Bailey v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 275

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAD 275

Hearing dates:

25 September 2023

Date of orders:

24 October 2023

Decision date:

24 October 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information - whether overriding public interest against disclosure - confidential information – expectation of confidentiality

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Freedom of Information Act 1982 (Cth)

Freedom of Information Act 1992 (WA)

Government Information (Public Access) Act 2009 (NSW)

Information Act 2002 (NT)

Police Act 1990 (NSW)

State Records Act 1998 (NSW)

Cases Cited:

A-G's Dept & AI v Cockcroft (1986) 1986 FCR 180

AIN v Medical Council of New South Wales [2016] NSWCATAD 5

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

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

Burke v Health Education and Training Institute [2016] NSWCATAD 194

Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95

Cincotta v Council of the City of Ryde [2022] NSWCATAP 24

Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68

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

Crewdson v Central Sydney Area Health Service [2002] NSWCA 345

EFL v Secretary, Department of Education [2020] NSWCATAD 239

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

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

GA v The University of Sydney [2009] NSWADT 230

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Kioa v West (1985) 159 CLR 550

Leech v Sydney Water Corporation [2010] NSWADT 298

Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578

NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55

Nasr v State of New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101

Office of Finance and Services v APV and APW [2014] NSWCATAP 88

Public Transport Authority [2018] WASC 47

Robinson v Department of Health [2002] NSWADT 222

Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Simring v Commissioner of Police [2009] NSWSC 270

Snape v Commissioner of Police No 2 [2022] NSWCATAP 244

Taylor v Destination NSW [2017] NSWCATAD 272

Transport for NSW v Searle [2018] NSWCATAP 93

Ugur v Commissioner of Police [2023] NSWCATAP 261

WL v La Trobe University (2005) 24 CAR 23

WL v Randwick City Council [2007] NSWADT 12

WL v Randwick City Council (No 2) [2010] NSWADT 84

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Julie Bailey (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Ms R Gurr (Agent for the applicant)
Ms K Mattes, Crown Solicitor (Respondent)

File Number(s):

2022/00141161

Publication restriction:

Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (the Commissioner of Police, NSW Police Force) is prohibited.

REASONS FOR DECISION

Background

1. These proceedings concern a request that Julie Bailey (the applicant) made to the Commissioner of Police, NSW Police Force (the respondent) on 19 December 2021 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act), in the following terms:

1) A copy of any report by the Blue Mountains Police Area Command and from Katoomba Police Station on an accident on 11 October 2021 outside 26/28 Katoomba Street at 10:28 in which my car AKB72J, a white VPW Polo, is alleged to have caused damage to a silver Toyota Corolla (registration number provided) owned by (name & drivers licence number provided).

2) A copy of the interview with me conducted 16 October at Katoomba Police Station and any photographs and notes taken by the interviewing officer at that time.

3) A copy of the statement made by any person who alleges to be a witness to any incident in which my car was involved on 11 October 2021 and any photographs taken by that person.

4) Any statement made by the owner of the damaged vehicle and any photographs alleged to have been taken of the including, information as to when the photographs were taken and by whom. On 26 October I received in the mail a letter from Transport for NSW stating, “A report has been received from NSW Police Force about an incident that raises genuine concern about your medical fitness and competency to drive”.

5) Any notes made by the police officer who decided to refer the matter to Transport NSW, including any reasons for that referral and including but not limited to any correspondence with Transport NSW”.

2. On 10 January 2022, the respondent made a decision in relation to the access application. The respondent conducted searches which identified information responsive to the access application. In respect of that information, the respondent: (1) Released some of it; (2) Refused to release some of it on the basis that it was subject to an overriding public interest against disclosure (OPIAD); (3) Refused to release some of it (being colour photos of the incident) on the basis that it was already available to the applicant by other means (see s 59(1)(c) of the GIPA Act); and (4) Decided to provide view-only access to body worn video footage pursuant to s 71(1)(a) of the GIPA Act.

3. The applicant sought an external review by the Information & Privacy Commissioner (IPC). The IPC considered the following decisions by the respondent: (1) To refuse to provide access to some information on the basis that it was subject to an OPIAD; (2) To refuse to provide access to the colour photos of the incident on the basis that they were already available to the applicant; and (3) That further audio-visual material was not held by the respondent.

4. On 20 April 2022, the IPC made the following fundings in relation to those decisions: (1) The respondent had justified her decision to refuse to release certain information on the basis that it was subject to an OPIAD (at [38]-[40]); (2) The respondent had not justified her decision to refuse to release the colour photos of the incident to the applicant on the basis that they were already available to her by other means (at [41]-[45]); and (3) The respondent had justified her implied decision that she did not hold any further information and that she had conducted reasonable searches (at [58]-[59]).

5. On 26 April 2022, the respondent made a further decision and provided the applicant with access to the colour photos.

6. On 16 May 2022, the applicant filed the current application for administrative review with the Tribunal on the following grounds (1) The Police and the IPC failed to take into account the personal circumstances and motivation of the applicant in applying the public interest test under s 15 of the GIPA Act 2009 (the GIPA Act); (2) The Police and the IPC have incorrectly balanced the considerations for and against disclosure under the public interest test; (3) The Police and the IPC wrongly conclude that the witness statements sought (n a redacted form) contained ‘personal information’ pursuant to s 3(a) of the Table of the Act; and (4) The Police and the PIC’s conclusions pursuant to s 1(d) of the Table of the Act are incorrect.

Tribunal’s decision at first instance

7. The matter was heard at first instance by Senior Member Griffin. On 11 November 2022, he issued a decision which determined that the Tribunal had jurisdiction under the GIPA Act and that the respondent bore the burden of establishing that its decision to refuse access was justified pursuant to s 105(1) of the GIPA Act. He also: (1) Summarised the legislative framework, including noting that under s 5 of the GIPA Act there is a presumption in favour of the disclosure of information unless there is an overriding public interest against disclosure; (2) Noted that the respondent relied upon various clauses of the table to s 14(2) of the GIPA Act and that the applicant was entitled to access the disputed information unless there was an overriding public interest against its disclosure under s 9(1) of the GIPA Act; (3) Considered the grounds relied upon by the respondent for refusing access, being cll 1(d), 2(a) and 3(a) of the table to s 14(2) of the GIPA Act; and (4) Noted that each of these clauses relied upon a public interest against disclosure where disclosure could “reasonably be expected to” have a particular effect. He referred to two decisions in which that phrase was considered: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at [190] and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

8. In relation to cl 1(d), the Senior Member referred to the decision of Robertson v Department of Health [2002] NSWADT 222 at [71] (Robertson) where this phrase was considered. He also: (1) Referred to the evidence of Constable Tunks and particularly para 13, which asserted the confidential basis on which information is received by the respondent and how this facilitates its functions, and noted the Constable’s concession in cross-examination that his statement was “too general”; (2) Quoted from the decision in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [40] (Camilleri), which indicates that previous decisions of tribunals and courts have recognised that confidentiality “ordinarily attaches” to communications made to law enforcement agencies; (3) Quoted from the applicant’s written submissions, which disputed that there ought to be a finding of confidentiality. Matters relied upon were that the matter was treated as a safety issue rather than a crime, that the incident involved barely discernible damage, that there was no evidence that the car owner and witness were given assurances of confidentiality and Constable Tunks’ evidence asserting that people generally expect that their information and details be kept confidential was pure speculation and not evidence; (4) Accepted Constable Tunks’ evidence that Police training included emphasis on protecting the confidentiality of witnesses and reference was made to the NSW Police Customer Service Charter which states in part “we will maintain your confidentiality”; and (5) Concluded that on the evidence, witnesses expect that the information provided to Police will be treated in confidence and that relevant information was provided on a confidential basis and that the confidentiality of that information significantly assists the respondent to ensure the integrity of its procedures.

9. The Senior Member stated, relevantly:

20. I accept that the information facilitated the exercise of the agency’s investigative function, and that disclosure could reasonably be expected to prejudice the future supply of such information by members of the public. I have considered the factors in favour of disclosure. I find that the information was properly refused pursuant to s 14 cl 1(d).

10. In relation to cl 2(a), the Senior Member concluded that on their face, disclosure of the disputed information would reveal the identity of an informant (the witness). He concluded that disclosing that information could reasonably be expected to inhibit and prevent members of the public from coming forward in the future, which would negatively affect the respondent’s ability to gather evidence for its investigation function.

11. In relation to cl 3(a), the Senior Member referred to the applicant’s submission that the witness’ personal information was in the public domain because it had been written on a paper and left on the car windscreen in plain view of the public. Based upon the Court of Appeal’s decision in Nasr v State of NSW [2007] NSWCA 101 at 127, he held that there was no evidence as to whether the note was folded or not, or obscured by the windscreen wipers, or whether it had been seen by anyone other than the owner of the vehicle, and that the placing of the note on the car’s windscreen did not mean that it was in the public domain. He concluded, based on the redacted information and accepting the evidence of Constable Tunks as to how the information was obtained and treated in confidence, that he was satisfied that the information in question contained the names and contact details of people or that their identity could be ascertained from it. Therefore, the disclosure of the disputed information could reasonably be expected to disclose an individual’s personal information.

12. In relation to the Applicant’s submissions concerning the public interest factors in favour of disclosure, the Senior Member stated:

30. The applicant has made extensive submissions concerning the public interest factors in favour of disclosure, for example (at paragraph 41) “another public interest factor which should be considered in favour of disclosure is a manifest public interest in affording fairness to a person whose cognitive capacity is being questioned. Persons whose capacity is in question are, by definition, vulnerable and entitled to protection and assistance. It must be assumed that they may not be in a position to adequately protect themselves against false allegations. The decision that persons lack capacity has serious consequences for their legal rights and is not to be taken lightly. It is in the public interest that all information which is used to base a presumption that a person lacks capacity be disclosed. That applies to the information which is sought in this matter”.

13. The Senior Member held, after considering the information in the confidential bundle, that he was satisfied that releasing the disputed information would not assist the applicant to contest liability for the claim for damage to the other vehicle. He also stated that the public interest factors in favour of disclosure in s 12 of the GIPA Act and the applicant’s personal factors of the application (s 55 of the GIPA Act) were outweighed by the public interest factors against disclosure. He concluded:

37. The Applicant’s submissions impugn the quality of the police investigation and the related Question of Fitness decision made by police. There are some matters of concern about the detail of the investigation, but they do not relate to the refusal decision. In Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95, the Tribunal held at [62]:

Proceedings under the GIPA Act are concerned with the provision of government records…To attempt to use proceedings under the GIPA act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the Tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345; GA v the University of Sydney [2009] NSWADT 230.

38. A review of the investigation would be for such a collateral purpose.

39. There are factors in favour of disclosure of the information and there are factors against disclosure. I have considered them carefully and I am satisfied the public interest factors against disclosure outweigh the factors for disclosure and I so find.

Appeal to the Appeal Panel

14. The applicant appealed against the Tribunal’s decision on seven grounds, each alleging an error of law.

15. On 12 April 2023, the Appeal Panel allowed the appeal, set aside the Senior Member’s decision and remitted the matter to a differently constituted Tribunal for reconsideration, with fresh evidence allowed. The Appeal Panel also made an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), prohibiting publication of the contents of the respondent’s confidential bundle received by the Appeal Panel other than to the respondent.

16. The Appeal Panel’s reasons are summarised below.

Ground 1

17. The applicant asserted that the Senior Member failed to make a decision in accordance with the GIPA Act. In particular, she alleged that the Senior Member:

1. did not undertake the highly structured balancing exercise required by the Act and explained by the Tribunal in Camilleri and [36] and [39] of his reasons simply provided a conclusion without explaining the factors that were considered, given what weight and why.

2. did not enumerate which documents were in issue and distinguish which factors against disclosure applied to each, as not all factors applied to each document.

3. did not enumerate and consider all relevant considerations that she raised (i.e. public interest reasons favouring disclosure) and assign weight to each.

4. did not give adequate weight to the powerful presumption for disclosure contained in s 5 of the Act.

18. The Appeal Panel noted that the applicant raised the following public interest considerations in favour of disclosure:

1. disclosure 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. The respondent did not dispute this consideration.

2. disclosure could reasonably be expected to inform the public about the operations of agencies, and in particular their policies and practices in dealing with members of the public. The respondent did not dispute this consideration.

3. disclosure 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. This was not accepted by the Respondent. The submissions in support of this consideration are based upon laws prohibiting age discrimination and the applicant stated (at [33]):

Age discrimination is unlawful under NSW and Commonwealth law. Both prohibit direct and indirect discrimination on the ground of age. Direct discrimination occurs when someone treats, or proposes to treat, the aggrieved person less favourably than it treats, or would treat, a person of a different age under circumstances that are the same or materially the same, if the discriminator does so because of a person's age or a characteristic that appertains or is generally imputed to a person of that age. Indirect discrimination occurs when someone discriminates against the person on the group of their age by:

• Imposing or proposing to impose a condition, requirement or practice;

• The condition, requirement or practice is not reasonable; and

• The condition, requirement or practice has or is likely to have the effect of disadvantaging persons of that age.

The respondent did not concede this consideration.

4. There is a manifest public interest in affording fairness to a person whose cognitive capacity is being questioned, as persons whose capacity is in question are, by definition, vulnerable and entitled to protection and assistance. A decision about a person’s lack of capacity has serious consequences for their legal rights and is not to be taken lightly and it is in the public interest that all information that is used to make an assumption that a person lacks capacity should be disclosed. The respondent did not concede this consideration.

19. The applicant also relied upon s 55 of the GIPA Act, which allows a decision maker to take into account the personal factors of the application as factors in favour of disclosure and that the disputed information was primarily information about herself.

20. In relation to this issue, the Appeal Panel noted:

69. As part of this submission the Appellant pointed out that she was being held liable for damage which she was disputing. She raised this as a personal factor which should weigh heavily with the Respondent in favour of disclosure of at least the Witness statement.

70. Again, as we understand it, the Respondent did not expressly concede this to be a valid factor in favour of disclosure.

71. As referred to by the Respondent, the Tribunal dealt with the public interest factors or other factors in favour of disclosure at [33] – [36] as follows:

33. The Applicant has made extensive submissions concerning the public interest factors in favour of disclosure, for example (at paragraph 41) "another public interest factor which should be considered in favour of disclosure is a manifest public interest in affording fairness to a person whose cognitive capacity is being questioned. Persons whose capacity is in question are, by definition, vulnerable and entitled to protection and assistance. It must be assumed that they may not be in a position to adequately protect themselves against false allegations. The decision that persons lack capacity has serious consequences for their legal rights and is not to be taken lightly. It is in the public interest that all information which is used to base a presumption that a person lacks capacity be disclosed. That applies to the information which is sought in this matter."

34. This submission relates principally to the issuing of the Question of Fitness Form to the Applicant by the police. As a consequence, the Applicant was required to undergo a medical assessment and sit for a driving test, which she did. There is no evidence before the Tribunal that the Applicant is lacking in capacity. In fact, I had the benefit of observing the Applicant at the hearing and I am satisfied there is no reason to question her capacity or cognitive function.

35. One can readily understand the Applicant's desire to know the contents of the confidential information which has adversely affected her. The concessions made by Constable Tunks about the quality of the investigation. such as it was, would only serve to reinforce her concerns. There are real questions about the way that process unfolded and the assumptions made by a junior Constable about an older person. However, as submitted by the Respondent the Tribunal is not called upon to determine a claim for age discrimination in these proceedings. No such claim has been made and the Tribunal would not have jurisdiction to deal with any such claim in these proceedings. The Tribunal is not called upon to review the investigation carried out by the Respondent in relation to this incident, or the findings of that investigation. There is no reason to doubt the evidence of the witness to the incident. Moreover, having considered the content of the Confidential Bundle, I'm satisfied that releasing the withheld information would not assist the Applicant to contest her liability to pay for the damage claimed.

36. I have considered the public interest factors in favour of disclosure (s12 GIPA Act) and the personal factors of the application (s55 GIPA Act). I find those factors are outweighed by the public interest against disclosure of this information.

72. Also of relevance is the Tribunal’s conclusion at [37] – [39] which we have already quoted above.

21. The Appeal Panel made considered the Tribunal’s treatment of the considerations raised by the applicant and stated, relevantly:

74. First, only one of the many factors raised by the Appellant is dealt with specifically by the Tribunal, namely at [33], when summarising the submissions that it is in the public interest for all information leading to a presumption that a person lacks capacity, to be disclosed.

75. Second, even though the Tribunal identified this submission, it made no finding as to whether this public interest factor is accepted or, if so, what weight it was given. Instead, based on the lack of any evidence and the Tribunal’s own observation, the Tribunal found, in effect, that the Appellant did not lack capacity. This conclusion at [34], leaves the Appeal Panel unsure as to what extent the Tribunal may have agreed with the public interest factor being considered or the weight it should be given.

76. Third, the Tribunal stated that it could ‘readily understand’ the Appellant’s desire to know the contents of the confidential information which has adversely affected her. Also, the Tribunal commented on there being ‘real questions’ about the process and assumptions made by the Police. Again, this leaves the Appeal Panel unsure as to whether or not this relates to any of the specific public interest factors in favour of disclosure raised by the Appellant and the Tribunal’s attitude to them. Again, one is unable to know whether the Tribunal is accepting, discounting or dismissing any of the public interest factors said to be in favour of disclosure.

77. Fourth, the Tribunal then made reference to the fact that the Tribunal was not called upon to determine a claim for ‘age discrimination’: at [35]. The Tribunal pointed out that it has no jurisdiction to determine such a case.. While the Tribunal was correct to conclude that it has no jurisdiction to determine a complaint of age discrimination, the question it did need to determine was whether 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: Note to s 12 of the GIPA Act. The unlawful conduct was said to be a breach of federal or NSW age discrimination laws. The Tribunal made no finding as to that personal factor which the Appellant submitted was a public interest consideration in favour of disclosure.

78. Fifth, the Tribunal found that it was not called upon to ‘review the investigation’ and that ‘there is no reason to doubt the evidence from the witness to the incident’. The Tribunal was correct to say that it is not its role to review the investigation, but it should identify and address each of the public interest considerations and personal factors raised by the parties as being relevant to a determination of the ultimate question. That question is whether there is an overriding public interest against disclosure; GIPA Act, s 13.

79. Sixth, the Tribunal stated at the end of [35] that it was satisfied ‘that releasing the withheld information would not assist the applicant to contest her liability’. The Tribunal did not address the relevant issue which was the effect, if any, of the personal factors in s 55. In particular, what were the Appellant’s motivations for making the access application and what weight should those motivations be given in determining whether there was an overriding public interest against disclosure.

80. The overall impression is that the Tribunal was not particularly persuaded by the various public interest and personal factors being raised by the Appellant. However, there are no specific findings made one way or the other in this regard.

81. In the result there are no express findings made by the Tribunal as to whether or not it upheld any of the public interest or personal factors raised by the Appellant in favour of disclosure and there is an absence of findings as to what weight was being attributed to any such factors.

82. Seventh, the Tribunal at [37] – [38] refers to the proposition that it would be for a collateral purpose to seek documents under the GIPA Act in order to review the conduct of government agencies. The Appellant submitted that she is not seeking to conduct any such review and the Tribunal did not make any findings as to the application being for a collateral purpose.

83. The difficulty we have with the statements at [37] – [38] is that the Tribunal does not expressly tie them to any particular public interest factor in favour of disclosure raised by the Appellant. Again, the impression left is that the Tribunal was discounting the Appellant’s submissions in favour of disclosure, though it is unknown to what extent.

84. Lastly, the Tribunal at [39] stated that it has carefully considered the public interest factors both in favour and against disclosure and found that those against disclosure outweighed the factors for disclosure.

22. The Respondent argued that the Tribunal’s conclusion and reasoning were adequate particularly given that some of the public interest factors were not disputed and that it was not necessary to make individual findings or to attribute weight to any particular public interest factor. However, the Appeal Panel rejected that argument and stated, relevantly:

87. Under the GIPA Act there are public interest factors in favour of disclosure (s 12 GIPA Act) and there are personal factors of the application which may weigh in favour of or indeed against disclosure (s 55 GIPA Act): see Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 at [33].

88. Personal factors under s 55 are different from public interest considerations in favour of disclosure which are provided for in s 12: see Snape No 2 at [33].

89. In our opinion, whilst the Tribunal referred to the public interest and personal factors in favour of disclosure put forward by the Appellant in a global way and ‘considered them’ it failed to identify which of the public interest and personal factors in favour of disclosure might apply or assign them any weight.

90. The Tribunal did conclude that the public interest considerations against disclosure outweighed those in favour of disclosure but did not identify which of those factors it had accepted or rejected.

91. The Appeal Panel dealt with a similar situation in Snape (No 2) at [41]:

In the present case the Tribunal did not identify what public interests in favour of disclosure might apply, assign them any weight, or purport to balance them against the public interest considerations against disclosure. It also did not find that there were no relevant public interests in favour of disclosure. It did conclude that the public interest considerations against disclosure outweighed those in favour of disclosure but did not identify what those factors in favour were. Rather, it treated the appellant’s personal factors as the only factors favouring disclosure. In doing so the Tribunal failed to have regards to essential elements of the balancing exercise under s 13. It did not identify public interest considerations in favour of disclosure, or attribute weight to them (assuming there were some).

92. In our opinion, the Tribunal’s exercise of the discretion given to it under s 13 of the GIPA Act miscarried when it failed to ask itself or determine whether any of the specific factors raised by the Appellant in favour of disclosure applied or what weight should be given to them. This amounts to an error of law or a constructive failure to exercise the jurisdiction required to be exercised under the GIPA Act.

23. The Appeal Panel decided that the decision would not stand and while it was not necessary to address the other grounds of appeal, it provided brief views that are summarised below.

Ground 2

24. The applicant alleged that the Senior Member’s reasons were inadequate in accordance with the decision of the Court of Appeal in NSW Land and Housing Corporation v Orr [2019] NSWCA 231.

25. The Appeal Panel upheld this ground and found that the Tribunal’s reasons fell short of the standard required by the legislation and the relevant principles. It stated, relevantly:

101. The Appellant made specific submissions that various public interest factors supported disclosure including the fact that disclosure of the information ‘could reasonably be expected to’:

(1) Promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance;

(2) Inform the public about the operations of agencies, and, in particular their policies and practices when dealing with members of the public; and

(3) Reveal or substantiate that an agency (or member of an agency) has engaged in misconduct or negligence, improper and unlawful conduct.

102. The above issues, in our opinion, are ‘material questions of fact’. While the Appellant did not have access to the redacted material, she asked the Tribunal to consider the confidential information when making findings on the above questions.

103. In our view, pursuant to s 62(2) of the NCAT Act the Tribunal was required to make specific findings on the above issues and refer to the evidence or other material on which such findings were based. It was not sufficient for the Tribunal simply to ‘consider’ the above factors and simply state that they were ‘outweighed’ by the factors against disclosure.

104. It was necessary for the Tribunal to make specific findings on whether or not in its view these factors were made out by the evidence or other material before it and what weight was to be given to them. For the reasons given above, only then could the balancing exercise required by the Act be conducted.

105. Similarly, in respect of the s 55 personal factors that were contended for by the Appellant, the Tribunal made the statement that the material would be unlikely to support the Appellant in its dispute about liability for the damage to the other person’s vehicle. That fact was not in issue. The issue was the weight, if any, that should be given to the Appellant’s motivations for making the access application.

106. As outlined by Bell P in Orr at [73] – [77]:

• whilst a detailed exposition of every element of the evidence and arguments is not necessary, a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is required;

DBR_1. the reasons must indicate to the parties why the decision was made and allow them to exercise any rights that may be available to them in respect of the decision (including any rights on appeal);

• the reasons must provide an explanation connecting any findings of fact with the decision;

DBR_2. it is not necessary to decide each factual issue in isolation from the others, and expressing conclusions in sequence does not indicate a failure to consider the evidence as a whole.

107. In our view, the failure to make express findings on any of the individual matters put forward by the Appellant in support of disclosure and the failure to attribute them weight, leads to the conclusion that the Tribunal’s reasons were inadequate. In particular, the fact that the Tribunal considered together all public interest factors or other factors in support of disclosure and merely stated that such factors were outweighed by the factors against disclosure, meant that the Appellant’s rights to challenge the decision on appeal were significantly compromised.

Ground 3

26. The applicant alleged that the Senior Member misapplied the cases of Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95, GA v The University of Sydney [2009] NSWADT 230 and Crewdson v Central Sydney AHS [2002] NSW 345 in concluding that she sought the disputed documents for a collateral purpose. She argued that the Tribunal took into consideration irrelevant matters and stated that she was not seeking a review of the government agency in question, but was instead raising legitimate considerations that supported her case.

27. The Appeal Panel rejected this ground. It held that the Tribunal did not strictly err in its application of the decisions in question and that the matters stood for the propositions extracted by the Tribunal. However, there was some force in the applicant’s argument that the Tribunal allowed itself to be distracted by considering the principles in those cases and that it was diverted from making express findings about the existence of the factors in favour of disclosure and attributing weight to them.

Ground 4

28. The applicant alleged that the Senior Member did not take into account that she was not seeking ‘personal information’ and that she agreed to the redaction of any identifying information from the disputed documents, which would nullify the application of cll 2(a) and 3(a).

29. The Appeal Panel stated, relevantly:

116. In this regard the Appellant referred firstly to [25] as follows:

The Respondent submits that the redacted information is personal information as individuals are able to be identified from the information or their identities are reasonably apparent from the information. It includes names, contact details and other information of their personal circumstances. The disclosure of that information to the public at large renders individuals identifiable or contactable by other persons including persons unknown to the individuals to whom the information relates.

117. The Appellant nextly referred to [32]:

I have read the redacted information in detail and at length. I accept the evidence of Constable Tunks as to how this information was obtained and treated in confidence. I am satisfied that it contains the names and contact details of people or that their identities can be ascertained from the information. I am satisfied the redacted material is personal information and that disclosure of the material could reasonably be expected to disclose an individual's personal information.

118 The Appellant submitted that the Tribunal erred in failing to consider that the Appellant was seeking, at least in the alternative, the information in a redacted form so as to exclude personal information and any identifying information.

119. The Appellant contends that the Tribunal, at least so far as the disclosed reasons are concerned, did not consider this alternative submission.

30. The Appeal Panel upheld this ground. It agreed with these submissions and held that it was clear on the face of the two witness statements, that they contain personal information, but there are parts of the document that do not contain personal information and it stated, relevantly:

122. It appears to us that the Tribunal in making the statement that the ‘redacted material is personal information and the disclosure of the material’ could be expected to disclose an individual’s personal information (our emphasis), the Tribunal was considering the document as a whole as opposed to the material in a redacted form where the personal information or identifying information is deleted.

123. The result of this conclusion is that the Tribunal failed to deal with a necessary and crucial submission made by the Appellant and also its expressed reasons were inadequate.

Ground 5

31. The applicant alleged that the Tribunal erred in concluding that she was seeking either a determination of an age discrimination case or a review of the NSWPF’s processes when the matter before the Tribunal was an access application under the GIPA Act. She referred to para 35 of the reasons and argued that the Tribunal focused on irrelevant considerations and submissions that were not made.

32. The Appeal Panel noted that the respondent argued that when read fairly in the context of the reasons as a whole, para 35 can be understood as an acknowledgement of the applicant’s “very legitimate interest in accessing the information”, which would be a s 55 personal factor, and the Tribunal acknowledged the force of her concerns regarding the investigation.

33. The Appeal Panel agreed with the respondent’s submissions and stated that viewed on its own, the Tribunal’s statement of what was beyond the tasks of the Tribunal when considering a request for access to documents under the GIPA Act does not amount to an error of law. However, while it was correct to find that there was no jurisdiction to determine a complaint of age discrimination, the question that needed to be determined was whether 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: Note to s 12 of the GIPA Act. The Tribunal did not determine that issue. It rejected this ground of appeal.

Ground 6

34. The applicant alleged that the Tribunal erred in law in making the following findings of fact for which there was no probative evidence: (1) that the documents sought would not assist the Appellant to resist the insurer’s claim; (2) that the information sought was for a ‘collateral purpose’; (3) that witnesses automatically expect their accounts of what happened given to NSWPF to be kept confidential; (4) that the disclosure of documents would reveal identifying information when she explicitly agreed to the removal of such information; and (5) that there was reason to doubt the evidence given by Constable Tunks given that he conceded in cross-examination that he did not actually tell the witness that the information was obtained in confidence.

34. The Appeal Panel dismissed this ground. It stated, relevantly:

44. While the respondent accepts the proposition that in certain circumstances, a finding of fact in the absence of probative evidence can amount to an error of law, it is submitted that the matters raised by the appellant are more properly characterised as her disagreement with various conclusions reached by the Tribunal on the basis of the material before it. This becomes even more apparent when regard is had to the respondent's submissions in support of this ground, at AS [9]. It is the respondent's primary submission that most of the matters raised by the appellant by her ground 6 are, in substance, a challenge to the merits Tribunal's decision requiring leave, and that leave should be refused.

45. Dealing more specifically with the matters raised by the appellant (adopting the same numbering as in [43] above):

a. The Tribunal concluded at [35] that, "having considered the content of the Confidential Bundle, I'm satisfied that releasing the withheld information would not assist the Applicant to contest her liability to pay for the damage claimed": this was an assessment that was open to the Tribunal to make, in particular having regard to the content of the information that was in dispute, as reflected in the Confidential Bundle;

b. The Tribunal did not make a finding that the applicant sought the information for a "collateral purpose" as has been contended. The Tribunal's reference to a "collateral purpose" in its reasons at [38] above has been addressed at length in the respondent's submissions above, at [28]-[31];

c. The Tribunal, at [19], did not accept the appellant's proposition that "witnesses and bystanders don't assume their evidence will be kept confidential" but instead concluded "on the available evidence I consider the reverse of that proposition to be the case." The Tribunal went on to find at [20], "that the relevant information was provided on a confidential basis". The Tribunal's comments at [19], and conclusion at [20], were findings of fact that were open to the Tribunal:

i. having regard to the evidence before it going directly to this issue, including the sworn evidence of Constable Tunks; and

ii. applying the approach set out by the Appeal Panel in Transport for NSW v Searle [2018) NSWCATAP 93, having regard to "inferences drawn from the objective and otherwise established facts, rather than the subjective views of witnesses," including the considered and understandable confidentiality of the investigation process (in this case, as reflected in the NSW Police Customer Service Charter) and the rationale for such confidentiality. It is notable, also, that the Tribunal's decision in this regard is consistent with a long line of court and Tribunal decisions that have found that information supplied to the NSW Police in the course of investigations is supplied under conditions of confidentiality.

d. The Tribunal's conclusion that disclosure of the disputed information would reveal personal information was a mixed finding of law and fact that was open to the Tribunal on the basis of the material before it. To the extent the applicant is aggrieved by the Tribunal not referring to her agreement to the redaction of personal information, this is addressed in the respondent's submissions in reply to ground 4, at 33-36 above.

e. Having observed that the Tribunal was not "called upon to review the investigation carried out in relation to [the] incident, or the findings of that investigation", the Tribunal went on to comment that "[t]here is no reason to doubt the evidence of the witness to the incident" (at [35]). It is clear, when that latter statement is read in the context of [35] as a whole, that the Tribunal was not making a positive finding as to the truth or otherwise of the evidence of the witness, that being a matter falling outside the scope of the Tribunal's jurisdiction. The observation was one which was open to the Tribunal to make, having regard to the material before it, and also having regard to the context in which it was made.

f. By this final matter the appellant, again, appears to dispute the Tribunal's finding, at [20], that the disputed information was supplied in confidence. The respondent relies on its response to this submission at [45](c) above.

36. The respondent submitted, relevantly:

28. The appellant's ground 3 is that the Tribunal misapplied the cases of Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95; GA v University of Sydney [2009] NSWADT 230 and Crewsdon v Central Sydney AHS [2002] NSWCA 345 in concluding that the appellant sought access to documents for a collateral purpose. This ground is addressed, further, in the Appellant's Submissions at AS [7].

29. The part of the Decision with which this ground is concerned is at [37]-[39]. Relevantly, the Tribunal noted at (37] that "[t]he Applicant's submissions impugn the quality of the police investigation and the related Question of Fitness decision made by police". The Tribunal acknowledged that "(t]here are some matters of concern about the detail of the investigation", however, concluded that these matters "[did] not relate to the refusal decision".

30. The Tribunal's citation of the decisions in Choi, GA and Crewsdon, at [37]. were in support of the proposition that the Tribunal's review was concerned with access to government records and that "[a] review of the investigation would be for a collateral purpose." This is, undoubtedly, a correct statement of the parameters of the Tribunal's task in undertaking its review of the respondent's decision under the GIPA Act.

31. There was no error in the Tribunal's reference to the decisions of Choi, GA and Crewsdon. The Tribunal did not, as the appellant contends, make a finding that the appellant sought the information requested for a collateral purpose. Rather, the Tribunal's comments must be understood as being made in response to elements of the appellant's evidence and submissions that went beyond the scope of the dispute to be determined by the Tribunal. The respondent does not understand the appellant to be suggesting that the Tribunal was incorrect in identifying the merits of the police investigation as being a matter beyond the scope of its task in undertaking a review under the GIPA Act.

32. It follows that there was no error on the part of the Tribunal as contended by ground 3. In referring to these cases, the Tribunal was making a correct statement as to the nature and scope of its task in undertaking administrative review of a decision under the GIPA Act.

37. The Appeal Panel agreed with these submissions and held that it is not necessary for the Tribunal to make the finding in (1) or (2) and it could not be said that there was no evidence that could have grounded the findings in relation to (3), (4) and (5). In particular, it stated:

138. For example, in respect of the key finding of the Tribunal challenged by the Appellant that the information was provided in confidence, we agree with the Respondent’s submission that whether or not there existed an ‘implied obligation of confidence’ is a matter of inference to be drawn from all of the surrounding circumstances and can be made in the absence of any direct or express statements or agreements as to the information being kept confidential.

Ground 7

38. The applicant alleged that the Tribunal erred by preferring the evidence of Constable Tunks to her evidence.

39. The Appeal Panel held that this is not an error of law, but that as this submission was developed it was able to discern an error of law that was focussed on [22]-[23] of the reasons for decision, which provided:

22 The Respondent submits "the witness to this incident was an informant, within the ordinary meaning of that word, in that they provided information to the police. The word informant is not limited to police informers (see for example NSW Office of Liquor, Gaming and Racing v Fahey (2012) NSWADTAP 55) but plainly includes them. Revealing the redacted information relating to the witness would reveal their identity as an informant. That much is plain on the face of the Confidential Bundle. Revealing the identity of an informant would expose them to the risk of reprisals from offenders. As noted above at (45], that is an actual and foreshadowed risk in this case." The latter reference comes from the evidence of Constable Tunks to the effect that the Applicant blamed the witness who reported the incident. The Applicant submits the suggestion of possible reprisals is without foundation. The Applicant states (paragraph 65) she did not tell Tunks that she blamed the witness.

23. The principal issue for consideration here however, is not reprisal but could disclosure "reasonably be expected to...reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant"? On the face of the records the answer to that question is yes. Disclosure of the information would absolutely reveal the identity of an informant. The Respondent's investigations rely on information often from members of the public and such disclosure could reasonably be expected to inhibit or prevent members of the public from coming forward in the future with crucial and relevant information and this would negatively affect the Respondent's ability to gather evidence for its investigation function.

40. The applicant complained that the suggestion of possible reprisals was without foundation and her evidence was that she did not tell Constable Tunks that she blamed the witness. Her evidence was not subject to any cross-examination and the Tribunal should have accepted it and its failure to do so amounted to a denial of procedural fairness.

41. The respondent argued that essentially the Tribunal did no more than note the evidence given by the two witnesses, Constable Tunks and the applicant and its submissions that there is always the risk of reprisals in such a case. Having noted the evidence and submissions, the Tribunal’s concluded that this was not a relevant matter that needed to be decided as the question was whether or not it could reasonably be expected that disclosure of the information would inhibit or prevent members of the public from coming forward in the future.

42. The Appeal Panel agreed with the Respondent’s submissions and it concluded that the applicant was not denied procedural fairness.

43. As to the future conduct of the matter, the Appeal Panel stated:

157. The Appellant expressed no preference as to whether or not the Tribunal should remit the matter.

158. The Respondent ultimately supported the matter being remitted for reconsideration.

159. This determination of the real issues in this matter involves not only consideration of the evidence but also disputed issues of fact which were explored in cross-examination. We are not confident that we can deal with these disputed issues of fact without hearing the witnesses for ourselves.

160. We are also not confident that we have all of the evidence and submissions made below.

161. Accordingly, in all of the circumstances, given the complexity of the factual issues involved and the contest on the evidence, including matters going to the credibility of witnesses, we have decided that the preferable course is to remit the matter for reconsideration with the ability to lead fresh evidence.

Determination upon remitter

44. On 19 July 2023, Principal Member Simon conducted a directions hearing. Ms Gurr appeared as agent for the applicant and Ms Mattes appeared for the respondent. The Principal Member ordered the respondent to file and serve a copy of the Transcript of the initial hearing and any further material, including written submissions by 11 August 2023. She ordered the applicant to file and serve any further material including written submissions by 1 September 2023. She listed the matter for hearing on 25 September 2023.

45. On 19 September 2023, Principal Member Simon granted leave for Constable Tunks to appear at the hearing by way of AVL.

46. The matter came before me for hearing on 25 September 2023. Ms Gurr appeared as agent for the applicant and Ms K Mattes appeared for the applicant.

47. When the matter commenced, the Tribunal asked Ms Gurr what issues remained in dispute from the applicant’s perspective. However, she was unable to provide any concise response other than stating “it is essentially a s 13 issue”.

Reviewable decision

48. Ms Mattes stated that the reviewable decision is that dated 10 January 2022, which was varied by a subsequent release of information on 26 April 2022. Ms Gurr did not dispute this.

The evidence

49. The respondent relied upon the following evidence:

1. Affidavit of Constable Tunks sworn 6 July 2022 (Ex A); and

2. Transcript of proceedings dated 19 October 2022 (Ex B).

50. Constable Tunks’ statement (Ex A) and his oral evidence in the Transcript (Ex B) were discussed at length in the original decision and his oral evidence is recorded in Ex B. I considered this evidence, but have not set it out in this decision.

51. The applicant relied upon the following evidence:

1. Her statement dated 25 July 2022 (Ex 1); and

2. Her bundle of documents (MFI 1).

52. I have considered the applicant’s statement (Ex 1) and the information contained in her bundle of documents (MFI 1), but I have not set their contents out in this decision.

Further Evidence of Constable Tunks

53. The applicant required Constable Tunks to attend for further cross-examination and he was called and sworn. He confirmed the evidence (Ex A) and his previous oral evidence (in Ex B).

54. In cross-examination, Ms Gurr referred the witness to page 9 of Ex B, where she previously questioned him about the issue of the Fitness to Drive form to the applicant. She also drew his attention to para 12 of the applicant’s statement (Ex 1) in which the applicant stated:

Constable Tunks, at some time in talking to me after the video interview, said “it must have been another incident”. We went out to view my car and Constable Tunks took photos. Again he said “it must have been another incident” and said he would contact the witnesses. I got the impression there was more than one”.

55. Ms Gurr asked the Constable whether he recalled what he said to the applicant at that time? He replied “No”, and he added “It is nearly two years ago”.

56. Ms Gurr then asked the witness whether he had subsequently spoken to a witness or witnesses? He replied to the effect that he had no recollection of doing so, although he did obtain statements.

57. Ms Gurr asked the witness if made any other record at that time? He replied to the effect that if any other record was created it would have been linked to the COPS Event.

58. Ms Gurr then asked the witness why he issued the Referral to the applicant? He replied to the effect that one of the main reasons was that she denied that any incident occurred.

59. Ms Gurr then stated that she wanted to question the witness about possible unlawful conduct regarding the issue of the Referral to the applicant. However, the Tribunal disallowed this on the basis that it was not relevant to the matters in dispute under the GIPA Act.

60. Ms Gurr stated that there are inconsistencies in the witness’ statement and she argued that there is a question of the weight to be given to the NSWPF’s decision to rely upon it.

61. However, the Tribunal ruled that the NSWPF’s decision to issue the Fitness to Drive referral to the applicant is not a reviewable decision under the GIPA Act. I maintained my previous ruling.

62. Ms Gurr then stated that she had no further questions for the witness.

63. Ms Mattes did not wish to re-examine the witness and the Tribunal excused him from further attendance.

Confidential hearing

64. I confirm that the respondent lodged unredacted copies of the disputed documents with the Tribunal on a confidential basis.

65. In order to properly consider and determine whether these documents were “confidential” and/or whether the asserted public interest considerations against disclosure applied, the Tribunal determined that it was necessary to conduct a confidential hearing in the absence of the applicant, pursuant to s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

66. [NOT FOR PUBLICATION]

67. [NOT FOR PUBLICATION]

68. [NOT FOR PUBLICATION]

69. [NOT FOR PUBLICATION]

70. [NOT FOR PUBLICATION]

71. Upon the completion of Ms Mattes’ submissions, the Tribunal concluded the confidential hearing and resumed the open hearing of the matter.

Resumption of the open hearing

Respondent’s submissions

72. Ms Mattes relied upon written submissions that were filed on 7 July 2022, 7 October 2022 and 16 August 2023, respectively, and she also made oral submissions. I have summarised the submissions below.

Submissions filed 7 July 2022

73. After setting out a factual background, the respondent stated that these proceedings are not concerned with whether the applicant did in fact commit the offence, nor are they concerned with the question of her fitness to drive a motor vehicle. They are solely concerned with the correct and preferable decision under the GIPA Act. While the current application indicates that the applicant takes issue with the IPC’s findings, only the respondent’s decision is subject to administrative review under s 100(1) of the GIPA Act,

74. The respondent set out the legislative framework, including that a decision to refuse to provide access to information in response to an access application is a reviewable decision for the purposes of s 80(d) of the GIPA Act. It also discussed the presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure: s 5 of the GIPA Act; and stated that s 9 of the GIPA Act confers on the person making the GIPA request a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of it.

75. The respondent stated that s 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Section 12(2) provides that nothing in the GIPA Act limits any other public interest considerations in favour of disclosure of government information that may be taken into account for the purposes of determining whether there is an overriding public interest against disclosure of the information. These considerations include, but are not limited to, the examples set out in the note to s 12(2).

76. The Table to s 14 of the GIPA Act sets out the only considerations that may be taken into account when applying the s 13 public interest test and the evidence must demonstrate that they could reasonably be expected to have one or more of the stated effects set out in the clauses. In this matter, the respondent argued that there is a public interest against disclosure because disclosure could reasonably be expected to:

1. Prejudice the supply to an agency of confidential information that facilitates the exercise of that agency’s functions: Cl 1(d);

2. Reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant: Cl 2(a); and

3. Reveal an individual’s personal information: Cl 3(a).

77. As to the meaning of “could reasonably be expected to”, the respondent cited the decision in Attorney-General’s Department v Cockcroft (1986) FCR 180 at 190, where Bowen CJ and Beaumont J held (in relation to the use of that phrase in the Freedom of Information Act 1982 (Cth)) that the words:

Require a judgment to be made by the decision maker as to whether it is reasonable, as distinct from something that it 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 in terms of probabilities or possibilities or the like.

78. In Leech v Sydney Water Corporation [2010] NSWADT 298, the Administrative Decisions Tribunal stated:

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.

79. In Transport for NSW v Searle [2018] NSWCATAP 93 (Searle), the Appeal Panel held that the Tribunal had erred in setting “an overly demanding evidentiary standard” by requiring the agency to adduce specific evidence in order to satisfy the “could reasonably be expected to” standard (at [61]). The Appeal Panel also stated:

63. In our view, this did not accord with an ordinary weighing of the material before the Tribunal of the kind set out in paragraphs 66 to 87 below which would give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses, including the considered and understandable confidentiality to the process, the rationale for such confidentiality and the natural implication for future supply if such confidentiality was to be undermined.

80. The term “prejudice” is given its ordinary meaning, being “to cause detriment or disadvantage” or “to impede or derogate from”: Hurst v Wagga Wagga City Council [2011] NSWADT 307 (at [60]).

81. In Camilleri, the Appeal Panel set out the approach to be adopted in relation to the provisions in Pt 2 Div 2 of the GIPA Act, as follows:

24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.

82. The Appeal Panel concluded that “the s 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged”.

Public interest considerations in favour of disclosure

83. The respondent set out the provisions of s 12(1) of the GIPA Act and the note to s 12(2) and the examples set out in it.

Public interest considerations against disclosure

84. In relation to cl 1(d), the respondent argued that the NSWPF’s functions include the prevention and investigation of crime: s 6 of the Police Act 1990 (NSW). The effective exercise of that function requires the NSWPF to receive information from members of the public that is supplied to it in confidence. It is well-accepted that the provision of information to law enforcement agencies attracts an expectation of confidentiality. In Camilleri, the Appeal Panel referred to a “long history of cases in the Tribunal that have recognised the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies”. The Supreme Court also recognised this expectation in Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [69].

85. In Camilleri, the Appeal Panel held (at [33]) that the question of whether the information supplied is confidential information must be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts the service within which the information was received.

86. On this issue, Constable Tunks gave evidence of the widely held expectation that information supplied to the NSWPF in the course of investigations will be maintained confidentially, except where the information is already known to the offender or where disclosing the information is necessary because the matter goes to court. This is reflected in the NSWPF’s Customer Service Charter.

87. The respondent also argued that it is also well established that a breach of that confidentiality could reasonably be expected to prejudice the supply of that information and it is self-evident that people will be less likely to provide information confidentially if they do not believe that confidentiality will be respected. Therefore, the Tribunal must consider whether the agency’s general ability to obtain information of that nature in the future would be prejudiced, and not whether the particular person who supplied the information in question would still have made the disclosure: Camilleri at [27]-[29].

88. Constable Tunks’ evidence is that respecting confidentiality is systemically important, because failing to respect it would lead people to provide less information to the NSWPF. Without that information, the NSWPF would be limited in its capacity to investigate crimes and take action against offenders. In this matter, he stated that the NSWPF would not have been able to identify the applicant or take action against her if the witness had not provided information, first to the damaged vehicle’s owner and then to the NSWPF.

89. The respondent accepted that this particular incident is objectively at the lower end of the spectrum of seriousness of the offences that the NSWPF investigates, but it is not a trivial matter for the following reasons:

1. Constable Tunks’ evidence is that the expectation of confidentiality applies even at the lower end of the spectrum of seriousness. Section 6(3) of the Police Act provides that the functions of the NSWPF include the “prevention and detection of crime”, and those functions are not limited to serious crime. Violating the expectation of confidentiality in relation to less serious offences would make individuals less likely to provide that information, which would prejudice the ability of the NSWPF to investigate those offences;

2. Traffic offences of this kind may be less serious, but they are very common and prejudicing the supply of information to the NSWPF about those offences would be significant in respect of the NSWPF’s crime prevention and investigation functions as a whole; and

3. While this traffic offence was at the lower end of objective seriousness, the potential consequences of the offence for the applicant are serious, as it raised questions about her fitness to drive. This underlines the importance of protecting the confidentiality of the information supplied to the NSWPF.

90. The respondent argued that the NSWPF’s functions in preventing and investigating crime are of great public importance and significant weight should be afforded to cl 1(d).

91. In relation to cl 2(a) of the table to s 14(2) of the GIPA Act, the respondent stated that the witness to the incident was “an informant” within the normal meaning of the word, because they provided information to the NSWPF. The term is not limited to police informers: NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55 at [47]-[49]; Cincotta v Council of the City of Ryde [2022] NSWCATAP 24 at [42]-[44]. Revealing the redacted information relating to the witness would reveal their identity as an informant.

92. Constable Tunks’ evidence highlights the importance of protecting the identity of witnesses to offences who provide information to the NSWPF. Revealing the identity of an informant would reasonably be expected to prejudice the supply of information to the NSWPF more generally (see cl 1(d) above).

93. There is an overlap between cll 1(d) and 2(a) of the table to s 14(2), both in this case and more generally and the fact that the GIPA Act makes separate and specific provision for cl 2(a) in addition to cl 1(d) reflects the importance that Parliament gave to the protection of informants. Therefore this consideration should be given very significant weight.

94. In relation to cl 3(a) of the table to s 14(2) of the GIPA Act, the respondent argued that the confidential bundle contains personal information of members of the public other than the applicant in the form of names, contact details and opinions. The disputed information is not available in the public domain and the provision of that information would therefore reveal information to the applicant within the meaning of Sch 4 of the GIPA Act.

95. Therefore, cl 3(a) is engaged and it should be given significant weight.

Personal factors of the application

96. The respondent noted that ground 1 of the current application alleges that the respondent and the IPC failed to take into account the applicant’s personal circumstances and motivation in applying the public interest test under s 15 of the GIPA Act. However, this appears to be a reference to either s 13 of the GIPA Act (the public interest test) or s 55 (consideration of the personal factors).

97. The personal factors of the application are a discretionary consideration, rather than a mandatory consideration, and the applicant did not indicate any personal factors in her GIPA request. For this reason, the decision dated 10 January 2022 did not refer to any personal factors and the respondent did not err in failing to consider a matter that the applicant failed to raise.

98. Ground 2 of the current application relates to balancing the public interest considerations and the respondent argued that the public interest considerations against disclosure outweigh those in favour of the disclosure of the disputed information in the confidential bundle.

99. However, Ms Mattes did not press submissions that were previously made by the respondent regarding a possible risk of reprisal etc. against the vehicle owner and witness if their identities were revealed to the applicant.

Applicant’s written submissions

100. The applicant relied upon written submissions dated 26 September 2022. After setting out relevant provisions of the GIPA Act, she stated that the disputed information includes the statements of the independent witness and the driver of the damaged car, and the former is the only direct evidence that she was involved in a parking incident on 11 October 2021. She stated, relevantly:

11. Parts of the Police Case File (no 83687944 were made available but not initially the Events file (E 8453854) save what appears to be an undated and mostly redacted note from a Police notebook. The Events file in redacted form has recently been made available in the context of these proceedings. That raises the question of what other information should have been revealed by the original search and made available. It cannot now be assumed that a thorough search was carried out to identify all relevant documents.

12. No information has been provided relating to the process of decision making in whereby a Notice of Fitness was issued in relation to (the applicant) arising from the alleged parking incident. What occurred between her leaving Katoomba Police Station on 16^th October 2021 and the issuing of the Notice of Fitness remains opaque…

15. It is submitted that, not only did the respondent wrongly determine that the two factors relied on weighed overwhelmingly against disclosure, but that the balancing process of the public interest factors for and against disclosure required to be undertaken so as to comply with s 13 of the Act, was not properly undertaken. The decision was flawed from the beginning.

16. The respondent now relies on additional factor in the table to s 14 as noted above. It is submitted that the addition of this factor does not substantially assist the conclusion that the balance of the weight is against disclosure.

17. In relation to the information referred to in para 15, it is unclear what information has not been supplied and what factors are relied upon to conclude against its disclosure…

101. In relation to “factors in favour of disclosure”, the applicant argued that the respondent failed to adequately identify and weigh all of the factors in favour of disclosure that should have been considered and that there are number of additional factors that should have been considered. Apart from the statutory presumption in favour of disclosure and a general right of the public to have access to government information, which received “cursory mention”, the only other factor referred to in the decision is that the information sought contains personal information of the applicant and information that she provided to NSWPF. No particular weight was ascribed to any of those factors.

102. The applicant referred to the first of the factors set out in the note to s 12 of the GIPA Act, namely that “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”. She stated, relevantly:

22. The importance of policing as a public function in a civilised society cannot be overstated. It is an extremely difficult and generally thankless task. Police have enormous power to affect the lives of citizens every day in myriad ways. Good policing is central to the rule of law. effective policing depends on transparency. With power must come accountability. It is hard to think of a more important subject for open public discussion and informed debate than the operation of a police force and the actions and decision of its members. Disclosure of information which promotes transparency of how and on what basis Police make decisions in cases such as this, which affect people in their everyday lives and underpin situations in which they may be exposed to liability for civil wrongs or penalties for illegal actions, is clearly in the public interest. It enhances trust and confidence in the police.

23. The information sought in this case goes to the heart of accountability for the decisions which were made and for the provision by the police of information to other bodies (eg. the insurer). In relation to the latter, the authority of the police has been put behind the information which has been provided and bolstered the credibility of the claimant at the expense of the applicant. It is in the public interest that government instrumentalities, which support private claim such as has occurred in this case, should be accountable for the accuracy and the credibility of the information they provide. This factor should, therefore, be given considerable weight.

103. The second factor set out in the note to s 12 of the GIPA Act provides “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”. She stated, relevantly:

25. The Police Customer Service Charter (filed by the respondent) sets out the policies and practices of the Police in dealing with members of the public. It says the Police, in aiming to be “professional and helpful” will “listen to you and acknowledge your needs, treat you fairly and with resect, maintain your confidentiality, show care and be accurate, take ownership of your matter if it is a policing issue”.

26. How police deal with unsolicited and contested information they receive about a member of the public is a central issue here. It cannot be uncommon that police receive intelligence of this sort. It may be wrongly contested but it may be justifiably contested whether because it is merely mistaken or deliberately fabricated. It is in the public interest that information be disclosed which informs the public about the policies and practices of police in this situation and how they deal with members of the public when this occurs.

27. The respondent’s submissions refer consistently to (the applicant) as an “offender”. The police in the case file refer to the case as a “medical matter”. There can be no “offender” in a “medical matter”. She was at all times a member of the public against whom an untested allegation had been made.

28. Police knew when they interviewed her, that the information provided to the was contested. They concluded her denial came from memory loss and confusion. They appear not to have undertaken any further investigation either as to the truth or credibility of the allegation or whether she could have had member loss or other cognitive issues which might have caused confusion.

29. The Police interviewed (the applicant) on what appears from the evidence to be scant information – the note which was left on the other car, the allegation of the car owner (it is unclear whether there was a written statement from the car owner) and the photos of the damage. Neither the note nor any statement of the car owner have been disclosed and, although it appears from the case file, the car owner did precisely locate the alleged incident, on the evidence of the video interview, that location was precisely described to (the applicant) at the time of the interview. The interviewing officer said he would contact any witnesses. One witness then appears to have made a statement, which has not been disclosed, nor have its contents ever been put to (the applicant), who was not subsequently contacted by the police. The information sought will throw light on what criteria police use and the information they seek in making assessments of the credibility of contested allegations and evidence they receive and their policies in making decisions based on that evidence.

30. In the end result the police made assumptions about (the applicant’s) credibility and attributed memory loss and confusion to her with no obvious evidence that has been disclosed, save the age on her driving licence. The information sought will throw light on police policies and practices… in relation to dealing, in particular, with older members of the public.

31. The matter was dealt with by a new police officer. He was a Probationary Constable in October 2021 with less than a year’s experience. The information will throw light on the policies and practices relating to the training and supervision of young and inexperienced officers.

104. The applicant also argued that 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. She stated, relevantly:

33. Age discrimination is unlawful under NSW or Commonwealth law. Both prohibit direct and indirect discrimination on the ground of age. Direct discrimination occurs when someone treats, or proposes to treat, the aggrieved person less favourably than it treats, or would treat, a person of a different age under circumstances that are the same or materially the same, if the discriminator does so because of a person’s age or a characteristic that appertains or is generally imputed to a person of that age. Indirect discrimination occurs when someone discriminates against the person on the group of their age by:

• Imposing or proposing to impose a condition, requirement or practice;

• The condition, requirement or practice is not reasonable; and

(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.

159. In Camilleri at [24]-[25], the Appeal Panel explained the approach to determining whether there is an overriding public interest against disclosure as a two-step process. The agency case for refusal must rely on one or more of the s 14 considerations. In so far as the considerations in the Table to s 14 are engaged, the Tribunal's task is then to weigh that case against the factors favouring disclosure mindful of the injunctions that appear in both ss 12 and 15.

160. While a very broad value judgment is required to be made, it is not to be made in a vacuum. A judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104] (Searle). Subsections 15(a) to (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only a 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act.

161. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on 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": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech at [25].

162. Section 53 sets out the scope of an agency's obligation to search for information that falls within the scope of an access application. It provides:

53 Searches for information held by the agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial division of the agency's resources.

163. Section 55 provides that 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 personal factors related to the application into account. It provides:

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—

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

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note—

An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

164. Section 58 provides, relevantly:

58 How applications are decided

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

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

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

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

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

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

Note— These decisions are reviewable under Part 5.

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

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

165. Section 73 requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world”.

166. Section 105 places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

167. Section 107 provides:

107 Procedure for dealing with public interest considerations

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

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

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

(a) the public and the applicant, and

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

Applying the public interest test

Public interest considerations in favour of disclosure

168. The applicant relies upon the following public interest considerations (in addition to the statutory presumption in favour of the disclosure of government information and the general right of the public to have access to government information held by agencies):

1. That 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. That 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;

3. That 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. The release of the information requested could reasonably be expected to promote the accountability of this agency; and

4. That the information under review is primarily the applicant’s personal information.

169. The applicant argued that these considerations should be given appropriate weight by the Tribunal, that the respondent’s decision to refer her for a Fitness to Drive assessment resulted from age discrimination and that because of the NSWPF’s decision to not charge her with any criminal offence, she was denied an opportunity to test the witness’ evidence.

170. Adopting the applicant’s numbering, the respondent:

1. Disputed that disclosure of the disputed information would contribute to a positive and informed debate on issues of public importance. It argued that while some weight should be given to the argument that disclosure might enhance accountability, this should be afforded minimal weight.

2. Agreed that this this is a public interest consideration in favour of disclosure, but argued that this has largely been met by the disclosure of information to the applicant. The respondent observed that the applicant appeared to be focussed on impugning the NSWPF’s investigation of the incident and the merits of its decision to issue her with a Fitness to Drive Referral, as she appears to believe that she was not dealt with in an appropriate matter. However, the relevant question is to what extent would the release of the disputed information inform the public? The respondent argued that the answer to this is “not much”.

3. Stated that there is no basis for finding that disclosure of the disputed information could reasonably be expected to substantiate an allegation that the NSWPF engaged in misconduct etc.

4. Stated that the disputed information is not primarily the personal information of the applicant.

171. I also note that the fact that the applicant is being pursued by the insurer of the damaged vehicle for the costs of repairs in civil proceedings is a personal factor of the application.

172. In my view, based on all of the evidence before me, each of these considerations should be given strong weight.

173. However, while the applicant asserts that she was not afforded procedural fairness by the NSWPF, I note that the Appeal Panel considered that she was not denied procedural fairness. I agree with the Appeal Panel’s view.

Public interest considerations against disclosure

174. I am satisfied that the public interest considerations against disclosure that apply to this matter are cll 1(d), 2(a) and 3(a) of the table to s 14(2) of the Act.

Clause 1(d)

175. I accept the respondent’s submission that the NSWPF’s statutory functions include the prevention and investigation of crime and that the effective exercise of that function requires it to receive information from members of the public that is supplied to it in confidence.

176. I am satisfied that it is well-accepted that the provision of information to law enforcement agencies attracts an expectation of confidentiality. In Camilleri, the Appeal Panel referred to a “long history of cases in the Tribunal that have recognised the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies”.

177. Further, the Supreme Court of NSW recognised this expectation in Simring at [69]. I note that the applicant argued to the effect that Simring is distinguishable on its facts and that in her submissions dated 1 September 2022, she stated:

92. In balancing the factors for and against disclosure the true nature of this matter should be acknowledged. This is not a case as in Simring for instance, where criminal factors are involved. This is not a matter where the information is from persons who were victims of serious crime and its revelation would deter future victims in similar situations. It is not a matter of criminal investigation. It involved very minor damage in a parking incident. It was treated by Police as a “medical matter”. In addition, it can be argued that this is a case as noted in Par 85 above in which information could legitimately lose its confidentiality in the course of an investigation.

178. However, in Camilleri, the Appeal Panel held (at [33]) that the question of whether the information supplied is confidential information must be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts the service within which the information was received.

179. I reject the applicant’s argument to the effect the Tribunal must consider the seriousness of an offence in determining whether confidentiality applies to information provided by a witness. In my view, confidentiality arises as a result of the provision of the information to the NSWPF and it is not subject to the use to which the NSWPF may subsequently use that information.

180. I reject the applicant’s argument that the NSWPF did not investigate any offence. The evidence before me, which includes the COPS event documents (both redacted and confidential), clearly indicate that the owner of the damaged vehicle reported an incident to NSWPF and that the NSWPF then investigated the matter by obtaining statements from the owner and the witness and then putting those matters to the applicant for her response. The applicant provided her response and the NSWPF then decided how to resolve the matter. It ultimately decided not to charge her with fixed penalty offences and negligent driving. The fact that the NSWPF decided not to charge the applicant, but to refer the matter to Transport of NSW for a Fitness to Drive assessment does not mean that an investigation was not conducted.

181. I also reject the applicant’s submission to the effect that she was denied procedural fairness as by treating the incident as a medical episode, she was denied an opportunity to test the witness’ evidence in Court. In particular, she complained that the NSWPF provided a report to the insurer based on a single witness’ statement and that “They have given it the greatest weight without explanation. They have concluded she was involved because the witness says she was. There appears to be no other direct evidence. (the applicant) should be entitled to see and evaluate what the witness has said in defending herself against liability for the damage”.

182. I consider these submissions as being extraordinary, noting the significant risks that the applicant would have faced had she been required to defend a criminal prosecution in the Local Court of NSW in relation to the incident. In any event, I note that if she disputes the civil claim against her by the insurer and litigation ensues in a forum of competent jurisdiction, she will have an opportunity to test the witness’ evidence as under the Uniform Civil Procedure Rules, the insurer will be required to serve its evidence on the applicant.

183. In September 2023, the applicant stated, relevantly:

55. It was revealed in the course of the first hearing the Police were in fact in possession of the information now sought when (the applicant) attended the Police Station. They did not reveal that fact and did not provide any of the substance of the witness’ statement or that of the car owner eg. precisely where the alleged incident had taken place, which would have allowed (the applicant) to have more clearly and appropriately respond to the allegation.

184. However, the COPS Event reports that have been disclosed to the applicant clearly indicate that when she attended Katoomba Police Station, she was “confused, believing that the incident was in relation to argument that she had with the owner of a black vehicle. Police clarified that Silver Toyota Corolla. (She) stated that she had no recollection of being in a collision with (the damaged vehicle), stating that she would not reverse park where the incident occurred due to the trees located there”.

185. In my view, the applicant’s denial that any incident occurred and her assertion that she would not have reverse-parked at the particular location because of the trees that were located there are inconsistent with her submissions in these proceedings that NSWPF’s failure to reveal the statements of the vehicle owner and witness to her at Katoomba Police Station “would have allowed (her) to have more clearly and appropriately respond to the allegation”. I reject that argument.

186. In any event, based on the Tribunal’s decision in Ugur, I am satisfied that the public interest consideration under cl 1(d) of the table to s 14(2) of the Act applies to this matter and that it should be given significant weight.

Clause 2(a)

187. The respondent argued that the witness to the incident was “an informant” within the normal meaning of the word because they provided information to the NSWPF. I accept Constable Tunks’ evidence regarding the importance of protecting the identity of witnesses to offences who provide information to the NSWPF and that revealing the identity of an informant would also prejudice the supply of information to the NSWPF more generally (see cl 1(d) above).

188. The respondent noted that there is an overlap between cll 1(d) and 2(a), both in this case and more generally, and it argued that the fact that the Act makes separate and specific provision for cl 2(a) in addition to cl 1(d) reflects the importance that Parliament gave to the protection of informants. This public interest consideration against disclosure should therefore be given very significant weight. The applicant disputed that submission.

189. Based on all of the evidence before me I am satisfied that cl 2(a) applies and that it should be given significant weight.

Clause 3(a)

190. The respondent argued that the confidential bundle of documents:

1. Contains personal information of members of the public other than the applicant in the form of names, contact details and opinions;

2. Contains information that is not available in the public domain and the provision of that information would therefore reveal information to the applicant within the meaning of Sch 4 of the GIPA Act;

1. The disputed information is not primarily the personal information of the applicant; and

2. This public interest consideration against disclosure is engaged and it should be given significant weight.

191. The applicant disputes this and argued that cl 3(a) is not engaged because:

1. The identifying information of the owner of the other vehicle has been passed on by the insurer;

2. The witness has already provided access to their identity through the note left on the windshield of the damaged car, which must have been in clear public view and it would have been available for all to see. It must have included the name and contact number of the witness as well as the allegation that a car with her registration number had been involved in a damaging incident and therefore anyone could have contacted the witness and asked for details;

3. The witness revealed their identity to the insurer and provided information in relation to the incident by telephone;

4. The fact that the witness’ identity and the substance of the information was not given in the first instance or only to the police, but to the car owner, the insurer and anybody who happened to be walking down Katoomba St on the morning of October 11, 2021, means that this is a very different situation from that considered in Camilleri. Therefore, the personal information of the witness was “in the public domain”.

192. The respondent refuted the applicant’s argument that cl 3(a) does not apply because the witness left a note on the windscreen of the damaged vehicle, as a note left on someone’s car is not intended to disclose information to the world at large.

193. In my view, the applicant’s argument regarding the note on the windscreen is based on speculation. There is no evidence before me that supports her argument and I am satisfied that while the witness disclosed information to the NSWPF and to the vehicle’s owner and to her insurer, the information in the note was not publicly disclosed.

194. The Appeal Panel observed that while cl 3(a) applies to this matter, and the witness’ statements contain personal information, there are parts of those statements that do not contain personal information. It is therefore necessary to consider whether the disputed information contains personal information for the purposes of cl 3(a).

Determination regarding the confidential bundle

195. I have summarised my views in relation to the redactions contained on each page of the confidential bundle as follows:

Page	Redacted information	Personal information – cl 3(a) Yes/No
1	Witness’ name	Yes
2	First redaction	Yes
2	Second redaction	No
2	Third redaction	Yes
2	Fourth redaction	Yes with respect to the address, date of birth and mobile telephone number. No with respect to the make, model and registration number of the vehicle.
2	Fifth redaction	Yes
3	First redaction	Yes
3	Second redaction	No
3	Third redaction	No
4	First redaction	Yes
6	First redaction	Yes
6	Second redaction	Yes
6	Third redaction	Yes
7	First redaction	No
7	Second redaction	No
9	First redaction	Yes
9	Second redaction	Yes
12	First redaction	Yes
12	Second redaction	Yes
12	Third redaction	Yes with respect to date of birth and mobile telephone number. No with respect to the registration number of the vehicle.
18	Paragraph 1	No
18	Paragraph 2	Yes
18	Paragraph 3	Yes in respect of the name of the vehicle owner. No with respect to the rest of the paragraph.
18	Paragraph 4	Yes in respect of the first 2 sentences. No with respect to the third sentence.
18	Paragraph 5	Yes in respect of the name of the witness in the third sentence. No with respect to the rest of the paragraph.
18.	Paragraph 6	No
19	Paragraph 1	No
19	Paragraph 2	Yes
19	Paragraph 3	Yes with respect to the name of the witness. No with respect to the rest of the paragraph.
19	Paragraph 4	Yes with respect to the second part of the first sentence. No with respect to the balance of the paragraph.
19	Paragraph 5	No.
20	Paragraph 6	Yes with respect to the first sentence. No with respect to the balance of the paragraph.
20	Paragraph 7	No
20	Paragraph 8	No.

196. In relation to the note on the windscreen, based upon the Tribunal’s decision in Marsden I am satisfied that this comprises personal information of the witness to which cl 3(a) applies.

Balancing the public interest

197. Based on the evidence before me I am satisfied that there is an overriding public interest against disclosure of the following disputed information:

Page	Redacted information	Relevant clauses
1	Witness’ name	Cll 1(d), 2(a) & 3(a)
2	First redaction	Cll 1(d), 2(a) & 3(a)
2	Third redaction	Cll 1(d), 2(a) & 3(a)
2	Fourth redaction	Cll 1(d), 2(a) & 3(a) with respect to the address, date of birth and mobile telephone.
2	Fifth redaction	Cll 1(d), 2(a) & 3(a)
3	First redaction	Cll 1(d), 2(a) & 3(a)
4	First redaction	Cll 1(d), 2(a) & 3(a)
6	First redaction	Cll 1(d), 2(a) & 3(a)
6	Second redaction	Cll 1(d), 2(a) & 3(a)
6	Third redaction	Cll 1(d), 2(a) & 3(a)
7	First redaction	Cll 1(d), 2(a) & 3(a)
9	First redaction	Cll 1(d), 2(a) & 3(a)
9	Second redaction	Cll 1(d), 2(a) & 3(a)
12	First redaction	Cll 1(d), 2(a) & 3(a)
12	Second redaction	Cll 1(d), 2(a) & 3(a)
12	Third redaction	Cll 1(d), 2(a) & 3(a) with respect to the date of birth and mobile telephone number.
18	Paragraph 2	Cll 1(d), 2(a) & 3(a).
18	Paragraph 3	Cll 1(d), 2(a) & 3(a) with respect to the name of the vehicle’s owner.
18	Paragraph 4	Cll 1(d), 2(a) & 3(a) with respect to the first two sentences.
18	Paragraph 5	Cll 1(d), 2(a) & 3(a) with respect to the witness’ name in the third sentence.
19	Paragraph 2	Cll 1(d), 2(a) & 3(a).
19	Paragraph 3	Cll 1(d), 2(a) & 3(a) with respect to the witness’ name.
19	Paragraph 4	Cll 1(d), 2(a) & 3(a) with respect to the second part of the first sentence.
20	Paragraph 6	Cll 1(d), 2(a) & 3(a) with respect to the first sentence.
21	The handwritten note	Cll 1(d), 2(a) & 3(a).

Conclusion

198. For these reasons, I am satisfied that the correct and preferable decision is to vary the reviewable decision (as varied on 26 April 2022) pursuant to s 63(3)(b) of the ADR Act.

199. I therefore make the following orders:

1. The reviewable decision (as varied on 26 April 2022), is varied such that the respondent is required to disclose the following information in the confidential bundle of documents to the applicant:

Page	Details
2	Second redaction
2	Fourth redaction with respect to the make, model and registration no. of the vehicle.
7	Second redaction
18	Paragraph 1
18	Paragraph 4 – third sentence only.
18	Paragraph 5 – with the exception of the witness’ name.
18	Paragraph 6.
19	Paragraph 1.
19	Paragraph 3 – with the exception of the witness’ name.
19	Paragraph 5.
20	Paragraph 6 – with the exception of the first sentence.
20	Paragraph 7.
20	Paragraph 8.

2. The reviewable decision is otherwise affirmed.

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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: 24 October 2023