AIG Australia Ltd and NM Insurance Pty Limited v Commissioner of Police

[2020] NSWCATAD 84

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	AIG Australia Ltd & NM Insurance Pty Limited v Commissioner of Police [2020] NSWCATAD 84
Hearing dates:	17 February 2020
Date of orders:	16 March 2020
Decision date:	16 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Wall, Senior Member
Decision:	1. The decision of the respondent is set aside. 2. The respondent is to release the Certificate by Analyst dated 8 November 2019 made in respect of a blood sample analysis by 17 April 2020
Catchwords:	ADMINISTRATIVE REVIEW. Government Information (Public Access) – public interest considerations in favour of disclosure – public interest considerations against disclosure – personal factors of the application – weight of evidence. Reveal personal information. Contravene an information protection principle.
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:	Miskelly v Transport for NSW [2017] NSWCATAD 75 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Transport for NSW v Searle [2018] NSWCATAP 93 Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277. Pollington v Commissioner of Police, NSW Police Force [2019] NSWCATAD 1 Shoebridge v Department of Education [2017] NSWCATAD 343
Category:	Principal judgment
Parties:	AIG Australia Ltd & NM Insurance Pty Limited (Applicant) Commissioner of Police, NSW Police Force (Respondent) Office of the Information Commissioner
Representation:	Counsel: I Griscti (Applicant)   Solicitors: GTA Lawyers (Applicant) Crown Solicitor (Respondent) Ms Higgins (Office of the Information Commissioner)
File Number(s):	2019/00335371

REASONS FOR DECISION

Introduction

1. This is an application by AIG Australia Ltd and NM Insurance Pty Limited (“the insurer”) for administrative review under the Government Information (Public Access) Act 2009 NSW (“the GIPA Act) of the decision of the Commissioner of Police, NSW Police Force (“the Commissioner”) to refuse to release a certificate of analysis made in respect of a blood sample analysis (“the information”) of persons on board the vessel “Aussie Joy” on 14 April 2019.

Relevant Background

2. The material facts relevant to this application were not in dispute and can be shortly stated. The following summary is derived from the parties’ outlines of written submissions.

3. The insurer is the insurer of a vessel known as ALBY33N, “Aussie Joy” pursuant to a property damage and public liability policy held by Mr Shimon Seidenman, the owner of the vessel (“the insured”).

4. The vessel was involved in a collision with an unknown object on 14 April 2019 near Crescent Head NSW.

5. There were three people on board the vessel at the time of the collision: the owner, Mr Seidenman and two others: Mr Thomas Dykes and Michael O’Brien.

6. Mr Seidenman has made a claim under the insurance policy in the amount of $341,000 in relation to the damage to the vessel. While all three persons on board the vessel suffered injuries, no personal injuries claims have yet been lodged.

7. The New South Wales Police Force (“NSWPF”) commenced an investigation into the collision on 14 April 2019. The focus of the investigation is to identify who was the master of the vessel at the time of the collision. As part of their investigation, the NSWPF submitted for analysis a blood sample of one of the persons on board the vessel at the time of the collision. The Commissioner confirmed at the hearing that only one sample of blood was sent for analysis.

8. The insurer originally applied to the Commissioner on 1 August 2019 under the GIPA Act for access to copies of police event report, statements, videos, results of blood alcohol/ drug test, police notebook entries and all other documents arising out of or relating to the collision.

9. On 16 August 2019, the Commissioner refused to release the information on the basis that the public interest consideration against disclosure of information relating to an open criminal investigation outweighed the public interest considerations in favour of disclosure.

10. On 4 September 2019, the insurer sought an internal review of the original decision however it only sought the results of any blood alcohol test (identifying the concentration of alcohol) of the persons on board the vessel at the time of the collision.

11. On 25 September 2019, the Commissioner refused to release the blood sample analysis (again) on the basis that the public interest consideration against disclosure of information relating to an open investigation arising under cl 2(b) of the Table in s14 of the GIPA Act outweighed the public interest considerations in favour of disclosure (“internal review decision”).

12. On 24 October 2019, the insurer filed an application with the Tribunal to review the internal review decision. It is common ground that the ‘reviewable decision’ for the purpose of s80 of the GIPA Act is the internal review decision made on 25 September 2019.

13. In his original submissions, the Commissioner relied upon three grounds in the table in s14 of the GIPA Act to justify withholding the relevant information. Firstly, under cl 2(b) that the disclosure of the information could reasonably be expected to prejudice the investigation of a possible contravention of the law. Secondly, under cl 3(a) that disclosure could reveal an individual’s personal information and thirdly, under cl 3(b) that by disclosing the information, the Commissioner would contravene an information protection principle. In his supplementary submissions filed on 13 February 2020, the Commissioner advised that he no longer submits that disclosure could reasonably be expected to prejudice an ongoing investigation and accordingly he no longer relies upon the ground in cl 2(b) of the table.

14. Pursuant to section 104(1) of the GIPA Act, the Information Commissioner has exercised her right to appear and be heard in relation to this review application. She has also filed written submissions.

15. The hearing was held in this matter on 17 February 2020.

The Issues

16. There are two substantive issues for determination:

1. Whether the Commissioner has established that clause 3(a) and/ or (b) of the table in s14 of the GIPA Act apply as relevant public interest considerations against disclosure in this matter;

2. If the answer to (i) is yes, whether those public interest considerations to withhold disclosure of the blood sample test outweigh the public interest considerations in favour of disclosure.

The Law

17. The statutory scheme and applicable legal principles in relation to applications under the GIPA Act are well established and not in dispute. In the decision of Miskelly v Transport for NSW [2017] NSWCATAD 75, Senior Member Leal considered and helpfully summarised the principles in an application for release of information under the GIPA Act (at [12]-[27]) as follows:

12. 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.

13. “Government information" is given a wide meaning under s4 of the GIPA Act being "information contained in a record held by an agency." Transport for NSW is such an agency: see s 4 and the definition of "public authority" in Schedule 4, clause 2 to the GIPA Act.

14. The GIPA 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).

15. With respect to other government information, the Act establishes a principle that there is public interest in favour of disclosure (s 12(1)).

16. 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.

17. 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.

18. The approach the Tribunal should take to applying section 13 has been discussed in a number of decisions including Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307. The consistently applied approach is that the test in section 13 of the GIPA Act requires decision makers to:

- identify relevant public interest considerations in favour of disclosure,

- identify relevant public interest considerations against disclosure,

- attribute weight to each consideration for and against disclosure, and

- determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

19. In considering whether there is an overriding public interest against disclosure, s 16 of the GIPA Act provides that the following principles apply -

(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.

20. The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the GIPA Act. 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.

21. In order for the considerations against disclosure set out in the table to section 14 of the GIPA Act to be raised as relevant, the agency must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table.

22. The words "could reasonably be expected to" are to be given their ordinary meaning: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 and 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.

23. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] that

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.

24. (Omitted) ….

25. (Omitted)

26. Furthermore, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by s105 of the GIPA Act. (s105 (1))

27. The mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure.”

18. In determining whether there is a public interest in favour of disclosure, an agency is entitled to take the personal factors of the application into account: s55(2) of the GIPA Act.

19. The ‘personal factors of an application’ that can be considered in relation to an access application is set out in s 55 of the GIPA Act as follows:

(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.

20. Balancing the competing public interest considerations under s13 of GIPA Act, is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation” (Hurst v Wagga City Council [2011] NSWADT 307 at [70]). The Appeal Panel has recently stated in Transport for NSW v Searle [2018] NSWCATAP 93 at [104], that while the process in s13 of the GIPA Act requires a broad value judgment to be made, it is not made in a vacuum, but having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act.

21. 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 (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).

22. The Tribunal's task on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material 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: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179.

23. In opposing the release of information under the GIPA Act, a respondent may raise and the Tribunal can consider grounds other than those relied upon by the original decision-maker: Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277.

The Commissioner’s Evidence

24. Detective Senior Constable Veness deposed two affidavits in support of the Commissioner’s case to refuse access to the blood sample analysis. Detective Veness is the officer in charge of the NSWPF’s investigation into the collision of the vessel. The first affidavit, described as the open affidavit, is sworn 18 December 2019 in which the Detective has given some evidence in relation to the NSWPF investigation into the collision and the reasons why the insurer’s application for the blood sample results was refused. The affidavit is primarily directed to the considerations in cl 2(b) of the table in s14 that disclosure could prejudice the current investigation. As I have already noted, the Commissioner no longer relies on this ground to withhold the information. Detective Senior Constable Veness also swore a confidential affidavit, however this affidavit was not read or relied upon at the hearing. Detective Veness was not called to give oral evidence at the hearing or for cross examination.

25. The Commissioner also read the affidavit of Sophie Jane Maltabarow affirmed on 13 February 2019 in which she deposes that there was only one blood sample submitted for analysis and that she has written to the person who submitted to the blood alcohol testing seeking his view about whether the Commissioner may release the certificate to the insurer. Ms Maltabarow has deposed that she has not received a response from the relevant person.

The Insurer’s Evidence

26. The insurer relies on an affidavit of Helen Votrubec sworn on 28 January 2020 in which she deposes to the following matters:

1. the vessel owner has submitted a claim for property damage under his insurance policy;

2. it appears that alcohol may have played a role in relation to the collision.

3. In determining a claim for indemnity it is necessary to consider all relevant matters in connection with the incident giving rise to the claim.

4. the blood alcohol level of the persons on board the vessel is a relevant matter in determining a claim for indemnity under the insurance policy.

5. It is not reasonably possible to come to a final determination on the claim for indemnity in the absence of the results of any blood alcohol test.

27. Ms Votrubec is a liability claims officer employed by NM Insurance. She was not called to give oral evidence before the Tribunal or for cross examination.

Submissions and Findings

Public interest considerations against disclosure

28. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Because the Commissioner bears the onus of justifying his decision to refuse the insurer access to the blood sample analysis, he has the burden of establishing that the public interest considerations against disclosure on which he relies, apply. He also bears the burden of establishing that, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

28. In the present matter, the Commissioner relies upon clause 3(a) and (b) of the table in s14 of the GIPA Act, which relevantly provides:

3 Individual rights, judicial processes and natural justice

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

(a) reveal an individual's personal information,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.

30. In relation to the public interest consideration in clause 3(a), the Commissioner contends, and the insurer did not contest, that disclosure of the blood sample analysis could reasonably be expected to reveal an individual’s personal information. Personal information is defined in Schedule 4, cl 4 of the GIPA Act as "information or an opinion (including information or an opinion forming part of a database 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." Reveal is defined in Schedule 4 clause 1 of the GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)." Relying on these definitions, the Commissioner submits that the identity of the person who submitted to the blood sample test is apparent or could be reasonably ascertained from the sample results, and that the analysis includes sensitive personal health information that would satisfy the definition in cl 4(2) of ‘personal information’. It was common ground that the information contained in the certificate of analysis has not been publicly disclosed.

31. The Commissioner’s second contention is that under cl 3(b), disclosure of the blood sample test could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (“the PPIP Act”). Section 18 is an information protection principle under Division 1 of Part 2 of the GIPA Act. Section 18 sets out the limits on the disclosure of personal information under the information protection principles. Section 18 of the PIPA Act 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.

(2) If personal information is disclosed in accordance with subsection (I) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

32. The definition of ‘personal information’ in s4(1) of the PPIP Act means information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. The Commissioner submits, and the insurer did not dispute, that the results for the blood alcohol sample for the person on board the vessel is personal information for the purposes of the PIPP Act.

33. In written submissions, the Commissioner contends, and the insurer did not contest, that the blood alcohol sample would not satisfy any of the permitted disclosures (or exemptions) under s18(1) of the PPIP Act. The Commissioner submits that the blood alcohol test was obtained for the purpose of an investigation into the collision of the vessel and that the disclosure of test results in response to an access request under the GIPA Act would not be directly related to that purpose.

34. In further support of his contention that both cl 3(a) and (b) of the table in s14 would apply to the release of the blood test results, the Commissioner relies on the recent authority of Pollington v Commissioner of Police, NSW Police Force [2019] NSWCATAD 1 at [60]-[61] and [68]. In the Pollington case, the Tribunal accepted that blood result test results obtained by NSW Police in connection with a motor vehicle accident contained personal information for the purposes of both the GIPA Act and PPIP Act and that the release of that information would engage the public interest against disclosure under both cl 3(a) and (b) of the table in s14.

35. I am satisfied that the consideration in cl 3(a) has been made out. I am satisfied that the disclosure of the blood sample analysis could reasonably be expected to reveal the name and personal health information of the person who submitted to the blood alcohol test. On the evidence and the submissions, I am satisfied that the name of the person who submitted to the blood alcohol test and the results of that test has not already been publicly disclosed.

36. Turning now to the consideration in cl 3(b), I am satisfied that disclosure of the test results could reasonably be expected to contravene an information protection principle. I am satisfied that none of the exceptions in s18(1)(a)-(c) of the PPIP Act apply to permit the disclosure of the personal information contained in the test results. I am satisfied that the blood sample was taken for the purpose of the investigation into the maritime collision and that supplying a copy of those results is not directly related to the purpose for which the information was collected. I am satisfied that it is the usual practice of the NSWPF not to disclose personal information collected in a mandatory blood alcohol test to any person other than for investigation purposes or to prosecute criminal proceedings. There is no evidence of any serious or imminent threat to the life or health of any individual that would be prevented or lessened by the disclosure. Accordingly, the Commissioner’s claim in relation to cl 3(b) has been made out.

Considerations in favour of disclosure

37. In addition to the general public interest in favour of disclosure of government information set out in s 12 and the statutory presumption in favour of disclosure under s5 of the GIPA Act, the insurer identifies the following as considerations in favour of disclosure:

• the insurer has a proper motive for requesting the information, that is to manage and assess liability under an insurance policy taken out by the insured.

• the insurer cannot determine the issue of indemnity under the policy until any information about the blood alcohol level of the persons on board has been considered.

• The insured, the owner of the vessel, potentially obtains a significant financial benefit if the claim is approved.

• To the extent the blood alcohol results relate to the insured, he has given his consent to the release of the results to the insurer’s lawyers.

• If any person on board the vessl brings an action for personal injury it is possible that a further claim for indemnity may arise under the policy.

38. The public interest considerations in favour of disclosure identified by the insurer could be characterised as ‘personal factors’ within the meaning of s55 of the GIPA Act. In determining the public interest factors that favour of disclosure, the Tribunal is entitled, under s 55 of the GIPA Act, to take into account the personal factors of the application, namely:

1. the applicant’s identity and relationship with any other person;

2. the applicant’s motives for making the access application; and

3. any other factors particular to the applicant.

39. The insurer relies on the Tribunal decision in Pollington to support their submission. In Pollington, the applicant, who was a driver involved in a motor collision, sought the release of a blood and urine test of the other driver involved in the collision. The other driver objected to the release of the sample. The Tribunal decided that the applicant had a valid purpose for seeking the release of the blood and urine test results, including to ascertain the nature of the substances that were present in the other driver and to possibly commence legal proceedings, and that these personal factors of the application were relevant considerations that could be taken into account as a factor in favour of release.

40. Referring to the Tribunal’s decision in Shoebridge v Department of Education [2017] NSWCATAD 343, the Information Commissioner submits that a person’s motive and purpose for making an application to release information can be taken into account as a factor in favour of providing disclosure. The Information Commissioner further submits that the Tribunal could consider the analogous context where information is provided in the context of CTP for motor vehicle accident claims as a public interest consideration in the management of insurance claims and premiums.

41. Put against this, the Commissioner contends in his original written submissions (at para [4]) that the personal factors under s55 of the GIPA Act do not apply because the blood sample results contain personal information about the insured, and not the insurer. However, in his supplementary submissions, the Commissioner does not appear to dispute that the ‘personal factors’ in favour of disclosure identified by the insurer are relevant, but rather that those factors should be given limited weight in determining where the balance of the public interest lies. The Commissioner did not take the Tribunal to any authorities explaining why it would not be permissible to take into account the professional interest of an insurer to manage an insurance claim or the potential financial benefit to the insured as personal factors of the application under s55 of the GIPA Act.

42. In relation to the public interest considerations in favour of disclosure, I find that the general public interest under s12(1) and the statutory presumption in favour of disclosure apply. I am satisfied on the evidence, submissions and, importantly, on the arguments as presented to the Tribunal at the hearing, that the insurer’s motives are a relevant personal factor that can be taken into account as a factor in favour of disclosure. I am satisfied that the release of the blood alcohol results could be reasonably expected to assist the insurer properly conduct their business and observe their obligations under the insurance policy. I am also satisfied that the potential personal benefit to the insured under the insurance policy is a relevant personal factor that can be taken into account. Accordingly, I find that the matters raised by the insurer are personal factors which may be taken into account as factors in favour of providing the insurer with access to the relevant information.

Balancing the Public Interest

43. Having satisfied myself that the public interest considerations against disclosure in clause 3(a) and (b) have been made out, it is now necessary to assign weight to those grounds and balance the factors for and against disclosure to determine whether there is an overriding public interest against disclosure. In weighing the competing public interest considerations, I have had regard to the general public interest in favour of disclosure and the public’s legally enforceable right to government information. I have also taken the principles in s15 of the GIPA Act into account. The personal factors of the application are also relevant. As the reasoning in Hurst states, the decision making required of me does not involve a mere arithmetic exercise. It is not simply a case of determining whether there are more factors in favour of disclosure as opposed to against disclosure. The exercise is more subtle. It includes an assessment of which factor is more or less significant than others in this case. I will set out the parties’ competing contentions in relation to where the balance of the public interest lies first and then my reasons for the conclusions I have reached about those matters.

44. In support of his contention that the public interest considerations against disclosure of the blood sample analysis outweighs the public interest considerations in favour of disclosure, the Commissioner submits:

1. The release of information that could reasonably be expected to reveal personal information or contravene a privacy protection principle contravene s18 of the PPIP Act are very strong grounds against disclosure.

2. The insurer’s motives and limited purpose for which the information is sought should be given less weight than the public interest considerations designed to protect personal information from disclosure particularly where the affected third party (that is, the person who submitted to the blood alcohol test) has not given their consent to release the information and that any disclosure under s73 of the GIPA Act is unconditional.

3. Any potential financial benefit to the insured as a personal factor under s55 of the GIPA Act should be given be given limited weight particularly as it is not clear on the insurer’s evidence that his claim for indemnity will be approved.

4. The disclosure of personal information of persons subject to an ongoing investigation where a decision whether to lay charges has not been made is relevant in weighing the competing public interest considerations.

45. Against this, the insurer contends that the public interest in disclosure outweighs the public interest considerations against disclosure for the following reasons:

1. Applying the reasoning in Pollington, the personal factors of the insurer and the insured in resolving the insurance claim should be given greater weight than the potential infringement of the affected third party’s personal rights. This is because the insurer has a valid reason for seeking that information and the release of the information could potentially benefit the insured if his claim is approved.

2. The Tribunal should accord considerable weight to the evidence that the relevant third party (who submitted to the blood sample testing) has been afforded an opportunity to contest the disclosure of his personal information but he has chosen not to do so.

3. That limited weight should be accorded to the protection and control of the disclosure of personal information in this case because the blood sample results will eventually be publicly available if charges are laid or in the alternative, if a subpoena is issued.

4. There is no evidence of actual detriment to the affected third party if the blood test results were to be released.

46. In reply to the insurer’s contention that the third party has been accorded an opportunity to contest the disclosure of the information as personal information, the Commissioner submits that the Tribunal cannot infer that the relevant third party has either consented to or does not object to the release of the test results simply because they have not responded to the written notification and that any such inference, if available, should be given little weight.

47. In response to the claim that the blood result test will shortly be in the public domain, the Commissioner argues that no decision has yet been made to lay criminal charges and there is no evidence of any proceedings in which a subpoena could be issued.

48. In reply to the Commissioner’s submissions that considerable weight should be attached to the personal information of a person subject to an ongoing investigation, the insurer argues that nothing in the language of cl 3 (a) and (b) of the table in s14 provides any additional protection to personal information that is the subject of a police investigation.

49. Weighing the competing public considerations for and against disclosure, and having considered the evidence and submissions and the applicable legal principles identified at [17] above, I have concluded that the public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure and the personal factors of the application. The matters of most significance in reaching my conclusion are as follows.

1. First, I attach significant weight to the general public interest in favour of disclosure under s12(1) of the GIPA Act and the statutory presumption in favour of disclosure in s5.

2. Second, I attach significant weight to the evidence that the disclosure of the blood alcohol results could be reasonably expected to reveal personal information of the third party who submitted to the test as well as contravene an information protection principle (as defined in section 18 of the PPIP Act). The protection of personal information under cl3 (a) and (b) of the GIPA Act and s18 PPIP Act are weighty considerations that militate against disclosure. I do not accept the insurer’s arguments that limited weight should be allocated to this consideration because the personal information may, at some future date, be publicly disclosed by the laying of charges. Nor am I persuaded by the Commissioner’s argument that greater weight should be accorded to the protection of personal information in an open criminal investigation. The Commissioner only relies upon cls 3(a) and (b) of the table in s14 as the public interest considerations against disclosure. There is nothing in the language of cl 3(a) and (b) that treats personal information obtained in a criminal investigation differently to other personal information. Different considerations would apply if the Commissioner was also relying on cl 2(b) as a basis for withholding the information. However, he is not. If, contrary to my finding, it is a relevant factor in weighing the competing public interest, it is not a matter entitled to a great deal of weight.

3. Third, I attach considerable weight to the evidence that the third party has been given the opportunity, in a letter sent by the Commissioner, to contest the disclosure of the test results on the grounds it contains personal information. I would, however, have afforded greater weight to this consideration had the evidence established that the affected third party had consented to the release of his personal information.

4. Fourth, the personal factors of the application are, in this case, to be given substantial weight. The release of the blood sample analysis will enable the insurer to determine the indemnity claim in respect of damage to the vessel. In turn that could result in a potential financial benefit to the insured. These are valid reasons for seeking access to the results and are weighty considerations. On the evidence before me, I consider that the release of the information could contribute in a substantial way to the resolution of the insurance claim.

5. Fifth, while it is relevant to consider that disclosure under the GIPA Act cannot be made subject to any conditions on the use or disclosure of the information, I do not think that this factor, on balance, outweighs the personal factors of the application that I have identified above or the general public interest that favour disclosure.

50. While accepting, as I have said, that significant weight is to be attached to the protection of personal information in cl 3(a) and (b) of the GIPA Act as public interest consideration against disclosure, I have concluded that, on balance, the personal factors of the application and the general public interest pointing towards disclosure should be given greater weight.

Result

51. For these reasons, the correct and preferable decision is to release the Certificate by Analyst dated 8 November 2019 made in respect of a blood sample analysis and to set aside the respondent's decision.

ORDERS

1. The decision of the respondent is set aside.

2. The respondent is to release the Certificate by Analyst dated 8 November 2019 made in respect of a blood sample analysis by 17 April 2020.

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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: 16 March 2020