Commissioner of Police, New South Wales Police v EG; EG v Commissioner of Police, New South Wales Police (GD)

[2004] NSWADTAP 10

Appeal Panel - Internal

CITATION:	Commissioner of Police, New South Wales Police -v- EG; EG -v- Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 10
PARTIES:	File Number 039047 APPELLANT Commissioner of Police, New South Wales Police RESPONDENT EG File Number 039056 APPELLANT EG RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	039047; 039056
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	01/28/2004
DATE OF DECISION:	03/30/2004
DECISION UNDER APPEAL:	EG -v- Commissioner of Police, New South Wales Police Service
BEFORE:	Chesterman M - ADCJ (Deputy President); Robinson MA - Judicial Member; Bolt M - Member
CATCHWORDS:	procedural fairness - procedural fairness - scope of findings
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023308
DATE OF DECISION UNDER APPEAL:	06/24/2003
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 GL v Director-General, Department of Education and Training [2003] NSWADT 166 JD v Director-General, NSW Department of Health [2004] NSWADT 7 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
REPRESENTATION:	APPELLANT/RESPONDENT C Capper, advocate RESPONDENT/APPELLANT In person
ORDERS:	1. The appeal by the agency is allowed; 2. The appeal by EG is dismissed; 3. Order no. 1 of the Tribunal, dated 24 June 2003, is set aside. The question dealt with in that Order is remitted to the Tribunal for reconsideration; 4. Order nos. 2, 3 and 4 of the Tribunal, dated 24 June 2003, are confirmed.

REASONS FOR DECISION

Introduction

1 In this case, two appeals have been lodged against a decision on a preliminary matter given on 24 June 2003 by the Tribunal, constituted by Magistrate N Hennessy, Deputy President (EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150). The Respondent, the Commissioner of Police, NSW Police Service (‘the agency’) appealed and the Applicant, Mr EG, lodged a cross appeal. The file numbers of these appeals are, respectively, 039047 and 039056.

2 At the time when these proceedings commenced, Mr EG was a police officer. He became aware through a request under the Freedom of Information Act 1989 that the agency had sent a letter relating to him to the Legal Practitioners Admission Board (‘the LPAB’). In an application under the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’) dated 23 October 2002, Mr EG requested an internal review of the agency’s conduct in supplying the information contained in the letter to the LPAB. He did not refer to any particular passage or passages in the letter.

3 As quoted in the Tribunal’s judgment, the text of an undated letter that the agency sent to the LPAB was as follows:

Dear Sir
Application by [Mr EG] for admission to the Legal Profession
I am aware that [Mr EG] is in the process of completing his final pre-admission studies at the College of Law and intends seeking as a solicitor sometime later this year.

[Mr EG] is a police officer currently under suspension.

There are several issues which I believe would impact on the assessment of whether he is a person of good fame and character. I though it appropriate to flag this with you.

Yours faithfully

Michael Holmes

Solicitor for the Police Service [emphasis in original]

4 In a letter dated 6 July 2003 to the Tribunal Registry, Mr Capper, advocate for the agency indicated that this was not the exact text of the letter sent. He enclosed a copy of the actual letter. It was dated 18 October 2001 and bore the signature of Mr Michael N Holmes, who was described as Service Solicitor, General Manager. The only difference between its contents and those of the letter quoted by the Tribunal was that its final sentence read as follows: ‘I thought it appropriate to bring these matters to your attention’.

5 In response to Mr EG’s application for an internal review, the agency notified him by a letter dated 19 December 2002 that it would take no action. The reason that it gave was that the information disclosed in the letter was not ‘personal information’ within the meaning of the PPIP Act.

6 Accompanying this letter were copies of two newspaper articles from a Sydney newspaper, the Daily Telegraph. They were dated 22 June 2001 and 15 August 2001. They contained references to Mr EG.

7 The relevant part of the first article reads: ‘A decorated police officer, suspended for almost a year after complaints were made against him claims he is being punished for doing his job properly.’ The article goes on to state that ‘[Mr EG] was suspended from duty on June 30 last year because of a “lack of confidence” in him…’ The second article states, in part, that: ‘[Mr EG] is on suspension with full pay after being threatened by [three members of the public]. . .’

8 On 23 December 2002, Mr EG filed an application with the Tribunal under s 55 of the PIPP Act for a review of the conduct of the agency. He alleged that the agency had disclosed personal information in contravention of one or more Information Protection Principles (IPPs) set out in Part 2 of the PIPP Act. In response to an instruction of the Tribunal’s form of Notice of Application to ‘briefly describe how the principle has been contravened by the Agency’, he wrote as follows:-

The agency has breached the I.P.P. by writing to the Legal Practitioners Admission Board, on or about the 10/10/01 advising that (1) I was a police officer currently under suspension, and (2) there are several issues that would impact upon the assessment of whether I am a person of good fame and character.
9 Following a planning meeting in February 2003, the parties agreed that the Tribunal should determine the preliminary question whether any of the information disclosed by the agency was ‘personal information’, as defined in s 4 of the PIPP Act. If the information was held not to be ‘personal information’, the agency would not have breached any relevant provision of the PIPP Act and the Tribunal would have no jurisdiction to review the agency’s conduct.

10 The parties also agreed that the Tribunal should deal with the preliminary question pursuant to s 76 of the ADT Act. This meant that it was determined ‘on the papers’ without an oral hearing, following the receipt of written submissions from the parties and from the Privacy Commissioner.

11 It is convenient to note here that, with the consent of the parties, the same procedure has applied in these appeals. The Privacy Commissioner was notified of the appeals and filed a submission.

Relevant legislative provisions

12 ‘Personal information’ is defined in s 4(1) of the PPIP Act, subject to a number of exclusions set out in s 4(3). The exclusions relied on by the agency are those contained in s 4(3)(b)(h) and (j). These provisions are as follows:-

(1) In this Act, ‘personal information’ means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(3) Personal information does not include any of the following: …

(b) information about an individual that is contained in a publicly available publication,

…

(h) information about an individual arising out of a complaint made under Part 8A of the Police Service Act 1990,

. . .

(j) information or an opinion about an individual’s suitability for appointment or employment as a public sector official, …

13 ‘Publicly available publication’ is defined in s 3 of the PIPP Act as not including ‘any publication or document declared by the regulations not to be a publicly available document for the purposes of this Act’. No regulations have been made pursuant to this provision.

14 Conduct that is reviewable by the agency, and subsequently by the Tribunal, is defined in s 52 of the PPIP Act. For present purposes, subsections (1) and (2) are relevant. These are as follows:-

(1) This Part applies to the following conduct:
(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

(2) A reference in this Part to conduct includes a reference to alleged conduct.
15 Internal review is provided for by s 53 of the PPIP Act. For present purposes, subsections (1) and (2) are relevant. These are as follows:-
(1) A person ( the applicant ) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(2) The review is to be undertaken by the public sector agency concerned.

16 The Tribunal’s jurisdiction to hear this matter arises under two statutory provisions. Under s 38 of the Administrative Decisions Tribunal Act (the ADT Act), the Tribunal has jurisdiction under an enactment, if the enactment so provides, to review a decision, or a class of decisions, made by an administrator in the exercise of functions conferred or imposed by or under the enactment. The provision conferring the jurisdiction exercised here is s 55 of the PIPP Act. Again, subsections (1) and (2) are the relevant parts:-
(1) If a person who has made an application for internal review under section 53 is not satisfied with:
(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

17 As required by s 55(6) of the PIPP Act, the Tribunal notified the Privacy Commissioner of Mr EG’s application. The Privacy Commissioner exercised its right of appearance.

The Tribunal’s decisions

18 In summary, the Tribunal’s decisions were that the information contained in the first and the third paragraphs of the agency’s letter to the LPAB, but not the information contained in the second paragraph, was ‘personal information’ within the meaning of s 4 of the PPIP Act. In consequence, the Tribunal held that it had no jurisdiction to review the agency’s conduct in disclosing the information contained in the second paragraph. It requested the Registry to relist the matter for a further planning meeting.

19 The agency appealed against the Tribunal’s decision in relation to the first paragraph. Mr EG appealed against its decision in relation to the second paragraph. We set out below the grounds for each of these decisions and the grounds of appeal. The issues raised in relation to each of the two relevant paragraphs of the agency’s letter will be considered separately.

The first paragraph

20 The Tribunal accepted the submission of Mr EG that the first paragraph of the letter disclosed personal information about him, making his identity apparent, and that it was not information in a publicly available publication. Noting that none of the other exemptions in s 4 applied to this information, the Tribunal concluded that it was ‘personal information’ within the meaning of s 4 of the PPIP Act.

21 The Tribunal stated in its judgment, at [11], that ‘the agency did not make submissions on this point presumably because they interpreted Mr EG’s application as being restricted to the second and third paragraphs of the letter’. Its own interpretation of the application was also that ‘Mr EG only referred to those paragraphs’. But it then held, also at [11], that:-

the Tribunal has jurisdiction under s 55(1) of the PPIP Act, to review “the conduct that was the subject of the application under section 53.” That conduct is the disclosure of the information in the letter to the LPAB.
22 In its appeal, the agency submitted that, in choosing to determine whether or not the first paragraph disclosed ‘personal information’ the Tribunal erred in law in two respects. These errors arose from its having extended, without due notice to the agency, the scope of its inquiry beyond the limits of the ‘definite and finite complaint’ made by Mr EG in his application.

23 In the agency’s submission, the Tribunal erred first through exceeding the permissible range of its inquiry. Nothing in the PPIP Act empowered it to expand this inquiry beyond the matters raised in Mr EG’s application to it.

24 Secondly, it failed to afford procedural fairness to the agency. It infringed, as the agency expressed it, the ‘fundamental rule of law… that a party must know the case against them prior to being required to attempt to answer these allegations’. The agency’s written submission included the statement that ‘during the course of the proceedings the allegations made against the Commissioner of Police were limited to [paragraphs 2 and 3 of the letter]’.

25 Formally, the limits of Mr EG’s application were clearly set in the paragraph from his application that we have quoted above, at [8]. Furthermore, he commenced his written submission to the Tribunal, which took the form of a letter to it dated 19 March 2003, by saying that he concurred with the submissions already filed by the Privacy Commissioner, of which he had received a copy, and therefore had ‘nothing further to add in support of’ his own submission. The submissions of the Privacy Commissioner did not refer to paragraph 1 of the agency’s letter to the LPAB.

26 Mr EG’s submission continued, however, as follows:-

I do however wish to note that the information contained in paragraph 1 of Mr. Michael Holmes ( sic ) letter to the Legal Practitioners Admission Board is NOT in any publicly available publication:
“I am aware that [Mr EG] is in the process of completing his final pre-admission studies at the College of Law and intends seeking as a solicitor sometime later this year”.
27 At the bottom of the submission, there appears the notation ‘cc NSW Privacy Commissioner’, followed by the Commissioner’s address. There is no indication on the submission, or on the Tribunal’s file in this case, as to whether a copy of the submission was served on the agency.

28 The agency’s written submission was forwarded to the Tribunal with a covering letter dated 27 March 2003. It referred to arguments, relating to paragraphs 2 and 3 of the agency’s letter to the LPAB, that had been made by Mr EG at the planning meeting in February 2003. It also addressed the arguments contained in the written submission of the Privacy Commissioner. It did not, however, refer to Mr EG’s written submission or to paragraph 1 of the letter to the LPAB.

29 In these circumstances, we cannot assume that the agency was aware of any desire on Mr EG’s part, such as seemed to be conveyed to the Tribunal in his written submission dated 19 March 2003, that his application should be extended to include an alleged breach of the PPIP Act by the agency by virtue of its writing to the LPAB in the terms of paragraph 1. As indicated above, the Tribunal made no mention of this aspect of the submission.

30 Even on the contrary assumption – i.e., that the agency was aware of this desire on Mr EG’s part when it prepared its written submission to the Tribunal – we would still be inclined to uphold its argument that the Tribunal erred in making a determination in relation to paragraph 1.

31 The grounds on which the Tribunal did so were, as indicated above, that Mr EG was entitled under s 55(1) of the PPIP Act to apply to the Tribunal for a review of the ‘conduct’ of the agency in writing the letter to the LPAB and the Tribunal therefore had ‘jurisdiction’ to review its conduct in including paragraph 1, even though in his application Mr EG referred only to the second and third paragraphs.

32 We agree that the effect of s 55(1) of the PPIP Act was indeed to bring within the potential scope of the Tribunal’s review the ‘conduct’ of the agency in sending to the LPAB the whole of the letter, not merely paragraphs 2 and 3. It is important here that in his request under s 53 for an internal review (see [2] above), Mr EG did not in fact confine his concerns to these two paragraphs. This disposes of any argument that the relevant ‘conduct’, for the purposes of his application to the Tribunal, could not embrace the communication of paragraph 1’s contents to the LPAB: cf JD v Director-General, NSW Department of Health [2004] NSWADT 7. Mr EG could clearly have included paragraph 1 in his original application to the Tribunal or in an amended application.

33 It is arguable that, in writing to the Tribunal in the terms set out in [26] above, he could be taken to have implicitly made such an amendment to his application. The Tribunal did not address this issue, which is quite distinct from the issue of whether it had ‘jurisdiction’ to deal with the application as so amended. Having regard to the fact that Mr EG was not legally represented, we would nonetheless be prepared to rule in his favour to this extent. In so ruling, we take account of dicta in two cases cited to us in the Privacy Commissioner’s submission. These are GL v Director-General, Department of Education and Training [2003] NSWADT 166 at [26] and JD v Director-General, NSW Department of Health [2004] NSWADT 7 at [37 – 38].

34 On this basis, we are inclined to reject the first of the two grounds of the agency’s appeal set out above at [22 – 24]

35 We have little hesitation, however, in concluding that the agency’s appeal in relation to paragraph 1 should be upheld on the second of these two grounds, namely, the Tribunal’s failure to have due regard to the need for provision of adequate notice to the agency of an extension of the review so as to include paragraph 1.

36 In a Tribunal which is not bound by formal procedural rules (see s 73 of the ADT Act), we would not go so far, as we have just said, as to insist upon a formal application having been made by Mr EG to extend the grounds of his initial application. But some communication from him and/or the Tribunal to the agency was required to make it clear that this extension had been sought and been granted. Even if a copy of his submission of 19 March 2003, containing the paragraph quoted above at [26], was in fact sent to the agency, we would still consider that the agency had not received adequate notice of both (a) his desire to extend the grounds of his application and (b) the Tribunal’s readiness to permit this extension.

37 On these grounds, we uphold the agency’s appeal. The Tribunal’s decision in relation to paragraph 1 of the agency’s letter to the LPAB must be set aside.

The submissions relating to the second paragraph

38 The second paragraph of the letter states simply that:

[Mr EG] is a police officer currently under suspension.
39 In its submission to the Tribunal and to the Appeal Panel, the Privacy Commissioner (‘the Commissioner’) argued that s 4 of the PIPP Act should be interpreted so as to give a broad meaning to ‘personal information’ and a narrow meaning to the exemptions from this definition, including s 4(3)(b).

40 According to the Commissioner, the correct way to interpret s 4(3)(b) was to confine it to information which was both contained in and sourced from a publicly available publication, in contrast to information which, though appearing in such a publication, in fact emanated from another source.

41 In the Commissioner’s submission, the exemption was included to address specific problems that might arise in applying the Information Protection Principles, having regard to the fact that agencies typically acquire information from a broad range of publications and sources and for a broad range of purposes. Its role was to facilitate the use by agencies of publicly available material. It permitted an agency, for instance, to acquire information about individuals from newspapers instead of from the individuals themselves, as would otherwise be required by s 9 of the PPIP Act. An agency could do this without having to notify the individuals concerned under s 10.

42 A proposition underlying this line of argument was that one or more factual allegations which were both contained in and sourced from a publicly available publication differed from the same allegations which, although to be found in such a publication, were in the particular case disclosed through some other form of communication. The Commissioner submitted that information derives its significance from both its content and the context in which it is held and communicated. The same or reasonably similar information could assume a different significance depending on the circumstances in which it was collected, used or disclosed.

43 To illustrate this point in its submission to the Tribunal, the Commissioner claimed that a name and address in a telephone directory conveyed different information to the same name and address held in the file of a child protection agency. It argued that while the ‘raw data’ are the same in these two communications, the different contexts convert these data into two different pieces of information. Using the same analogy, the Commissioner claimed that the relevant data about Mr EG, when appearing in a newspaper article, and the same data about him, when in an authorised communication from an employer, were two distinct pieces of information.

44 In this connection, the Commissioner submitted to the Tribunal and to the Appeal Panel that a communication from an employer has much greater authority than that from a newspaper report. This is because a communication from an employer is based on the employer’s own awareness of information relating to the employee and not on information obtained from the newspaper report.

45 In response, the agency argued in its submission to the Tribunal that there was no support for the interpretation advocated by the Commissioner within either the PIPP Act, the regulations or the extrinsic materials that might be consulted in interpreting the Act.

46 As to the meaning of ‘publicly available publication’, the agency submitted that the phrase should be given its usual grammatical meaning, that is, ‘any publication that is open to or accessible by the public by means of payment or otherwise’.

47 The agency pointed out also that the second reading speech for the PPIP Act and the relevant Hansard debate did not identify any alternative meaning to be given to the term. It submitted that the failure to qualify the term, to provide any other alternative meaning or to pass any regulation excluding publications such as daily newspapers provided a clear indication that the intention of Parliament was not to exclude such publications from the definition of ‘publicly available publication’.

48 Also in the agency’s submission was the argument that, if Parliament had intended to permit agencies to collect information from publicly available publications free from the constraints imposed by the PPIP Act, but to prohibit them from disseminating such information except in accordance with the Act, it would have expressly provided to this effect. This could easily have been done.

49 The agency cited several authorities in support of the proposition that, regardless of any policy implications, legislation which is free from ambiguity must be interpreted according to its plain and ordinary meaning. It quoted the following passage from the judgment of McHugh JA in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421:-

Where the text of the legislative provision which embodies the proposition is grammatically capable of only one meaning and neither the context, the purpose of the provision nor the general purpose of the Act throws any real doubt on that meaning, the grammatical meaning must be taken as representing Parliament’s intention as to the meaning of the law. A court cannot depart from the grammatical meaning of a provision because that meaning produces anomalies or injustices where no real doubt as the intention of Parliament arises.
The Tribunal’s decision in relation to the second paragraph

50 The Tribunal referred to a concession by Mr EG at a planning meeting that the information contained in the second paragraph had appeared in a publicly available publication, namely the Daily Telegraph (see [6 – 7] above). It stated however that, despite this concession, it must come to its own view on this question.

51 The Tribunal accepted the agency’s submission that the information disclosed in this publication was ‘information… contained in a publicly available publication’ within the meaning of s 4(3((b) of the PPIP Act and consequently was not ‘personal information’.

52 It expressed its agreement with the Privacy Commissioner’s submission that since the PPIP Act is beneficial legislation, s 4(1) should be interpreted broadly and the exclusions from the definition of personal information should be construed narrowly. It also accepted the Commissioner’s submission that meaning is gleaned from both the content and the context in which information or an opinion appears.

53 It held, however, at [25] that ‘the fact that information or an opinion may have a different significance depending on the context does not provide a legal basis for concluding that the exception in s 4(3)(b) does not apply’. Referring to Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421 per McHugh JA, it stated the principle that legislation must be interpreted according to its plain and ordinary meaning, regardless of any policy implications. It indicated that in its view the meaning of s 4(3)(b) was clear and unambiguous.

54 The Tribunal’s conclusion, at [25], was in the following terms:-

In this case the information which has been disclosed in the second paragraph of the letter, appears in a publicly available publication, namely the Daily Telegraph. The irresistible conclusion is that that this information is not “personal information” as defined in the PPIP Act.
55 The Tribunal added, at [26], the following comment:-
In my view the Privacy Commissioner has overstated the ramifications of such a conclusion for agencies. The fact that information or an opinion appears in a publicly available publication does not necessarily mean that the agency must disclose that information or opinion on request. The provisions of the Freedom of Information Act 1989 regulate the circumstances in which access must be given to information held by an agency.
56 At [27], the Tribunal pointed out that its conclusion relieved it of any necessity to consider whether the information in the second paragraph fell within any other exclusion in s 4(3) of the PPIP Act. It declared that it had no jurisdiction to review the agency’s conduct in disclosing that information.

Our conclusions regarding the second paragraph

57 In broad terms, we accept the submissions of the agency in relation to the second paragraph and we uphold the decision of the Tribunal. We would add the following observations to those contained in the Tribunal’s reasons.

58 Like the Tribunal, we cannot agree with the Privacy Commissioner’s proposition that the correct way to interpret s 4(3)(b) is to confine it to information which is both contained in and sourced from a publicly available publication. To exclude information which, though apparently replicated in such a publication, has in fact emanated from another source is, in effect, to add words to the simple and unambiguous statement made in the subparagraph. We agree with the agency’s submission that if Parliament had intended to exclude such information it could easily have added the necessary words.

59 As the Tribunal did, we agree with the Commissioner’s proposition that meaning is gleaned from both the content and the context in which information or an opinion appears. When, as in the present case, the same factual allegation appears in two very different forms of communication, the precise content of all the information conveyed may differ simply on account of the different contexts in which the allegation is made. But the Commissioner’s argument, as we understand it, is that in circumstances such as the present there is always such a difference. This produces the result for which the Commissioner contended, namely, that in interpreting s 4(3)(b) of the PPIP Act a factual allegation emanating from an agency must always be treated as conveying different information to the same allegation when it appears in a ‘publicly available publication’ such as a newspaper.

60 Our view is that in such situations the context, in the sense in which the Commissioner and the Tribunal used this term, may bear upon the precise content of the information, but will not necessarily do so. If it does, the exclusion set out in s 4(3)(b) will not apply because the information claimed by the relevant individual to be ‘personal information’ will not, in substance, be precisely the same information as is contained in the ‘publicly available publication’. The result will be along the lines urged by Mr EG and the Commissioner in this case. But it will follow from the plain meaning of the legislation, not from a policy-based interpretation that depends, effectively, on adding words to the legislation.

61 An example, mentioned above, on which the Commissioner relied, illustrates this point well. We would agree with the Commissioner that a name and address in a telephone directory conveys different information to the same name and address held in the file of a child protection agency. On account of considerations similar to those governing legal innuendo in a defamation case, the latter communication conveys an additional item of information of material significance, namely, that the person concerned is, or is suspected of being, dangerous to young children.

62 The identity and nature of a specific communicator of information do not always, however, add to or transform the information conveyed by a factual allegation in such an obvious manner. It is a matter of judgment in each case to determine whether this effect is present.

63 In the present case, the same factual allegation – that Mr EG was a police officer currently under suspension – appeared in two very different forms of communication, namely, a daily newspaper and a letter written by his employer. The Commissioner argued that the latter communication contained different information because it had greater authority than the former. It was based on the employer’s own awareness of Mr EG’s situation, not on whatever sources lay behind the newspaper report.

64 We would agree that the agency’s letter provided more substantial authority than the newspaper report for the allegation about Mr EG. But we do not think that in consequence of this alone it conveyed different information. In substantive terms, the information conveyed was the same in both instances – that Mr EG was a police officer currently under suspension.

65 For these reasons, we discern no error of law by the Tribunal in arriving at its decision regarding the second paragraph. Furthermore, it is the decision that we ourselves would have made.

The orders to be made

66 The outcome of these reasons is that the appeal by the agency must be allowed and the appeal by Mr EG must be dismissed. With regard to the former appeal, there is no need for us to consider the agency’s application for leave to extend it to a review of the merits.

67 In consequence, the first of the four orders made by the Tribunal, relating to the first paragraph of the agency’s letter to the LPAB, must be set aside. The question dealt with in that order is remitted to the Tribunal for reconsideration. The Tribunal’s second order, relating to the second paragraph, is affirmed. Its third order, relating to the third paragraph, was not challenged before us. Its fourth order, requiring the Registry to relist the matter for a further planning meeting, continues to be the appropriate one following the disposition of the appeal. At such a meeting, consideration may be given to the procedure for determining the question dealt with in the Tribunal’s first order.