Agardy v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 201

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Agardy v Commissioner of Police, NSW Police Force [2023] NSWCATAD 201

Hearing dates:

13 March 2023

Date of orders:

2 August 2023

Decision date:

02 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R J Perrignon, Senior Member

Decision:

The decision of the Commissioner of Police made on 14 September 2022 is varied, by determining to release that part of the COPS events report extracted at [39(4)] of the reasons for decision.

Catchwords:

Administrative Law – access to government information – whether overriding public interest against disclosure of communications to police and personal information

Legislation Cited:

Administrative Decisions Review Act 1997

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1998

Cases Cited:

Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86

Commissioner of Police (NSW) v Camilleri [2021] NSWADTAP 19

Martin v Commissioner of Police [2005] NSWADT 23

Sherman v Commissioner of Police [2016] NSWCATAD 107

Simring v Commissioner of Police [2009] NSWSC 270

Category:

Principal judgment

Parties:

Yvette Marie Agardy (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00220378

Publication restriction:

The confidential version of these reasons is not to be released to the applicant or published.

Reasons for Decision

Application for review

1. Ms Agardy lives in a gated complex of strata units. She and two occupants of the strata unit opposite hers, whom I shall l refer to as her neighbours, have been in dispute for some years. On 14 April 2022, members of the police force attended her unit, and asked her to have no further contact with those neighbours.

2. By an access application lodged on 28 April 2022, Ms Agardy sought access to ‘specific details of complaint made against me …. by my neighbour at [address and names] and any video footage held’.

3. On 24 May 2022, the Commissioner decided her application by providing redacted copies of two documents: a COPS event report, which included entries made on 8 and 14 April 2022; and a witness statement dated 8 April 2022, whose heading included the word, ‘Harassment’, and which had been signed by a police officer in witness to the signature of the person making the statement.

4. Ms Agardy sought internal review on 16 June 2022. In her application she explained:

‘I am upset 3 police turned up at my door one evening in response to complaint from neighbour. The police made disclosures on the evening and I want to know what was reported as I am most concrned [sic] for my reputation but the information is suppressed. My lawyer’s letter addresses the reasons why I dispute the decsion [sic] to suppress the information ..’.

5. On 21 June 2022, the Commissioner by her delegate decided the review application by granting access to redacted copies of the same two documents.

6. Ms Agardy then commenced these proceedings, seeking review by the Tribunal of the Commissioner’s decision. On 22 August 2022, the Tribunal exercised its power under s.65 of the Administrative Decisions Review Act 1997 (ADR Act) by remitting the decision to the Commissioner for reconsideration. A replacement decision was made by the Commissioner on 14 September 2022. By that decision, the Commissioner provided redacted copies of the same two documents, on the basis that there was an overriding public interest against disclosure of some of the information they contained.

7. Ms Agardy seeks review of the decision made on 14 September 2022. Section 100(1) of the Government Information (Public Access) Act 2009 (GIPA Act) empowers the Tribunal to review the decision. Its task is ‘to decide what the correct and preferable decision is having regard to the material then before it’: s.63(1) ADR Act. The respondent bears the onus of proving that its decision was the correct and preferable decision: s.105(1) GIPA Act.

8. Ms Agardy says that unredacted copies of the two documents should be provided, though she is not interested in personal information that would reveal the identity or identities of the complainant or complainants. She says she knows who they are, as their unit was identified to her by police. In any event, she says, their personal details including names, mobile phone numbers and address, are already known to her, as they used to be friendly, and had exchanged such details.

9. The respondent says there is an overriding public interest against disclosure of the redacted information, because the public interest against disclosure outweighs the public interest in favour. That is because disclosure could reasonably be expected:

1. To prejudice the supply to police of confidential information that facilitates the effective exercise of their functions (clause 1(d), Table to section 14, GIPA Act);

2. To prejudice the effective exercise of police functions (clause 1(f) of the Table);

3. To reveal an individual’s personal information (clause 3(a) of the Table); and

4. To contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act) (clause 3(b) of the Table).

Relevant legislation

10. The objects of the GIPA Act are set out in section 3 as follows:

(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.

(2) 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.

11. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5.

12. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information: section 9.

13. There is a general public interest in favour of the disclosure of government information: section 12(1).

14. Public interest considerations in favour of disclosure include, but are not limited, to, the following – section 12(2):

(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.

15. There is an overriding public interest against disclosure of government information for the purposes of the 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: section 13.

16. In effect, on review by the Tribunal, the Act requires that the agency prove that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. This has been referred to by the Appeal Panel as the ‘weighing of the balance required by section 13’: Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 [at paragraph 22].

17. In cases such as this, in weighing the balance required by section 13, the only public interest considerations against disclosure which may be taken into account are those set out in the Table to section 14: section 14(2). Relevantly, clause 1 of the Table provides:

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

…

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

….

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

18. Clause 3 of the Table relevantly provides:

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

(a) reveal an individual’s personal information, [or]

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 …

19. A 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 forth in section 15, which are as follows:

(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.

(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.

20. In determining whether there is an overriding public interest against disclosure, an agency is entitled to take the ‘personal factors of the application’ into account: section 55(1). These are:

(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.

21. However, those factors may only be taken into account as factors against providing access to the extent that they relate to whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 of the Table to section 14 (not, for instance, clause 1): section 55(2).

Issues for determination

22. The issue for determination is whether, in respect of the redacted material (other than information conveying personal information of the complainant or complainants), there is an overriding public interest against disclosure. That involves identifying the public interests in favour of disclosure, and the public interests against, and weighing the two, mindful of the injunctions in sections 12 and 15: Commissioner of Police (NSW) v Camilleri [2021] NSWADTAP 19.

Evidence

23. Ms Agardy did not provide a statement or oral evidence in a formal sense. She tendered documentary evidence and made submissions orally. She also provided handwritten submissions by way of responses to the decision under review, written on a copy of the decision. She later typed her responses at the Tribunal’s request.

24. The applicant’s submissions and documents have been taken into account in preparing these reasons. Much of her documentary evidence consisted of references evidencing her good character, and evidence concerning the course of the dispute between her and the neighbours over the years.

25. As she made clear in her application for internal review, Ms Agardy is concerned about her good reputation in view of complaints made about her, the terms of which have not been provided to her. In these proceedings, her good character is not in issue. Her evidence of the course of the dispute provides context to her access application. It also evidences her relationship with the neighbours and her motives for making the access application. The Tribunal accepts that these are ‘personal factors’ within the meaning of section 55, and takes them into account.

26. Ms Agardy submits that she was the victim of the actions of her neighbours. However, the neighbours are not party to these proceedings, and have not been represented, or heard. It is unnecessary to join them, because it forms no part of the Tribunal’s task to determine who, if anyone, was at fault. Similarly, it forms no part of the Tribunal’s task to determine whether, as she alleges in written submissions, the police showed favour to her neighbours and not to her. The issues for determination by the Tribunal are confined to those set out above.

27. The respondent Commissioner relied on unredacted copies of the COPS event report and witness statement, redacted versions of which had been provided in response to the access application. The unredacted copies were filed as confidential exhibits. She also relied on a signed statement by Sergeant Dewberry, who also gave oral evidence. The confidential material is dealt with in the section below entitled, ‘Not for publication’.

Sergeant Dewberry

28. Sergeant Dewberry gave a signed statement. He has had twenty years experience as a police officer. He is the Acting Crime Coordinator of the Crime Prevention Unit in a major Police Area Command (PAC) of Sydney. His current duties require him to evaluate all reported crimes within his busy PAC and determine investigative requirements with respect to each, and to allocate them to appropriate officers for investigation. Prior to this, he spent many years as a police officer in general duties, as a field intelligence officer, a General Duties supervisor, and a domestic violence team leader. He had dealt with a large number of complaints made in the context of neighbour disputes. Though he was not personally involved in Ms Agardy’s matter, he had reviewed the redacted material.

29. He said that the police force was ‘heavily reliant’ on members of the public providing information about potential offences and risks to persons and property, and that their willingness to do so was ‘key to ensuring a timely and effective response to incidents’.

30. In his experience, he said that members of the public expect that their communications to police will be kept confidential, and their personal details not divulged or shared. That expectation was supported, he said, by Regulation 16 of the Police Regulation 2015, which required police to treat all information which comes to them in their official capacity as confidential and not to be disclosed without propre authority. That, in turn, was reflected in the police Code of Conduct and Ethics.

31. He said that complainants in neighbour disputes were often quite concerned and worried about coming forward, particularly whether the people live close to each other. They often fear an escalation of the dispute. For those reasons, police often provide assurance to complainants and witnesses that their personal details and their information will not be disclosed to their neighbours, except as necessary to progress the investigation and any criminal proceedings or application for apprehended violence orders.

32. It would not be usual practice, he said, to provide full details of all information that had been provided by a complainant, or an account of all evidence gathered, though police would typically disclose the general nature of the complaint or allegations to a person of interest.

33. Witness statements are also kept confidential until served as part of a police brief of evidence.

34. He believed that disclosure of the redacted material in this case would be perceived as a significant breach of trust, because in his view the information would have been provided in the expectation that confidentiality would be preserved. That would have repercussions, he said, not just in this case, but also ‘for the level of trust that the community has in the NSWPF’.

35. In his view, if that happened, ‘many complainants would be reluctant to speak with police. Any reduction in the number of complaints made to police, or in the willingness of complainants to cooperate with an investigation would negatively impact the ability of Police to exercise their investigative and law enforcement functions’. It would also, he said, ‘have the potential to exacerbate disputes and increase the level of discord between neighbours. This would be counter to the police objectives of maintaining the peace and good order and preventing further incidents requiring a law enforcement response.’

36. Where the parties resided close to each other, he said, ‘there is a heightened risk that disclosure of information could lead to the harassment or intimidation of complainants or witnesses if their personal information was disclosed’.

37. Sergeant Dewberry also gave oral evidence, but did not resile from his opinion and other evidence summarised above.

Confidential material

38. [NOT FOR PUBLICATION]

39. [NOT FOR PUBLICATION].

Personal information

40. The disclosure of personal information in the redacted material could reasonably be expected to ‘reveal an individual’s personal information’ in terms of Clause 3(a) of the Table, even if it were already known to Ms Agardy. That is because ‘reveal information’ is defined in clause 1 of Schedule 4 to mean, ‘disclose information that is not already publicly disclosed (otherwise than by unlawful disclosure)’.

41. Notwithstanding the applicant’s written submissions to the contrary, there is no evidence that the redacted personal information has been publicly disclosed, even if - as she says in written submissions and I accept - the names of the neighbours were disclosed to her (privately) by police. I am not satisfied that it has been publicly disclosed. Its disclosure could reasonably be expected to reveal an individual’s personal information in terms of clause 3(a).

42. Disclosure of this personal information would also contravene an information protection principle under section 18(1) of the PPIP Act, which provides:

(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.

43. Even if the personal information was directly related to the purpose for which it collected, as to which it is unnecessary to make a finding, the evidence of Sergeant Dewberry establishes that the agency (the police force) has compelling reason to believe that any concerned individual would object to disclosure, because in his opinion such disclosure would be perceived as a serious breach of trust. Having regard to his experience and expertise, I accept that that opinion as accurate. It is likely that the agency had reason to believe that disclosure of personal information would be objected to. Despite the applicant’s submissions to the contrary, there is no evidence that a complainant consented to the disclosure of their personal information.

43. There is no evidence to suggest any individual was aware, or likely to have been aware, that personal information of that kind is usually disclosed. Likewise, there is no evidence of a serious and imminent threat to the life or health of any person.

44. None of the three exceptions applies. Disclosure is not a permitted use of the information. It follows that disclosure could reasonably be expected to ‘contravene an information protection principle under the Privacy and Personal Information Protection Act 1998’ in terms of clause 3(b) to the Table.

45. In any event, as indicated, Ms Agardy does not seek access to any personal information.

Whether prejudice to the supply of confidential information to agency or to its functions

47. There was no evidence to contradict the opinions of Sergeant Dewberry. His evidence is internally consistent. His opinions deserve weight because of his long experience as a police officer in the investigation of crime generally, and in dealing with neighbour disputes in particular.

48. His views are consistent with the following observations made by the Supreme Court in Simring v Commissioner of Police [2009] NSWSC 270 at [69], quoted by the Tribunal with approval Sherman v Commissioner of Police [2016] NSWCATAD 107:

When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up, or at least there could be a reduction in the flow of information available to the police.

49. The question is not whether a particular complainant would be discouraged from providing further information to police, but whether disclosure of material ‘could reasonably prejudice future supply of this type of information from those sources that are available or likely to be available to the agency’: Martin v Commissioner of Police [2005] NSWADT 23 at [45].

50. With one exception, I accept the opinions expressed by Sergeant Dewberry, and his evidence as to police practice. In particular, I accept his opinion that disclosure of the redacted material in this case could reasonably be expected to make many complainants, particularly in neighbourhood disputes but also in other matters, reluctant to provide information to police. That is so, whether or not the police officer or officers involved in this case gave express assurances that information would be kept confidential, as to which I make no finding in the absence of relevant evidence.

51. It follows that such disclosure could reasonably be expected to ‘prejudice the supply to [the NSW Police Force] of confidential information that facilitates the effective exercise of that agency’s functions’ in terms of clause (1)(d) of the Table in section 14 – particularly, its investigative and law enforcement functions. For the same reason, disclosure could also reasonably be expected to ‘prejudice the effective exercise by an agency of the agency’s functions’ in terms of clause (1)(f) – particularly, its investigative and law enforcement functions.

52. The exception to which I have referred is that set out at [39(4)] of these reasons. It was an opinion held by police. Its disclosure would not reveal either what was said by a complainant, or the personal information of a complainant. I am not satisfied that its disclosure could prejudice the supply of confidential information to the police, prejudice their functions, or reveal a person’s personal information.

Consideration

53. Having identified the public interest against disclosure in clause 1(d) and (f) and clause 3(a) and (b) of the Table, it remains to identify the public interest in favour of disclosure, and to weigh them together.

54. The public interest in favour of disclosure is as follows:

1. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5.

2. 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: section 9.

3. There is a general public interest in favour of the disclosure of government information: section 12(1).

4. Public interest considerations in favour of disclosure include, but are not limited, to, the matters in section 12(2)(a) to (d), as set out above.

55. In this case, there is no suggestion of misconduct or of negligent, improper or unlawful conduct by the police. Section 12(2)(e) is not relevant.

56. I take into account all the public interest considerations in favour of disclosure above, the objects of the Act, and the personal factors of Ms Agardy so far as they concern clause 3(a) and (b) of the Table. She is understandably upset by receiving news from the police that a complaint had been made about her, and wishes to know what was said. I give weight to all those considerations.

57. With respect to the personal information contained in the redacted material, I give greater weight to the public interest considerations against disclosure, because it is not information that has been publicly disclosed, and [NOT FOR PUBLICATION].

58. I am satisfied there is an overriding public interest against disclosure of the personal information.

59. With respect to the details of complaint, I give greater weight to the public interest considerations against disclosure because its disclosure can reasonably be expected both to prejudice the supply of confidential information to police, which is essential to its functions, and thereby to prejudice their functions, having a serious effect well beyond the ambit of this particular dispute.

60. With respect to the exception referred to in [39(4)] above, there is no public interest consideration against disclosure. Accordingly, the balance favours the public interest considerations in favour of disclosure.

61. The decision under review will be varied and replaced by a decision identical to the decision under review, save that it provides for disclosure of the exception referred to in [39(4)] above.

**********

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: 02 August 2023