. In her decision of 1 June 2020, Ms Evans made a decision in response to item 3 and 4 of the Applicant’s access request as follows:

1. to refuse, in part, access to information held by the NSWPF falling within item 4 of the Applicant’s access request on the grounds of the public interest considerations against disclosure in cls 1(e) and 1(h) and cl 3(a) in the Table to s 14(2) of the GIPA Act;

2. to refuse to deal with item 3 of the Applicant’s access request on the grounds that dealing with this item of the Applicant’s access request would require an unreasonable and substantial diversion of resources: GIPA Act s 60(1)(a). In the decision, Ms Evans noted that the applicant had agreed to limit the search for information falling within item 3 to searches with the key words of the name of the Applicant together with the words ‘Trial Placement, Injury Management and Deployment’ and a date range from 01/01/2019 to 31/08/2019. Ms Evans said that this resulted in over 1700 pages being identified as falling within that search. On the Applicant’s agreement to limit the date range from 31/05/2019 to 31/08/2019, ‘over 900 pages (not including attachments)’ were still identified.

Ms Evans said that she estimated it would take approximately 30 hours to review and make a decision in respect of the identified 900 pages. She also noted that there was considerable duplication of the emails that had already been addressed in previous decisions and it was not clear to her which specific document the Applicant sought. Hence, she had to examine all the identified documents potentially falling within item 3 of the Applicant’s application. She also noted that she had already spent 35 hours in dealing with and making a decision in regard to the other items in the Applicant’s access request.

30. At the hearing, on 6 November 2020, the Commissioner agreed to provide the Applicant with access to some additional information for which Ms Evans had refused access in her decision of 1 June 2020 and I made an order accordingly. However, the remaining information falling within item 2 and item 4 of the Applicant’s access application for which Ms Evans had refused access in her decisions of 18 May 2020 and 1 June 2020 remained in dispute. Ms Evan’s decision to refuse to deal with item 3 of the Applicant’s access application also remained in dispute.

31. I have dealt with these issues in detail below.

Material before the Tribunal

32. In support of his case, the Applicant relied on:

1. a statement, dated 13 October 2020, of Aileen Margret Fleming (Ms Fleming) an Industrial Officer of the Police Association; and

2. a statement, dated 13 October 2020, of Kirsty Anne Membreno (Ms Membreno) the Assistant Secretary Industrial of the Police Association.

33. In support of his case, the Commissioner relied on:

1. a statement, dated 11 September 2020, of Ms Evans;

2. a further statement of Ms Evans, dated 28 October 2020;

3. a statement, dated 11 September 2020, of Mary Noy (Ms Noy). Ms Noy is the Director of Operation Workplace Support, Workforce Safety Command of the NSWPF;

4. a further statement of Ms Noy, dated 28 October 2020; and

5. a Schedule listing the email chains containing the disputed withheld information. This Schedule was prepared by the Applicant’s representative. It was based on the very limited Schedule attached to the decisions of Ms Evans and the information to which the Applicant had been granted access. The Commissioner also made some additions to this Schedule.

34. In these reasons for decision, I have placed little reliance on these Schedules. Instead, I have examined the documents, provided by the Commissioner to the Tribunal, in confidence. This material was provided in two bundles, identified as Bundle 1 and Bundle 2.

35. Bundle 1 contains a copy of the information for which the Commissioner decided, on 18 May 2020, to grant access and that for which access was refused. There are 45 consecutively number pages and 16 un- numbered pages in the Bundle.

36. Of the 45 numbered pages, the Applicant was provided with access to most of the information on these pages. The redacted information that was withheld from the Applicant is included in the confidential copy provided to the Tribunal. This withheld information is identified in the copy provided to the Tribunal within a fine red lined boarder around it.

37. The information on the 16 un-numbered pages is the information that was withheld from the Applicant in its entirety.

38. Bundle 2 contains a copy of the information for which the Commissioner decided, on 1 June 2020, to grant access and that for which access was refused. Each page in the Bundle is stamped and numbered consecutively on the bottom of the page. I understand that 523 pages were found to be responsive to item 4 of the Applicant’s access request. However, not every page is included Bundle 2, as some duplicates appear to have been removed. Nevertheless, the number of pages remaining in Bundle 2 is considerable.

39. Again, the withheld information in issue in Bundle 2 is identified by that which is contained within a finely marked red boarder. In some cases the entire page appears to have been provided to the Applicant. In others, the Applicant has been provided with part of the information on the page, or the entire page has been withheld from the Applicant.

40. Both parties provided written submissions prior to the hearing and subsequent thereto.

41. At the hearing Ms Evans and Ms Noy gave evidence and were cross-examined. I have dealt with their evidence below. During the cross-examination of Ms Evans, she made to a Schedule of documents that had been prepared for her in dealing with the Applicant’s access application. The Applicant called on that Schedule, which was provided subsequently in December 2020. I note the Schedule was prepared by the solicitor for the Commissioner and it lists the emails and email chains Commissioner had identified as falling within item 4 of the Applicant’s access application. The Schedule identifies 179 emails and email chains (which amounted to 523 pages) that had been ‘produced’ by the following Officers: Peter Lenon, Jason Weinstein and Elizabeth Hatfield.

42. Neither party sought to put this Schedule into evidence.

GIPA Act

43. The objects of the GIPA Act is to ‘open government information to the public’ in the manner provided in that Act ‘in order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective’: (GIPA Act, s 13(1)). An important distinction between the GIPA Act and the former Freedom of Information Act 1989 (NSW) (repealed), is that the focus of the GIPA Act is ‘information’ and not ‘documents’ which was the focus of the former Act.

44. Section 5 of the GIPA Act also contains a presumption in favour of the disclosure of government information unless, there is an ‘overriding public interest against disclosure’. Subsection 9(1) gives every person who makes an access request for government information a legally enforceable right to be provided with access to the information in accordance with Part 4 of that Act unless there is ‘an overriding public interest against disclosure of the information’.

45. The test to be applied in determining whether there is an ‘overriding public interest against disclosure’ is set out in s 13. That test is in the following terms:

13   Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

46. The public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act.

47. Sub-section 14(1), provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. That is, where the information for which access is sought is information falling within any of the matters prescribed in Schedule 1, the public interest test is presumed to apply and the agency does not need to balance the competing public interests.

48. Sub-section 14(2) sets out the only other public interest considerations against disclosure. For the purpose of this application, the relevant public interest considerations against disclosure are in the following terms:

14   Public interest considerations against disclosure

…

(2)  The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Table

1   Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

…,

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f) prejudice the effective exercise by an agency of the agency’s functions,

…

(h) prejudice the conduct, effectiveness or integrity of any audit, test investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

(a) reveal an individual’s personal information, …

49. Sub-section 12(1) of the GIPA Act, provides that there is a general public interest in favour of disclosure of government information. Subs 12(2), provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include:

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a)  Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)  Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)  Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)  The information is personal information of the person to whom it is to be disclosed.

(e)  Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

50. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows:

15   Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

51. Part 4 of the GIPA Act contains provisions about how an access request/application is to be made (Division 1), how it is to be dealt with (Division 3), how it is to be decided (Division 4), how and when a processing charge or advance deposit can be imposed (Division 5) and the form in which access is to be provided (Division 6).

52. For the purpose of this application, the relevant provisions are ss 53, 55, 58 and 73 of the GIPA Act.

53. Sub-section 53(1) provides that the obligation of an agency to provide access to the information sought in an access application is limited to the information held by the agency at the date the access application is received. sets out the extent of an agency’s obligation to conduct a search for the information sought by the access applicant.

54. Sub-section 53(2) provides:

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

55. Section 58 of the GIPA Act, sets out what decisions the agency can make in determining an access request/application. That section relevantly provides:

58 How applications are decided

(1) An agency decides an access application for government information by:

(a) deciding to provide access to the information, or

…

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), …

56. The circumstances where an agency can make a decision to refuse to deal with an access request/application, is set out in s 60 of the GIPA Act. This includes, where dealing with an access application would require an unreasonable and substantial diversion of the agency’s resources: GIPA Act s 60(1)(a). I Have dealt with this provision in more detail below, and following, under the heading ‘Unreasonable and substantial diversion of resources’.

57. A decision to provide access to the information sought, cannot be made subject to conditions: GIPA Act s 73.

58. In deciding whether there is an overriding public interest against disclosure, section 55 of the GIPA provides that the agency is entitled to take into account the personal factors of the applicant, as follows:

55 Consideration of personal factors of application

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

(a) the applicant’s identity and relationship with any other person,

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

59. As I have already noted, sub-section 105(1) of the GIPA Act provides that, on review before the Tribunal, the onus (burden) of establishing that the reviewable decision is justified lies on the agency that made the decision.

60. Section 107 of the GIPA Act sets out the procedure to be used, by the Tribunal, on administrative review, in regard to information for which there is, or claimed to be an overriding public interest consideration against disclosure. The provision essentially requires the Tribunal to ensure that it does not disclose, in its decision or during the course of the hearing, such information to the applicant, the applicant’s legal representative, or the public.

GIPA Act s 14(2) - Public interest considerations against disclosure –– general principles

61. As noted above, the s 14(2) public interest considerations against disclosure are dependent on whether the disclosure of the information in issue ‘could reasonably be expected to’ have the effect as prescribed in the relevant clause in the Table to that subsection. This is to be assessed objectively and approached from the view point of a reasonable decision maker and based on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; (1992) 108 ALR 163 and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

62. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [25], the Appeal Panel noted that there was a structured approach to the decision-making task under the GIPA Act in that:

25 … [The] agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government

63. At [26], the Appeal Panel went on to note that when examining whether there is a public interest consideration against disclosure, this needs to be examined at the broader operational level of the relevant agency, rather than introducing particulars of the ‘instant situation’ that is before the Tribunal, which should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations.

The Commissioner’s case

64. In support of his case, the Commissioner relied on the evidence of Ms Noy, who, as I have already noted is the Director of Operational Support, within the Work Safety Command of the NSWPF.

65. In her statement of 11 September 2020, Ms Noy explained that the deployment process is an important Human Resources (HR) function in the NSWPF. She said that there is a high incidence of workplace injuries due to the nature of policing work. At the same time there are few positions for MMI officers. Hence there is a need to effectively and successfully manage the deployment process.

66. Ms Noy said that communications about MMI officer placements are considered confidential and sensitive. She went on to explain that these communications may include:

… [information] about the injured workers skills, experience, limitations on roles and duties, details about other injured persons occupying roles within the Command, suitability, past performance and issues with performance and attitude towards the workplace. It will also include details about Command’s workforce needs more generally and their ability to reasonably adjust roles without unjustifiable hardship.

67. Ms Noy said that these communications are restricted to a limited group of people with direct involvement in the trial placement process and those that are involved in the management of the injured officer. She said that HR-related emails and records are stored in dedicated folders regarding the injured worker and his or her trial placements. These folders have restricted access and cannot be searched on the NSW Police document management system. Access to this information is limited.

68. While information contained in emails concerning MMI officer placements may not be discussed with the individual officer, it is important for that information to be shared with the relevant Command (i.e. a PAC) and regional managers to ensure that roles for which there is to be a trial placement can be adjusted to meet the needs of the MMI officer, without unjustifiable hardship on the Command. Additionally, where matters become disputed, either internally or externally, communications are treated with an even higher degree of sensitivity, because, from a HR perspective, the success of a dispute resolution process is often dependent on the frank and uncensored responses from those who are involved in the dispute.

67. The Commissioner’s submissions are dealt with below.

The Applicant’s case

70. In this case, the Applicant made detail submissions in regard to the Commissioner’s claim of an overriding public interest against disclosure. In summary the Applicant contended that the public interest consideration against disclosure relied on by the Commissioner were not established on the information before the Tribunal and even if the Tribunal were to find that they were established, they did not, on balance, override the public interest considerations in favour of disclosure.

71. In regard to the public interest considerations against disclosure relied on by the Commissioner, the Applicant :

1. does not accept that the information in issue is confidential, or that a disclosure of the information could reasonably be expected to prejudice the supply of such information in the future. In this regard, the applicant noted that there is no evidence that the information in issue was marked confidential, or that the disclosure of the communications would prejudice the supply of this information in future;

2. accepts that there may be some communications with Human Resources that are properly confidential, but it cannot be a blanket approach to all communications involving Human Resources;

3. submitted that, the WSC’s own procedures (‘Standard Operating procedures for Managing the Deployment of Injured Police Officers’) dictates that there should be transparency where an MMI Officer fails to secure the position offered - hence, the procedures expressly contradict the Commissioner’s contention;

4. submitted that:

1. the information for which he sought access in item 4 of his access application, did not relate to the creation of positions for MMI officers – instead he sought inform as to why his successfully trailed position was overturned – that is it was an isolated incident and the communications would reveal how the Commissioner’s Officers had orchestrated, explained and justified their decision at the end of the process; and

2. hence, it is not apparent how the disclosure of the withheld information could reveal a deliberative process- even if it was such a process, it was not a legitimate one.

5. accepts that the deployment processes and the placement of Officers with ongoing injuries in the workplace is a function of the NSWPF – however, information relating to the disruption of a confirmed placement did not fall within that function. Nor can it be said that a disclosure of such information could reasonably be expected to prejudice either function of the NSWPF – on the contrary, a disclosure of the information in issue would provide greater transparency;

6. confirmed that he did not seek access to personal information of other officers. However, he pressed his application as he was not confident that the decision of the Commissioner was correct in all cases.

Cl 3(a): reveal an individual’s personal information

72. It is convenient to first consider the information the Commissioner contends to be personal information of a person other than the Applicant.

73. There are two aspects to the cl 3(a) public interest consideration against disclosure. These are:

1. the information in issue is personal information; and

2. a disclosure of that information could reasonably be expected to reveal that information.

74. The term ‘personal information’ is broadly defined in cl 4 of Sch 4 of the GIPA Act as follows:

4   Personal information

(1)   In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2)   Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3)   Personal information does not include any of the following:

(a)   information about an individual who has been dead for more than 30 years,

(b)   information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, …

75. The term ‘reveal information’ is defined in cl 1 of Sch 4 of the GIPA Act to mean ‘to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)’.

76. I have carefully examined the information the Commissioner provided to the Tribunal in confidence, and I am satisfied that the redactions on the following pages in Bundle 1 (the 18 May 2020 decision) and Bundle 2 (the 1 June 2020 decision) is personal information of a person other than the Applicant (including the telephone number or contact details of an employee of the NSWPF), and that a disclosure of this information could reasonably be expected to reveal that information:

1. Bundle 1 – pages 15 and 17

2. Bundle 2 – pages 1, 5, 25 (first redaction on the page), 35 (the middle redactions on the page), 38 (same redaction as on page 35), 78 (last redaction on the page), 80, 86, 87, 94, 95, 118 (redaction at the top of the page), 124, 168, 173, 177, 187, 188, 278, 282, 283, 286, 287,288, 289, 290, 348, 349, 373, 375, 376 (first redaction on the page) and 489.

77. The redactions on the cl 3(a) personal information grounds on the abovementioned pages are small and easily identified. There is also considerable duplication of the cl 3(a) personal information in the abovementioned pages in Bundle 2.

78. As the Applicant does not press access to this information or the telephone number or contact details of an employee of the NSWPF it is unnecessary for me to consider this information any further. For completeness, I note that having regard to the material before me, I am satisfied that the Commissioner has established that this public interest consideration against disclosure, on balance, outweighs any public interest consideration in favour of disclosure.

Cl 1 responsible and effective government

79. My examination of the documents provided, in confidence, the information withheld on the grounds of the public interest consideration against disclosure under cl 1(d), 1(e), 1(f) and 1(h) of the Table to s 14(2) of the GIPA Act are found on the following pages:

1. Bundle 1 (the 18 May 2020 decision) - the entire information in the 16 un-numbered pages at the end of the Bundle.

2. [NOT FOR PUBLICATION]; and

3. Bundle 2 (the 1 June 2020 decision) – the information (in its entirety or in part) on the following pages:

80. 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, 376-383, 402-406, 419, 420, 436, 441, 444, 445, 463-465, 467-469, 472-474, 498-504, 510, 511 and 518-521.

81. As noted above, on 6 November 2020, at the request of the Commissioner I made an order setting aside the decision of the Commissioner to refuse the Applicant access to the withheld information on pages 25 and 72 and specified duplicates of that information in other emails in Bundle 2. In substitution of that decision, I made a decision that the Applicant be provided with a copy of this information. In my examination of the material in the Bundle, there are further duplicates of the information on page 72 and 25. These are contained on pages 27, 28, 30, 32, 33, 36 and 37, 39 and 40, 118 and 119, 121 and 122 and 125 and 126. If these duplicates have not been provided, they should be provided to the Applicant in accordance with my 6 November 2020 order.

82. The information remaining in issue for which there is a claim of a cl 1 overriding public interest against disclosure is primarily contained within internal email chains. Again, there remains considerable duplication of the email exchanges. In many cases the date of the email or email chain and the subject matter, the name of the sender and the recipient of the email or email chain have been withheld. On what basis they were withheld is difficult to understand, especially where the sender and recipient of the emails in each email chain is an Officer of the NSWPF and the emails all appear to have been sent and received in the ordinary course of the respective duties and responsibilities of these Officers. It is also information which has been disclosed, in part, in the Schedule prepared by the solicitor for the Commissioner.

83. In his evidence and submissions, the Commissioner does not point to any distinguishing factors in the content of the emails for which the cl 1 public interest consideration against disclosure is claimed. Yet, on my observation of the content of these emails there are some distinguishing factors.

84. For example, the emails at pages 376 (second deletion) and pages 377-383 of Bundle 2, are email communications, sent and received in March 2019 between the Deployment & Transition Unit of the NSWPF and an external contractor. The information in these emails relate to the provision of training.

85. The remaining email exchanges are primarily internal email exchanges between senior Officers of the Deployment Unit, the PAC where the Applicant had been deployed, the SWM Region and the NWM Region. These email exchanges all relate to the Applicant and the position he was deployed to.

86. There is a small group of internal emails, sent in mid-August 2019, which in my view are also distinguishable. They are found 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.

87. [NOT FOR PUBLICATION].

88. In my opinion, having considered the content of these email exchanges, there is a possibility that a claim of a presumed conclusive public overriding public interest consideration against disclosure may apply to this information. The Commissioner has not made such a claim. This may be an oversight due to his very broad-brush approach to the information in issue. Although the onus is on the Commissioner in this application, in my opinion, given the Commissioner’s approach and the possibility of a conclusively presumed overriding public interest against disclosure applying to this information it is appropriate to give the Commissioner an opportunity to reconsider his decision regarding this information under s 65 of the ADR Act. Hence, I have made orders accordingly and not dealt with this information any further in this decision.

89. Most of the withheld information in the 16 unnumbered pages in Bundle 1, appear to be duplicates of internal emails (other than those referred to at [86] above) that are in Bundle 2.

90. Finally, included (in part) in the information for which there is a cl 1 claim of public interest consideration against disclosure is personal information of a person other the Applicant and while no claim has been made in respect to that information, my findings would be the same as set out under the cl 3(a) heading above.

Cl 1(d) prejudice the supply to the agency of confidential information that facilitates the effective exercise of the agencies functions

91. This is an additional ground of public interest consideration against disclosure the Commissioner relies on in these proceedings.

92. In order for the public interest consideration against disclosure in cl 1(d) to apply, the Tribunal must be satisfied that the Commissioner has established the following:

1. the information in issue is confidential information;

2. the disclosure of the confidential information of this kind could reasonably be expected to ‘prejudice’ the ‘supply’ of confidential information to the respondent in the future; and

3. the information facilitates the effective exercise of the respondent’s ‘functions’.

93. The former Freedom of Information Act 1989 (NSW)(repealed) (FOI Act (repealed)) contained a similar provision to cl 1(d) of the GIPA Act: FOI Act repealed, Sch 1cl 13(b)(ii).

94. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19, at [10], the Appeal Panel of the former Administrative Decisions Tribunal described the approach to be taken to this exclusion as follows:

10 In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.

95. The same approach has been accepted to apply to cl 1 of the Table to s 14(2) of the GIPA Act.

96. It is accepted that the question as to whether the information in issue is ‘confidential information’, is a question of fact that must be examined by reference to the agency’s evidence as to the conditions under which it conducts its service/functions within which the information was received: Camilleri, at [33] and McKinnon v Black Town City Council [2012] NSWADT 44, at [54]-[58].

97. In Camilleri, the information in issue was a triple zero telephone recording of a complaint Mr Camilleri’s neighbour had made to the Commissioner. At [33] and [34], the Appeal Panel said:

33 In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service. In our view, the Tribunal did not adequately explain why it rejected the agency's case on this point.

34 We also agree with the agency that the Tribunal should not have introduced factors relating to the later history of the information or document. The enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.

98. In Raven v The University of Sydney [2015] NSWCATAD 104, at [62], the Tribunal held that:

… [The] term “confidential information” in cl 1(d) of the table in s 14 of the GIPA Act does not connote information which may not be disclosed in any circumstances. The term captures information which is not to be disclosed in ordinary circumstances. …

99. The information in issue in Raven was the information contained in an ethics application, made to the University’s Human Research Ethics Committee (HREC), for research that was to involve human participants. At [64], the Tribunal found that the University had established that the relevant information was confidential, even though absolute confidentiality could not be mandated.

100. It has been accepted that the word ‘prejudice’ should be given its ordinary meaning, namely - ‘to cause detriment or disadvantage’ or ‘impede or derogate from’: see McLennan v University of New England [2013] NSWADT 113.

101. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286, the applicants sought access to the information relied on by the Police Officer in seeking a twenty-eight day provisional Apprehended Personal Violence Order against them for the protection of the complainant. The information sought by the applicant in that application included the complaint made by the complainant. At [51], the Tribunal found that the disputed information was confidential information. At [52], the Tribunal went on to note:

10 The real issue in regard to this public interest against disclosure ground is whether, the disclosure of the information could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions. That is, it is not a question as to whether the particular confider of the information in issue would in future refuse to supply that information. It is a question as to whether information of this nature (a) facilitates the effective exercise of the respondent's functions and (b) the disclosure of such information could reasonably be expected to prejudice the supply of such information.

Consideration of the Commissioner’s cl 1(d) claim

102. It is not disputed that Human Resources (HR) is a function of the Commissioner and the NSWPF and, an important aspect of that function is the provision of support for injured police officers, including exploring opportunities for their deployment into a vacant position within the NSWPF that is suitable to the injured officer’s capabilities and meets the needs of the PAC where the position is located.

103. Having regard to the author and recipients of the internal emails containing the information in issue, together with their subject matter and content, I accept the evidence of Ms Noy that access to information of the kind contained in the internal emails is likely to be limited. I also accept that the information in issue facilitates the effective exercise of the HR functions of the NSWPF and the Commissioner.

104. However, I do not accept that this alone establishes that the information in issue was supplied in confidence.

105. To the extent the information in issue in the internal emails is personal information and health information about the Applicant, I accept that it is information supplied in confidence.

106. However, as pointed out in the evidence of Ms Noy, while the information in issue ‘broadly concerns’ the Applicant, ‘the documents withheld from release more squarely focus on whether certain individuals involved in the placement were right or wrong’. The individuals to which Ms Noy refers are the Officers who made the decision to deploy and transfer the Applicant into the position for which he had been placed on trial. Information of this kind, in my opinion, is of a general managerial in nature and not confidential in the relevant sense.

107. As I have already noted, the evidence is that the communications in the internal emails were all made in the ordinary course of the professional duties and responsibilities of the senior Officers who sent and received the emails containing the information in issue.

108. The senders and recipients of these internal email exchanges, includes a senior HR Officer with experience in the deployment of MMI Officers. Yet, that Officer, nor any of the other senior Officers marked his or her email communication as being confidential. In a very few email exchanges, the subject matter of the email includes the words ‘sensitive – personal information’ or ‘sensitive – health information’. As I have already noted, I accept that information of this kind that is about a specific individual, is confidential. However, this does not mean that the information in its entirety is information that was supplied in confidence.

109. As the information in the internal emails is largely of a managerial nature, the onus is on the Commissioner to establish that information of this kind is supplied in confidence. In the absence of the Commissioner having identified a policy, procedure, or law that makes provision for the supply of information of this kind to be considered as having been supplied to the Commissioner or NSWPF in confidence, I am not satisfied that the Commissioner has established that the information in issue in the internal emails is confidential information.

102. This leaves the information in the external emails between the Deployment Unit of the NSWPF and an external contractor (see at [84] above). In my opinion, there is nothing in these email communications to indicate that they contain confidential information or were supplied to the Commissioner or the NSWPF on this basis.

103. For the reasons set out above, I am not satisfied that the Commissioner has established that the information in issue is information supplied in confidence.

104. In the event I am wrong in my finding and the information is information supplied in confidence, I am not persuaded by the evidence of Ms Noy that a disclosure of the content of these emails could reasonably prejudice the supply of information of this kind to the Commissioner and the NSWPF. As I have noted, the information in these email exchanges was provided by senior Officers of the NSW Police, in the ordinary course of their duties and within their respective area of responsibility and expertise. On this basis it is difficult to find that an Officer of the NSWPF with the same responsibilities and expertise would be reluctant to, or fail to supply/provide information of this kind in future.

105. Accordingly, I find that the Commissioner has failed to establish that the public interest consideration against disclosure in cl 1(d) of the Table to s 14 applies to the information in issue.

Cl 1(e) - reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given in such a way as to prejudice a deliberative process of government or an agency

114. In order for the public interest consideration against disclosure in cl 1(e) to apply, the Tribunal must be satisfied that the Commissioner has established the following:

1. the disclosure of the information in issue could reveal:

1. a deliberation or consultation conducted; or

2. an opinion, advice or recommendation given; and

2. the revealing of that deliberation or consultation conducted, or opinion, advice or recommendation given would prejudice a deliberative process of the NSWPF.

115. As I have noted above, the term ‘reveal’ means: ‘to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).’

116. In Cameron v Commissioner of Police [2014] NSWCATAD 13 at [66], the Tribunal described the deliberative processes of an agency as follows:

The deliberative processes of an agency are its thinking processes - including those by which it seeks internal input and discussions as to possible courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: see the discussion in Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588.

117. In Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588, at [58] to [61], the Administrative Appeals Tribunal, made the following observations of the meaning of the term ‘deliberative processes’ as it appeared in s 36(1)(a) of the Commonwealth Freedom of Information Act 1982 (FOI Act (Cth)):

58 As a matter of ordinary English the expression “deliberative processes” appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. “Deliberation” means “The action of deliberating: careful consideration with a view to decision”: see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes — the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. …

59 It by no means follows, therefore, that every document on a departmental file will fall into this category. … Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies.

60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure — documents that might, perhaps, have been more aptly described in the headnote as “Internal Thinking Documents”. …

61 In order to test the application of s 36(1)(a) to particular documents, it is helpful, in our view, to endeavour to identify what are the “deliberative processes” involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. …

118. Although clause 1(e) of the GIPA Act and section 36 of the FOI Act (Cth) are not in exactly the same terms, the Tribunal has accepted that the abovementioned meaning of the term ‘deliberative process’ remains instructive: see Luxford v Department of Education and Communities [2016] NSWCATAD 118, at [104].

119. In her evidence, Ms Noy explained that the return-to-work placement of injured workers requires a large amount of deliberative communications between the various sections of the NSWPF. She went on to say that the individuals involved in that process are required to identify suitable positions for workers who are injured and then assessing the suitability of a particular injured worker(s) for that position.

120. Ms Noy said that in this case, the placement process became the subject of an internal dispute falling within the dispute handling processes of the NSWPF generally. She said that, as with all internal disputes, it is important that they are resolved promptly by the relevant officers and staff providing all relevant information.

121. Ms Noy noted that, in this case, the deliberative process was recent. In my opinion, consistent with Camilleri this is a matter relevant to the weight that is to be given to this pubic interest against disclosure if established.

122. As I have already noted, the Applicant contends that the Commissioner’s evidence and submissions were based on a false premise.

123. In my view, this is misconceived and understandably so in the circumstances where the Applicant is unaware of the content of the information in the emails in issue.

124. With the exception of the information in the emails that are at pages 376 (second deletion) and 377-383, I am satisfied that a disclosure of the information in the remaining emails in issue could reasonably be expected to reveal a deliberation, a consultation, an opinion or advice given. Given the limited circulation of the information in issue, I am also satisfied that the revealing of this information could reasonably be expected to prejudice the deliberative process of the Commissioner or the NSWPF regarding the matters in dispute and more generally.

125. Hence, I am satisfied that the Commissioner has established that the public interest consideration against disclosure in cl 1(e) of the Table in s 14(2) of the GIPA Act applies to the information in the documents and emails that are at the 16 un-numbered pages in Bundle 1 and the pages in Bundle 2, other than those at page 376 (second deletion) and 377-383.

126. However, I am not satisfied that the Commissioner has established that the public interest consideration against disclosure in cl 1(e) of the Table in s 14(2) of the GIPA Act applies to the information in the emails that are at page 376 (second deletion) and 377-383 of Bundle 2.

Cl 1(f) - prejudice the effective exercise by an agency of the agency’s functions,

127. The public interest consideration against disclosure in cl 1(f) of the Table to s 14(2) of the GIPA Act is often seen as a fall-back position to that contained in cl 1(d).

128. In his reply submissions, the Commissioner explained that ‘cl 1(f) appears to be intended to include those situations where disclosure of information which was not provided in confidence might still prejudice the effective exercise of the agency’s functions’.

129. In my view, while the Commissioner is correct that cl 1(f) is intended to include situations where a disclosure of the information in issue could reasonably be expected to ‘prejudice’ the ‘effective exercise’ by an agency of its functions. However, the ‘prejudice’ to which cl 1(d) is directed differs considerably to that of cl 1(f). As I have noted above, cl 1(d) is intended the include situations where a disclosure of the information could reasonably be expected to ‘prejudice’ the ‘supply of confidential information’ to the agency that facilitates the effective exercise of the agency’s functions. In cl 1(f) it is the ‘prejudice’ to the ‘effective exercise’ by the agency of its functions that is the focus.

130. Hence, the question remains as to whether I am satisfied that the Commissioner has established that a disclosure of the information in issue could reasonably be expected to ‘prejudice’ the ‘effective exercise’ of his functions or that of the NSWPF. Again, this is ultimately a question fact.

131. I understand the Commissioner to submit that, a disclosure of the information in the emails in issue could reasonably prejudice the effective exercise of his (and that of the NSWPF generally) HR function in regard to the deployment of injured officers because officers involved in that function would cease being open and frank in their discussions when a dispute arose. Again, for the reasons set out above under the cl 1(d) public interest consideration against disclosure, I am not satisfied that the evidence of Commissioner establishes this to be the case.

132. Nor in my opinion, do the decisions of the Tribunal in Cavallaro v Commissioner of Police [2020] NSWCATAD 132 and McCrystal v Commissioner of Police [2020]NSWCATAD assist, as the information in issue before the Tribunal in those matters appear to have been very different to what is before the Tribunal in this application.

133. Accordingly, I am not satisfied that the Commissioner has established this ground of public interest consideration against disclosure.

Cl 1(h) - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

134. It is my understanding from the submissions of the Commissioner that, based on the evidence of Ms Noy, he contends that a disclosure of the information in issue could reasonably be expected to ‘prejudice an investigation or review’.

135. As I have noted above, in order to satisfy this ground of public interest consideration against disclosure, the Commissioner must establish that a disclosure of the information in the emails could reasonably be expected to:

1. prejudice the conduct, effectiveness or integrity of an investigation or review;

2. that is conducted by or on behalf of the agency; by

3. revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

136. In my opinion, the evidence of Ms Noy does not address this public interest against disclosure. At no time does she describe the information in issue to be in regard to an investigation or a review that was being conducted or proposed to be conducted by the Commissioner (or the NSWPF) or, on behalf of the Commissioner (or the NSWPF). Nor is this evidenced in the information that has been withheld. The fact that an internal dispute arose over the position to which the Applicant was deployed, does not of itself give rise to an investigation or review.

137. Hence, I am not satisfied that the Commissioner has established this ground of public interest consideration against disclosure.

Summary of findings in regard to the cl 1 public interest considerations against disclosure

138. For the reasons set out above I have found that:

1. the information in the internal emails at pages 419, 420, 441, 444, 445, 463, 464, 467, 468, 469, 472, 473, 474, 510 (second deletion), 511, 518, 519, 520 and 521 in Bundle 2 is to be remitted to the Commissioner for reconsideration, under s 65 of the NCAT Act;

2. the Commissioner has failed to establish any of his grounds of public interest consideration against disclosure of the information that is in the emails that are at pages 376 (second deletion) and 377 to 383 of Bundle 2. Hence, the decision of the Commissioner regarding the withheld information on these pages is not the correct and preferable decision and should be set aside; and

3. the Commissioner has established that a disclosure of the following information could reasonably be expected to reveal a deliberation in such a way as to prejudice a deliberative process of the Commissioner and the NSWPF (cl 1(e) of the Table to s 14(2) of the GIPA Act):

1. Bundle 1 – the 16 un-numbered pages

2. Bundle 2 - 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)

Public Interest considerations in favour of disclosure

139. Based on my findings above, it is only necessary to consider the public interest considerations in favour of disclosure regarding the information that is referred to at [138(3)] above.

140. As I have already noted there is a general public interest in favour of the disclosure of government information: GIPA Act, s 12(1).

141. The Commissioner also noted the following public interest considerations in favour of disclosure:

1. the applicant’s personal interest in matter relating to his employment; and

2. whether relevant policy and legislation has been complied with.

142. The Applicant submitted that disclosure of the information in issue could reasonably be expected to inform the public about the operations of the Commissioner and the NSWPF about the placement of injured officers, how they are assessed during the trial period and transferred or not transferred following a successful trial placement. That is, it would provide transparency of the processes for dealing with internal disputes arising from such placements and they are managed.

143. In my view, the information in issue (other than the personal information of a person other than the applicant):

1. is personal information about the Applicant as it primarily concerns the position into which the applicant was deployed on a trial basis, a position that he was offered having successfully completed his trail, the position he was invited to transfer to, but not progressed any further; and

2. if disclosed, could reasonably be expected to inform the public about the practices and policies of the Commissioner and the NSWPF concerning the deployment of police officers unable to perform their assigned duty due to a work-related injury.

Where does the balanced lie?

144. The balancing of the public interests is ultimately a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council [2011] NSWCATAD 307, at [94].

145. Again, based on my findings above, it is only necessary to consider the public interest considerations in favour of disclosure regarding the information that is referred to at [137(3)] above.

146. In my opinion, in this application, the public interest consideration against disclosure in cl 1(e) of the table to s 14 of the GIPA Act should be given considerable weight, even though the deliberative process has been completed.

147. In my opinion, the abovementioned public interest considerations in favour should also be given considerable weight. This is especially so as the information in issue relates to the Applicant and the position he was deployed into by reason of his work-related injury. I accept that, after his transfer was stopped, on 20 August 2019, the Applicant was advised that the position he had been deployed into was administrative in nature and not at the Constable/Senior Constable level. However, the Applicant is unaware of how this decision was arrived at after he had successfully completed his trial period and invited to apply for a transfer. The motives of the Applicant for seeking access to the information was so that he could better understand how he was deployed to the position and successfully completed his trial period, but his transfer was stopped.

148. In my opinion, the public interest public considerations against disclosure of the information on the pages referred to at [137(3)] above, and the public interest considerations in favour of disclosure of that information are evenly balanced. In making this finding I am aware that a disclosure of the information cannot be made subject to conditions.

149. Having regard to the legislative instructions in section 5 and sub-section 9(1) of the GIPA Act, I find that the public interest public interest considerations against disclosure of the information on the pages referred to at [137(3)] above, does not, on balance override the public interest considerations in favour of disclosure.

150. Hence, based on the material before me and my abovementioned findings, I find that the correct and preferable decision regarding the information on the pages referred to at [137(3)] above, is that the Applicant be provided access to that information. Hence, the appropriate order is to set aside that decision and substitute it for a decision that the Applicant be provided with access to that information.

Unreasonable and substantial diversion of the Commissioner’s resources

151. It is the contention of the applicant that the determination of Ms Evans, on behalf of the Commissioner, that dealing with item 3 of his access application would require an unreasonable and substantial diversion of the Commissioner’s resources is not the correct and preferable decision.

152. As I have noted above, at [19], item 3 of the Applicant’s access application was in very broad terms in that he sought – ‘all emails and communications relating to injury management, deployment and trial placement processes …’ The Applicant did subsequently, limit the date range of item 3 to between 1 May 2019 to 31 August 2019: see at [31] above.

The GIPA Act

153. As I have already noted, s 60(1)(a) of the GIPA Act provides that an agency may refuse to deal with an access application (in whole or part) because dealing with the application would require an unreasonable and substantial diversion of the agency’s resources. Sub-section 60(2) to (5) prescribe a number of matters relevant to making a decision to refuse to deal with an access application on these grounds, as follows:

60 Decision to refuse to deal with application

…

(2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided.

(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.

(3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency may, without limitation, take into account the following considerations—

(a) the estimated volume of information involved in the request,

(b) the agency’s size and resources,

(c) the decision period under section 57.

(3B) Any consideration under subsection (3A) must, on balance, outweigh—

(a) the general public interest in favour of the disclosure of government information, and

(b) the demonstrable importance of the information to the applicant, including whether the information—

(i) is personal information that relates to the applicant, or

(ii) could assist the applicant in exercising any rights under any Act or law.

(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency’s resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.

(5) Notice of an agency’s decision to refuse to deal with an access application must state the agency’s reasons for the refusal. …

154. Sub-sections 60(3A) and (3B) were inserted into the GIPA Act in 2018, by the Government Information (Public Access) Amendment Act 2018 (2018 Amendment Act). That Act commenced on 28 November 2018.

Relevant legal principles

155. Sub-sections 60(3A) and (3B) of the GIPA Act draw on two previous decisions of the former Administrative Decisions Tribunal: see Cianfrano v Director General, Premier's Department [2006] NSWADT 137 (Cianfrano) and Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 (Colefax).

156. The legislative provision before the Tribunal in Cianfrano was the predecessor to the GIPA Act, the FOI Act (repealed), which contained a similar provision to that contained in s 60(1)(a) of the GIPA Act: FOI Act (repealed), s 25(1(a1). At [62], in Cianfrano, the President of the Tribunal (O’Connor DCJ) said that the factors relevant to an assessment as to whether dealing with an access application would, if carried out, substantially and unreasonably divert the agency’s resources include:

(a) the terms of the request, especially whether it is of a global kind or generally expressed request; …

(b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort …

(c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications

(d) the agency estimate as [to] the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost

(e) the reasonableness or otherwise of the agency’s initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application

(f) the time lines binding on the agency …

(g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours’ work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns

(h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made

(i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.

157. At [63], the President went on to say that the abovementioned list was not an exhaustive one. These factors are incorporated, in part, to s 60(2), (3) and (3A) of the GIPA Act.

158. In Colefax, at [21], the Tribunal (P Molony, Judicial Member) noted that a decision to refuse to deal with an access application under s 60(1)(a) of the GIPA Act requires the decision maker to exercise a discretion in reaching that conclusion. The Tribunal went on to say that relevant to the exercise of that discretion were the instructions contained in ss 5 (presumption in favour of disclosure) and 3(2) (intention of Parliament) of the GIPA Act, which were not contained in the former FOI Act (repealed). These factors have also now been incorporated into s 60(3B) of the GIPA Act.

159. At [25], the Tribunal, went on to say that the non-exclusive factors identified by the Tribunal in Cianfrano were otherwise equally applicable to a consideration as to whether an access request under the GIPA Act constituted an unreasonable and substantial diversion of resources.

160. In Commissioner of Police v Danis [2017] NSWCATAP 7, at [45], the Appeal Panel said that:

Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or …

161. In a very recent decision, Woodhouse v Commissioner of Police [2022] NSWCATAD 41, at [55], the Tribunal said that the ‘power to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist an applicant in narrowing the request’.

The Commissioners case

162. In her evidence (statement of 28 October 2020), Ms Evan acknowledged that there was an overlap of items 3 and 4 of the Applicant’s access application and that some information was likely to be duplicated in response to these items. Ms Evans went on to say that this was one of the reasons why she decided it was an unreasonable diversion of the Commissioner’s resources to deal with item 3 of the Applicant’s access application.

163. In her evidence (statement of 11 September 2020), Ms Evans gave the following explanation of the number of GIPA applications received each year and the resources available to the Commissioner and the NSWPF to deal with these:

1. at that time the Commissioner and the NSWPF receive approximately 6,000 GIPA applications a year. With the introduction of the new online platform, in July 2020, that number has increased and expected to continue to do so;

2. within InfoLink, there are 13 officers allocated to the determination of access applications at first instance and 2 officers allocated to internal reviews and remitted decisions; and

3. this means that each of the 13 officers allocated to determine applications are required to decide approximately 10 applications each working week, or 2 per day. On this basis, each officer has, on average, 3.5 hours to deal with each access application, which does not include the time spent by other parts of the NSWPF searching for records and responding to Infolink queries.

164. Ms Evans also said that, based on the more limited time frame for the item 3 information, Digital Technology and Innovation identified approximately 900 pages of emails, not including attachments, that were responsive to the searches for information falling within item 3 of the Applicant’s access application. Ms Evans also reiterated what was contained in her decision that, of the 900 pages, she took a sample of 50 pages and that it took her approximately two minutes to review each page and determine if it was in scope, a duplicate and which public interest considerations might apply. On this basis, she determined that it would take about 30 hours for her to review the entire 900 pages.

165. Ms Evans also explained that she had already spent more than 35 hours processing the Applicant’s access application. This involved a review of approximately 950 pages of information, which included over 500 pages of emails responsive to item 4. She said that the applicant had been granted access to most of the information contained in the 950 pages.

The applicant’s case

166. The Applicant submitted that item 4 of his access request was a subset of item 3 of that request. The Commissioner, having dealt with item 3 of his access request, was therefore only required to search for and assess emails containing information he or the NSWPF held relating to injury management, deployment and trial placement process that were not emails relating to his trial placement between those Officers the Applicant had identified in item 4 of his access request.

167. In this regard the Applicant noted that the Commissioner had located 540 pages falling within item 4 of his access request which would also fall within item 3 of that request. However, Applicant went on to contend that, with the more limited time frame, the number of pages would be reduced further.

168. The Applicant also submitted that, contrary to the submissions of the Commissioner, most of the factors in Cianfrano and Colefax were established, including:

1. the terms of item 3 were not global, but limited and specific and directed at the Applicant’s successful trial deployment;

2. the Applicant is not a ‘repeat applicant’;

3. the Commissioner has resources specifically employed to respond to, and skilled in GIPA applications;

4. the estimate of 900 pages is not significant – especially where there are many duplicates;

5. the Commissioner’s estimate of processing time does not exceed 40 hours; and

6. there are real doubts about the Commissioner’s estimates of processing times, including whether already produced documents and duplicates have been excluded.

169. At the hearing, counsel for the Applicant cross-examined Ms Evans extensively on the issue of how the estimates of the number of pages and the processing times had been reached, which I have dealt with below.

Consideration

170. In my opinion, even though Ms Evans was not altogether clear in her evidence, during cross-examination, about the schedule on which she relied in making her estimates of the number of pages and time to deal with item 3 of the Applicant’s access application, overall, the evidence she gave in her statement were not substantially challenged.

171. In this regard, it does not appear to be disputed that the information sought in item 3 of the Applicant’s access request is in very broad terms and captured within this item is some of the information for which the Applicant sought access to in items 1, 2 and 4 to 11. Otherwise, there is no evidence that the Applicant is a repeat applicant for access to information held by the Commissioner or the NSWPF.

172. Notwithstanding the Applicant’s limit on the period of time for which the item 3 information was sought, this was the period during which the dispute concerning the Applicant’s transfer into the deployed position arose and when decisions were made that he was to return to his substantive position. Hence, it can be anticipated that it was during this limited time period when the majority of the email exchanges occurred. This is also supported by the information contained in Bundle 1 and Bundle 2.

173. At the same time, the Applicant did not limit who sent or were the recipients of the emails, as he had done for item 4.

174. There is no dispute that the searches undertaken by, or at the request of, Ms Evans for the information held by the Commissioner and NSWPF falling within item 3 of the Applicant’s access request, was conducted in accordance with the Commissioner’s obligation under section 53 of the GIPA Act. That is, the searches were conducted using the most efficient means reasonably available to the agency, which included using the InfoLink electronic system where the information was stored.

175. In my opinion, Ms Evans’ estimate as to: (a) the number of pages held by the Commissioner and the NSWPF containing information falling within item 3 (as limited in time) of the Applicant’s access application, and (b) the time it would take to process that information are both reasonable. I appreciate that this information might include information that had already been dealt with by the Commissioner in respect of the other items in the Applicant’s access application. However, in determining whether this was so also involves time.

176. In my opinion, on the material before the Tribunal, the evidence of Ms Evans that she had already spent 35 hours in dealing with the Applicant’s access request is reasonable and should be taken into account.

177. In Ruyters v Commissioner of Police [2020] NSWCATAD 223, at [34], the Tribunal noted that there can be no doubt that the NSWPF is a large organisation and that this is a factor that can be take into account in determining whether the matters in s 60(1)(a) are in fact satisfied.

178. As explained by Ms Evans, the Commissioner and the NSWPF do not have unlimited resources to deal with the large number of access applications that are received each year, let alone access applications which involve a considerable amount of time to deal with all the information sought. This, as Ms Evan’s explained, only prevents the Commissioner and the NSWPF from dealing with other access applicants which are limited in scope.

179. In dealing with the Applicant’s access application, the Commissioner well and truly exceeded the 20 working days within which he was to decide that application (see GIPA Act, s 57). Nevertheless, this remains a factor to be taken into account together with the number of access applications received by the Commissioner and the resources that are available to deal with those applications.

180. I note the general public interest in favour of the disclosure of government information as set out in s 12(1) of the GIPA Act. However, the Applicant has not demonstrated the importance of the information referred to in item 3 of his access application which is not included in the other items of his access application (including item 4) and for which he has been granted access, or which has been withheld on the grounds of an overriding public interest against disclosure.

181. I appreciate that, based on the information the Applicant has been granted access to, he may seek access to further or related information. However, in this application, the Applicant has not pointed to any information which he asserts to be of specific importance to him that falls within item 3 and which he has not already been provided access to.

182. Accordingly, given the breadth of item 3 of the Applicant’s access application, the time estimated to deal with that item, the time already spent in dealing with the other items on that application and the resources of the Commissioner and the NSWPF to deal with access applications within the prescribed time, I am satisfied that the Commissioner has established that to deal with item 3 of the Applicant’s access application would be an unreasonable and substantial diversion of his and those of the NSWPF resources.

183. Hence, I am satisfied that the decision of the Commissioner is the Correct and preferable decision and should be affirmed.

Conclusions and Orders

184. For the reasons set out above:

1. I am not satisfied that the decision of the Commissioner regards to the following withheld information in Bundle 1 and Bundle 2 is the correct and preferable decision:

1. Bundle 1: the 16 un-numbered pages; and

2. 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, 376-383, 402-406, 436, 465, 498-504, 510 (first deletion);

2. I have found that the withheld information on the following pages in Bundle 2 be remitted to the Commissioner, under s 65 of the ADR Act, for reconsideration in accordance with these reasons for decision:

pages 419, 420, 441, 444, 445, 463, 464, 467, 468, 469, 472, 473, 474, 510 (second deletion), 511, 518 519, 520 and 52;

3. For abundant caution I have found that the withheld information on the following pages of Bundle 2 be provided to the applicant in accordance with order 1 made on 6 November 2020:

pages 27, 28, 30, 32, 33, 36 and 37, 39 and 40, 118 and 119, 121 and 122 and 125 and 126;

4. I am otherwise satisfied that the remaining withheld information in Bundle 1 and Bundle 2 that is personal information of a person other than the Applicant is the correct and preferred decision and should be affirmed; and

5. I am satisfied that the decision of the Commissioner that to deal with item 3 of the Applicant’s access application would be an unreasonable and substantial diversion of the Commissioner’s and the NSWPF’s resources is the correct and preferable decision and should be affirmed.

185. In my opinion it is appropriate to include a timetable within which the Commissioner is to make his decision on remittal regarding the withheld information and when the Applicant is to respond thereto.

186. Accordingly, I make the following orders:

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:

1. Bundle 1: the 16 un-numbered pages; and

2. 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.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

24 August 2022 - Paragraph 17 correction

Decision last updated: 24 August 2022