Applicants v Commissioner of Police

[2015] NSWCATAD 22

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Applicants v Commissioner of Police [2015] NSWCATAD 22

Decision date:

23 February 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Lucy, Senior Member

Decision:

1. Disclosure of the applicants’ names is prohibited.

2. The Commissioner’s decision not to grant the applicants access to the information contained in the interview transcripts with police officers, the directive memorandum, the response to the directive memorandum and part of the investigator’s report is set aside.

In substitution for that decision, the following decision is made: Applicants are granted full access to the information in the interview transcripts with police officers, the directive memorandum, the response to the directive memorandum and the investigator’s report.

Catchwords:

Government information – Request for information concerning a complaint under Part 8A of Police Act 1990 alleging police misconduct – police required to provide information to investigation – Personal information – Whether information has already been revealed –Whether prejudice to the supply of confidential information – Whether prejudice to the effective exercise of an agency’s functions – Public interest in transparency and accountability - Balancing public interest considerations
Order restricting publication of the name of a person – principle of open justice – confidentiality of complainant’s identity in complaint under Part 8A of Police Act 1990

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW)
Police Act 1990 (NSW)
Police Regulation 2008 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Administrative Decisions Review Act 1997 (NSW)

Cases Cited:

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Leech v Sydney Water Corporation [2010] NSWADT 298
Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
MJ v Department of Education and Commerce [2013] NSWADT 213
TW v TX [2005] NSWADT 262
McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Category:

Principal judgment

Parties:

Applicants’ names suppressed
Commissioner of Police (Respondent)

Representation:

Solicitor:
Sparke Helmore Lawyers (Respondent)
Applicants represented in person

File Number(s):

133220

Publication restriction:

Disclosure of the applicants’ names prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013

reasons for decision

1. The applicants applied to the Commissioner of Police (“Commissioner”) for information under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). The information sought was “police investigation into complaint about conduct of Narellan Police by [the applicants] ... including all statements, memorandums, interviews, court transcripts and submissions by investigating officer and ombudsmans findings”.

2. The applicants’ complaint to the Commissioner concerned the conduct of police officers when arresting two of the applicants. In their complaint, the applicants made allegations of unlawful arrest, assault and malicious prosecution against certain police officers. As the complaint alleged that the police officers’ conduct constituted an offence or unlawful conduct, the Commissioner was required to deal with it under Part 8A of the Police Act 1990 (NSW).

3. The Commissioner decided to investigate the complaint. Following an investigation, the investigator made the following determination: “No evidence exists to sustain the complaint and no other issues arising”.

4. The applicant’s GIPA Act application was not decided within 20 working days of receipt as required by s 57(1) of the GIPA Act and was taken to have been refused under s 63 of the GIPA Act.

5. The applicants then made an application for review of the deemed refusal. The Commissioner did not complete the internal review within the statutory time frame of 15 working days and was deemed to have decided to refuse to deal with the access application (GIPA Act, s 86(1), (5)).

6. The applicants applied to the Administrative Decisions Tribunal (“ADT”), on 22 July 2013 for review of the Commissioner’s deemed decision to refuse to deal with their access application (GIPA Act, ss 80(c), 100).

7. The Commissioner then made what was described as a late internal review decision. The Commissioner determined to:

1. provide the applicants with access to some of the information sought;

2. refuse access to a court transcript (held by the respondent) because the document was usually available for purchase; and

3. refuse access to a number of documents in part and in full on the basis that there was an overriding public interest against disclosure of the information contained in them.

8. The documents which the Commissioner refused access to in full included interview transcripts, a directive memorandum and a response to the directive memorandum by a detective senior constable. The Commissioner refused access in part to the investigator’s report.

9. The applicants narrowed the scope of the information sought during the course of the Tribunal proceedings. In their response to the respondent’s submissions in reply, the applicants identified the information to which they were still seeking access as that contained in two interview transcripts with police officers, a directive memorandum and a response to the directive memorandum by a detective senior constable and those parts of the investigators report which have not been released to them. Accordingly, I have not considered their request for access insofar as it applies to redacted parts of a police event report, receipts, the terms of reference for the investigation, the investigator’s disclosure, the complaint management team assessment or the request for suspension of investigation or the document entitled “complaint receipt checklist and extension request – investigation timeframe”.

PROCEDURAL HISTORY

10. Two planning meetings were held in the ADT and directions were made for the filing and service of evidence and submissions by both parties. At the second planning meeting, held on 14 November 2013, the Commissioner was directed to file and serve submissions in reply to the applicants’ submissions by 5 December 2013. The next direction was: “Matter then reserved for a decision on the papers.”

11. The Commissioner filed submissions in reply on 5 December 2013.

12. On 1 January 2014, the ADT was abolished and its functions were taken over by this Tribunal.

13. On 2 January 2014, without a direction to do so, the applicants filed a document entitled “Applicants Response to Respondents Submissions in Reply.”

14. On 7 February 2014, the applicants wrote to the Tribunal requesting that each of the applicants’ names be anonymized in any published decision. The Commissioner neither objected to, nor supported, this application.

15. On 13 January 2014, the Commissioner wrote to the Tribunal seeking leave to file further submissions in reply, and noting that the applicants consented to this course. Those submissions were enclosed with the letter.

16. The Tribunal gives leave to the applicants to file their response filed on 2 January 2014 and gives leave to the Commissioner to file the further submissions in reply filed on 13 January 2014. This means that the date on which the Tribunal reserved its decision was 13 January 2014.

17. It follows that these proceedings are “unheard proceedings” as defined in clause 6(1) of Schedule 1 to the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) and they are taken to have been duly commenced in this Tribunal (NCAT Act, Sch 1, clause 7(1)).

18. The Tribunal member conducting the planning meetings subsequently became unavailable and, following consultation with the parties in August 2014, the President reconstituted the Tribunal.

RELEVANT LEGISLATION

19. The object of the GIPA Act is to “is to open government information to the public” in stated ways “[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective” (GIPA Act, s 3(1)).

20. 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).

21. 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 (GIPA Act, s 9(1)).

22. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). There is an overriding public interest against disclosure of government information 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 (GIPA Act, s 13).

23. The public interest considerations listed in the Table to s 14 are the only considerations, where Schedule 1 does not apply, that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information (GIPA Act, s 14(2)).

24. The Commissioner relies on the following public interest considerations in the table to s 14:

1 Responsible and effective government

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

…

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

…

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

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, …

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,

…

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

15 Principles that apply to public interest determination

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

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

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

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

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

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

26. The GIPA Act also provides that “personal factors” of the application may be taken into account in some circumstances. Section 55(1) to (3) provide:

55 Consideration of personal factors of application

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

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

the applicant’s motives for making the access application,

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.

27. In proceedings to review a decision made under the GIPA Act to refuse access to government information in response to an access application, the burden of establishing that the decision is justified lies on the agency (being, in this case, the Commissioner): GIPA Act, s 105(1).

28. Provisions of Part 8A of the Police Act 1990 are also relevant to the consideration of this application.

29. Section 122(1)(a) to (c) of the Police Act 1990, which is in Part 8A, provides:

1. Application of Part to certain complaints

(1)  This Part applies to and in respect of a complaint that alleges or indicates one or more of the following:

(a)  conduct of a police officer that constitutes an offence,

(b)  conduct of a police officer that constitutes corrupt conduct (including, but not limited to, corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988),

(c)  conduct of a police officer that constitutes unlawful conduct (not being an offence or corrupt conduct), …

30. Section 139(3) of the Police Act 1990 provides, in relation to Part 8A complaints received by the Commissioner:

1. Decision of Commissioner as to investigation of complaint

…

(3) If the Commissioner decides that the complaint should be investigated, the Commissioner:

(a) must notify the Ombudsman and the complainant of the decision, and

(b) must cause the complaint to be investigated.

31. The police officer or police officers carrying out an investigation must carry out the investigation in a manner that, having regard to the circumstances of the case, is both effective and timely (Police Act 1990, s 145(1)(a)).

32. Section 169A of the Police Act 1990, which is also in Part 8A, provides:

169A   Identity of complainant not to be disclosed

A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made:

(a)  in accordance with guidelines established by the Commissioner, or

(b)  with the consent of the complainant, or

(c)  in accordance with a requirement of or made under this or any other Act, or

(d)  for the purposes of any legal proceedings before a court or tribunal.

33. Section 170 of the Police Act 1990 provides:

1. Certain documents privileged

   (1)  A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings:

   (a)  that concern the conduct of police officers, and

   (b)  that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.

   (2)  Subsection (1) does not apply to or in respect of:

   (a)  a document comprising a complaint, or

   (b)  a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or

   (c)  a document that a witness is willing to produce.

   (3)  Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.

   34. Police officers are required to obey lawful directions. Clause 8(1) of the Police Regulation 2008 (NSW) provides:

8 Performance of duties by police officers

(1) Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them.

APPLICATION FOR ORDER ANONYMISING APPLICANTS’ NAMES

35. The applicants applied to the Tribunal, by letter, for an order that their names be anonymised. Section 64(1)(a) of the NCAT Act provides that, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may make an order prohibiting or restricting the disclosure of the name of any person.

36. The starting point is the provision that hearings are to be open to the public unless the Tribunal orders otherwise (NCAT Act, s 49(1)). This reflects the principle of open justice. Even though this matter was determined on the papers, the principle of open justice is consistent with the parties’ names being published.

37. The Appeal Panel of the ADT considered the non-disclosure provisions of s 75 of the Administrative Decisions Tribunal Act 1997 (as it was then known) (“ADT Act”) in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69. Like s 49(1) of the NCAT Act, s 75(1) provided that a hearing is to be open to the public. Like s 64(1)(a) of the NCAT Act, s 75(2) of the ADT Act permitted the tribunal to make an order prohibiting or restricting the name of a person “if the tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason”.

38. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [57], the ADT Appeal Panel observed that, although the statutory language gave the tribunal more latitude in making a suppression order than a court would have under common law principles, the principle of open justice remained relevant. It commented (at [61]):

…it is unthinkable that the word ‘desirable’ in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.

39. The Appeal Panel summarized (at [81]) some of the relevant factors when determining to make a suppression order as follows:

It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

40. In my view, these factors are equally relevant to the exercise of the Tribunal’s discretion as to whether to make an order prohibiting the disclosure of a name of a party under s 64(1)(a) of the NCAT Act.

40. The applicants have not provided reasons for their request that their names be anonymized. However, their GIPA application seeks information in relation to a complaint made under Part 8A of the Police Act 1990. Section 169A of that Act, which is set out above, provides that a member of the NSW Police Force must not disclose to any person the identity of a complainant unless certain exceptions apply. One of these exceptions is that the disclosure is for the purposes of legal proceedings before a court or tribunal (s 169A(d)).

41. In determining this application, the Tribunal stands in the shoes of the Commissioner. Although s 169A of the Police Act 1990 does not preclude the Tribunal from disclosing the applicants’ names, it provides a reason why it is desirable not to do so. The policy of s 169A appears to be to encourage persons to make complaints against police, without fear of any consequences which may follow from others knowing that they have made the complaint. Although there is an exception from the prohibition against disclosure in relation to legal proceedings, presumably so as to allow police officers to disclose a complainant’s identity to a court or tribunal, this does not make it desirable to make the applicants’ identity public in circumstances where the Tribunal is exercising the Commissioner’s functions.

42. The publication of the applicants’ names in this decision would reveal their identities as complainants under Part 8A. The applicants’ GIPA application seeks information about the way their Part 8A complaint was handled and is focused entirely on that complaint. For this reason, the protection of a complainant’s identity in s 169A is relevant to the question of whether it is desirable for this Tribunal to preserve their anonymity. The publication of the applicants’ names might discourage other complainants from seeking information about a Part 8A complaint under the GIPA Act, or at least from seeking review of the Commissioner’s decision not to provide them with such information.

43. The making of a GIPA application does not, of itself, make the applicants’ names known to others. The relevant agency (here, the Commissioner) has obligations under the privacy legislation not to disclose their identity, unless an exception applies. Although an application to this Tribunal would normally have the effect of revealing an applicant’s name to the public, there is no legislative intention expressed in the GIPA Act that information about the names of applicants should be made public. To the contrary, the GIPA Act recognizes that there is a public interest against the disclosure of personal information in the table in s 14.

44. In these circumstances, it is desirable to make an order anonymizing the applicants’ names, because this is consistent with the legislative policy expressed in Part 8A of the Police Act 1990 of keeping the identity of complainants confidential, and it is not inconsistent with the legislature’s intention as expressed in the GIPA Act. Accordingly, the Tribunal orders, pursuant to s 64(1)(a) of the NCAT Act, that the disclosure of the applicants’ names is prohibited.

COMMISSIONER’S EVIDENCE

46. Detective Inspector Grant Raper, who manages the NSW Police Force’s internal complaint investigations, made a statement in the proceedings. He gave evidence that the investigation into the applicants’ complaint “was subject to the strictest level of confidentiality that no information concerning the investigation was to be released”.

47. The Detective Inspector also expressed the view that if “information provided in confidence were generally released … the disclosure could reasonably be expected to create a substantial, adverse effect on the conduct of Part 8A investigations, the integrity of the investigation process and the effective management of NSWPF.” Some of the consequences anticipated by the Detective Inspector were that “there would not be full, frank and forthright disclosure of all relevant evidence” and that “it would adversely affect members of the NSWPF by impacting on working relationships, discipline and the general ethical standards and integrity of the NSWPF.”

APPLICANTS’ EVIDENCE

48. The applicants did not file a statement but filed a copy of extracts from the NSW Police Force Complaint Handling Guidelines (“Guidelines”) dated March 2012. The parties did not object to the Tribunal having regard to the full copy of those Guidelines which is available on the internet. The Guidelines state that they “provide instructions for managing a complaint under Part 8A of the Police Act about the conduct of a NSW Police Force sworn officer.” They thus applied to the applicants’ complaint.

49. The Guidelines make provision for confidentiality. They state:

Complaint information must be managed so that its physical security is protected at all times. This includes officers treating all information which comes to them in an official capacity as strictly confidential.

Complaint information should be secured. Triage officers should ensure information is provided to resolution managers securely. PSDOs should also monitor security of information handled by resolution managers.

Legislative requirements govern the disclosure of the identity of a complainant (section 169A Police Act and Commissioners guidelines). This is supported by an additional legal requirement that officers treat all information which comes to them in an official capacity as strictly confidential and not divulge it to anyone without proper authority (clause 75 of the Police Regulation 2008).

Commanders / managers are to ensure that systems and procedures for the safe management and storage of complaint information are established and maintained.

This may include:

- ensuring that all hard copy complaint related information is stored in a secure area that is only accessible by staff who have a right to access that material. This includes files, folders, computer spreadsheets, information contained on whiteboards or any other complaint related material.

- ensuring that investigators securely store any complaint related material in either locked cabinets or other secure areas

- holding CMT meetings or other meetings where complaints are discussed in locations where conversations cannot be overheard

- using appropriate methods to deliver confidential correspondence e.g. handed personally by the commander or executive officer or using secure mail

- not using computers that are accessible to all staff without taking precautions

- ensuring that only authorised officers are placed on the access list for complaints on [email protected] that have a caveat.

CONSIDERATION

Public Interest Factors in Favour of Disclosure

50. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). The Commissioner acknowledges that there are more specific public interest considerations in favour of disclosure, being:

1. The information is personal information of the person to whom it is to be disclosed;

2. There is a public interest in obtaining information concerning the workings of government agencies; and

3. Disclosure of the information could reasonably be expected to inform the public about the operation of agencies and, in particular, their policies and practice for dealing with members of the public.

51. I agree with the Commissioner that these are all applicable public interest considerations in favour of disclosure.

52. In addition, the applicants rely on the following public interest considerations in favour of disclosure, some of which are set out as examples following s 12(2) of the GIPA Act:

1. 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.

2. 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 (“Misconduct Consideration”).

3. “The public interest in individuals receiving fair treatment in their dealings with NSW Government and be confident procedural fairness has taken place.”

4. “The public interest in a persons right to know, where their right to know highlights the accountability, responsibility and openness of the Government.”

5. “The public interest to ensure NSW Police have acted within their lawful authority in the arrest process, the decision to lay charges and the complaint handling process who as a public agency are accountable for their actions.”

6. “The public interest to ensure complaints made to NSW Police Force concerning the conduct of Police officers is fully investigated without discrimination to either party.”

7. “The public interest that the NSW Ombudsman, who oversees police complaints, be transparent and open to avoid allegations of misconduct, corruption and cover up” (“Ombudsman Consideration”).

53. With the exception of the Misconduct Consideration (about which I express no opinion in these reasons) and the Ombudsman Consideration (which I do not take into account), I accept that the public interest considerations advanced by the applicants in favour of disclosure tend to favour such disclosure.

54. In relation to the Misconduct Consideration, the applicants do not have access to the information the disclosure of which they say could reasonably be expected to reveal or substantiate that a police officer has engaged in misconduct or negligent, improper or unlawful conduct. The Tribunal is required “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” (GIPA Act, s 107(1)).

55. The expression of an opinion as to whether or not the withheld information could reasonably be expected to reveal or substantiate that the Commissioner or a police officer has engaged in misconduct or negligent, improper or unlawful conduct would have the effect of disclosing some of that information, contrary to s 107(1) of the GIPA Act. For that reason, I have not made a finding as to whether the Misconduct Consideration applies in these reasons. Ultimately, it has not been necessary for me to do so.

56. The Ombudsman Consideration has no application in this case, because the interview transcripts, the directive memorandum and response and the investigator’s report which the applicants seek do not reveal anything about the transparency of the Ombudsman’s investigation.

Public interest considerations against disclosure generally

57. The public interest considerations against disclosure relied upon by the Commissioner apply where “disclosure of the information could reasonably be expected to have” certain effects (GIPA Act, s 14, table). As the ADT said in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]:

The term ‘could reasonably be expected’ has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

58. The parties accepted that this was a correct statement of the law.

Reveal an individual’s personal information (s 14 table, cl 3(a))

59. The Commissioner contends that disclosure of the information sought by the applicants could reasonably be expected to disclose an individual’s personal information. The individuals whose personal information the Commissioner says may be disclosed are primarily the police officers against whom the applicants’ complaint was made. Their “personal information” includes, in the Commissioner’s submission, the expression of their opinions as to the rationale behind their conduct and their assessment of the events leading to the complaint.

60. The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (GIPA Act, s 14(3)). The Information Commissioner has issued Guideline 4 – Personal information as a public interest consideration under the GIPA Act (“Guideline 4”). Section 15(b) of the GIPA Act requires that decision makers have regard to the guidelines when determining whether there is an overriding public interest against disclosure of government information. I have had regard to those guidelines.

61. The applicants submitted that the expression of opinion by police officers, as contained in their interviews, is not “personal information” within the GIPA Act. They say that the police officers’ information has already been publicly disclosed, including in the public court hearing.

62. Subject to the question of whether the information has been publicly disclosed, I am satisfied that the expression of the police officers’ opinions in the transcripts of interviews and as recorded in the Investigator’s Report is their personal information. “Personal information” is defined to include information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion (GIPA Act, Sch 4, cl 4(1)). Information that a police officer expressed a certain opinion falls within this definition, either because it information about the police officer or because it is the police officer’s opinion about an individual (see Guideline 4, cl 1.3 and 1.4).

63. Personal information does not include 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 (GIPA Act, Sch 4, cl 4(1)). The information about the police officers’ opinions reveals more than this, so the exclusion does not apply. Further, the circumstance that a person’s information is publicly available does not preclude it from falling within the definition of “personal information” within the GIPA Act (even though this would mean it is not “personal information” within the Privacy and Personal Information Protection Act 1998 (NSW)).

64. In order for this public interest consideration against disclosure to apply, disclosure of the information sought must “reveal” the officers’ information. “Reveal” means “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)” (GIPA Act, Sch 4, cl 1).

65. I find that disclosure of the withheld information in the interview transcripts with police officers, the directive memorandum response and the investigators report could reasonably be expected to reveal police officers’ personal information, except to the extent that that information has been publicly disclosed.

66. The applicants are aware of the identity of the detective senior constable who was issued with a directive memorandum. The information in the directive memorandum about the detective senior constable “reveals nothing more than the fact that [he] was engaged in the exercise of public functions” and is therefore not his personal information (GIPA Act, Sch 4, cl 4).

67. The applicants submitted in their “Response to Respondent’s Submission in Reply” that they know the names of the officers and have their brief of evidence, that there has been a public court hearing in which the officers have given evidence and that their information has already been publicly disclosed. The Commissioner did not respond to this submission in his “Further Submissions in Reply,” apparently not recognizing the significance of it, and the applicants did not provide evidence of what was said at the court hearing.

68. In Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40], Molony JM referred to s 105(1) of the GIPA Act and commented that, “[w]here there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not.” As this matter was determined on the papers, if I had made a finding that there was an overriding public interest against the disclosure of the officers’ personal information, I would have given the respondent an opportunity to identify which parts of that information had not been “revealed”. This has not been necessary.

Prejudice the effective exercise of the Commissioner’s functions (s 14 table, cl 1(f))

69. The Commissioner contends that disclosure of the withheld information could reasonably be expected to prejudice the effective exercise by the Commissioner of his functions, within item 1(f) of the table in s 14 of the GIPA Act. He submits that that information facilitates the effective exercise of his functions under Part 8A of the Police Act 1990.

70. The Tribunal accepts the Commissioner’s submission that the information sought by the applicants is information that facilitates the effective exercise of his functions. The Commissioner’s functions under Part 8A of the Police Act 1990 include receiving a complaint (s 130(1)), deciding whether to investigate a complaint (s 139), investigating a complaint or causing a complaint to be investigated (s 144) and providing the complainant with advice as to action taken as a result of the complaint (s 150(b)). In particular, the effective investigation of a Part 8A complaint is dependent upon the receipt of information provided by police officers in interviews. The Commissioner’s complaint handling functions generally are facilitated by an investigator providing a comprehensive report. Finally, the information in a directive memorandum and the response to it facilitates the exercise of the Commissioner’s functions as the request and response further the Part 8A investigation.

71. The Commissioner’s remaining submissions as to the application of this public interest consideration were, in effect, that it is reasonable to expect that the effective exercise of the Commissioner’s functions would be prejudiced by the disclosure of the withheld information, because persons providing information for the purposes of a Part 8A investigation would be less likely to provide full and frank information if confidentiality could not be assured. This is the same reasoning on which the Commissioner relies to contend that disclosure of the withheld information could reasonably be expected to prejudice the supply to him of confidential information that facilitates the effective exercise of his functions. For this reason, I have dealt with the argument in my discussion of that public interest consideration below.

72. As will be seen, I have come to the conclusion that the disclosure of the withheld information could not reasonably be expected to prejudice the effective exercise by the Commissioner of his functions.

Prejudice the supply to the Commissioner of confidential information that facilitates the exercise of the Commissioner’s functions (s 14 table, cl 1(d))

73. This public interest consideration against disclosure applies if disclosure of the withheld information could reasonably be expected to prejudice the supply to the Commissioner of confidential information that facilitates the exercise of the Commissioner’s functions.

74. I am satisfied that the information withheld by the Commissioner is confidential. I accept Detective Inspector Raper’s evidence that, having reviewed the relevant documents, “the investigation was subject to the strictest level of confidentiality that no information concerning the investigation was to be released.” This confidentiality extends to the directive memorandum and the response to it because, as Detective Inspector Raper stated, “[a]ccess to a Part 8A investigation complaint file is not provided to any officer, other than those involved in the investigation and the management of the complaint.”

73. I am also satisfied that information of a similar nature which may be provided to the Commissioner in future is confidential. I accept Detective Inspector Raper’s evidence that “[a]ll persons involved in the investigation process are told at the commencement of the process that the investigation will be conducted on a confidential basis and evidence is provided in the expectation that it will be kept confidential.”

74. For the reasons given in relation to the public interest consideration referred to in cl 1(f) of the table in s 14 of the GIPA Act, I am satisfied that the information sought by the applicants, and similar information, facilitates the effective exercise of the Commissioner’s functions.

75. The critical question in respect of the public interest consideration in cl 1(d) of the table in s 14 of the GIPA Act is whether, in the circumstances of this case, disclosure of the withheld information could reasonably be expected to prejudice the supply to the Commissioner of confidential information in the future. As all of the information which would be supplied to the Commissioner is confidential information, because of the confidentiality of Part 8A investigations, this question is directly relevant to the application of clause 1(f) of the table in s 14 of the GIPA Act.

76. The Commissioner submitted that, if the confidentiality of the information concerning a Part 8A complaint were not guaranteed, police officers may not give full and frank disclosure, as they would fear reprisal and pay back; that police officers may be deterred from reporting misconduct in the first place, if the confidentiality of the complaint cannot be guaranteed; and that disclosure of information obtained as part of an investigation process would damage the Commissioner 's ability to obtain information from members of the public (who could not be compelled to participate) in future.

77. The Commissioner relied upon MJ v Department of Education and Commerce [2013] NSWADT 213 in support of his claim that the effective exercise of his functions could reasonably be expected to be prejudiced by the disclosure of the information (in respect of the public interest consideration in cl 1(f)). In that case, the applicant, who was an employee of the respondent agency, had made misconduct allegations against another employee of the agency and the other employee had made allegations against the applicant. The agency had investigated those allegations. The applicant sought information concerning the action taken by the agency in relation to the investigation and communications with the other employee.

78. Higgins DP said at [73]:

It is well established that a function of an agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of the complaint and any action taken in regard thereto remains confidential, to the extent required by law.

81. There is a relevant distinction, however, between the circumstances of MJ v Department of Education and Commerce [2013] NSWADT 213 and the present circumstances. MJ concerned the making of misconduct allegations by an employee of an agency against another employee. These proceedings concern the making of a complaint about alleged police misconduct by members of the public in circumstances where the complainants’ identity is protected. The disclosure of information concerning the handling of the applicants’ complaint, in the present circumstances, is not likely to discourage other external complainants from making complaints.

82. The Commissioner’s submission that police officers may be deterred from reporting misconduct in the first place if the confidentiality of the complaint could not be guaranteed depends on an assumption that, if the withheld information were to be disclosed in the circumstances of this case, police officers might expect that information about a Part 8A complaint would or could be disclosed in circumstances where a police officer was the complainant.

83. It is already the case that the confidentiality of a complaint cannot be absolutely guaranteed, because there are circumstances where the law requires disclosure, which might include under the GIPA Act, if that is where the balance of the public interest lies. The Commissioner’s assumption that confidentiality could be guaranteed if the withheld information were not to be disclosed is therefore misplaced. Secondly, the identity of a complainant is protected under s 169A of the Police Act 1990. While a complainant’s identity may be disclosed in accordance with a requirement of, or made under, the GIPA Act (Police Act 1990, s 169A(c)), that issue does not arise in these proceedings. Thirdly, the complainants in this case are members of the public. I am not persuaded that it is reasonable to expect that disclosure of the information to such complainants in the circumstances of this case would deter a police officer from making a Part 8A complaint, as different public interest considerations would arise in that situation.

84. There was evidence from the Commissioner that police are generally obliged to provide information in respect of a Part 8A investigation if the investigator wishes to interview them. Detective Inspector Raper gave evidence that the procedure, when investigating a Part 8A complaint, is to approach the subject officer for interview “under caution in criminal inquiries and under direction in departmental inquiries.” The Detective Inspector stated that “[w]hether or not a subject officer declines to answer under caution, it will usually be the case that the subject officer is directed to answer questions under clause 8 of the [Police] Regulation [2008].”

85. That is, police officers are generally required to answer the questions put to them in an interview conducted under Part 8A of the Police Act 1990. They are under a duty to provide information in response to the questions they are asked. Further, under s 201 of the Police Act 1990, a police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence. It is also relevant that the Police Act 1990 provides in s 7(a) to (c) that each member of the NSW Police Force is to act in a manner which places integrity above all, upholds the rule of law and preserves the rights and freedoms of individuals. The duty to act in such a manner would require police officers to answer an investigator’s questions honestly and not to conceal relevant information.

86. Another situation in which an agency’s employees were obliged to provide information in response to complaints was considered by the ADT in TW v TX [2005] NSWADT 262, an application made under the former Freedom of Information Act 1989 (“FOI Act”). In that case, senior staff of an agency had provided documents concerning how complaints should be addressed to the Director General, in the course of their duties. Magistrate Hennessy found (at [23]) that disclosure of the documents could not reasonably be expected to prejudice the future supply of such information because it was part of the duties of such managers to provide this kind of information. That reasoning is directly applicable to the present circumstances.

87. The Commissioner submitted that “the effectiveness of the whole system of investigations under Part 8A of the Police Act would be undermined if the confidentiality of conclusions, comments on findings of the investigation and evidence provided by NSWPF officers could not be guaranteed”. The Commissioner also submitted that “[l]ack of confidentiality may inhibit or discourage candid opinions or comments on the investigation and has the potential to undermine or compromise conclusions reached and recommendations made.”

88. The Commissioner relied upon McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 in relation to his submission that disclosure of the information sought by the applicants could reasonably be expected to prejudice the supply of confidential information to him. That case also concerned applications for information in relation to investigations under Part 8A of the Police Act 1990. One of the applications was made by a Mr Brady, who appears to have been a police officer or former police officer, in relation to a complaint made by another police officer about him, and the other application was made by a member of the public. The member of the public, Ms McMillan, sought information in relation to a complaint she had made about a police officer.

89. Montgomery JM observed that “it is necessary to balance the competing public interest factors for and against disclosure in each specific case” and that “[w]hether the disclosure of information could reasonably be expected to have one of the effects outlined in the Table to section 14 of the GIPA Act is ultimately a question of fact” (at [63] and [66]). Montgomery JM then said at [71]:

I … agree with the Respondent that disclosure of the information [in both applications] could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. I accept, and find as a fact, that it could reasonably be expected that complainants and witnesses would be reluctant to come forward with information and/or the quality of the information would be adversely affected.

90. The Brady / McMillan case raises similar issues to the present. However, the Tribunal’s task is to determine whether the disclosure of the relevant information could reasonably be expected to have one of the effects outlined in the Table to section 14 of the GIPA Act as a question of fact, on the material before the Tribunal. The agency has the onus of establishing that its decision is justified in any particular case. These are principles recognized by the ADT in the Brady / McMillan case. Thus, while the reasoning in that case is of assistance, the findings of fact made in it cannot determine findings about similar matters in these proceedings.

91. The applicants made submissions as to the relevance and reliability of Detective Inspector Raper’s opinion that the disclosure of the requested information would give rise to reluctance on the part of officers and staff to “provide full and frank information on others in the workplace” and that it would lead to a situation where there was not “full, frank and forthright disclosure of all relevant evidence.” They submitted that “[t]his opinion appears to suggest that police would not give truthful statements to their superiors, the Ombudsman or to courts”.

92. The Commissioner’s submissions and Inspector Raper’s evidence, referred to above, are consistent with a view that police officers would not fully comply with their obligations when interviewed in relation to future investigations, or at least that they would not be fully cooperative. The respondent’s position appears to be that, if there was a prospect that an interview would later be disclosed to a GIPA applicant, a police officer would either not fully comply with a direction issued to him or her to answer questions, would fail to comply with his or her obligations under s 7 of the Police Act 1990, or would technically comply, but would be less than candid in his or her responses. It is hard to see how such conduct could reasonably be expected of police officers.

93. The applicants also contended that Detective Inspector Raper’s evidence as to what could reasonably be expected of future interviewees was speculative. They relied upon a decision of the ADT in Hurst v Wagga Wagga City Council [2011] NSWADT 307, where a Council refused access to documents concerning the confidential investigation of a code of conduct complaint concerning two Council officers. A staff member, Ms McCormack, gave evidence for the Council that the effectiveness of Code of conduct investigations into Council staff matters depended upon those investigations being kept confidential, and that the confidentiality of the investigation enabled the complainant, staff and witnesses to provide candid information. Molony JM commented at [63] to [65]:

63 These expressions of opinion by Ms McCormack are based on her experience in an environment where, as a matter of practice, staff responses to Code of Conduct investigations have been kept confidential. She does not depose to having any experience of code of conduct investigations where confidentiality was not maintained.

64 Given her experience, it is difficult to understand on what basis she can reasonably claim that the effectiveness of code of conduct investigations "relies" on that confidentiality. Her evidence does not disclose any other basis for the formation of her opinion, aside from the fact the confidentiality has been maintained in all the investigations she has been involved in. In those circumstances it is difficult to give her opinion as to the consequences of disclosure any weight, as they are assertions based on her experience, gained in investigations where confidentiality was maintained as a matter of practice.

65 Her evidence does not identify any basis for a comparison between investigations where confidentiality has been maintained, and those where it has not. It does not disclose a rational or underlying factual basis for the conclusion that, if information provided by staff were disclosed, it could reasonably be expected that staff would be unlikely to co-operate with investigative processes. This strikes me as taking a very dim view of the integrity of council staff, and of their willingness to ensure that the processes they manage are conducted efficiently, effectively and honestly. I conclude that Ms McCormack opinion is based on limited experience and involves considerable speculation. I do not accept that it is reasonably or rationally held.

94. The applicants submitted that “the case of Hurst is identical to the circumstances in the matter before the Tribunal”.

95. The respondent’s position is that Hurst is distinguishable. The Commissioner submits that “to effectively administer the legislative scheme under which Part 8A investigations are carried out, there must be a consistent approach to the treatment of information provided as a result of an investigation” and that there is a legislative intention that the process be treated with sensitivity and confidentiality. The respondent further submits that the effectiveness of legislative provisions such as s 170 of the Police Act 1990 and cl 75 of the Police Regulation 2008 would “be undermined if information such as the Investigator’s Report and the transcripts of interviews with NSWPF officers would be made available, without restriction, to anyone who made an access application under the GIPA Act.”

96. Detective Inspector Raper is a very experienced officer, whose experience includes providing advisory, consultancy and review services with respect to investigations and acting as a primary point of contact with certain investigative agencies. His evidence is, in many respects, very helpful. However, there is nothing in Detective Inspector Raper’s statement to indicate that he has been involved in investigations in which interviewees have not been assured that their interviews will be kept confidential. The Police Complaint Handling Guidelines suggest that all complaints are treated confidentially.

97. For these reasons, Detective Inspector Raper’s statement does not, to use the words of Molony JM in Hurst, “disclose a rational or underlying factual basis for the conclusion that, if information provided by [police officers] were disclosed, it could reasonably be expected that [they] would be unlikely to co-operate with investigative processes”. As with Ms McCormack’s evidence in Hurst, Detective Inspector Raper’s evidence “does not disclose any other basis for the formation of [his] opinion, aside from the fact the confidentiality has been maintained in all the investigations [he] has been involved in”.

98. The Tribunal’s task is to determine, objectively, whether it is reasonable to expect that disclosure of the information the applicants have applied for could have certain effects. Evidence on that topic of an expert nature, or from a person with experience in dealing with the operations of the agency which could be affected by a proposed disclosure, may be of assistance in some cases. However, where the evidence consists merely of that person’s opinion as to the likelihood that people will behave in a certain way, the usefulness of such evidence is likely to be limited.

99. The Commissioner’s position that it is reasonable to expect that police officers would fail to be candid, or to fully cooperate with a police investigation, as a result of knowing that an interview may later be disclosed under the GIPA Act, is not persuasive. A police officer against whom a complaint of improper or unlawful conduct has been made answers questions knowing that the answers could lead to disciplinary action or criminal proceedings. Such an officer is expected (and required) to answer questions about his or her conduct fully and honestly. In these circumstances, and given the ethical and legal obligations of police officers, it is not reasonable to expect that the prospect of the interview being disclosed under the GIPA Act would restrain the officer’s responses about his or her own conduct.

100. Officers, including those who are not the subject of a complaint, may also be required to answer questions in an investigation about other police officers. This is the situation in which the respondent’s submissions have the most force, and it is most likely that an officer would feel inhibited about speaking frankly about a colleague where there is a prospect that his or her comments might later be disclosed and come to the attention of that colleague.

101. Notwithstanding this, I am not satisfied that disclosure of the withheld information could reasonably be expected to have the effect that an officer who is called upon to provide information relevant to an investigation, and who has a duty to provide that information, would not “provide full and frank information on others in the workplace”, to use the language of the respondent’s submissions.

102. The respondent submitted that disclosure of the withheld information may have a prejudicial effect on the provision of information by members of the community. Part 8A investigations involve the collection and evaluation of information from a wide range of sources, including persons who are not employed by the Commissioner. As those persons could not be compelled to participate in an interview, the Commissioner said that disclosure of the interviews the subject of these proceedings could reasonably be expected to damage the Commissioner’s ability to conduct investigations into misconduct in the future. I understand the Commissioner to be submitting that, if the content of the investigation the subject of these proceedings were to be disclosed to the applicants, members of the public would be less likely to voluntarily participate in Part 8A investigations in the future.

103. In each application made to the Commissioner under the GIPA Act, the Commissioner is required to balance the public interest considerations in favour of disclosure of the information sought against the public interest considerations against disclosure. A decision to disclose the content of an investigation in a case where only police officers were interviewed, does not determine the outcome of an application for information about an investigation conducted by the Commissioner in other circumstances. The weighing of public interest considerations may produce a different result in circumstances where a member of the public has voluntarily participated in an interview.

104. It is possible that a member of the public who became aware that police officers’ interview transcripts had been disclosed under the GIPA Act might, as a result, be inhibited in his or her response to a Part 8A investigation or decide not to provide any information to the investigation. However, as the ADT found in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25], “[s]omething which could reasonably be expected is something more than a mere possibility, risk or chance”. It is most likely that a member of the public would become aware of any decision to disclose information made in these proceedings, or the effect of such a decision, through information provided to that person by the police as to the confidentiality or otherwise of the investigative process. In such circumstances, the effect of this decision could be explained. I am not satisfied that it could be reasonably expected that a member of the public would not provide information to an investigation as a result of the disclosure, under the GIPA Act, of information provided to an investigation by police officers.

94. The Commissioner’s submission that the effectiveness of legislative provisions such as s 170 of the Police Act 1990 and cl 75 of the Police Regulation 2008 would be undermined if the withheld information were to be disclosed, is not directly relevant to cl 1(d) of the table in s 14 of the GIPA Act, because it does not indicate that the supply of confidential information would be prejudiced. However, the submission has some relevance to the application of cl 1(f), in that, if the secrecy provisions in legislation administered by the Commissioner were to be undermined, this might prejudice the effective exercise of his functions.

95. I do not accept, however, that the effectiveness of s 170 of the Police Act 1990 or cl 75 of the Police Regulation 2008 would be undermined by the disclosure of the withheld information. Section 170 is concerned with the admissibility of documents brought into existence for the purposes of Part 8A, in certain proceedings. The disclosure of such documents under the GIPA Act does not undermine or affect the operation of this provision. Clause 75 of the Police Regulation 2008 requires a member of the NSW Police Force to treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and not to divulge it without proper authority. If the GIPA Act provides authority for the disclosure of information, the two legislative regimes are consistent.

96. For the above reasons, I am not satisfied that disclosure of the information contained in the interview transcripts with police officers, or information contained in the investigator’s report, or information in the directive memorandum response, could reasonably be expected to inhibit the provision of such information in future.

97. Nor could disclosure of the information contained in the directive memorandum be reasonably expected to prejudice the Commissioner’s effective exercise of his functions. The Commissioner has not suggested that he or his officers would not issue such directive memoranda in future should the directive memorandum the subject of the applicants’ GIPA application be disclosed.

98. Accordingly, the public interest considerations against disclosure in clause 1(d) and 1(f) in the table in s 14 do not apply to the information requested by the applicants.

Disclose information provided to the Commissioner in confidence (s 14 table, cl 1(g))

110. For the reasons given above, I am satisfied that the information in the interview transcripts, any information in the investigator’s reports referring to information in the interview transcripts, and information in the response to the directive memorandum, was provided to the Commissioner in confidence.

111. I find that the directive memorandum was not provided to the Commissioner in confidence (or at all), as it was issued pursuant to cl 8 of the Police Regulation 2008 to one police officer by another police officer. It was not submitted that disclosure of the directive memorandum could reasonably be expected to found an action against the Commissioner for breach of confidence.

BALANCING PUBLIC INTEREST CONSIDERATIONS

112. The Tribunal's function 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.

113. I am not persuaded that there are any public interest considerations against the disclosure of the information in the directive memorandum. It should therefore be disclosed to the applicants. My comments about the balancing of public interest considerations which follow apply to the remainder of the information which is still sought by the applicants.

114. The process for balancing public interest considerations was discussed in Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19]. Higgins DP observed that in all cases other than those falling under Schedule 1 of the GIPA Act, the public interest test under s 13 of the GIPA Act involves:

1. identifying the public interest in favour of disclosure;

2. identifying the public interest against disclosure, and

3. determining where the balance lies.

115. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94], Molony JM noted that when weighing the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests “is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.”

116. There are a number of public interest considerations in favour of disclosure, which are set out earlier in this decision. One of the most significant public interest consideration in favour of disclosure, in my view, is the public interest in giving members of the public information which allows them to assess whether complaints about police are dealt with properly and transparently. I also give weight to the related and overlapping consideration that the disclosure of the withheld information would further the accountability, responsibility and openness of the Government. It would allow members of the public (in this case, the applicants) to assess whether such complaints are being dealt with in accordance with the law and police procedure.

117. The applicants have made serious allegations against police officers in their complaint. It is in the public interest to know how these allegations were handled.

118. The respondent has submitted that there is an accountability mechanism in the Police Act 1990 for dealing with the transparency of Part 8A investigations, being the oversight of the Ombudsman, and that it is unlikely that the release of the withheld documents would significantly improve the accountability mechanisms within the agency or improve the transparency of its operations. He submits that the public interest consideration of ensuring that complaints about the conduct of police officers are fully investigated without discrimination to either party (proposed by the applicant), should be given little weight, due to the Ombudsman’s statutory role.

119. The provision in the Police Act 1990 for the Ombudsman to investigate complaints does not, in my view, detract from the public interest consideration that the disclosure of information would enhance the transparency of the Part 8A complaints process. The provisions giving the Ombudsman a supervisory role indicate a legislative intention that it is desirable that checks are in place to ensure that Part 8A investigations are conducted thoroughly and impartially. It is consistent with this intention that information about Part 8A investigations be disclosed to complainants and others under the GIPA Act, where the balance of the relevant public interest considerations supports this.

120. There are also some public interest considerations which support non-disclosure. I have found that the disclosure of the withheld information could reasonably be expected to reveal the personal information of police officers and result in the disclosure of information provided to the Commissioner in confidence.

121. The weight to be given to the public interest consideration that the information in question is, at least in part, the personal information of police officers, is affected by the following factors:

1. disclosure cannot be made subject to any conditions on the use or disclosure of information (GIPA Act, s 15(e)) so that, if the police officers’ personal information were given to the applicants, the officers would have no control over how it was used or disclosed;

2. some of the information is also the personal information of the applicants (or one or more of them), a consideration supporting its disclosure to them;

3. the officers had a duty to provide the information which is sought by the applicants to the investigator;

4. the police officers the subject of the applicants’ complaint gave evidence in court and expressed opinions about the incident the subject of the complaint (and about which information is sought);

5. in the case of the detective senior constable, his personal information was given in the context of his duties as a senior officer exercising a supervisory or management role.

122. The circumstance that no conditions may be placed on the disclosure of the police officers’ personal information means that if, for example, the applicants decided to publish it or broadcast it, there would be little the officers could do. This is contrary to the public interest in persons having some control over their own personal information. Notwithstanding this, I am not inclined to give much weight to the public interest consideration against disclosure in clause 3(a) of the table in s 14 in the circumstances of this case. The fact that the officers were obliged to provide the investigator with information as part of their duties as police officers diminishes the weight to be given to this consideration. It is further diminished by the fact that they have given evidence in open court about the incident the subject of the complaint.

123. I also put little weight on the consideration that the withheld information was provided to the Commissioner in confidence. While Part 8A investigations are confidential, the officers who were interviewed or to whom a directive memorandum was issued were required to provide information in response. The public interest in maintaining confidentiality of the officers’ information is much lower in this situation than in a situation where a person has been induced, by circumstances of confidentiality, to provide information voluntarily to an agency.

124. For these reasons, the Commissioner has not discharged the onus of persuading me that the presumption in favour of the disclosure of the information has been displaced and that the public interest considerations against disclosure outweigh those in favour of disclosure.

125. If disclosure of the information could, contrary to my findings, reasonably be expected to prejudice the supply of information to the Commissioner -- whether by discouraging persons from making Part 8A complaints or by making them reluctant to provide information to an investigation -- then I am still of the view that there is not an overriding public interest against the disclosure of the information sought. In circumstances where the complainants under Part 8A of the Police Act 1990 are members of the public, the only persons interviewed or required to provide information to the investigation were police officers, those police officers were obliged to provide the information, and the incident which gave rise to the complaint was the subject of criminal proceedings heard in open court, the public interest considerations against disclosure are diminished. The public interest in transparency and accountability, in the circumstances of this application, is greater the public interest against disclosure of that information.

126. For these reasons, the investigator’s report, which was released to the applicants in part, should be provided to them in full. Access to the transcripts of interviews with police officers and to the detective senior constable’s response to the directive memorandum, which was refused in full, should be provided in full.

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: 23 February 2015