Clancy v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 204

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Clancy v Commissioner of Police, NSW Police Force [2022] NSWCATAD 204

Hearing dates:

20 October 2021

Date of orders:

20 June 2022

Decision date:

20 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

1. The respondent’s decision dated 18 December 2020 is set aside to the following extent:

(a) the disputed redactions to the documents at Items 1, 3 and 5 of the Commissioner’s schedule are to be removed and those documents provided to the Applicant in a form consistent with the Tribunal’s findings no later than 28 days from the date of this decision;

(b) the documents at pages 20 – 26 and 29 – 32 only of the bundle of documents comprising Item 2 of the Commissioner’s schedule are to be released to the Applicant no later than 28 days from the date of this decision.

2. Publication of the confidential evidence filed by the respondent in these proceedings is prohibited.

3. Disclosure to the Applicant of the confidential evidence filed by the respondent in these proceedings is prohibited.

4. Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public.

5. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

6. Grant liberty to the parties to re-list this matter for the working out of these orders on three days’ notice.

Catchwords:

ADMINISTRATIVE LAW — Government Information (Public Access) — Grounds for refusing access — Balancing competing public interest factors for and against disclosure

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

AQJ v University of NSW [2013] NSWCATAD 306

Battin v University of New England [2013] NSWADT 73

Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80

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

Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48

Fire Brigade Employees’ Union v Fire & Rescue (NSW) [2014] NSWCATAD 113

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

Gene Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Ibrahim v Commissioner of Police (NSW) [2004] NSWADTAP 8

Leech v Sydney Water Corporation [2010] NSWADT 198

Mannix v Department of Education and Communities [2014] NSWCATAD 35

McCrystal v Commissioner of Police (NSW) [2020] NSWCATAD 122

McDonald v Ku-ring-gai Council [2022] NSWCATAD 17

Murphy v Broken Hill City Council [2015] NSWCATAD 135

Neary v State Rail Authority [1999] NSWADT 107

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Selby v Commissioner of Police (NSW) [2013] NSWADT 61

Smolenski v Commissioner of Police [2015] NSWCATAP 235

South Dural Residents and Ratepayers Group Inc v Roads and Maritime Services [2019] NSWCATAD 83

Taylor v Destination NSW [2017] NSWCATAD 272

Transport NSW v Searle [2018] NSWCATAP 93

Watts v Department of Planning and Environment [2016] NSWCATAD 42

UC v Commissioner of Police (NSW) [2005] NSWADT 272

Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231

DQN v University of Sydney [2019] NSWCATAD 159

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Natalie Clancy (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
J Parker, Executive Counsel, Nine (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2021/00132831

Publication restriction:

Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

REASONS FOR DECISION

Introduction

1. The Applicant, Ms Clancy is a journalist employed by the Nine Network. She seeks access to documents from the Respondent, the Commissioner of Police, NSW Police Force, pursuant a request made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. The hearing of this matter took place on 20 October 2021, however, at the close of hearing and at the request of the Tribunal, the Commissioner filed and served a further affidavit and Ms Clancy filed further brief submissions in reply on 13 December 2021.

Issue to be Determined

3. The role of the Tribunal in hearing the application for review is to decide the correct and preferable decision having regard to the material before it, including relevant factual material and the applicable law: Administrative Decisions Review Act 1997 (NSW), s 63(1).

4. There is one substantive issue to be determined; should Ms Clancy be given access to the information she has sought and which has been withheld by the Commissioner?

5. After considering the relevant facts and applicable law, the answer to that question is that some, but not all documents presently withheld should be released to Ms Clancy because there is an overriding public interest in favour of disclosure of that material outweighs the relevant public interest considerations against.

Evidence and Relevant Facts

6. On 9 February 2020 Ms Clancy made her original request under the GIPA Act to the Commissioner. The request sought disclosure of the following:

All documents relating to the investigation by NSW Police, particularly at Day Street Police Station, regarding an AVO sought by Lester Martin against Craig Stewart, including but not limited to investigator’s notes and correspondence between NSW Police and Lester Martin.

Any communications (including but not limited to letters, emails, notes) between John Laycock and/or Craig Murray in relation to that AVO application.

All documents relating to the criminal investigation into Craig Stewart on complaints by Lester Martin for putting him in fear of mental or physical harm, including but not limited to investigator’s notes and correspondence between NSW Police and Lester Martin.

Any communications (including but not limited to letters, emails, notes) with John Laycock and/or Craig Murray in relation to those criminal charges.

7. On 24 September 2020, Ms Clancy agreed with the Commissioner that the scope of her request for information was to be narrowed so that her request sought information in relation to:

(1)   the AVO sought by Lester Martin against Craig Stewart; and

(2)   the criminal investigation into Craig Stewart on complaints by Lester Martin for putting him in fear of mental or physical harm:

- Police notebook entries or duty book entries

- Event reports

- Investigator’s notes

- Case reports

- Charge sheets

- Fact Sheets

- Brief of evidence

- Any communications between John Laycock and/or Craig Stewart and NSW Police in relation to the AVO and the other criminal charges, as above.

- Correspondence between Lester Martin and NSW Police (letters, emails notes).

8. With her narrowed application, Ms Clancy included a completed form entitled “NSW Police Force Authority to Act on behalf of another Party” which was signed by Mr Stewart and dated 8 September 2020. The effect of that form was to authorise Ms Clancy to make a request under the GIPA Act to the Commissioner on behalf of Mr Stewart and to receive any personal information which might fall within the scope of that application.

9. On 4 November 2020, the Commissioner advised Ms Clancy that 112 pages of material had been identified as falling within the scope of the request. This material fell into four categories namely:

1. the event report, case report and AVPO (37 pages);

2. the court attendance notice and fact sheet (4 pages);

3. investigator’s notes, duty book (37 pages); and

4. email correspondence between Lester Martin and NSW Police (31 pages).

10. With respect to the above material, the Commissioner decided that, pursuant to the GIPA Act, s 58(1)(d) there was an overriding public interest against disclosure of the information sought and Ms Clancy did not receive any material responsive to her narrowed-down request.

11. On 24 November 2020, Ms Clancy sought an internal review of the Commissioner’s original decision refusing access. The basis for seeking internal review was stated by Ms Clancy on her application in the following terms:

Your decision describes Lester Martin as the “victim” when his case was found by the court to be spurious – he was not the “victim” of anything. You have said he was “taunted” by Craig Stewart – an allegation which was thrown out by the court and, in any event, a “taunt” (as opposed to a threat of violence) should not override the principles of openness of information laid out in the Act. There is nothing proven or even suggested in the investigation that Craig Stewart meant harm, serious harassment or serious intimidation against Mr Martin so I dispute that ground as well. I have no desire to access personal information on Mr Martin, or any other party, such as their address and contact details, and would be content if they were redacted from the documents before provision. Your refusal has also ignored the part of my request which was about communications between John Laycock and NSW Police, instead focusing on the part of my request relating to communications between Craig Murray and NSW Police.

12. The Tribunal was informed by Ms Clancy, in her submissions, that Mr Laycock was formerly an Assistant Commissioner of the NSW Police Force having retired in 2004 and that he had, for the past 17 years, acted as something called a “Policing Consultant”. There was some question as to whether Mr Laycock was a practising solicitor and what capacity he represented Mr Martin. The Tribunal requested further evidence at the conclusion of the hearing about this which was then the subject of brief submissions by Ms Clancy.

13. The internal review decision was notified to Ms Clancy on 18 December 2020. As a consequence of the internal review, some material was released to Ms Clancy.

14. Ms Clancy was dissatisfied with the Commissioner’s internal review decision and the extent of documents produced to her. She sought external review of that decision by the NSW Information and Privacy Commissioner (IPC).

15. The IPC is empowered under the GIPA Act, s 89 to conduct such a review and though the IPC’s decision is reviewable pursuant to the GIPA Act, s 80(d), Ms Clancy’s application does not seek that the IPC’s decision be reviewed by the Tribunal.

16. The IPC determined the external review on 14 April 2021. The effect of the external review was to support the Commissioner’s internal review decision in most respects but to recommend to the Commissioner that a new decision be made, pursuant to GIPA Act, s 93. The IPC considered some redactions and non-disclosures made determined by the internal review were not to justified.

17. Specifically the IPC stated, at paragraph 57 of its report, that Commissioner’s decision of 18 December 2020:

(a) is justified in relation to clause 1(d) [of GIPA Act, s 14 Table], except for pages 1 – 4 and 9 – 32 of the correspondence between it and John Laycock and Lester Martin;

(b)   is justified in relation to clause 1(e), except for:

(i)    information redacted from pages 21, 25 and 31;

(ii)    the first redaction on page 36;

(iii)   the first two redactions on page 46; and

(iv)   information redacted from pages 47, 49, 52, 53 , 55 and 66;

(c)   is justified in relation to clause 1(), except for redactions on pages 26, 27 and 57;

(d)    is justified in relation to clause 2(b) except for the redactions on pages 26, 27 and 57;

(e)    is justified in relation to clauses 3(a) and 3(b), except in relation to some of the redacted information on page 45.   

Evidence in the Proceedings

18. The Commissioner read, without objection, an affidavit of Detective Senior Constable Bowe dated 31 August 2021. DSC Bowe was not required for cross-examination.

19. DSC Bowe gave evidence about some context facts which are not in dispute, those facts were that:

1. An Interim and then a Final Apprehended Violence Order (AVO) was in place for the protection of Mr Martin in relation to Mr Stewart’s conduct.

2. Charges were brought against Craig Stewart in relation to an alleged breach of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in respect of some interacts Mr Stewart had with Lester Martin.

3. The charges brought against Mr Stewart were subsequently dismissed.

20. In her first affidavit, DSC Bowe gave evidence concerning her experience in in dealing with allegations and investigations into violent crime, and her observations arising from that experience that a high level of trust is required to be built up between investigating police and complainants and that information disclosed to police by complaints and others in the course of investigations may be jeopardised if that information and records of communications were to be released. DSC Bowe gave evidence of her concern that the release of personal information and communications between police and victims of crime could also reveal information which would lead to harassment and intimidation of witnesses – an evil itself and one which could exacerbate the unwillingness of witnesses and complainants to assist police with investigations. DSC Bowe’s evidence about these matters was given at a general level – there was no evidence from her to suggest that, in this particular case, the disclosure of communications would cause a loss of trust nor a reluctance to assist police and there was no evidence from DSC Bowe that disclosure generally would place in a position where they might be threatened, harassed or harmed.

21. A further affidavit from DSC Bowe was filed and served in December 2021 which was also read in the proceedings without objection. In her second affidavit provided after the hearing of this matter, DSC Bowe reveals that she in fact was the officer in charge of the investigation relevant to the above matters.

22. In her first affidavit, DSC Bowe’s stated that, in the course of dealing with the charges against Mr Stewart and the AVO, she had communicated by email with Mr Martin and another person, John Laycock, who DSC described in her first affidavit as being Mr Martin’s legal representative.

23. According to DSC Bowe’s further affidavit, she in fact understood Mr Laycock to be “a lawyer and assisting Mr Martin in relation to the investigation and court proceedings” and that Mr Laycock worked for a firm called Murphy’s Law.

24. As Ms Clancy’s supplementary submissions point out, DCS Bowe’s evidence concerning Mr Laycock’s role falls short of establishing the existence of a lawyer/client relationship between Mr Laycock and Mr Martin. This is particularly so given Mr Laycock’s other role as a “police consultant”.

25. The Commissioner filed with the Tribunal an unredacted copy of all the documents referred to by the IPC report as set out above. Those documents are subject to orders under GIPA Act, s 107 and the Civil and Administrative Tribunal Act 2013 (NSW), s 64. That material was tendered as a confidential exhibit during a confidential session of the hearing and is not to be disclosed. I have made orders accordingly below to ensure that the information filed by the Commissioner is protected and is not disclosed.

The Jurisdiction of the Tribunal

26. On 5 May 2021, Ms Clancy applied to this Tribunal for review of the Commissioner’s internal review decision of 18 December 2020. The application for review ostensibly seeks access only to those documents identified by the IPC as having been withheld on a basis which was not properly justified by the internal review decision.

27. On 25 August 2021, the Commissioner released some further material to Ms Clancy. The Commissioner’s decision to release additional material was made pursuant to the GIPA Act, s 8 and is not a decision which is reviewable by the Tribunal.

28. In her submissions, Ms Clancy also proposes that the Commissioner’s decision not to reconsider the request as recommended by the IPC is a matter which is also the subject of a review. With regard to this issue and in my respectful opinion, the text of GIPA Act, s 93 does three things;

1. firstly, it authorises the IPC to make a recommendation;

2. secondly it affords the agency a discretion as to whether or not to reconsider the decision previously made; and

3. thirdly, it provides a mechanism by which that reconsideration may occur and any rights to review such reconsideration.

29. There was no evidence before the Tribunal to establish that the Commissioner exercised his discretion not to reconsider the internal review decision pursuant to GIPA Act, s 93 in a manner inconsistent with the objects of the GIPA Act or which could otherwise be considered to be amenable to further review.

30. Absent a new decision under GIPA Act, s 93, the Commissioner’s decision of 18 December 2020 is that which is before the Tribunal for review. No practical matter arises from this however and, at hearing, Ms Clancy’s submissions were narrower and more precise with respect to the information and orders which she now seeks:

“… an order that she be granted access to documents and parts of documents in respect of which the [IPC] Review Report found that the Respondent’s decision not to provide access is not justified, and which the Respondent did not disclose to the Applicant in the Supplementary Decision.”

31. In effect, the commendable actions of both parties in releasing documents informally and further narrowing the balance of the material sought has resulted in the unresolved aspects of dispute between them coming down to 9 documents (or parts of documents) which I have summarised from the descriptions contained in Ms Clancy’s written submissions:

1. Items 1 and 2 of the Commissioner’s schedule comprise correspondence between the Commissioner, John Laycock and Lester Martin (and is the material identified by the IPC report at paragraph 57(a), being pages 1 – 4 and 9 – 32). The basis on which this material was not disclosed was that there was an overriding public interest against disclosure arising from the fact that such disclosure could be reasonably expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s function being the consideration set out at GIPA Act, s 14(2), Table Clause 1(d).

2. Item 3 of the Commissioner’s schedule comprises two redactions on page 21 – being an extract from a case report. The basis on which this material was not disclosed to Ms Clancy was said to arise from reliance on the public interest against disclosure and specifically that it could be reasonably expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency as set out at GIPA Act, s 14, Table Clause 1(e).

3. Item 4 of the Commissioner’s schedule is a document paginated as page 31. The document is an extract of entries from an event report recording actions taken and telephone calls made by police in the course of their investigation. As with Item 3, the basis on which this material was not disclosed to Ms Clancy was said to arise from reliance on the public interest against disclosure, specifically that disclosure could be reasonably expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such as way as to prejudice a deliberative process of government or an agency as set out at GIPA Act, s 14, Table Clause 1(e).

1. Item 5 of the Commissioner’s schedule is a document paginated as page 36. The material which is redacted is identical to that which has been redacted in the document at Item 3 of the Commissioner’s schedule and the same justification is relied upon by the Commissioner for this non-disclosure.

2. Item 6 in the Commissioner’s schedule was a document paginated as page 53. It contained redactions which concern details of another unrelated matter. At hearing and in her written submissions Ms Clancy properly did not press for disclosure of that information. Had Ms Clancy pressed for disclosure of that information, her application would have been unsuccessful with regard to this document since, on a plain reading of the unredacted material, it clearly refers to matters which are unrelated to and therefore beyond the scope of her request.

3. Items 7 and 9, 8 and 10 in the Commissioner’s schedule are copies of pages 26 and 27 respectively. There are two copies each of pages 26 and 27 forming separate items in the Commissioner’s schedule because the redactions on each page are made on two grounds. Each of these pages form part of a case report. The first basis for non-disclosure was that there was an overriding public interest against disclosure arising from the fact that the release of that material might prejudice the effective exercise of the Commissioner’s functions as set out at GIPA Act, s 14, Table Clause 1(e). The second basis for non-disclosure was that the release of this material may prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law as set out at GIPA Act, s 14, Table Clause 2(b).

4. Item 11 on the Commissioner’s schedule is a document paginated as page 45. The page is an extract from DSC Bowe’s police notebook. There is a redaction on the page of three words. The non-disclosure of these three words is said to be based on the public interest against disclosure and specifically that the disclosure may reveal personal information as set out at GIPA Act, s 14, Table Clause 3(a) and/or contravene an information protections principal as set out at GIPA Act, s 14, Table Clause 3(b).

32. In written submissions, Ms Clancy accepted that there was at least one public interest consideration against disclosure which might apply to each of the documents and/or redactions identified in the IPC report. The effect of her submissions, however, was that the Commissioner has not discharged the onus of demonstrating that such consideration outweighs the overriding interest in favour of disclosure of that information.

Law

Parties, Review and Onus

33. The Commissioner’s internal review decision of 18 December 2021 is a reviewable decision; GIPA Act, s 80(d) and Ms Clancy seeks administrative review of that decision pursuant to the GIPA Act, s 100.

34. As noted above, the Tribunal is to determine the correct and preferrable decision having regard to the material before it, including relevant factual material and the applicable law. The Tribunal’s task is to re-make the decision as if it were the administrator; McDonald v Ku-ring-gai Council [2022] NSWCATAD 17.

35. In so doing the Tribunal is required to ensure that it does not, within its reasons for decision or otherwise, disclose any information in respect of which there is an overriding public interest against disclosure; GIPA Act, s 107. To that end, the Tribunal;

1. received into evidence in confidential hearing a copy of the documents referred to in paragraph 57 of the IPC Report;

2. heard from the Commissioner in confidential session regarding those documents;

3. will not refer in any detail to the subject matter of the documents unless such detailed discussion is made subject to orders for non-publication and non-disclosure; Ibrahim v Commissioner of Police (NSW) [2004] NSWADTAP 8 at [28].

36. As the decision-making agency, the Commissioner bears the onus of establishing that its decision to refuse access to the information it has withheld is justified; GIPA Act, s 105(1).

The Presumptions in Favour and Against Disclosure

37. There exists a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure; GIPA Act, s 5.

38. A person who makes a valid application for access to government information has a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure; GIPA Act, s 9(1).

39. The presumption in GIPA Act, s 5 and the right created in GIPA Act, s 9 give effect to the object stated at GIPA Act, s 3(1)(c) which provides that access to government information should only be restricted where there is an overriding public interest against disclosure.

40. The finding of an “overriding public interest against disclosure” requires a balancing between considerations in favour and against disclosure; GIPA Act, s 13; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47].

41. GIPA Act, s 5 and s 12 recognise the significance of the presumption in favour of disclosure which applies without limitation, in every case. Such consideration should be accorded, therefore, “significant weight” when determining whether access to information should be granted; Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89]; Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [48].

42. The balancing of those considerations should favour disclosure; Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. The process is one of mechanistic tabulation; rather the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation”: Hurst v Wagga Wagga City Council at [94]; Battin v University of New England [2013] NSWADT 73 at [74]. The process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in the GIPA Act, s 15: Transport NSW v Searle [2018] NSWCATAP 93 at [104].

43. GIPA Act, s 14 sets out the considerations against disclosure. The only material where there is a conclusive overriding public interest against disclosure are described in the GIPA Act, Sch 1. There is no material in these proceedings to which a conclusive overriding public interest against disclosure applies. This case concerns the so-called other considerations that may be taken into account as set out in the Table in s 14 (the Table).

44. The determination of whether there exists an overriding public interest against disclosure also requires consideration of the matters set out in GIPA Act, s 15. Those principles are clear and do not require further elucidation.

45. GIPA Act, s 55, provides that the Tribunal can consider the Applicant's personal factors, including motives, for making the application. However, while the considerations in GIPA Act, s 55 can apply in favour of, or against, disclosure, they are relevant only to the effects referred to at clauses 2 to 5 of the Table; Smolenski v Commissioner of Police [2015] NSWCATAP 235 at [54] - [55]. In this case, the Commissioner relies on clause 2(b) of the Table in respect of the redactions to pages 26 and 27 and on clauses 3(a) and 3(b) in respect of the redactions to page 45 and hence it is only with respect to those matters that the Applicant’s personal factors are relevant to the Tribunal’s consideration.

“Could reasonably be expected”

46. The Tribunal is called upon to examine whether the effect, set out in a relevant clause of the Table, is established and then to ask whether the disclosure “could reasonably be expected” to have the specified effect; Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [30]. That phrase is to have its ordinary meaning and requires the decision-maker to determine as to whether it is reasonable to expect that disclosure would have the relevant effect. The word reasonable, in that context, means something that is not irrational, absurd or ridiculous; Transport for NSW v Searle [2018] NSWCATAP 93 at [68]. Something more than a mere risk or chance is required, there must be real or substantial grounds which are more probable than not; Leech v Sydney Water Corporation [2010] NSWADT 198 at [28]; Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited.

47. Meeting the clauses in the Table does not lead conclusively to a determination of an overriding public disclosure. The chapeau to clause 1 of the Table contained within the GIPA Act, s 14 is illustrative:

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

48. As to the evidentiary standard required, the Applicant referred to the decision of Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59] in which the Appeal Panel stated, after considering Searle and other authorities that:

Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1)    a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2)    there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3)    prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

The balancing of matters required under the GIPA Act

49. The Tribunal is required, in conducting the balancing analysis under GIPA Act, s 13, to have regard to the following matters:

1. the objects of the legislation contained in GIPA Act, s 3;

2. the presumption in favour of disclosure of government information as provided by, in particular, GIPA Act, s 5 and s 12 – those considerations to be given significant weight;

3. the considerations in s 14; and

4. to the principles set out in section 15 of the GIPA Act

to determine whether there is an overriding public interest against disclosure or whether the presumption in favour of disclosure prevails.

50. In determining Ms Clancy’s application, I have adopted the approach outlined in Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104], in setting out the competing public interest considerations for and against disclosure, attributing weight to each consideration and to determine the balance in the light of such weighting. Such approach is consistent with the objects and principles of the GIPA Act and summarised above at paragraphs 37-45 and also in Mannix v Department of Education and Communities [2014] NSWCATAD 35 at [7]-[10].

Considerations in Favour of Disclosure

51. At hearing the Commissioner acknowledged in his submissions that there existed some factors in favour of disclosure which were:

1. a general public interest in favour of disclosure under the GIPA Act, s 12(1) and that this was consistent with the statutory presumption pursuant to the GIPA Act, s 5; and

2. further that there is a public interest consideration in favour of disclosing withheld information to Ms Clancy in circumstances where the information includes personal information of Mr Stewart and Mr Stewart has expressly authorised the Commissioner to release that information to Ms Clancy.

52. Ms Clancy, in addition to the above factors and with the understandable rider that she has not had access to and therefore cannot properly assess the matter, stated in her written submissions that the following matters were factors in favour of disclosure:

1. That disclosure of correspondence between Mr Laycock and Commissioner (and his staff) may demonstrate the manner in which the Commissioner interacts with members of the public who formerly held positions of seniority with the NSW Police Force and that such interactions are different from the manner in which the Commissioner interacts with members of the public who do not have such a history.

2. The fact that the charges against Mr Stewart were ultimately dismissed on 25 August 2020 in the Local Court of NSW. A copy of the court’s record attached to Ms Clancy’s submissions shows the charges were “Dismissed – Not Guilty after hearing” on that date.

3. There is public interest in disclosing information which may demonstrate why police chose to investigate and charge Mr Stewart in the circumstances of Mr Martin’s complaint.

53. In addition to the objectives set out in the GIPA Act, s 3 and the matters identified by the parties, I consider the public interest considerations in favour of disclosure in this case are:

1. the disclosure of the information could reasonably be expected to enhance government accountability.

2. the disclosure of the information could reasonably be expected to contribute to a positive and informed debate on issues of public importance, namely the manner and extent to which the Commissioner and the NSW Police Force interact with persons representing complainants.

3. the disclosure of the information could reasonably be expected to contribute to inform the public about the operation of the NSW Police Force (noting of course the countervailing and relevant factors contained in the GIPA Act, s 14 Table).

Considerations Against Disclosure

54. The Commissioner relied on the public interest considerations against disclosure in respect of each of the documents in the manner summarised above at paragraph 31. I will now consider each of these public interest considerations as they apply to the documents which the Commissioner contends should not be disclosed. Some of the reasoning provided for this is the subject of a non-publication order, those paragraphs are marked accordingly.

Clause 1(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions

55. The Commissioner submits that this consideration applies to exclude Items 1 Items 1 and 2 of the Commissioner’s Schedule from further release.

56. The Commissioner’s submissions focused on the obvious and practical need for police to be able to receive information from the public and other sources confidentially and that the disclosure of these communications could impact upon the willingness of members of the public to communicate with police thus hampering the effective execution of police duties and investigations. Further, the Commissioner submits, there is a community expectation that communications between a victim of crime and the police will be confidential. DSC Bowe’s evidence was relied on extensively in this regard.

57. I accept that such a consideration does arise with respect to these documents for balancing with considerations in favour of disclosure; Gene Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [69], however with respect to Item 1 on the Commissioner’s schedule, I do not give this consideration great weight in the present case since the communications are of the kind which are not pertinent to an on-going investigation and contain no characteristic of a confidential communication specifically:

1. [NOT FOR PUBLICATION]

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

58. Accordingly, on the basis of the above findings, I consider that while the public interest consideration against disclosure in Clause 1(d) of the Table arises as asserted by the Commissioner in this matter, it should be given little weight.

59. With respect to the entirely of the documents at Item 2 of the Commissioner’s schedule, I consider that the public interest consideration against disclosure as set out under Clause 1(d) does arise however and for the following reasons, I give this consideration considerable weight with respect to pages 9 – 19 and pages 27 – 28 only:

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. [NOT FOR PUBLICATION]

Clause 1(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such as way as to prejudice the deliberative process of government or an agency

60. The Commissioner submits the redactions at items 3, 4, 5 and 6 of the Commissioner’s Schedule should not be disclosed because the redacted material records deliberations and observations made by police in connection with their investigation.

61. There are two elements to the consideration under Clause 1(e). Firstly, the information must reveal a deliberation, consultation, advice or recommendation – the internal thinking – of an agency; Fire Brigade Employees’ Union v Fire & Rescue (NSW) [2014] NSWCATAD 113. Secondly, the disclosure of that information must reasonably be expected to prejudice a deliberative process; South Dural Residents and Ratepayers Group Inc v Roads and Maritime Services [2019] NSWCATAD 83 at [42]–[47].

62. Further, I note that that where a process of deliberation has concluded, unless there is clear prejudice demonstrated (including as to future conduct – as the Tribunal found in Murphy v Broken Hill City Council [2015] NSWCATAD 135) on the evidence proffered by the respondent agency, it is unlikely that the onus can be discharged with respect to this consideration; Watts v Department of Planning and Environment [2016] NSWCATAD 42; AQJ v University of NSW [2013] NSWCATAD 306, McCrystal v Commissioner of Police (NSW) [2020] NSWCATAD 122.

63. The Commissioner submitted that the deliberative nature of the redacted material could reveal methods which would then cause an offender to take steps to evade or avoid. While I accept that this is an important consideration which could weigh heavily against disclosure, having reviewed the material to which the Commissioner asserts this consideration applies, I cannot see any likelihood of such a consequence arising and I do not consider the Commissioner has established, on the evidence before the Tribunal, that any prejudice would arise from the disclosure of this material. Specifically:

1. The document at Item 3 in the Commissioner’s schedule has two redacted paragraphs.

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. The second paragraph at Item 3 is substantially the same material as the redacted parts of page 31 (Item 4) and the redactions on pages 26 and 27 (Items 7 and 9, 8 and 10). The Commissioner relies on Clauses 1(f) and 2(b) with respect to those later items and it is, in my opinion, those considerations against disclosure which is more appropriate to be considered with respect to the second paragraph in Item 3.

2. While the basis for non-disclosure of Item 6 in the Commissioner’s schedule is stated to be Clause 1(e) to the Table at GIPA Act, s 14, at hearing I was informed that the proper basis for non-disclosure of the redacted material on page 53 was that the redacted material was unrelated to the request made by Ms Clancy and therefore should be excluded as it was outside the scope of her request per GIPA Act, s 74. As noted above, the Tribunal has reviewed the document and concurs with the Commissioner’s submissions at hearing - this information is outside of the scope of Ms Clancy’s request and should not be released and Ms Clancy did not appear to press for release of that material in any event.

Clause 1(f) prejudice the effective exercise by an agency of the agency’s functions

Clause 2(b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law

64. The public interest consideration against disclosure set out in clause 1(f) of the Table to GIPA Act, s 14 applies where an agency can establish that the release of information could cause prejudice to the effective exercise of one or more of its functions even where the information has not been provided to the Commissioner in confidence; Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48.

64. The public interest consideration against disclosure set out in clause 2(b) of the Table to GIPA Act, s 14 is to protect the effectiveness of methods used by law enforcement agencies in preventing, investigating or dealing with contraventions of the law including possible or alleged contraventions. The consideration is directed to preserving the integrity of policing methods. It is uncontroversial that there exists a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods: UC v Commissioner of Police (NSW) [2005] NSWADT 272 at [32]; Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231.

65. [NOT FOR PUBLICATION]

Clause 3(a) reveal an individual’s personal information

Clause 3(b) contravene an information protection principle under the Privacy and Personal Information Act 1998

67. The final document, being Item 11 in the Commissioner’s schedule is a document paginated with the number 45. Three words have been redacted on the basis that the material could reveal an individual’s personal information. Further, the Commissioner submits the disclosure of this material would contravene IPP 8 of the Privacy and Personal Information Protection Act 1998 (NSW). In oral submissions the Commissioner pointed out that, even where information may already be known to the applicant, this consideration still applied to revealing of material under the GIPA Act; DQN v University of Sydney [2019] NSWCATAD 159.

68. [NOT FOR PUBLICATION]

Is there an Overriding Public Interest Against Disclosure?

69. On the basis of my findings above;

1. The redactions on the document at Item 6 of the Commissioner’s schedule are outside the scope of Ms Clancy’s request and should not be disclosed.

2. There exists a public interest consideration against disclosure of the information in the documents forming Item 1 of the Commissioner’s schedule however I assign little weight to this consideration given the substance of the material as reviewed by the Tribunal in these proceedings. Telephone numbers and email addresses of persons who are not employees of the NSW Police Force should be redacted, but that is all.

3. There exists a public interest consideration against disclosure of the information in the documents forming Item 2 of the Commissioner’s schedule save for pages 29 – 32 of that bundle to which I have already determined that such a consideration does not arise. With respect to pages 9 – 19 and pages 27 – 28, I assign significant weight to this consideration given the substance of the material as reviewed by the Tribunal in these proceedings. I assign little weight to this consideration with respect to pages 20 – 26 of Item 2.

4. I attribute considerable weight to the public interest consideration against disclosure in respect of Item 3 and Item 5, though, as I have set out below, I nonetheless consider that, on balance, such consideration should not prevail over the considerations in favour of disclosure with regard to these items.

5. There exist public interest considerations against disclosure of information contained in Items 4, 7, 8, 9 and 10 of the Commissioner’s schedule on the basis that release of those documents may result in the disclosure of information provided to the agency in confidence. I assign some weight to this when balancing the competing considerations in favour of and against disclosure.

6. There does not exist any public interest considerations against disclosure with respect to the information contained in Item 11 of the Commissioner’s schedule.

70. I have set out at paragraphs 51, 52 and 53 above those considerations in favour of disclosure which I consider are relevant in this case.

71. Having regard to the considerations both for and against disclosure as set out above and the principles set out in the GIPA Act, s 15, I have concluded that, on balance, the public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure, and applying s 13 of the GIPA Act, there is an overriding public interest in favour disclosure of the information contained the following items should be disclosed to Ms Clancy:

1. Item 1 pages 1 – 4 (see orders below requiring the Commissioner to redact telephone numbers and email addresses before release),

2. Item 2, pages 20 – 26 and 29 – 32

3. Item 3, and

4. Item 5.

72. Similarly, having regard to the considerations both for and against disclosure as set out above and the principles set out in the GIPA Act, s 15, I have concluded that, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, and applying s 13 of the GIPA Act, there is an overriding public interest against disclosure of the information contained in Items 2 (pages 9 – 19 and 28 – 28) 4, 7, 8, 9, 10 and 11 of the Commissioner’s schedule and thus that material should not be released.

73. As noted above, the redacted information in the document at Item 6 of the Commissioner’s schedule is outside the scope of Ms Clancy’s request and is not to be released. The Tribunal notes that Ms Clancy did not appear to press for release of this document in any event.

Conclusion

74. Accordingly, and for the reasons set out above, I find that the decision of the Commissioner dated 18 December 2020 should be set aside to the following extent:

1. the disputed redactions to the documents at Items 1, 3 and 5 should be removed and those documents provided to Ms Clancy in a form consistent with the Tribunal’s findings (i.e. email addresses and telephone numbers of persons not employed in the NSW Police Force);

2. the documents at pages 20 – 26 and 29 – 32 only of the bundle of documents comprising Item 2 are to be released to Ms Clancy;

3. the documents identified as Items 2 (pages 9 – 19 and 28 – 28) 4, 7, 8, 9, 10 and 11 of the Commissioner’s schedule is not to be released.

75. The documents to be provided to Ms Clancy are to be released to Ms Clancy without the disputed redactions no later than 28 days from the date of this decision. Such period of delay is consistent with GIPA Act, s 107.

Orders

76. Accordingly, I make the following orders:

1. The respondent’s decision dated 18 December 2020 is set aside to the following extent:

1. the disputed redactions to the documents at Items 1, 3 and 5 of the Commissioner’s schedule are to be removed and those documents provided to the Applicant in a form consistent with the Tribunal’s findings no later than 28 days from the date of this decision;

2. the documents at pages 20 – 26 and 29 – 32 only of the bundle of documents comprising Item 2 of the Commissioner’s schedule are to be released to the Applicant no later than 28 days from the date of this decision.

2. Publication of the confidential evidence filed by the respondent in these proceedings is prohibited.

3. Disclosure to the Applicant of the confidential evidence filed by the respondent in these proceedings is prohibited.

4. Pursuant to Civil and Administrative Tribunal Act2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public.

5. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

6. Grant liberty to the parties to re-list this matter for the working out of these orders on three days’ notice.

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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: 20 June 2022