Adams v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 243

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Adams v Commissioner of Police, NSW Police Force [2024] NSWCATAD 243

Hearing dates:

20 March 2024

Date of orders:

20 August 2024

Decision date:

20 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member

Decision:

(1) The decision under review is affirmed.

(2) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the confidential material or matters contained in this material is prohibited.

(3) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the confidential material or matters contained in this material is restricted to the Respondent and the Tribunal.

Catchwords:

ADMINISTRATIVE LAW – Access to information — GIPA –whether there is an overriding public interest consideration against disclosure – balancing the public interest

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252

Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185

Bright v Eurobodalla Shire Council [2018] NSWCATAD 287

Collins v Department of Finance, Services and Innovation [2018] NSWCATAD 60

Commissioner of Police v Barrett [2015] NSWCATAP 68

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

DDL v Mid-Western Regional Council [2018] NSWCATAD 2

Donnellan v Ku-ring-gai Council [2013] NSWADT 115

EHW v Secretary, Department of Education [2022] NSWCATAD 140

Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]

Leech v Sydney Water Corporation [2010] NSWADT 298

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

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Raven v University of Sydney [2015] NSWCATAD 104

Simring v Commissioner of Police (NSW) [2009] NSWSC 270

South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Charlie Armstrong Adams (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-Represented)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2023/00360266

Publication restriction:

(1) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the confidential material or matters contained in this material is prohibited.
(2) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the confidential material or matters contained in this material is restricted to the Respondent and the Tribunal.

REASONS FOR DECISION

Background

1. Mr Charlie Armstrong Adams (Applicant) made an access application (Access Application) that was received by the Commissioner for Police, NSW Police Force (Respondent) on 17 September 2023, seeking access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The Applicant sought the “full police report” relating to a report of a camera found on 27 June 2023 in a business operated toilet in an internet café (internet café) at a named address in Sydney. In the Access Application, the Applicant indicated that he was the person who was responsible for reporting the incident to police.

2. In the decision dated 3 October 2023 (Original Decision), the Respondent released COPS Event Report E77XXXX17 (COPS Report) to the Applicant, but refused access to certain information on the basis that the information was subject to an overriding public interest consideration against disclosure.

3. The Applicant lodged an application for internal review of that decision that was received by the Respondent on 15 October 2023. The Applicant indicated that he was seeking an internal review on all elements of the Original Decision for the following reasons:

1. Direct involvement: The Applicant was the person who reported the incident and given his direct involvement as the reporting party, he had a legitimate interest in accessing the information relating to the incident and any subsequent actions or investigations.

2. Legal Action: The Applicant indicated an intention to take action against the internet café for personal injury stemming from the incident and that access to all relevant information, including the owner/manager’s explanation and name was crucial for building and supporting his case and was essential for his legal proceedings.

3. Public Interest: The Applicant indicated that he believed that the public interest considerations cited in the Original Decision may not apply as the information he was seeking primarily concerned his personal involvement and legal rights.

4. An internal review was conducted by a delegate of the Respondent and on 3 November 2023, the Internal Review Notice of Decision (Decision) was provided to the Applicant. In the Decision, the delegate determined to provide access to the information sought in the Access Application, except for the information for which there was an overriding public interest against disclosure. In effect, the Decision affirmed the Original Decision with some minor changes being made to the redactions of information in the COPS Report. As a result, the COPS Report was released with the exception of details of the “Involved Party”, which included details of the “OWNER” and “ORG” of interest. Similarly, the Narrative contained in the COPS Report was released with certain redactions, as follows:

“At above time and date, police responded to the job in relation to PR [the Applicant] locating a security camera inside the male bathroom at [redacted].

Upon arrival, police met the PR outside the above address. Police were then escorted to the male toilet at [redacted] by the PR.

Police observed a security camera attached to the ceiling, which was pointed towards the hand wash.

Police questioned [redacted]. Police informed [redacted] needs to take the camera down [redacted]

Police also conducted a check on computer to make sure the camera was not working and found that it was not working.

Police informed [redacted] that there will be a record made in relation to this incident.

SC13 apprised.”

5. On 13 November 2023, the Applicant sought review of the Decision by the Tribunal.

Jurisdiction

6. An application for administrative review of “an administratively reviewable decision” may only be made by an interested person: s 55 Administrative Decisions Review Act 1997 (NSW) (ADR Act). An administratively reviewable decision is “a decision of an administrator over which the Tribunal has administrative review jurisdiction”: s 7 ADR Act. The Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision”: s 9 ADR Act. An “administrator” is the person or body that makes the decision under enabling legislation: s 8 ADR Act.

7. Section 80 of the GIPA Act sets out which decisions are “reviewable decisions” of an agency and includes a decision that government information is not held by the agency: s 80(e) of the GIPA Act . Section 100(1) of the GIPA Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review of that decision under the ADR Act.

8. No issue was taken by the parties in relation to the jurisdiction of the Tribunal in this matter and I am satisfied that the Tribunal has jurisdiction to hear and determine the review application brought by the Applicant.

Relevant legislation

9. The object of the GIPA Act as set out in s 3 is to open government information to the public. This is done by authorising and encouraging the pro-active release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

10. It is not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.

11. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information: s 9(1) of the GIPA Act.

12. There is a general public interest in favour of disclosure of government information: s 12(1) of the GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12.

13. 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.

14. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:

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.

15. Section 14 sets out the overriding public interest considerations against disclosure of government information and relevantly provides:

14   Public interest considerations against disclosure

(1)   It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(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.

…

16. The relevant parts of the Table are discussed below.

17. The determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provide 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.

18. Part 4, Division 3 of the GIPA Act sets out the process for dealing with access applications.

19. In responding to an access application there is a requirement under s 53 of the GIPA Act for the agency, in this case the Respondent, to undertake reasonable searches to locate information sought in the request, which is held by the agency.

20. In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account: s 55 of the GIPA Act. Those factors are the applicant’s identity and relationship with any other person, the applicant’s motives for making the access application, and any other factors particular to the applicant.

21. Following that process, the agency can do any of the following as provided for by s 58 of the GIPA Act:

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

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

(b)   deciding that the information is not held by the agency, or 

(c)   deciding that the information is already available to the applicant (see section 59), 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), or 

(f)   deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. 

Note : These decisions are reviewable under Part 5.

(2)   More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. 

(3)   If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

22. Disclosure of information in response to an access application cannot be made subject to any conditions on the use or disclosure of the information: s 73 of the GIPA Act.

23. Part 5, Division 4 of the GIPA Act concerns administrative review of decisions by the Tribunal. Section 105(1) in that Division provides, relevantly, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the GIPA Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by the section.

24. Section 105(2) provides as follows:

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

25. Schedule 4, clause 4 of the GIPA Act contains the definition of “personal information” for the purposes of the Act. It provides, relevantly:

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:

…

(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,

…

26. Part 2, Division 1 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) sets out the “information protection principles” prescribed by that Act. Section 18 relevantly provides:

18   Limits on disclosure of personal information

(1)   A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless –

(a)   the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)   the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)   the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

…

27. The term “personal information” is defined in s 4 of the PPIP Act, relevantly, as follows:

4   Definition of “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 whose identity is apparent or can reasonably be ascertained from the information or opinion.

…

28. In determining an application for administrative review, the Tribunal is to consider s 63 of the ADR Act which provides:

63 Determination of administrative review by Tribunal

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Issues

29. In the orders and directions made by Senior Member Perrignon in the case conference conducted on 11 December 2023, it was noted that the Applicant submitted that the COPS Report should be released in full without redactions, “but does not allege inadequacy of search”.

30. At the hearing of this matter on 20 March 2024, the Applicant confirmed that he did not allege the Respondent had not undertaken adequate searches and that the purpose of the review was for him to be given access to the redacted parts of the COPS Report.

31. The Respondent contended that the correct and preferable decision to be made by the Tribunal in this matter is to affirm the Decision:

1. To provide access to part of the information (s 58(1)(a) of the GIPA Act); and

2. To refuse access to part of the information because there is an overriding public interest against disclosure in relation to that information (s 58(d) of the GIPA Act).

32. In response, it was the Applicant’s contention that all of the information in the COPS Report should be released to him as he intended to file a statement of claim against the internet café in relation to the camera in the restrooms. He stated that he also intended to submit a complaint to the Law Enforcement Commission in relation to the police investigation of the matter and then to file a statement of claim against the NSW Police Force. I have taken the Applicant’s reference to be a reference to submitting a complaint to the Law Enforcement Conduct Commission (LECC). The Applicant contended that the Respondent’s refusal to disclose crucial details from the COPS Report, including the owner’s name, organisation of interest and café location is a central issue in the matter.

Applicant’s material

33. The Applicant’s material included the documents attached to his review application together with the following:

1. Document titled “Applicant’s Submissions” consisting of two sections, and filed on 6 March 2024;

2. Document titled “Submission to the NSW Civil and Administrative Tribunal (NCAT)”, filed on 6 March 2024;

3. Document titled Applicant’s “Submissions in Reply” filed on 6 March 2024; and

4. Document titled “Compilation and Introduction for Case Number (2023/00360266)” provided to the Tribunal on 19 March 2024 being a compilation of all of the submissions and documents in the matter by the Applicant.

34. Whilst the material relied upon by the Applicant consists largely of submissions, the material also includes evidence. The Applicant was cross examined at the hearing by Mr Roberts, the solicitor appearing for the Respondent.

Respondent’s evidence

35. The Respondent relied on the Affidavit of Erin Drummond dated 10 January 2024 that included the following attachments:

1. Access Application;

2. Original Decision dated 3 October 2023, including a copy of the information released to the Applicant at that time;

3. Internal Review request made by the Applicant and received on 15 October 2023;

4. The Decision, including a copy of the information released to the Applicant at that time; and

5. The Respondent’s Customer Service Charter.

36. Ms Drummond did not give oral evidence and was not required for cross examination by the Applicant.

37. The Respondent also provided the Tribunal on a confidential basis, with an unredacted copy of the COPS Report (Confidential material). The matter proceeded by way of an open hearing.

Submissions

38. The Applicant relied on a number of written submissions referred to above. The Respondent relied on written submissions filed on 31 January 2024 together with “submissions in reply” filed on 6 March 2024. The parties made oral submissions at the hearing.

Whether there an overriding public interest against disclosure

39. In determining this matter, the task of the Tribunal is to determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.

Public interest considerations in favour of disclosure

40. In addition to the general public interest in favour of the disclosure of government information set out in s 12 of the GIPA Act, the Respondent referred to the statutory presumption in s 5 of the GIPA Act and the legally enforceable right of applicants set out in s 9 of the GIPA Act to be provided with access to information unless there is an overriding public interest against disclosure of the information.

41. The Respondent identified that the information being sought by the Applicant is information that the Applicant himself reported to the NSW Police Force or related to that information and is a factor in favour of the disclosure of the information and should be given some weight. The Applicant submitted that as the “reporter” and “victim”, he has a “vested interest in understanding the full scope of the investigation. Access to unredacted information, including the names of the officers involved…and the details surrounding the delayed police response, is essential for a comprehensive assessment of the investigative process”.

42. Whilst the redacted information is not the Applicant’s personal information, it is clear that it relates to his report to the police. I accept that the release of this information to the Applicant may assist him to better understand the way in which his report was handled by police as well as the outcome of his report. I take into account the Applicant’s evidence that he was present at the internet café when police attended, that he saw the police speaking to a person and that he heard at least 80 per cent of that conversation. The Applicant agreed in evidence that he overheard the “owner” of the internet café telling police that the camera did not work. He agreed that he saw the police check a monitor and that whilst he did not hear the police tell the “owner” that he should take the camera down, he could see that the “owner” was making haste to take it down. He stated that there were small breaks in what he could hear and not hear.

43. I also take into account that the information from the COPS Report that has been released to the Applicant includes the date and time of his report to the police and the details of the officers who created the COPS Report and updated it. It is also apparent from the Applicant’s evidence that after the incident he corresponded by email with one of the officers who was named in the COPS Report. I also have regard to the information from the Narrative that has been released to the Applicant and this has been set out above.

44. In light of the Applicant’s presence when police arrived, his evidence about what he saw and heard, together with the information that he has been provided with in the COPS Report, I accept that the Applicant’s interest in his report is a public interest consideration in favour of disclosure but give it limited weight.

45. The Applicant gave evidence that he intended to file a statement of claim regarding the CCTV camera located in the restrooms of the internet café. He submitted that the placement of the camera constituted a serious breach of privacy rights and underscored the importance of transparency and accountability in addressing unlawful conduct. The Applicant stated that he also planned to submit a complaint to the LECC concerning the NSW Police Force’s handling of the investigation pertaining to the camera and that he intended to file a statement of claim against the NSW Police Force.

46. The Applicant submitted that “[t]he redacted information, including the owner’s name and café location, is essential for pursuing a personal injury claim” and that he required access to this information “to accurately identify the responsible party and serve legal documents”.

47. The Respondent accepted that the Applicant’s intention to commence legal proceedings against the owner of the internet café in relation to the events of 27 June 2023 is a matter in favour of disclosure of the COPS Report and I accept that it is. It was submitted however that there is no reasonable basis to believe that the Applicant has a cause of action against any person in relation to those events, and that even if he did, there is no reasonable basis to believe that he has suffered any loss for which he may be entitled to damages or some other legal remedy. It was also submitted that the Applicant is aware of the trading name of the business at which the incident occurred and is also aware of the address at which the business operates. The Respondent contended that even if the Applicant did not have sufficient information to ascertain the identity of a prospective defendant, there are other avenues available to him, including the ability to make an application for preliminary discovery.

48. As outlined above, the Applicant’s evidence was that he had made a report to police about the internet café, and had been there when police arrived. He also gave evidence that he had been going there on and off for about two years and had seen a man that all the staff treated as the owner, but he didn’t know if he was the owner. In cross examination, the Applicant acknowledged that he knows the location of the internet cafe “very well” but said that, given the unprofessional police investigation and the irregularities, he would like to see if the location put down by the police is the “correct” one. The Applicant said that he also wanted to ensure that he had the correct details in relation to the owner and the organisation for the statement of claim and to ensure that it could be properly served.

49. The Applicant said that the building where the internet café was located, consisted of four floors and he wanted to be sure that he served the statement of claim on the right place. He acknowledged that he had not carried out any other enquiries in relation to the business or the management, other than making his Access Application. The Applicant did not provide details of his potential claim against the internet café as he did not want to jeopardise any future litigation or personal injury claim.

50. In the circumstances, and given the Applicant’s evidence, it is not apparent whether the Applicant has a reasonable basis to take legal action against the business, and that even if he did so, how the Applicant could reasonably seek to rely upon the COPS Report to confirm the identity of a potential defendant, the details of the business or an address for service, especially in circumstances where police attended the internet café solely in response to the Applicant’s report. Accordingly, I give this public interest consideration minimal weight.

51. The Applicant submitted that he had concerns over the police investigation “pertaining to the CCTV camera” in the restrooms of the internet café and planned to submit a complaint to the LECC in relation to the police investigation and to file a statement of claim against the police. The Applicant submitted that the investigation, as witnessed by him lacked thoroughness: the CCTV storage system was not confiscated, the claim that the CCTV was not connected was hastily accepted without further verification; and no checks were made for additional cameras, notably in the female toilets. He stated that the police arrived at the internet café more than 1 hour and 15 minutes after the initial call was made to report the crime, “raising concerns about the response time and the thoroughness of the subsequent investigation”.

52. The Applicant submitted that the Respondent’s failure to disclose vital information to him impedes his ability to pursue legal recourse and hinders transparency and accountability. He also referred to concerns about alleged negligence and breach of professional conduct that warranted full access to the police report for a thorough assessment of the actions of the NSW Police Force.

53. There is no doubt that there is a strong public interest in disclosure of information which could reveal misconduct on the part of an agency or its officers. However, for this to be a matter relevant to my consideration there must be some reasonable basis in the material before me for drawing an imputation that the redacted information could reasonably be expected to reveal misconduct: Commissioner of Police v Barrett [2015] NSWCATAP 68 at [136].

54. The Respondent contended that there is no reasonable basis to believe that the police conduct in relation to the events of 27 June 2023 involved misconduct, negligence, unlawful conduct or was otherwise improper and to the contrary, the redacted COPS Report illustrates that the police response to the Applicant’s report was entirely appropriate.

55. No further evidence on this issue was adduced by the Applicant and there is nothing in the redacted COPS Report which would support the allegations made by him. I therefore accept this to be a public interest consideration in favour of disclosure but in the circumstances of this matter, I give it minimal weight.

Public interest considerations against disclosure

56. The public interest considerations against disclosure identified by the Respondent are that it could reasonably be expected disclosure would:

1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (s 14 of the GIPA Act, Table, cl 1(d));

2. reveal an individual’s personal information (s 14 of the GIPA Act, Table cl 3(a));

3. contravene an information protection principle under the PPIP Act (s 14 of the GIPA Act, Table cl 3(b)); and

4. prejudice any person’s legitimate business, commercial, professional or financial interests (s 14 of the GIPA Act, Table cl 4(d))

57. Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect. The words “could reasonably be expected to” are to be given their ordinary meaning: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words:

... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.

58. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term “could reasonably be expected to” and stated at [25]:

“[25]   … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.”

59. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [42].

60. The term “prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 at [47]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst) at [60]. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to various authorities, the Appeal Panel said at [59]:

Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

Clause 1 (d) - prejudice the supply of confidential information that facilitates the effective exercise of the agency’s functions

61. The Respondent referred to s14 of the GIPA Act, Table cl 1(d) that provides as follows:

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions.

62. The Respondent relied on the affidavit of Ms Drummond in relation to the following:

• The Respondent has a Customer Service Charter that requires police to maintain the confidentiality of information received from members of the public;

• Disclosure of the redacted parts of the COPS Report would or could prejudice the effective exercise of the functions of the NSW Police Force of investigating crime and community protection by undermining that trust (specifically detecting and investigating crime and protecting the community) by revealing identifying details of the individual at the venue who answered the questions of the attending police and thereby:

1. Undermining the confidence of members of the public that If they provide information to NSW Police Force, their details will be kept confidential;

2. Discouraging members of the public from contacting the NSW Police Force;

3. Prejudicing the supply of information to the NSW Police Force; and

4. Prejudice the future supply of information to the NSW Police Force.

63. It was submitted more specifically, that the Respondent’s Customer Service Charter provides that the NSW Police Force will, when dealing with members of the community regardless of whether they are the individuals who report matters to the police or otherwise assist police in the investigation of matters, “maintain your confidentiality”.

64. The question whether the consideration in cl 1(d) is established involves a relatively abstract analysis looking to the future: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28]-[29] (Camilleri). As was noted by the Tribunal in Collins v Department of Finance, Services and Innovation [2018] NSWCATAD 60 at [61], it must be established that:

1. the information was obtained in confidence;

2. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future; and

3. the information facilitates the effective exercise of the agency's functions.

65. For information to come within clause 1(d), it must therefore have been obtained in confidence. In Camilleri, the Appeal Panel stated at [33] that the question as to whether information is “confidential information” is to “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 inquiry “should focus on the point of receipt, and the administrative standards and community understandings which surround it”: at [34].

66. The Appeal Panel stated [at 30] “…That there has been a long history of cases in the Tribunal that have recognised the confidentiality that ordinarily attached to complaint communications to law enforcement agencies” and at [45]-[47] went on to state that the approach taken by the Tribunal in the past did not draw a clinical distinction between ‘informants’ and other people when dealing with the expectation of confidentiality. The Appeal Panel stated that it did not follow, in the operation of the triple zero service being considered in that case, that the expectation of confidentiality is confined to informers in the strict sense.

67. In Bright v Eurobodalla Shire Council [2018] NSWCATAD 287 the Tribunal, stated at [44] that:

1. The confidential quality of communications is a question of fact;

2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality;

1. The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed;

2. The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.

68. In Raven v University of Sydney [2015] NSWCATAD 104 at [62], the Tribunal held that the words "confidential information" do "not connote information which may not be disclosed in any circumstances”. The term captures information which is not to be disclosed in ordinary circumstances. This could be the case for example, where the information has been supplied under an express or implied pledge of confidentiality.

69. The Applicant submitted that this reasoning is fundamentally flawed as the owner of the internet café, implicated in the installation of a camera in the establishment’s toilet, is not a witness “but is the alleged perpetrator of the privacy violation”, and should be distinguished from a witness providing confidential information to aid police investigations.

70. The Courts and the Tribunal have confirmed in a number of decisions that confidentiality attaches to information provided to the police by members of the public. For example, in Simring v Commissioner of Police(NSW) [2009] NSWSC 270 (Simring), the Supreme Court found that when a person speaks with police in relation to a criminal offence and reveals sensitive matters, that person expects that statements made will only be used for the purpose of Court proceedings and not otherwise. 

71. I am satisfied that the views expressed in Simring and in many other cases apply in this matter. I am satisfied that the information contained in the COPS Report which was supplied to police by a member of the public was supplied with an expectation of confidentiality, unless it was required for criminal proceedings arising from the incident or for the use by police in the future.

72. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said with respect to the requirement that disclosure could reasonably be expected to prejudice the future supply of information to an agency:

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.

73. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the Respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack at [52]. As was stated in Leydon v Commissioner of Police [2019] NSWCATAD 267, the Tribunal should not just look at the issue in isolation, but rather examine the issue to determine whether the agency’s ability to obtain confidential information in future would be impaired.

74. On the basis of the evidence provided, I am satisfied that the disclosure of the redacted information could reasonably be expected to prejudice the supply to the NSW Police force of confidential information that facilitates the effective exercise of the agency’s functions. Further, I am satisfied that this public interest against disclosure should be given significant weight.

75. It is noted that the Respondent made submissions on this issue that included reference to Camilleri and Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252. In his written submissions, the Applicant referred to these cases as supporting the argument that individuals involved in unlawful activities should not benefit from confidentiality protections and submitted that courts have recognised the public interest in holding wrongdoers accountable, outweighing concerns about privacy rights. Reference was made by the Applicant to the decision of Campbell v Mirror Newspapers Ltd. No copy of this case was handed up by the Applicant and it appears that the citation provided by him was incorrect.

76. In any event, I have referred above to the relevant principles in Camilleri, and I accept that Camilleri was cited with approval in Australians for Sustainable Development Inc v Barangaroo Delivery Authority at [63]. I accept the submission by the Respondent that there is no dispute that the GIPA Act establishes a regime that gives members of the public an enforceable right to access government information and that it encourages transparency and accountability of government actions.

Clause 3(a) – reveal an individual’s personal information and Clause 3(b) – contravene an information protection principle

77. Section 14 of the GIPA Act, Table cl 3(a) provides as follows:

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…reveal an individual’s personal information.

78. Section 14 of the GIPA Act, Table cl 3(b) provides as follows:

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…contravene an information protection principle under the [PPIP Act] ...

79. Both of these clauses concern the release of personal information. The definitions of “personal information” in the GIPA Act and in the PPIP Act are similar and have been set out above. Both definitions relevantly provide that personal information means information about an individual whose identity is apparent or can reasonably be ascertained from the information. The GIPA Act provides that to “reveal” information means to “disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)”.

80. The Respondent made reference to the Information Commissioner’s publication in relation to personal information and I have had regard to “Information Access Guideline 4: Personal Information as a public interest consideration under the GIPA Act” dated October 2023 (Guidelines) issued by the Information Commissioner. Section 15(b) of the GIPA Act provides that Agencies must have regard to any relevant guidelines issued by the information Commission.

81. The Guidelines set out common examples of personal information at section 3 in paragraph 1.2. and relevantly includes the person’s name, personal address and contact details, such as email and phone numbers. There is no doubt that the redacted COPS Report contains information about an individual whose identity is apparent or can reasonably be ascertained from that information and the Applicant has expressly sought the release of the individual’s name.

82. The fact that the information may be known to the Applicant does not affect whether release of the information under the GIPA Act would reveal an individual’s personal information, particularly with reference to cl 3(a). The Tribunal has accepted that the words "publicly disclosed" in the context of “reveal information” requires there to have been a prior disclosure of information to the general public: EHW v Secretary, Department of Education [2022] NSWCATAD 140 at [132]-[135]; Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 at [99].

83. It is therefore not significant that the Applicant may be aware of who the individual referred to in the COPS Report is, or might possibly be aware of some or most of the personal information of that individual in the redacted parts of the COPS Report. I am satisfied that none of the personal information redacted in the Event Report has been revealed in the sense of having been “publicly disclosed” within the meaning of cl 3(a) of the Table to s 14 of the GIPA Act.

84. In relation to cl 3(b) and whether disclosure could reasonably be expected to breach an information protection principle, the NSW Police Force is a public sector agency as defined in the PPIP Act and is required to comply with the information protection principles set out in that Act.

85. Section 18 of the PPIP Act sets out limits on the disclosure of personal information. That section provides that a public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) unless:

1. the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

2. the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

3. the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

86. In my view, disclosure under the GIPA Act of the personal information which was supplied to the police for the purpose of investigation and possible prosecution would not be disclosure for any of the permitted purposes in s 18 of the PIPP Act.

87. Accordingly, I am satisfied that the public interest considerations against disclosure in cll 3(a) and (b) with respect to personal information are applicable to my consideration of whether the information should be released. The public interest in protecting and controlling the disclosure of the personal information of another individual should be afforded significant weight, particularly when the release under the GIPA Act of such information means that the information would be released unconditionally. Accordingly, I give significant weight to these public interest considerations against disclosure.

Clause 4(d) – prejudice any person’s legitimate business, commercial, professional or financial interests

88. Section 14 of the GIPA Act, Table cl 4(d) provides as follows:

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…prejudice any person’s legitimate business, commercial, professional or financial interests.

89. It was submitted by the Respondent that the redacted information in the COPS Report includes information regarding a legitimate business interest, specifically, the operation of the internet café that was the subject of the Applicant’s report to police. It was submitted that the Applicant stated that he wishes to pursue legal action against that internet café and that it is therefore reasonable to expect that the disclosure of information regarding the internet café (including the name of the internet café and information provided on its behalf) would prejudice the interests of the internet café (or, more specifically, the legal person/s associated with it) by exposing the person/s to a legal claim, or at least facilitating a legal claim. It was submitted that significant weight should be attached to this public interest consideration.

90. Clause 4(d) has commonly been the subject of applications with respect to the release of information concerning the affairs of others, rather than those of the agency that holds the relevant information. Whether or not this consideration applies will turn on the particular facts of the case.

91. In DDL v Mid-Western Regional Council [2018] NSWCATAD 2, the Tribunal dealt with an application for access to a report that concerned DDL. The report stated that no findings of corrupt conduct were made. The Tribunal stated at paragraphs [57] - [61]:

57   DDL gave evidence of the implications for his professional career and financial interests should the report be disclosed. His evidence was unchallenged. ...

58   The contents of the report lead him to believe that if they were disclosed, his contract of employment would be terminated.

...

60   I accept that adverse impacts upon a person's professional reputation which could disadvantage their future employment prospects come within "professional and financial interests" (Pemberton v Macquarie University [2014] NSWCATAD 76).

61   In my view certain parts of the report could reasonably be expected to make it more difficult for DDL to retain or obtain new employment in certain roles. On the basis of DDL's evidence, which was not challenged, I am satisfied that the disclosure of the report as a whole, even excluding those adverse sections outlined above, could reasonably be expected to prejudice DDL's legitimate professional and financial interests to some extent, although whether it would go so far as to lead to termination of his current employment was unclear.

92. In the circumstances of this matter, I am satisfied that the release of the redacted information as it relates to the internet café, could reasonably be expected to prejudice the legitimate business, commercial, professional or financial interests of any third parties involved in that business and I give considerable weight to this public interest consideration against disclosure. In reaching this finding, I have had particular regard to the Applicant’s evidence that he has not carried out enquiries into the internet cafe, including in relation to the owner of the business, and is intending to rely on the information contained in the COPS Report for the purpose of his legal proceedings, and this appears to include the party/parties that such action would be taken against, and the address for service of any proceedings.

Balancing the public interest

93. I have found that each of the public interest considerations against disclosure relied upon by the Respondent in relation to the COPS Report is present in this case. These are to be balanced against the public interest considerations in favour of disclosure as set out above.

94. Balancing the competing public interest considerations is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation”: Hurst at [70].

95. I have had regard to the objects of the GIPA Act and to the provisions of the legislation. Whilst s 55 of the GIPA Act provides that motives are relevant to the issue of determining where on balance the public interest lies, as was stated in Donnellan v Ku-ring-gai Council [2013] NSWADT 115 at [60], motive must be established on reliable evidence and not by mere assertion.

96. In that regard, there is no evidence of the Applicant commencing legal proceedings or making a complaint to the LECC. There is no evidence that the Applicant has made any independent enquiries about the internet café or its management structure, and his evidence was that he has not. There is no evidence that the Applicant has made any enquiries with the LECC about the information required for the making of a complaint against the police or that he has taken any steps in relation to potential legal action arising out of any alleged misconduct or malfeasance by police. It would appear that the information in the COPS Report that has been released to the Applicant would be sufficient to enable him to institute a complaint to the LECC in relation to the conduct of the NSW Police Force, and yet there is no evidence that he has done so.

97. In any event, personal factors are not relevant when considering whether disclosure of the information could reasonably be expected to have the effect referred to in cl 1 of the Table to s 14 of the GIPA Act.

98. In relation to the redactions on the basis of cl 1(d), I am satisfied, particularly in light of the evidence provided by Ms Drummond, that even though the information sought relates to a report made by the Applicant, the public interest considerations against disclosure significantly outweigh those in favour of disclosure. In reaching this view, I have had regard to the circumstances in which the information was provided to police, community expectations that such information will remain confidential unless disclosure is required by law and the broader impact upon police operations if information of this nature was disclosed.

99. In relation to the personal information redacted from the COPS Report, I am satisfied that in this matter the public interest considerations against disclosure significantly outweigh the public interest in favour of the disclosure of the redacted information. There are clearly personal and operational reasons why that is so. In relation to the redactions relating to cl 4(d), I am satisfied that this public interest against disclosure outweighs those in favour of disclosure.

100. The correct and preferable decision, therefore, is to affirm the decision under review, namely the Decision by the Respondent not to produce the redacted information.

Non-publication orders

101. As set out above, the Respondent provided the Tribunal with confidential material.

102. For the reasons set out above, I have affirmed the Respondent’s decision and it is therefore appropriate for me to make non-publication orders pursuant to ss 64 (1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act (2013) (NSW) (NCAT Act) which will prohibit the publication or disclosure of the confidential material to the Applicant.

Orders

1. The decision under review is affirmed.

2. Pursuant to s 64(1)(c) of the NCAT Act, the publication of the confidential material or matters contained in this material is prohibited.

3. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the confidential material or matters contained in this material is restricted to the Respondent and the Tribunal.

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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

Decision last updated: 20 August 2024