AEZ v Commissioner of Police, NSW Police Force

[2013] NSWADT 90

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90

Hearing dates:

2 and 29 October 2012

Decision date:

29 April 2013

Jurisdiction:

General Division

Before:

P H Molony, Judicial Member

Decision:

1. On File No. 123149 the decision of the Agency is affirmed.

2. On File No. 113364 the decision of the Agency is varied so as to also give AEZ access to paragraph 8 of AQE's statement, such access to be given within 30 days of the date of these reasons.

Catchwords:

Government Information Public Access - confidential information -personal information - information provided to an agency in confidence - expected expose a persons to risk of harm or of serious harassment or serious intimidation - balance of public interest considerations - conclusive presumption that there is an overriding public interest against disclosure of information

Legislation Cited:

Anti-Discrimination Act 1977
Crimes Act 1900 (ACT)
Crimes, Domestic and Personal Violence Act 2007
Equal Opportunity Act 1984 (SA
Government Information (Public Access) Act 2009
Child Protection Act 1999 (Qld)
Freedom of Information Act 1989
Section 40 of the Civil Law (Wrongs) Act 2002 (ACT)

Cases Cited:

Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Henderson v McKenzie [2009] ACTSC 39
JY v Commissioner of Police, NSW Police [2008] NSWADT 306
Leech and in Neary v State Rail Authority [1999] NSWADT 107
McKinnon v Secretary, Department of Treasury [2006] HCA 45
McKinnon v Blacktown City Council [2012] NSWADT 44
R v Donovan [1934] 2KB 498
Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98

Category:

Principal judgment

Parties:

AEZ - Applicant
Commissioner of Police, NSW Police Force - Respondent

Representation:

Counsel
P Moorehouse - Applicant
C Matzicaris - Respondent
Van Cooney ( Applicant)
Sparke Helmore - (Respondent)

File Number(s):

113364 and 123149

reasons for decision

Introduction

File No. 113364

1. AEZ has applied to the Tribunal for external review of a decision made by the Commissioner of Police of the New South Wales Police Service (the Agency) under the Government Information (Public Access) Act 2009 (the GIPA Act) made on internal review on 13 October 2011.

1. AEZ had originally applied for access to -

All statements, emails, documents and information including multimedia files in relation to AVO application ref. no. 1064591 filed by [AQE] against myself - [AEZ] ...

The Agency initially:

• Granted access to COPS Event Summary E42275626 subject to deletions;
• Released 14 pages of email, correspondence and text messages; and,
• Refused access to a witness statement of AQE relying on the personal affairs public interest consideration against disclosure in s 14 Table 3(a).

1. AEZ then sought review of that decision by the Information Commissioner. The Information Commissioner on 20 September 2011 recommended that there was no public interest consideration against disclosure of AEQ's statement, including personal information not previously redacted. The report also noted that the Agency had not dealt with the issue of multimedia files and made recommendations in that regard.

1. On the subsequent internal review the Agency released a CD of CCTV footage of AEZ at the door of a building on 21 September 2010, together with 18 photographs downloaded from that footage. Subject to a right of objection by the maker of the statement, the Agency proposed to release the witness statement with deletions made under s 14 Table 3(a) (personal affairs) and 3(f) (disclosure could be reasonably expected to expose a person to a risk of harm or serious harassment or serious intimidation).

1. Since the internal review, in the course of these proceedings, the Agency has released further parts of the statement, most recently on 26 September 2012. That statement consists of 16 paragraphs. The deletions from the statement now consist of:

• A substantial deletion from paragraph 4.
• A deletion from paragraph 5.
• Two deletions from paragraph 8.
• A deletion from paragraph 9.
• A deletion from paragraph 10.
• A deletion from paragraph 11(disclosed).
• Three deletions from paragraph 15.
• A deletion from paragraph 16.

File No 123149

1. On 5 June 2012 AEZ applied to the Tribunal for external review of a decision made by the Agency on 16 May 2012 to refuse her access under the GIPA Act to the Policy for the Creation, Classification, Evaluation, Storage, Review and Destruction of Cops Information Reports (the policy). The refusal was made on the basis that the policy is information for which there is a conclusive presumption against disclosure under Schedule 1, Clause 7(c) of the GIPA Act.

1. AEZ did not seek review by the Information Commissioner or internal review of that decision, instead going straight down the path of external review.

Background

1. In order to properly understand the issues it is necessary to briefly outline some of the factual background to AQE making his statement, and leading to AEZ making her first application for access to information under the GIPA Act.

1. The statement in issue was made by AQE on 21 September 2010 in support of an application for an AVO against AEZ.

1. AEZ and AQE worked together and in March 2010 had formed a relationship. AQE was due to go on an overseas trip and there were discussions about AEZ joining him. Before he left for overseas, he decided to travel alone and terminated his short relationship, which he said had been going for two weeks, with AEZ.

1. On the day of AQE's departure AEZ phoned, and then approached and followed him, at Sydney Airport. She wanted to talk, but he would not talk to her. She subsequently texted him while he was still at the airport. There are differing views as to the precise details of these events, but agreement as to those essential facts.

1. While AQE was overseas AEZ faxed him at a hotel she says he told her he would be staying at. He cannot recall doing so. It is agreed that in fax she offered to meet him overseas. She says she also wished him the best for his journey.

1. After AQE returned to Australia AEZ phoned him on 1 July 2012 asking whether he was responsible for her being removed from her shift at work. There is a dispute about what was said, although there is agreement that AOE said he was not responsible and asked her not to contact him again.

1. On 30 August 2010 AQE received a letter from AEZ talking about closure of their relationship. He did not respond.

1. On 21 September 2010 AEZ attended the secure block of units where AQE lives. She buzzed his unit seeking to be let in. When AQE responded AEZ identified herself. AQE says he did not respond and did not let her in. AEZ says he asked her to wait. She says that when he did not let her in, or respond to further buzzing she continued to wait for 10 minutes. He says 20 to 25 minutes. Eventually she buzzed another unit and was granted access to the building. She knocked on AQE door but there was no answer. She left cookies and flowers at his front door and then left.

1. That was the last contact between AQE and AEZ. The events of that night led to AQE making his statement to Police and an interim AVO being made against AQE. When that AVO came on for hearing AQE told Police he was unwell, and they withdrew the application and telling the Magistrate that AQE had "no fears".

1. It is necessary to understand that AQE has multiple sclerosis, which has a fluctuating impact on his ability to undertake his activities of daily living.

1. Finally, by way of background it needs to be noted that AEZ made a complaint to the NSW Ombudsman about the conduct of police in dealing with AQE's complaint and obtaining the interim AVO. In a letter responding to that complaint and advising that the matter would not be investigated further, the Ombudsman's Investigations Officer quoted paragraph 8 of AQE's statement verbatim.

The Government Information (Public Access) Act 2009

1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) -

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

1. "Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4.

1. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).

1. The GIPA Act (s 14(1)) creates categories of information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14). Those categories are set out in Schedule 1.

1. With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -

Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

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

1. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides -

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.

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that -

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.

The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Information Commissioner has issued a guideline (4) entitled Personal information as a public interest consideration under the GIPA Act.

1. The public interest considerations against disclosure relied on by the agency in this case are discussed in some detail below.

1. Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5).

1. An access application is to be determined in accordance with s 58 -

(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.

1. In exercising functions under the Act s 3(2) instructs that -

It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. An agency can take the personal circumstances of an applicant into account when determining an access application in accordance with s 55. It provides -

(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 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.

1. Section 80 sets out a series of decision that are reviewable decisions under the Act. It provides -

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

(a) a decision that an application is not a valid access application,

(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,

(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

(d) a decision to provide access or to refuse to provide access to information in response to an access application,

(e) a decision that government information is not held by the agency,

(f) a decision that information applied for is already available to the applicant,

(g) a decision to refuse to confirm or deny that information is held by the agency,

(h) a decision to defer the provision of access to information in response to an access application,

(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),

(j) a decision to impose a processing charge or to require an advance deposit,

(k) a decision to refuse a reduction in a processing charge,

(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,

(m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object).

1. Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). The internal review is to be completed within 15 working days of receipt (s 86), failing which the agency is deemed to have made the original decision again (s 86(5)). A decision made on internal review is itself a reviewable decision, although it is not possible to seek an internal review of an internal review (s 88).

1. Secondly, an access applicant who is aggrieved by a reviewable decision may seek review of the decision by the Information Commissioner under s 89. Where the person aggrieved is not the access applicant he or she must first seek an internal review (s 89(2)). A review by the Information Commissioner must be sought within 8 weeks of notice of decision being given to the access applicant. The Information Commissioner may then make a recommendation to the agency (s 92) including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93).

1. Thirdly a person aggrieved may seek a review by the Tribunal (s 100). When read with s 38 of the Administrative Decisions Tribunal Act 1997 this provision confers jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."

1. Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).

1. In any review of a reviewable decision s 105 places the onus of justifying the decision on the agency concerned. It provides -

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(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.

(3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

1. The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. The Information Commissioner and any person who could be aggrieved by a decision on review has a right to appear and be heard in review proceedings (s 104). In the present case AQE exercised his right as a person aggrieved and gave evidence. The Information Commissioner did not appear.

1. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It provides -

(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an ADT review, the ADT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a) the public and the applicant, and

(b) the applicant's representative if the ADT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

Issues

File No. 113364

1. In respect to this application the following issues require determination with respect to AQEs' statement.

1. First, to identify the public interest considerations in favour of disclosure of the information deleted form AQE statement.

1. Secondly, to identify the public interest considerations against disclosure. Specifically this will require me to determine whether the redacted portions of AQE's statement contain information which, if released, would give rise to a public interest against disclosure on the ground that release could reasonably be expected to:

(a)prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions(s 14, Table 1(d));

(b) reveal an individual's personal information (s 14, Table 3(a)); and

(c) expose a person to a risk of harm or of serious harassment or serious intimidation (s 14, Table 3(f))?

1. Thirdly, to determine what weight is to be given to each of those factors and to balance the public interest considerations against disclosure with those in favour of disclosure, in order to determine whether the balance lies.

File No 123149

1. The issue in this application is whether clause 7(a) of Schedule 1 of the GIPA Act applies to the Policy. The clause provides -

It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents:

(a) a document created by the former Information and Intelligence Centre of the Police Service or the former State Intelligence Group,

The hearing

1. During the hearing I heard sworn evidence from AQE and from Senior Sergeant. Thurlow. AQE gave some of his evidence in a confidential hearing , in the absence of AEZ and her representatives, held to prevent the disclosure of information said to be the subject of overriding public interest considerations against disclosure as required by s 107 of the GIPA Act. Otherwise the evidence and material before the Tribunal was in written form, including confidential statements from AQE and Senior Sergeant Honeyman each of which addressed material said to be subject to a public interest consideration against disclosure.

1. AQE's oral evidence was a cause for some considerable concern. His recollection of events was so unusually poor so as to suggest that he was avoiding answering questions put to him. He put his poor memory down to his multiple sclerosis.

1. At the same time AQE was obviously stressed by the environment of the witness box. He consistently demonstrated great difficulty in answering questions consisting of more than one part or proposition. Once again this difficulty gave rise to questions as to whether or not AQE was deliberately seeking to evade the questions he was being asked.

1. AEZ's counsel submitted that this problem occurred more frequently when AQE was asked question he did not like in cross-examination, whereas Counsel for the Agency thought that the problem was one AQE demonstrated no matter whom was questioning him. I raised the question as to whether AQE's difficulty was indicative of some form of cognitive impairment as a consequence of his multiple sclerosis, and suggested that questions be simplified and limited to one proposition.

1. In the course of cross-examination AQE was questioned at some length about his work life and his continuing pursuit of private interests, which require a level of courage and physical ability that it was put to him was inconsistent with his presentation while giving evidence. AEQ response to this was, in summary, that his condition varies from day to day. At times he is capable of meeting the demands of his job and interests, at other times he is not.

1. Later in the hearing the Agency tendered, subject to a decision as to relevance, an affidavit from Grace Shiok Yen Thanasamy, a solicitor, annexing research material she had found regarding cognitive and memory impairments in persons suffering from multiple sclerosis. The purpose of this was to explain AQE's difficulties in giving evidence, and to thereby support his credibility.

1. As I indicated when this was sought to be tendered I doubted the utility of this evidence as it did not necessarily apply to AQE. Having read the materials I accept that the difficulties in memory and in following questions AQE displayed when giving evidence are consistent with the tendered material relating to cognitive impairment in persons with multiple sclerosis. That, however, does demonstrate that AQE is cognitively impaired as a result of his multiple sclerosis. There is no expert evidence that he is so impaired.

1. The view I have reached is that AQE's recollection was so poor, and his responses to questions so poor, that I do not consider his evidence reliable. I accept that his presentation when giving his evidence may be explained as deliberate evasion on his part, or as consistent with cognitive and memory impairment as a result of his multiple sclerosis. In the absence of medical or neuropsychological assessments I am not able to decide which explains the manner in which he gave his evidence. I do regard his oral evidence as unreliable unless otherwise verified.

File No. 113364 - Public interests considerations in favour of disclosure

1. Public interests considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited.

1. AQE statement is one made to police in support of an AVO in which certain allegations were made against AEZ. While an interim AVO was obtained, the final hearing did not proceed when Police withdrew the application when AQE was not in attendance as he was said to be unwell.

1. In my opinion the following public interest considerations in favour of disclosure apply when considering the report as a whole -

• The general public interest in favour of disclosure of government information.
• Disclosure of the information could reasonably be expected to enhance government (police) accountability.
• Disclosure of the information could reasonably be expected to inform the public about the operations of the system for obtaining AVOs.
• Disclosure of the information could be reasonably be expected to promote discussion and debate about the appropriate limits of the AVO procedures, and the circumstances in which they should be used.
• Some of the information in question is that of AEZ, among others.

File No. 113364 - Public interests considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Because the agency bears the onus of justifying its decision to refuse AEZ access to the report, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

1. In submissions the agency identified three public interests considerations against disclosure upon which it relied. It is necessary to consider each of those public interests considerations against disclosure separately. With respect to each of them the question to be determined is whether, on the material before the Tribunal disclosure could be reasonably expected to have the nominated effect. It is therefore necessary for it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect: see Attorney-General's Department v Cockcroft (1986) 10 FCR 180; McKinnon vSecretary, Department of Treasury [2006] HCA 45; Leech and in Neary v State Rail Authority [1999] NSWADT 107 and McKinnon v Blacktown City Council [2012] NSWADT 44.

Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14, Table 1(d))

1. The Agency relied on Senior Sergeant Thurlow's evidence to support this claim, specifically paragraphs 5 to 16 of his affidavit.

1. An Appeal Panel of this Tribunal has recently provided some guidance as to how one should approach the consideration in s 14, Table 1(d). In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 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.

1. Police officers are empowered to apply for AVO's under s 48(2) of the Crimes (Domestic & Personal Violence) Act 2007 so as to protect persons from domestic or personal violence. Only Police officers can apply for provisional orders.

1. Senior Sargent Thurlow is a legal consultant in the Domestic and Personal Violence and I accept is familiar with the police and court practice and procedure with respect to AVO's.

1. Mr Thurlow's evidence was that witness statements are not used when obtaining a provisional AVOr, which are made on the basis of an applications prepared by police. Statement are however usually prepared at that time as part of normal practice. His evidence idence was that -

11. Any information obtained during an investigation is kept confidential and is generally only released with the victims' or witnesses' consent or as required by a court.

12. Persons who provide information to Police trust that Police will maintain utmost confidentiality of the information provided. Witnesses understand that their statements may be used for court purposes and accordingly released to the defence. They trust that Police will maintain confidentiality until such time as they are required to release information. It is not uncommon for witnesses to fear the repercussions of the release of their statement to the defence. They often fear reprisals and adverse consequences. They also trust that if matters do not proceed to court that Police will maintain confidentiality.

13. If the information of members of the public was not kept confidential, it

would affect Police duties by making it difficult to investigate crime and complaints of violence or harassment. Trust between members of the public and the NSW Police Force is essential to promote future reporting of incidents to police and faith in police. Once this trust is broken members of the public become reluctant or refuse to assist police investigations in the future. Police already face enough difficulty with encouraging victims and witnesses to come forward. The release of victim or witness statements under the Government Information (Public Access) Act 2007 has the potential to jeopardise the willingness of victims and witnesses to provide statements.

13. The early release of witness statements, especially if an apprehended

violence order application were withdrawn, could inflame the already fragile relationship between the parties

1. Mr Thurlow said that decision to get an AVO is one taken by the Police. They can pursue it without the victims consent. Victims are compellable. He said that when a statement is taken for AVO purposes he would expect that the victim would be told that the statement would be served on the other side, in the event that the AVO application is defended. Until such time as it was clear that Police would have to rely on the statement in Court, Police maintain confidentiality with respect to such statements. He said that the Police Customer Service Charter advised "customers" that their confidentiality would be maintained.

1. He agreed that it was important statements made in support of AVO applications be accurate, and said he was aware of vexatious complaints. He explained that statements in support of AVO's are usually produced quickly, often in circumstances of stress and upset for victims. Only one statement is taken. Statement are not filed or served when obtaining provisional orders.

1. Mr Thurlow agreed that all police statements, including AQE's statements, contain the following opening paragraph -

This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything I know to be false, or do not believe to be true.

He said that this was a standard paragraph in pro-forma statements. In his experience the first time a victim usually sees that paragraph is when reading their draft statement. In his experience victims are sometimes very reluctant to sign statements when they read that paragraph. They have to be reassured that the statement will only be released in the event of a defended hearing.

1. Senior Sergeant Thurlow said that when s matter does not proceed to hearing it is Police policy not to release a victim's statement without their consent.

1. AQE also gave open evidence in respect to the events surrounding the making of statement. He said he was taken to the Police Station for the purpose of preparing it. He said that he believed that it was "a private statement between me and the Police to protect me". He said that he read it before he signed it but "it didn't go into my head." He could recall a process of editing the statement, but said he did not include paragraph 1. He assumed Police had told him about the AVO process but "did not recall" them doing so. At the time he "wasn't in a mental state to understand" what was going on. He had no recollection of being told that his statement might be given to AEZ.

1. In submissions AEZ's counsel argued that the giving of a statement to be used in contemplated AVO proceedings did not amount to the supply of confidential information. In his submission,

... where the information in the statement will form the basis of an AVO application which is very shortly be served it simply cannot sensibly be said that information is provided in circumstances of confidence.

1. He noted that the terms of paragraph 1 of the statement clearly showed that when he made the statement AQE had been aware it could be used in open court. He referred to the decision of the Tribunal in JY v Commissioner of Police, NSW Police [2008] NSWADT 306 where I did not accept that statements made to the Police for the proposes of a coronial investigation were confidential. I wrote, at [73]

73 The Commissioner argued that the witness statements were obtained in confidence in the course of the investigation into the child's death. The Commissioner submitted that the release of the statements could prejudice the future supply of such information to the Commissioner on that basis that, "If parties believe that the NSW Police will release witness statements, parties may become reluctant to give statements to the Police." The Commissioner did acknowledge that the weight of decided authority was against this submission. The Commissioner submitted that because the Coroner has made a determination as to the cause of death, and given the relationship between JY and the persons who had made the statements (including the fact that JY and her ex-husband still have their other child), it would not be appropriate to release the statements.

74 JY submitted that there was no evidence that the witness statements had been provided on a confidential basis. Rather they were given in the knowledge that they could become part of the public record were an inquest held. Similarly, JY argued that there was no evidence - merely assertions - that the disclosure of the information could reasonably prejudice the future supply of this type of information from those sources that are available or likely to be available to the NSW Police (see Re B (1994) 1QAR 279 at 341 and Martin v Commissioner of Police [2005] NSWADT 23 at [45]). Finally, JY noted that the Commissioner asserted but did not point to a pubic interest in non-disclosure.

75 I accept and agree with JY's submissions. I am not satisfied on the material before me that witness statements were obtained in confidence; indeed, I find that they were obtained on the basis that they could be made public during the coronial process. I also do not accept the Commissioner's assertions that disclosure could reasonably prejudice the future supply of this type of information from those sources that are available or likely to be available to the NSW Police.

1. It is important to note that in JY I was determining whether the statement was exempt under Clause 13(b) of Schedule 1 of the Freedom of Information Act 1989 which provided:

A document is an exempt document:

...

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.

1. Like the situation in JY the evidence in this case is that AQE's statement expressly acknowledged that it contained evidence he would be prepared to give in Court. Unlike the situation in JY, however, in the present case there is an abundance of evidence that Police practice is to treat such statements as confidential, unless their use is required in Court. Further, the operational context in which the statement were taken here, relating to AVO's, is often concerned with present and ongoing relationships, and is vastly different to the context in which the statements were taken in JY. Mr Thurlow's evidence going to need for, and expectations of, confidentiality in the Police's protection of individuals from personal and domestic violence is compelling.

1. In this case, subject to the exception noted below, and based on Senior Sergeant Thurlow's evidence I think it could reasonably be expected that disclosure of AQE's statement would prejudice the supply to the Agency of confidential information that facilitates the effective exercise of that agency's functions. As the Appeal Panel pointed out in Camilleri at [421 -

... The case law to which we have referred has noted that it is not unusual for material received confidentially at the initial stage of the law enforcement process to lose that confidentiality as the investigation develops. It may need to be placed before persons of interest for their response. It may need to form the basis of evidence to be given in open court in support of any charges that may be laid. ...

1. The exception to this relates to paragraph 8 of AQE's statement, the text of which has already been disclosed to AEZ in the Ombudsman's letter, without restraint or limitation on its further dissemination. In my view the confidence in relation its contents has already been breached. AEZ knows what the paragraph says and who said it. There is no limitation on her distribution of that knowledge. In those circumstances I do not think it can be said that disclosure of paragraph 8 of the statement under the GIPA Act could reasonably be expected to prejudice the supply to the Agency of confidential information that facilitates the effective exercise of that agency's functions.

Disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (s 14, Table 1(g))

1. In the light of the conclusions I have already reached with respect to the confidentiality of AQE's statement I conclude, with one exception, that disclosure of the statement could reasonably be expected to result in the disclosure of information provided to an agency in confidence

1. That exception is paragraph 8 of AQE' statement. Schedule 4 of the GIPA Act contains interpretive provisions that include a definition of disclose -

disclose information includes make information available and release or provide access to information.

1. The evidence clearly establishes that paragraph 8 has already been disclosed to AEZ. In those circumstances the Agency cannot rely on this public interests consideration against disclosure.

Disclosure of the information could reasonably be expected to reveal an individual's personal information (s 14, Table 3(a))

1. Personal information is defined in clause 4 of Schedule 4 of the GIPA Act -

"(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) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause."

1. In respect to the information deleted from paragraphs 4 to 15 of the AQE' statement I am satisfied that it contains personal information of both AEZ and AQE, while that deleted from paragraph 16 contains that of AEZ alone. I am satisfied that disclosure of that information could reasonably be expected to reveal an AQE's personal information.

1. Once again specific mention needs to be made of paragraph 8, the contents of which have already been disclosed to AEZ in the Ombudsman's letter. Schedule 4 of the GIPA Act contains interpretive provisions that include a definition of reveal -

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

1. Unlike the situation in Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 where information had been previously dislcosed in Court (and thereby already revealed), here there is an issue as to whether disclosure in the ombudsman's letter resulted in paragraph 8 of AQE's stament ment being revealed, in the sense of being publicly dislcosed.

1. Section 17 of the Ombudsman Act 1974 provides that investigation by the Ombudmans "shall be made in the absence of the public". In my view, it follows that the disclosure of confidential information in a letter from the Ombudsman advising of a decision not to investigate is not a public disclosure. Hence, while the information was disclosed to AEZ, it was not revealed. Release under the GIPA Act could reasonably be expected to reveal it.

Disclosure of the information could reasonably be expected expose a persons to risk of harm or of serious harassment or serious intimidation (s 14 Table 3(f))

1. The question here is whether if the information is disclosed, it could reasonably be expected that the disclosure would "expose a person to a risk of harm or of serious harassment or serious intimidation."

1. The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus -

noun 1. injury; damage; hurt: to do someone bodily harm.

2. moral injury; evil; wrong.

-verb (t) 3. to do harm to; injure; damage; hurt.

-phrase 4. in harm's way, in danger.

5. out of harm's way, out of danger.

[Middle English; Old English hearm]

1. Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to" include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing."

1. In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing.

1. Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass -

verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.

2. to disturb persistently; torment.

[French harasser, from Old French harer set a dog on]

1. The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9).

1. In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] -

6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary).

1. All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment.

1. The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related.

1. Intimidation is defined by The Macquarie Dictionary online as -

verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow.

2. to force into or deter from some action by inducing fear: to intimidate a voter.

[Medieval Latin intimidātus, past participle, made afraid. See TIMID]

1. Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus -

(1) For the purposes of this Act, intimidation of a person means:

(a) conduct amounting to harassment or molestation of the person, or

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

1. In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said -

15...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety.

16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ...

1. Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.

1. In the case of the information sought by AEZ, despite AQE's subjective beliefs, I do not think that, when considered objectively, the evidence demonstrates that disclosure of any of the information in issue could reasonably be expected to expose AQE to a risk of harm or of serious harassment or serious intimidation. While AQE may have a subjective fear that release of the information may expose him to such a risk, I am not persuaded on the evidence justifies that conclusion could be reasonably expected to expose him to such a risk.

1. While I accept that AEZ's determined pursuit of AQE after such a short relationship may well have justified an apprehension of harassment on his part at that time, it is important to bear in mind that there is no evidence that at any time threatened AQE or exposed him to harm. The evidence demonstrates that at all times she was seeking to understand why AQE had terminated their relationship. I accept that she did not make unusual or special efforts to obtain information regarding his whereabouts in an effort to contact him. In this regard AEZ knew when he would be at the airport, where he was staying in the US, and where he lived.

1. The fact that AQE did not pursue the granting of an AVO, instead allowing AVO application to be withdrawn is also relevant to this assessment.

1. Also is the fact that In the years since then, there is no evidence that AEZ has in any way attempted to contact, harm, harass or intimidate him. While AQE protested that his cross-examination by her Counsel represented her harassing him, I do not accept that was the case. That cross-examination while not attractive or edifying was necessary in order to put AEZ's case, and to test whether AQE's very poor recollection was a result of him being deliberately evasive or not.

1. In all the circumstances I do not accept that it could reasonably be expected that disclosure of any of the information in issue will expose AQE to a risk of harm or of serious harassment or serious intimidation

File No 123149 - Does clause 7(a) of Schedule 1 of the GIPA Act applies to the Policy?

1. Having read the confidential statement of Lesley Anne Honeyman dated 20 August 2012 and the Policy for the Creation, Classification, Evaluation, Storage, Review and Destruction of Cops Information Reports (the Policy), I am satisfied the Policy was created by the former Information and Intelligence Centre of the Police Service. As such, it is conclusively presumed that there is an overriding public interest against disclosure of information contained in that Policy: see s 14(1) and clause 7(a) of Schedule 1the GIPA Act.

1. This is not a matter about which the Tribunal has any discretion, irrespective of the merits of the applicant's extensive submissions supporting disclosure. Contrary to AEZ's submissions clause 7(a) applies to all documents created by the former Information and Intelligence Centre; not just those collected in the exercise of a function concerning the collection, analysis or dissemination of intelligence.

1. The reality is that the legislature has seen fit to provide that there is a conclusive presumption of an overriding public interest against disclosure of that information. The Tribunal has no discretion whatsoever once satisfied that the Policy was created by the former Information and Intelligence Centre of the Police Service.

1. Being so satisfied, there is no purpose to be served by considering AEZ's comprehensive arguments in favour of access.

Conclusion

1. I will affirm the decision of the Agency on file no. 123149.

1. On file number 113364 the decision of the Agency is varied so as to also give AEZ access to paragraph 8 of AQE's statement, such access to be given within 30 days of the date of these reasons.

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Amendments

19 June 2013 - Typographical errors

Amended paragraphs: 15

Decision last updated: 19 June 2013