Danis v Commissioner of Police, NSW Police Force

[2020] NSWCATAD 138

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138
Hearing dates:	19 February 2020 and written submissions by 19 March 2020
Date of orders:	25 May 2020
Decision date:	25 May 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Wall, Senior Member
Decision:	(1)   The decision of the respondent dated 15 August 2019 to refuse access to a copy of the DVD and transcript of the DVD is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – Government Information (Public Access) – whether to exercise discretion to refuse to deal – whether functions exercised under the GIPA Act in good faith – public interest considerations against disclosure – whether information was given in confidence – whether prejudice to the supply of confidential information –personal information – whether information disclosed in family law proceedings has been revealed – whether disclosure exposes a child to a risk of harm or of serious harassment or serious intimidation – best interests of the child – public interest considerations in favour of disclosure – public interest in transparency and accountability – whether disclosure of DVD could reveal or substantiate allegations of police misconduct or unlawful conduct – personal factors of the application – weight of evidence – balancing of public interests – overriding public interest against disclosure
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Family Law Act 1975 (Cth) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	AH & SS [2005] FamCA 854 Applicants v Commissioner of Police [2015] NSWCATAD 22 Attorney General’s Department v Cockcroft (1986) 10 FCR 180; [1986] FCA 3 Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68 Commissioner of Police v Camilleri [2012] NSWADTAP 19 Commissioner of Police v Danis [2017] NSWCATAP 7 Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 Danis v Commissioner of Police [2017] NSWCATAD 144 Director General, Department of Education and Training v Mullett (GD) [2002] NSWADTAP 13 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114 Ermel v Department of Finance and Services [2013] NSWADT 183 Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 Gilleland v Commissioner of Police, NSW Police Force [2018] NSWCATAD 68 Hall v Department of Premier and Cabinet [2012] NSWADT 46 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Macquarie University v Howell (No 2) [2009] NSWADTAP 19 McKinnon v Secretary, Department of Treasury [2006] HCA 45 McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 Miskelly v Transport for NSW [2017] NSWCATAD 75 Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277 Richards v Commissioner, Department of Corrective Services (New South Wales) [2011] NSWADT 98 Scott v Scott [1913] AC 417 Simming v Commissioner of Police [2009] NSWSC 270 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Transport for NSW v Searle [2018] NSWCATAP 93 Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 170 YG and GG v Minister for Community Services [2002] NSWCA 247 Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139
Texts Cited:	Queensland Supreme and District Courts Criminal Directions Benchbook: Closed Court Exceptions to the General Rule of Openness
Category:	Principal judgment
Parties:	Emil Danis (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Applicant (Self Represented) Sparke Helmore Lawyers (Respondent)
File Number(s):	2019/00258041
Publication restriction:	Nil.

REASONS FOR DECISION

Introduction

1. Before me is an application by Mr. Emil Danis (“Mr. Danis”) for administrative review under the Government Information (Public Access) Act 2009 NSW (“the GIPA Act) of the decision of the Commissioner of Police, NSW Police Force (“the Commissioner”) to refuse to release a DVD electronic recording and written transcript of an interview between officers of the New South Wales Police Force (“NSWPF") and Mr. Danis' (then) 10-year-old son in relation to an alleged assault of the child by the partner of Mr. Danis' former spouse (for ease of reference in this Decision, I shall refer to both the information recorded on the DVD and transcript as “the DVD”). The Commissioner’s decision to refuse access to the DVD was made on 15 August 2019 (“the reviewable decision”).

Relevant Background

2. The material facts relevant to this application are derived from the parties’ evidence, written submissions and the chronology of events described in the decision of the Appeal Panel in Commissioner of Police v Danis [2017] NSWCATAP 7, and by the Tribunal in Danis vCommissioner of Police [2017] NSWCATAD 144 (“the second Danis decision”).

3. On 14 March 2014, Mr. Danis' son (then aged 10 years) (“the son” or “the child”) alleged that he was assaulted by his mother’s partner.

4. Mr. Danis and his son reported the alleged assault to the Police on 15 March 2014.

5. On 12 June 2014, the police interviewed the son in relation to the alleged assault. The interview was recorded electronically on a DVD.

6. On 8 July 2014, the NSWPF notified Mr. Danis that their investigation into the alleged assault against his son had been terminated, that no charges would be laid, and that no further action would be taken.

7. At the time of the alleged assault, Mr. Danis was involved in contested legal proceedings before the Family Court of Australia (“FCoA”) with his former wife over parenting arrangements for the son and the other child of the marriage.

8. On 8 May 2015, Mr. Danis made his first access application to the Commissioner for a copy of the DVD recording (and other documents which have subsequently been produced) under the GIPA Act (“the first access application”).

9. On 6 July 2015, the Commissioner originally refused to release the DVD, as the Appeal Panel noted in Danis (at [10] – [17]) as follows:

[10] It refused to release the DVD, on the basis that there was, within the meaning of s 13 of the GIPA Act, an overriding public interest against disclosure of the document as there were public interest considerations against disclosure which, on balance, outweighed the public interest considerations in favour of disclosure. The reasons referred in particular to the protection of the privacy of the interviewee and other persons referred to in the DVD, and the prejudice that would result to the agency’s ability to obtain confidential information that facilitates the effective exercise of the agency’s functions, especially from police informants. The applicant exercised his statutory right to have the adverse determinations reviewed by the Information Commissioner.

[11]    The Information Commissioner recommended (5 November 2015) that the agency redetermine its part refusal of record 072 and its refusal of a copy of the DVD of the police interview.

[12]    When the applicant lodged his application for review with the Tribunal (on 18 November 2015) the agency had yet to take any action in relation to the Information Commissioner’s recommendation. It took no further action in the months that followed.

[13] At a preliminary conference on 24 May 2016, the Tribunal formally remitted the matter for reconsideration by the agency, under s 65 of the Administrative Decisions Review Act 1997 (ADR Act). (Omitted)

[14]   The agency issued a ‘Supplementary Decision’ on 31 May 2016 (Tab 3, Annexure G of the agency’s appeal bundle). The agency decided to release the second event report (‘072’) in full.

[15] It refused to deal with the request for the DVD, in exercise of its discretion under s 60(1)(d) of the GIPA Act. (Omitted).

[16]    The agency’s exercise of discretion is reviewable by the Tribunal: see s 80(e).

[17]    It will be seen that the Supplementary Decision differed from the original decision in its approach. On the earlier occasion, the agency had not relied on this objection. Instead it had made, as explained, a substantive decision to refuse access after weighing the public interest considerations for and against release of the DVD.

10. Following an order by the Tribunal remitting the first access application for reconsideration, the Commissioner issued a supplementary decision dated 31 May 2016 in which he stated:

“The NSWPF is refusing to deal with this part of your access application because the information requested has been the subject of a subpoena for production of documents to the Family Court of Australia (Ref No Sub/2014/5524 – copy attached) and is available to you as a result of having been produced in compliance with the subpoena, as stated in your application dated 8 May 2015.”

11. At the time Mr. Danis made his first application to the Commissioner for access to the DVD on 8 May 2015, he had access to the DVD on an inspection only basis in the FCoA pursuant to a subpoena that had been issued on 26 November 2014 at his request.

12. As noted at [12] in the Appeal Panel’s decision on 18 November 2015, Mr. Danis commenced proceedings in the Tribunal to appeal the Commissioner's original decision (on 6 July 2015) to refuse to release the DVD under s 58(1)(d) of the GIPA Act on the public interest ground arising under cl 3(b) of the table in s 14 ("the first review application").

13. As the Appeal Panel also noted, between the commencement of the first tribunal application on 18 November 2015 and the hearing of the first review application on 12 July 2016 the Commissioner had issued his supplementary decision refusing access to the DVD under s 60(1)(d) of the GIPA Act.

14. On 12 July 2016, the Tribunal set aside the Commissioner’s decision to refuse to deal with the application, and ordered the Commissioner to disclose the DVD information. Subsequently, the Commissioner commenced an appeal against the Tribunal’s decision which was heard by the Appeal Panel on 8 November 2016. On 10 January 2017, the Appeal Panel set aside the Tribunal’s decision and ordered that the matter be remitted to a differently constituted Tribunal to consider the Commissioner’s refusal to deal with the application under s 60(1)(d) of the GIPA Act.

15. On 9 May 2017, a differently constituted Tribunal confirmed the Commissioner’s supplementary decision to refuse to deal with the application under s 60(1)(d) as the correct and preferable decision; the second Danis decision.

16. On 15 July 2019, Mr. Danis submitted his current (second) access application to the Commissioner for a copy of the DVD.

17. On 15 August 2019, the Commissioner refused to release the DVD. He applied clause 1(d) and (g) and clause 3 (a), (f) and (g) of the Table to section 14 of the GIPA Act as public interest considerations against disclosure which (in his assessment) outweighed the general public interest consideration in favour of disclosure.

18. On 19 August 2019, Mr. Danis commenced these proceedings in the Tribunal for administrative review of the Commissioner's decision to refuse to release the DVD.

19. On 18 December 2019, the Commissioner filed an affidavit and submissions defending the proceedings and opposing the release of the DVD. In addition to the public interest considerations against disclosure relied upon in the reviewable decision, the Commissioner relied upon s 60(1)(b) of the GIPA Act to refuse to deal with Mr. Danis' access application on the basis that he had refused a previous request.

20. The hearing was held in this matter on 19 February 2020. At the conclusion of the hearing, the Tribunal made orders that the Commissioner file and serve additional submissions addressing various matters that arose during the proceedings by 5 March 2020 and that Mr. Danis file any additional submissions in reply by 19 March 2020. Both parties complied with the Tribunal’s orders.

The Issues

21. The first issue that needs to be determined in these proceedings is whether the Tribunal should, by operation of section 60(1)(b) of the GIPA Act, refuse to deal the access application, because the Commissioner has already dealt with and refused an earlier application for access to the same or substantially the same information.

22. The second issue that arises is, if the Tribunal finds that the discretion under s 60(1)(b) is not engaged or should not be exercised in this matter, whether the Commissioner was justified in refusing to release the information on the basis that there is an overriding public interest against the disclosure of the information pursuant to clause 1(d) and (g) and clause 3 (a), (f) and (g) of the table to s 14. In order to answer that question, the Tribunal needs to determine whether the DVD information, if released, would give rise to a public interest against disclosure on the ground that:

1. Clause 1 (d) disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

2. Clause 1 (g) disclosure could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

3. Clause 3 (a) disclosure could reasonably be expected to reveal an individual’s personal information,

4. Clause 3 (f) disclosure could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation,

5. Clause 3 (g) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed.

23. The third issue relates to Mr. Danis' repeated claim that the Commissioner has used the public interest considerations under the GIPA Act to refuse access to the DVD in order to conceal NSWPF misconduct. That in effect will require the Tribunal to decide whether there is any evidence to support an allegation that the NSWPF has failed to exercise the functions under the GIPA Act in good faith.

24. The fourth issue is to identify the public interest considerations in favour of disclosure of the information that are relevant to the release of the DVD.

25. The fifth issue is to determine whether the public interest considerations against disclosure of the DVD claimed by the Commissioner outweigh the public interest considerations in favour of disclosure.

Statutory framework and legal principles

26. The statutory scheme and applicable legal principles in relation to applications under the GIPA Act are well established. In the decision of Miskelly v Transport for NSW [2017] NSWCATAD 75, Senior Member Leal considered and helpfully summarised the principles in an application for release of information under the GIPA Act (at [12]-[27]) as follows:

12. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) -

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)   authorising and encouraging the proactive public release of government information by agencies, and

(b)   giving members of the public an enforceable right to access government information, and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

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

14. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).

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

16. Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -

Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a)    Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability, or contribute to positive and informed debate on issues of public importance.

(b)    Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)    Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)    The information is personal information of the person to whom it is to be disclosed.

(e)    Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

17. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides -

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

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

- identify relevant public interest considerations in favour of disclosure,

- identify relevant public interest considerations against disclosure,

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

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

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

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

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

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

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

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

20. The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the GIPA Act. Section 14(2) provides that -

The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

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

22.    The words "could reasonably be expected to" are to be given their ordinary meaning: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 and Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words -

... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.

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

it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect.

24.    (Omitted) ….

25.    (Omitted)

26. Furthermore, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by s 105 of the GIPA Act. (s 105 (1))

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

27. In determining whether there is a public interest in favour of disclosure, an agency is entitled to take the personal factors of the application into account: s 55(2) of the GIPA Act.

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

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

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

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

(c)   any other factors particular to the applicant.

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

29. Balancing the competing public interest considerations under s 13 of GIPA Act, is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation” (Hurst v Wagga City Council [2011] NSWADT 307 at [70]). The Appeal Panel has recently stated in Transport for NSW v Searle [2018] NSWCATAP 93 at [104], that while the process in s 13 of the GIPA Act requires a broad value judgment to be made, it is not made in a vacuum, but having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act.

30. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]) that does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Attorney General’s Department v Cockcroft (1986) 10 FCR 180; [1986] FCA 35 at [106].

31. Under s 60 of the GIPA Act, an agency may refuse to deal with an application as follows:

60 Decision to refuse to deal with application

(1)    An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

…

(b)    the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

32. The Tribunal's task on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179.

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

34. The time at which the Tribunal is to determine the correct and preferable decision is the time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The Commissioner’s Evidence

35. The Commissioner relied on the affidavit evidence of Detective Sergeant Ferns sworn on 17 December 2019. Detective Ferns is the Team Leader of the Child Abuse and Sex Crimes Squad of the North West Metropolitan Child Abuse Unit.

36. Detective Ferns materially deposed, based on his experience as to the investigation of allegations of child abuse as follows:

1. He has personally investigated approximately 200 child abuse cases and supervised more than 1000 such cases including sexual abuse cases.

2. When a witness is interviewed or provides a statement, they are made to understand that the information provided will be treated confidentially, that their evidence would not be openly discussed with people not involved in the investigation, and will not be disclosed unless the matter proceeds to a criminal prosecution.

3. He believed that the making of an assault complaint is often traumatic for the victim.

4. Many victims are reluctant to confide in and cooperate in child abuse cases because they fear embarrassment, reprisals, and a negative impact on the family.

5. To secure the cooperation and trust of a victim of assault, the police investigator must build a high level of trust, “an extraordinary amount of rapport” and to assure the victim that the information they provide will be kept confidential.

6. It was his belief that if police were unable to assure victims that their information would be treated confidentially, they could not secure their trust and cooperation, victims would not be willing to speak to police and that this would severely and adversely affect the police’s ability to investigate child abuse cases.

37. In relation to his evidence about the risk of harm to Mr. Danis' son if the DVD was to be released, Detective Ferns said that it is the view of the investigating officers that Mr. Danis may use this information against his son. Detective Ferns made it clear in his affidavit that his evidence is based on the views of the investigating officers recorded in the Computerised Operational Policing System (“COPS”) Reports.

38. Under cross-examination by Mr. Danis, Detective Ferns:

1. Confirmed that his evidence is based on his review of the COPS records as well as his general experience in the investigation of alleged assaults of children and that he had limited knowledge about the details of this matter.

2. Acknowledged that he had not undertaken a review of the investigation or the conduct of the officers who investigated the alleged assault and that he had not viewed the DVD of the police interview with Mr. Danis' son.

3. Admitted that he had not seen the material in Mr. Danis' affidavit or submissions filed in these proceedings. Detective Ferns was then shown a copy of Mr. Danis' affidavit and taken to a part of the interview of the alleged assailant and his criminal record as well as photographs of his son's injuries.

4. Rejected Mr. Danis' suggestion that based on the material shown to him during cross-examination, that there was sufficient evidence to lay charges against the alleged assailant.

5. When challenged about his expertise to give evidence in this matter, he responded that the matters on which he has commented fall within his area of expertise and experience as deposed in his affidavit.

6. When asked to give specific examples of investigations in which a witness has not been assured an interview will be kept confidential, he responded that it is his experience that a victim would not be willing to give evidence under those conditions.

7. When it was put to Detective Ferns that there was no confidence in the NSWPF because of reported widespread corruption, he said that was not the case.

8. Did not resile from his evidence that there is a risk of harm to Mr. Danis' son if the DVD was released.

39. The Commissioner also tendered a copy of his decision on the first access application dated 6 July 2015, which is marked as exhibit “COP 1”.

Mr. Danis' evidence

40. Mr. Danis provided written submissions dated 28 October 2019, an affidavit and submissions in reply both dated 28 January 2020, and in accordance with the Tribunal’s directions at the conclusion of the hearing, additional submissions in reply dated 19 March 2020. The material filed by Mr. Danis is a combination of asserted facts, evidence, and submissions. These documents need to be read together to understand the grounds on which Mr. Danis' refutes the public interest considerations applied by the Commissioner to withhold the release of the DVD and the public interest considerations he contended militate towards disclosure. Mr. Danis also tendered an extract of a judgment from the FCoA (page 22 of Reasons) marked as exhibit “ED 1” and a bundle of media releases dated 3 and 4 February 2020 marked as exhibit “ED2”. The Commissioner did not cross-examine Mr. Danis.

41. Mr. Danis' submissions, both oral and written, make repeated reference to his allegations and accusations that the officers of the NSWPF involved in the investigation of his son’s alleged assault are guilty of serious misconduct and the falsification of police records. He referred to the documents annexed to his affidavit as proof of the misconduct and unlawful conduct alleged. Subject to one short qualification, allegations about the conduct of the NSWPF and irregularities in the conduct of investigation are not among the issues for determination by this Tribunal. That qualification concerns, as I will explain later in these reasons, whether the disclosure of the DVD and transcript could reasonably be expected to reveal or substantiate the police misconduct that Mr. Danis alleges.

42. I will consider the material Mr. Danis relied upon in relation to each of the issues below.

Consideration and Findings

Issue 1: Refuse to Deal under s 60(1)(b)

43. The first issue to be determined is whether the Tribunal should exercise its discretion under s 60(1)(b) of the GIPA Act to refuse to deal with Mr. Danis' current access application for access to the DVD.

Parties’ submissions

44. In his original written submissions and initially at the hearing, the Commissioner submitted that he had previously refused Mr. Danis' first access application relying on the public interest grounds under cl 3(a) of the table in s 14 and that there were no reasonable grounds for believing that he would make a different decision on the current application. In his notice of decision on the current application dated 15 August 2019, the Commissioner refused access to the DVD applying the same public interest consideration in cl 3(a) - among other public interest grounds – to justify his original decision (dated 5 July 2015) on the first access application.

45. In his additional written submissions the Commissioner, responding to Mr. Danis' submissions that the Commissioner had in fact refused to disclose the DVD in relation to his first access application under s 60(1)(d) of the GIPA Act -on the basis that Mr. Danis (then) had access to the information under a subpoena issued by the FCoA – and not on public interest grounds, submitted that it is the substantive outcome that needs to be the same and not the reasons for that decision. The Commissioner relied on the decision in Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 170 (at [40]) in support of this submission that it is the decision, and not the reasons for the decision, that is relevant in determining whether there are reasonable grounds for believing he would make a different decision.

46. The Commissioner then contended that it would be an appropriate exercise of the discretion conferred under s 60(1)(b) to refuse to deal with the current access application having regard to systemic considerations, identified by the Appeal Panel in Danis, as the efficient administration of the GIPA Act and the avoidance of wasteful deployment of limited resources. The Commissioner submitted that the NSWPF received 5349 applications in 2018-2019 and receives the largest number of GIPA applications on an annual basis. He submitted that the need for efficiency and the avoidance of wasteful deployment of resources must carry significant weight and militated towards exercising the discretion under s 60(1)(b).

47. As against that, Mr. Danis submitted that the information he requested in his first access application is not the same or substantially the same information that he has requested in the current application because he did not seek access to the transcript of the police interview in his first application. Mr. Danis also submitted that there are reasonable grounds for believing the Commissioner would make a different decision on his current application because the reason he relied on to refuse his original application no longer exists. That is, he no longer has access to the DVD under the subpoena issued in the family law proceedings. He also submitted that the circumstances considered by the Tribunal in Turner can be distinguished from the current matter on the basis that, in that case, the applicant had submitted a very broad application for documents, whereas, in the current matter, Mr. Danis sought access only to two documents.

48. In relation to the systemic considerations identified by the Commissioner, Mr. Danis submitted that it is the Commissioner’s decision to refuse his access applications, which have been reviewed by the NSW Information Commissioner and litigated before the Tribunal on three previous occasions, that has caused the wasteful deployment of resources and inefficiencies in the administration of the GIPA Act. He also submitted that the objects of the GIPA Act would be promoted if the DVD was released.

Consideration

49. Two requirements must be established for the discretion under s 60(1)(b) of the GIPA Act to operate. The first requirement is that the agency has already decided a previous application for the information concerned in the present application, or information that is substantially the same as that information. The second requirement is that there are no reasonable grounds for believing that the agency would make a different decision on the application. Once the discretion under s 60(1)(b) is engaged, the Appeal Panel in Danis has set out the factors and circumstances that would ordinarily be relevant to the exercise of the discretion, at [43] – [45] as follows:

43. Section 60 is designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)).

44. Provisions like this work to the benefit of access applicants who only have a GIPA Act application as their means of getting access to government information of interest to them. They tend also work to the benefit of first-time or new applicants over repeat applicants.

45. For these reasons, it can be said that the objectives of the GIPA Act are advanced, in particular, the object set out at s 3(2)(b):

It is the intention of Parliament:

…

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

50. As to the first requirement, I accept the Commissioner’s submissions that the transcript is a written transcription of the police interview of Mr. Danis' son taken from the DVD. There is no evidence that the transcript contains any additional information or that the information recorded in the transcript differs materially from the information recorded on the DVD. I am satisfied that the Commissioner refused Mr Danis’ first access application for the same or substantially the same information, although for different reasons, and that that is the same decision he has reached on the current application. Accordingly, the first requirement has been made out.

51. As to the second requirement, while there is some force in Mr. Danis' submission that the 'no reasonable grounds' test in s 60(1)(b) cannot be determined without a consideration of the reasons underlying that decision, I do not consider it necessary, because of the decision I have reached on whether to exercise the discretion, to determine whether the facts in the present case can be distinguished from Turner. The key difficulty with the Commissioner's submission on the ‘systemic' considerations in this case is that the Commissioner would not avoid the costs and deployment of limited resources in deciding the merits of the case. This is so because he has already given careful consideration to, and made a formal decision on the current access application refusing access to the DVD, applying the public interest considerations against disclosure under the table in s 14 of the GIPA Act. I do not consider in those circumstances that the efficiency and wasteful deployment of resources can be given much weight.

52. It follows, that I decline to exercise the discretion under s 60(1)(b) to refuse to deal with the current access application.

Issue 2a: Prejudice the future supply of confidential information: cl 1(d) of the table

53. The next issue to be determined is whether the public interest consideration in cl 1(d) of the table in s 14 of the GIPA Act applies because disclosure of the DVD could reasonably be expected to prejudice the supply to the NSWPF of confidential information that facilitates the effective exercise of the Commissioner’s functions.

Parties’ submissions

54. The Commissioner submitted that releasing the DVD would result in the disclosure of information that was provided to the NSWPF in confidence. According to the evidence of Detective Ferns, a police officer who interviews a witness about a criminal offence would assure a witness that their evidence would be received in confidence and would not be disclosed to any third party unless the matter was prosecuted in the courts. Detective Ferns also deposed that the ability of the NSWPF to obtain statements from victims of alleged assault would be adversely affected and their investigation of these crimes would be significantly diminished if the complaints were not kept confidential. The Commissioner submitted, relying on the decision of the Appeal Panel in Danis, that even though Detective Ferns was not involved in the investigation of the Danis matter, an assessment of whether witness statements were provided in confidence and whether disclosure would prejudice the effective exercise of the core functions of the NSWP is to be determined at “a broader operational level” rather than “considerations connected with the particulars of the instant situation”.

55. On the other side, Mr. Danis submitted that Detective Ferns’ affidavit does not establish to the requisite standard that his son’s complaint to the NSWPF was provided on a confidential basis. He submitted that Detective Ferns had no involvement in the investigation, had not undertaken a review of the investigation and had not viewed the DVD. He further submitted that Detective Ferns was not qualified to give evidence either as to the particular aspects of this case or, at a broader level, as to the conditions under which the NSWPF receives and treats information from victims of the alleged assault. Mr. Danis also contended that his son was fully aware that his father would have access to the documents recording his interview with the police. He also submitted that Detective Ferns’ evidence does not establish that disclosure would reasonably be expected to cause detriment to the cooperation of future victims with police investigations. Relying on the Tribunal’s decision in Applicants v Commissioner of Police [2015] NSWCATAD 22, he submitted that there is nothing in Detective Ferns’ evidence to show “that he has been involved in any investigations in which interviewees have not been assured their interviews will be kept confidential” and that in the absence of such evidence, the Tribunal cannot be satisfied that there would be any prejudice or impairment to the NSWPF’s ability to obtain complaints from victims of assaults in the future. He further submitted that there is no evidence that the NSWPF would not be able to secure the trust and cooperation of future witnesses because there is no public confidence in the NSWPF in any event. Mr. Danis relied on various NSW Ombudsman investigations and other regulatory hearings, as well as the media reports tendered as exhibit “ED2” into alleged police misconduct in support of this contention.

Consideration

56. In McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53, (at [42]) the Tribunal held that this public interest consideration has three requirements as follows:

(a)   the information facilitates the effective exercise of the Respondent's functions;

(b)   the information is confidential; and

(c)   disclosure of the information could reasonably be expected to prejudice future supply of confidential information to the Respondent.

57. The relevant principles to be applied in considering cl 1(d) have been the subject of extensive consideration by the Tribunal including in the following authorities.

58. In Commissioner of Police v Camilleri [2012] NSWADTAP 19 (at [26] and [37]) the Appeal Panel considered that s 14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government". The Appeal Panel also stated (at [34]) that whether the information is "confidential information" is to "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". The Tribunal "should focus on the point of receipt, and the administrative standards and community understandings which surround it".

59. In Miskelly v Secretary, Department of Education at [37], the Tribunal concluded that it is not necessary to show that there is an express obligation or understanding about the information being obtained in confidence as this can be inferred from the circumstances in which the information was obtained. In deciding whether or not the information is confidential the informants may have been advised that it would be treated confidentially, or they may have a reasonable expectation that it would be treated in that way.

60. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel stated:

“In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.”

61. “Prejudice" under the GIPA Act is to be given its ordinary meaning, that is, " to cause detriment or disadvantage " or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

62. In Director General, Department of Education and Training v Mullett (GD) [2002] NSWADTAP 13 at [58], in Camilleri at [26]-[29] and in Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52] the Tribunal has repeatedly held that in considering whether or not there would be a prejudice to the supply of confidential information the test is not to ask whether it would reasonably be expected that a particular person considering disclosure may refuse to supply such information but rather whether the agency’s general ability to obtain such information in the future would be likely to be prejudiced.

63. I now turn to consider whether the Commissioner has established that the public interest consideration in cl 1(d) applies to the DVD.

64. In determining whether the information recorded on the DVD is confidential, I accept the Commissioner’s submissions that I am required to assess this requirement at a broad operational level rather than “considerations connected with the particulars of the instant situation”. This conclusion is supported by the reasoning in Camilleri at [26] and [37].

65. I am satisfied, contrary to Mr. Danis' submissions, that the evidence given by Detective Ferns is within his expertise. Detective Ferns has held a number of senior positions within the NSWPF and has personally investigated over 200 child abuse cases and supervised over 100 child abuse cases, predominately sexual abuse cases. Based on his extensive experience in investigating child abuse cases, and as a supervisor, I am satisfied that he is qualified to give evidence as to the sensitivity of communications between victims of assault and police and that he is qualified to explain the circumstances in which the NSWPF receives and treats information from victims of assault.

66. I reject Mr. Danis' submissions that Detective Ferns is an unreliable and evasive witness who under cross-examination did not answer the questions put to him directly and truthfully and gave evidence that was rehearsed. Mr. Danis listed several matters in his additional submissions in reply as impacting on Detective Ferns’ credit. I do not propose to outline the particular categories of attack on Detective Ferns’ evidence in these reasons. Overall, I found Detective Ferns to be a straightforward witness who answered the questions and propositions put to him by Mr. Danis during cross-examination in a direct and logical way. Nothing said in cross-examination leads me to doubt his evidence. While Mr. Danis was dissatisfied with some of Detective Ferns' responses during cross-examination that does not render his evidence false or unreliable. I will consider the weight to be given to Detective Ferns’ evidence in relation to each of the public interest considerations separately below.

67. I am persuaded on the basis of Detective Ferns’ evidence that, in his experience, information given to the NSWPF by a child in relation to allegations of assault would be received and treated in confidence and is confidential in nature. As the Appeal Panel in Camilleri noted at [34] the enquiry “should focus on the point of receipt, and the administrative standards and community understandings which surrounded it”.

68. I accept Detective Ferns’ evidence that, in the context of child abuse cases, complainants would be assured at the time they provide their information to the NSWPF that the information would be kept confidential and that it would not be disclosed unless required in criminal proceedings. There is considerable support for Detective Ferns’ evidence and the Commissioner’s submissions in relation to the confidentiality of information given to the police in the context of criminal investigations in the authorities: Simming v Commissioner of Police [2009] NSWSC 270 at [69].

69. I do not accept Mr. Danis' submissions that there is no obligation or understanding of confidence in relation to the police interview because his son knew and expected that the information would be provided to Mr. Danis and used in the family law proceedings. I can deal with this submission shortly. In the first place, notwithstanding Mr. Danis' submission to the contrary, there is no evidence in his affidavit which establishes his son's understanding or knowledge that the contents of his interview would be used in the family law proceedings or shared with his father. Mr. Danis made that contention in his submissions but that is not evidence of the facts asserted. Indeed, according to Mr. Danis' notes from his inspection of the DVD in the family law proceedings (at page 115 of his affidavit), his son did not want the contents of the interview to be disclosed unless, as the investigating officer suggests in the interview, the matter ended up in court. In the second place, the NSWPF would not be relieved of their obligation of confidence simply because Mr. Danis' son chose to discuss the contents of the police interview with his father. In the third place, Mr. Danis' son was a child aged 10 years at the time of the police interview, and was not, in my view, capable of giving his consent to the disclosure of the information.

70. I now turn to my assessment of whether disclosure could prejudice the future supply of confidential information to the NSWPF that facilitates the effective performance of its functions. I am persuaded, based on Detective Ferns’ evidence, that the NSWPF depends on the trust and cooperation of victims and witnesses of assault and that the disclosure of information given to them in confidence could reasonably be expected to inhibit victims or witnesses coming forward to police in the future. I am also persuaded that the trust and willingness of victims or witnesses of assault to come forward with confidential information to the NSWPF facilitates the core functions of the police in detecting and investigating criminal assaults.

71. I reject Mr. Danis' submission that the disclosure of the DVD would not adversely affect the willingness of people to report criminal assaults because there is no public trust in the NSWPF. Mr. Danis put this proposition to Detective Ferns in cross-examination. In his response, Detective Ferns said that was not his experience and rejected the proposition. I accept Detective Ferns’ evidence. Contrary to Mr. Danis' submissions, there is no evidence of a crisis of community confidence in the NSWPF.

72. Nor do I accept Mr. Danis' submission that the Commissioner's evidence that the disclosure of the information could reasonably be expected to prejudice the future supply of confidential information is deficient because there is no evidence that Detective Ferns had been involved in investigations in which complainants had not been assured that their interviews would be kept confidential. Mr. Danis placed particular emphasis at the hearing on the Tribunal’s decision in Applicants (at [96] - [101]) in support of his submission that evidence of this kind is required to establish that the future supply of confidential information would be prejudiced. Mr. Danis submitted that Detective Ferns’ evidence that future victims would be reluctant to cooperate with investigative processes falls short because it was based on his opinion as to the likelihood that people will behave in a certain way but not based on his experience of investigations where there were no assurances of confidentiality.

73. In my opinion, Mr. Danis' proposition is stated too broadly. There is nothing in the reasoning in Applicants which requires such evidence to establish the reasonable likelihood of impairment in every case. Each case turns on its facts. There is also a relevant distinction between the circumstances under consideration in Applicants and the present matter. These proceedings concern complaints of criminal assault made by a victim who is not under any legal obligation to cooperate with the police or disclose information relating to an assault. That contrasts with the circumstances in Applicants which concerned a complaint under Part 8A of Police Act 1990 (NSW) alleging police misconduct. The Commissioner contended in that case that the disclosure of a complaint about police misconduct would restrain or inhibit an officer’s willingness to fully and frankly provide similar information in the future. The Tribunal disagreed, noting that police are required to provide information to an investigation about their conduct “fully and honestly” (at [99]). Having regard to those circumstances, the Tribunal was not persuaded that the disclosure of a complaint about police misconduct would restrain or inhibit an officer’s willingness to fully and frankly provide similar information in the future. As I have already observed, that is very different to the circumstances in this matter where there is no legal obligation to cooperate or provide information to police.

74. As to the third requirement of cl 1(d), I am satisfied that it is a core function of the NSWPF to investigate and take enforcement action in relation to cases of child abuse and assault and that disclosure could reasonably be expected to prejudice (or impair) the effective exercise by police of their investigative and law enforcement functions.

75. It follows that, in my opinion, the Commissioner has established that the public interest consideration in cl 1(d) of the table in s 14 of the GIPA Act is a relevant consideration that militates against the disclosure of the DVD.

Issue 2(b): breach of confidence and disclosure of confidential information: cl 1(g) of the table

76. The next issue to be determined is whether the release of the DVD could reasonably be expected to result in the disclosure of information provided to the NSWPF in confidence. For the reasons I have given above, I am satisfied that the son’s interview with the police recorded on the DVD was given in confidence. That information would be disclosed for the purposes of the GIPA Act if it was: made available, released, or access provided to the information: (see definition of disclose in cl 1 of Schedule 4 of the GIPA Act). It follows that I am satisfied that disclosure of the DVD could reasonably be expected to result in the disclosure of information provided to the Commissioner in confidence.

Issue 2(c): reveal an individual’s personal information: clause 3(a) of the table

77. The next public interest consideration against disclosure on which the Commissioner relied is cl 3(a) of the Table, that “disclosure of the information could reasonably be expected to reveal an individual’s personal information”.

Parties’ submissions

78. Mr. Danis submitted the personal information relating to his son has already been revealed because the DVD was played in open court in the family law proceedings during the period 23-27 July 2018 and also referred to in the FCoA’s reasons for judgment. Mr. Danis referred the Tribunal to the decision in Richards v Commissioner, Department of Corrective Services (New South Wales) [2011] NSWADT 98 (at [37]), in which the Tribunal stated at [37]:

As the information was disclosed in open court, certain consequences follow. Because the information has already been publicly revealed, release under the GIPA Act could not be reasonably expected to reveal the complainant's personal information: see the definition of reveal (cl 1, Sch 4). As a result, the public interest against disclosure in 3(a) of the Table to s 14 cannot be relied on as a ground for refusing disclosure.

79. Mr. Danis annexed an extract of the reasons for judgment from the family law proceedings to his affidavit (at page 136) in which the Court noted that: “the father played in court part of the police record of interview with (the son) about the events of 14 March 2014 (from Question 185 to the end; about 48 minutes).” Mr. Danis contended, however, that the entire DVD was disclosed in open court. He submitted that if the Commissioner contested this fact, he bears the onus of proving that the DVD was not revealed in open court, referring again to the decision in Richards at [40] where the Tribunal stated that:

The effect of s 105(1) is to place the burden, of establishing that a decision with respect to an access application is justified, on the agency. In circumstances such as the present, that burden includes establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not.

80. As against this, the Commissioner submitted that there was no proof that the entire DVD had been played in open court in the family law proceedings but even if it had been, it had not been ‘publicly disclosed’ or revealed because of the prohibition on the publication of any identifying information to the public under s 121 of the Family Law Act 1975 (Cth) (“FLA”). The Commissioner acknowledged, however, that family law proceedings were heard in ‘open court' under s 97 of the FLA '. The Commissioner also submitted that the personal information (recorded on the DVD) had not been revealed in the written judgment of the FCoA, because the Court’s decisions were published using a pseudonym. In other words, the identity of the parties, and the child, were not publicly disclosed. The Commissioner also submitted that while Mr. Danis had inspected the DVD under the subpoena issued in the family law proceedings, it had not been publicly disclosed and accordingly had not been revealed: Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 at [63], [64], and [69].

81. In reply, Mr. Danis submitted that there was no basis for reading into the principle of open court in s 97 of the FLA the limitations on publication imposed by s 121. Put simply, the identifying information disclosed in open court is publicly disclosed and, applying the reasoning in Richards, revealed for the purposes of the GIPA Act.

Consideration

82. The first question is whether the DVD includes ‘personal information’ about Mr. Danis’ son that could be revealed if publicly disclosed. I do not understand there to be any real dispute between the parties on this issue. Although I have not viewed the DVD or the written transcript of the police interview, I am satisfied, based on the material before me, that the DVD includes personal information that identifies the child and sensitive information concerning his family life: see the definition of ‘personal information’ in Schedule 4, cl 4(1) of the GIPA Act and para [1.2] of GIPA Guideline 4: Personal Information as a public interest consideration under the GIPA Act issued by the NSW Information and Privacy Commission.

83. The next question is whether the child’s personal information has already been revealed because: firstly, the DVD of his interview with the police was played in open court in the family law proceedings; and secondly, because there is a reference to that information in the reasons for judgment issued by the FCoA.

84. I am sufficiently satisfied on the material before me that the DVD has been played in open court in the family law proceedings. Mr. Danis submitted the entire DVD was played in open court although the judgment annexed to his affidavit records that only part of the DVD was played. Bearing in mind the burden referred to s 105(1) of the GIPA Act and the reasoning in Richards at [40], in my opinion, Mr. Danis squarely raised in his submissions and his evidence that the DVD was played in open court in the family law proceedings and the Commissioner has not demonstrated that it was not played.

85. As to whether the personal information that was played in open court in the family law proceedings has been revealed for the purposes of the GIPA Act, I agree with the Commissioner’s submission that for information to be revealed, it must have been publicly disclosed, revealed to others publicly, or disclosed to the public at large: Field at [63], [64] and [69] (per the Appeal Panel) and Gilleland v Commissioner of Police, NSW Police Force [2018] NSWCATAD 68 at [69]. Reveal is defined in Schedule 4 clause 1 of the GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)." I also accept Mr Danis’ submission that the Tribunal’s decision in Richards is particularly apposite in this matter. In Richards, the Tribunal determined (at [37] and [41]) that personal information contained in a 'Queensland Police Service Court Brief' that had been publicly disclosed in open court in the Queensland Magistrates Court, in the usual course of events, had been revealed for the purposes of the GIPA Act.

86. The real issue it seems to me is whether the principle in Richards can be distinguished from the facts and circumstances before me in this matter. The principle has been endorsed and applied by the Tribunal in a number of decisions. In my view, the reference in Richards to ‘publicly disclosing information in open court, in the usual course of events' embraces both the disclosure of the information to those members of the public who were present in court, and could hear what was being said but also to the disclosure of that information to the world at large. That conclusion is consistent with the principle that judicial proceedings must be conducted in an open court to which the public and the press have access: Scott v Scott [1913] AC 417. This principle is reflected in the Queensland Supreme and District Court Benchbook (March 2017 Amendments) of closed court exceptions to the general rule of openness, which provides as follows: “The openness of our courts is a fundamental principle of our judicial system. It is generally taken for granted that court proceedings are open to the public and may be freely reported.” There is no reason to think that the same principles do not apply to proceedings in the Queensland Magistrates Court. There is no reference in Richards to the existence of any suppression order or non-publication order which had been made by the Queensland Magistrates Court or any statutory provisions that prohibited the reporting of the matters disclosed during the hearing. Adopting this approach is also consistent with the principle that a release under the GIPA Act is a release to the whole world that cannot be subject to any conditions or restrictions: s 15(e) and s 73 of the GIPA Act; Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 440.

87. Different considerations operate in relation to family law proceedings. While the proceedings are generally held in open court under s 97 of the FLA and those present in court can hear the names of the parties and witnesses and any other personal information to which reference is made during the proceedings, s 121 prohibits the publication or dissemination beyond the courtroom, to the public at large, of an account of the proceedings which identifies the parties or those related to them. In AH & SS [2005] FamCA 854, the Family Court of Australia considered the policy behind s 121, in which Chief Justice Bryant said (at [26]-[27]):

[26] Section 121 of the Act was inserted into the Family Law Act upon its inception. It is commonly accepted that when the Family Law Act was enacted, section 121 was placed in the Act to overcome prurient reporting that had occurred prior to the passing of the Family Law Act in relation to parties who were involved in divorce proceedings.

[27] Initially the court was a closed court, but subsequent amendments to the Act made the court open so that members of the public were free to attend and listen to, and observe the proceedings. What they were not permitted to do however, by virtue of section 121, was to publish an account of the proceedings which identified parties or witnesses in the manner that I have described.

88. Returning to the present matter, in my view, Richards can be distinguished because of the very different nature of the proceedings and legal framework in which the information was disclosed. While the DVD was disclosed in the court room in the family law proceedings, the public at large (that is to say, those outside the courtroom) would not have access to the identifying information because of the restriction on publishing and reporting that information imposed by s 121 of the FLA. Having regard to these circumstances the DVD has not, in my view, been revealed for the purposes of the GIPA Act.

89. I also accept the Commissioner’s submission that the personal information (recorded on the DVD) has not been revealed in the written judgment of the FCoA, because the Court’s decision was published using a pseudonym. The parties were referred to by a surname which is not their own and the child was referred to in the body of the judgment in an anonymised way. Because of this, the child’s personal information has not been publicly disclosed to the world at large.

90. It follows, that the public interest consideration in cl 3(a) is a relevant consideration that weighs against the disclosure of the DVD.

Issue 2(d): risk of harm or serious harassment or serious intimidation – cl 3(f) of the table

91. The Commissioner’s next submission is that, pursuant to cl 3(f) of the table, disclosure of the DVD “could reasonably be expected to expose a person to a risk of harm or serious harassment or serious intimidation".

Parties’ submissions

92. The Commissioner makes a general submission that the NSWPF does not allow parents to sit in when interviewing a child about potential abuse to avoid that child fearing any punishment or reprisal. He further submitted that the release of the DVD could expose Mr. Danis' son to reprisals from family members that could reasonably be expected to have a detrimental effect on his psychological and emotional wellbeing. According to Detective Ferns’ evidence, the investigating officers have serious concerns that Mr. Danis may use the information recorded in the DVD against his son exposing him to a real risk of harm. He submitted that this consideration should be given significant weight.

93. On the other side, Mr. Danis submitted that the Commissioner has failed to provide any direct or specific evidence that he has harmed his children. He submitted that Detective Ferns’ evidence is based on the assessments of the investigating officers who were not called by the Commissioner to give evidence. He also submitted that the investigating officers are guilty of serious misconduct and that their opinions that the children were at risk of harm are unreliable and unsupported by any objective facts. He further submitted that it is the police who have exposed his son to a risk of harm by not properly investigating and prosecuting the alleged assailant.

Consideration

94. In DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114, Senior Member Blake SC reviewed and summarised a number of authorities that have considered cl 3(f) of the table as follows:

77.   It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]; Miskelly at [94].

78. “Harm”, “serious harassment”, and “serious intimidation” are not defined in the GIPA Act. Their meaning received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered: AEZ at [89]; Miskelly at [95].

79.   As to "harm", the Tribunal has held that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. A detrimental effect may be to a person's physical, psychological, or emotional wellbeing: AEZ at [85]; Miskelly at [96]. Mere discomfort or tension is not ordinarily enough: Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Miskelly at [105].

80.   As to “harassment”, the Tribunal has held that “harassment” requires a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and is concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. The assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment: AEZ at [89]; Miskelly at [98].

81.    As to “intimidation”, the Tribunal has held that “intimidation” is closely related to the concept of "harassment" and is "to make timid, or inspire with fear, overawe, cow": AEZ at [91]; Miskelly at [99].

82.   The requirement that the "intimidation" or "harassment" be "serious" means the decision-maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient": AEZ at [94];.Miskelly at [100].

95. I now turn to the Commissioner’s case. Detective Ferns gave evidence that the investigating officers have 'serious concerns' that Mr. Danis might use the information recorded in the DVD against his son if the information was released. He confirmed under cross-examination that his evidence about the potential risk of harm to Mr. Danis' son is based on his review of records held by the NSWPF and the opinions of the investigating officers recorded in those records. According to the extensive entry in the COPS Report created on 16 March 2014 (and annexed to Mr. Danis affidavit (at page 86)) it is recorded that the investigating officers hold grave concerns that the children are being subjected to psychological harm by Mr. Danis, and (at page 91 of the annexures to Mr. Danis' affidavit), that police believe the child is fabricating or embellishing the assault allegations to appease his father.

96. As I have also already observed, s 105 of the GIPA Act places the onus on the Commissioner to show that it could be reasonably expected that the disclosure would expose a person to a risk of harm that is real and substantial. In considering the Commissioner’s evidence, I must assess the risk objectively. For the following reasons, I am not persuaded on the evidence that there is a real and substantial risk of harm to Mr. Danis' son if the DVD was released.

97. First, the Commissioner's evidence shows that Mr. Danis has known about the contents of the DVD for several years. The evidence shows that he watched the DVD and read the transcript when both documents were produced under subpoena in the family law proceedings several years ago. In my view, if any risk does exist, it is small.

98. Second, and relatedly, it is significant that the police records before the Tribunal contain no reports of any current risk of harm to the child. The evidence is four years old. The child was 10 years old at the time of the alleged assault and he is now 16 years. The last COPS entry in evidence before the Tribunal is dated 25 March 2014. There is no evidence before the Tribunal that the family law proceedings referred to in the COPS records are continuing. There is no evidence that Mr. Danis has harassed or intimidated his child other than the concerns set out in the COPS records from 2014.

99. Third, Detective Ferns does not have direct knowledge that disclosure could expose the child to harm and it is clear from his evidence that the ‘serious concerns’ identified are those of the investigative officers. The Commissioner has made the forensic decision not to put on evidence from the investigating officers. That is his right, however, the Tribunal must be satisfied, on the material before it, to the requisite standard, that there is a serious and real risk of harm to the child, that is something more than a mere risk or chance.

100. For the reasons I have given above, I am not satisfied there is a material risk that Mr. Danis' child would be harmed or seriously harassed or intimidated as a result of the disclosure of the DVD. Accordingly, the public interest consideration in cl 1(f) is not a relevant consideration against disclosure in this matter. If, however, my conclusion is wrong then I do not consider, for the same reasons, that this risk is a particularly strong consideration that would militate against disclosure.

Issue 2(e): best interest of the child not to disclose - cl 3(g) of the table

101. The next issue to be determined is whether it could reasonably be expected that the disclosure of the DVD recording of the interview between police and the child would not be in the best interests of the child to have disclosed.

102. The Commissioner submitted that the public interest consideration against disclosure in clause 3(g) applies to the DVD because it contains sensitive and personal information about an (alleged) assault on a child who was 10 years at the time of the incident. The Commissioner submitted there is a strong public interest against the disclosure of such information.

103. As against that, Mr. Danis submitted that there is no evidence that it is not in the best interests of this child to disclose the information particularly in circumstances where he is not the alleged assailant.

Consideration

104. The Commissioner did not take me to any authorities that have considered this public interest consideration. Nor did he point me to any matters of public policy that might bear upon my consideration. Nonetheless, based on the material before me, and for the reasons I have given above in relation to the public interest considerations in 1(g) and 3(a), I consider that the disclosure of personal and sensitive information given to the police in confidence by a child aged 10 years relating to an alleged physical assault is information that would not be in the best interest of the child to disclose. In reaching this conclusion, I want to make it clear that I am not making a finding that it would not be in the best interest of the child to release the DVD to Mr. Danis – he has already seen the DVD. However, as I have already observed, s 73 of the GIPA Act prevents the Tribunal from imposing any restrictions on access to the DVD and disclosure under the GIPA Act is disclosure to the world at large.

105. It follows that I am satisfied this is a relevant public interest consideration against disclosure in this matter.

Issue 3: Public interest considerations in favour of disclosure

106. The next issue is to determine what public interest considerations that weigh in favour of disclosure are relevant in this matter. Section 12 of the GIPA Act sets out a general public interest in favour of disclosure of government information and lists examples of public interest considerations that favour disclosure.

Parties’ submissions

107. The Commissioner acknowledged that the general public interest in disclosure and the statutory presumption of disclosure are relevant considerations that apply in this matter.

108. Mr. Danis submitted that the public interest considerations listed paragraphs (a), (b), and (e) of the Note in s 12(2) of the GIPA Act are also relevant in this matter.

109. In relation to paragraphs (a) and (b) of the Note in s 12(2), Mr. Danis submitted that disclosure could reasonably be expected to inform the public about the NSWPF’s operations, policies and practices for dealing with members of the public, and in particular, children who complain that they have been assaulted. He submitted that there is also a public interest in holding the NSWPF accountable for their conduct and that its policies and practices for dealing with complaints of assault by children should be transparent. In effect, that disclosure of the DVD would enhance government accountability and inform the public about police practices for dealing with child victims of assault.

110. In relation to the public interest consideration in paragraph (e), the burden of his submission is that the information in the DVD could reasonably be expected to reveal or substantiate that officers of the NSWPF engaged in misconduct, or unlawful conduct in relation to their investigation of the alleged assault. In particular, he contended that the material annexed to his affidavit is proof of the following allegations:

• that the police failed to take his son’s complaints seriously and failed to properly investigate the alleged assault. He contended that the police had informed him they had rejected the complaint on the date it was reported, and before they took any steps to investigate. He contended this is documented in the COPS records annexed to his affidavit.

• that the police failed to investigate allegations of misconduct by his former spouse and her partner before the date of the assault of his son and that various police records of their investigations have been falsified.

• that terminating the investigation without charge and falsifying police records are proof that the NSWPF had engaged in misconduct and unlawful conduct.

111. Mr. Danis submitted that because his evidence was not challenged at the hearing and he was not required for cross-examination, his affidavit is proof of the misconduct allegations that he has made.

112. In relation to Mr. Danis' contention that the disclosure of the DVD could reasonably be expected to reveal or substantiate allegations of police misconduct or unlawful conduct, the Commissioner submitted that the information in the DVD itself would reveal a series of questions and answers between the investigating officers and Mr. Danis' son that would not, without more, reveal or expose the misconduct he alleges. Referring to the decision in Hall v Department of Premier and Cabinet [2012] NSWADT 46 (at [17]) the Commissioner submitted that, in weighing public interest considerations, the specific contents of each document should be examined to determine whether the relevant considerations apply to that document (or information contained in a document).

111. As to the allegations that the actions taken by the NSWPF were infected by unlawful conduct and misconduct, the Commissioner submitted that before the Tribunal could make a finding that this consideration applies, there would need to be a reasonable evidentiary basis to support the claim: Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68. The Commissioner submitted that there is no evidence before the Tribunal of misconduct in this matter and that there is no reasonable basis for this public interest consideration to apply.

Consideration

114. I agree with Mr. Danis' broad submissions that there is a public interest in the transparency and public scrutiny of the actions of the NSWPF in exercising their investigation and enforcement functions. Enhancement of government accountability and transparency are important objectives of the GIPA Act: s 3 (1). Disclosure of the DVD could reasonably be expected to promote accountability and transparency in the exercise of the NSWPF’s functions in interviewing children who have complained of assault. It could also reasonably be expected to promote and inform discussion or debate on issues of public importance such as the role of the NSWPF in investigating and enforcing allegations of assault against children.

115. In relation to the public interest consideration in paragraph 2 (e) of the Note in s 12(2), I accept the Commissioner’s submissions that the allegations of police misconduct in relation to actions between the date of the complaint on 15 March 2014 until termination of the investigation on 8 July 2014 would not be revealed or exposed by disclosure of the DVD. This is so because the alleged misconduct did not occur during the police interview itself (which consist of a series of questions and answers exchanged between the police and the child) but rather by the alleged action the police had taken in their investigation of the assault and their decision to terminate the investigation without laying criminal charges against the alleged assailant. I agree with the Commissioner’s submission that the specific content of the DVD has to be considered when considering whether the public interest in favour of disclosure applies: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [19].

116. Another reason why I do not consider this public interest ground is a relevant consideration is that, as the Commissioner submitted, there would need to be a reasonable basis, by reference to the evidence, for the Tribunal to conclude that the DVD could reasonably be expected to reveal or substantiate a finding that the agency has engaged in misconduct or unlawful conduct: Barrett (at [136]-[137]).

117. In this connection, I reject Mr. Danis' submission that his affidavit is proof of the misconduct alleged in his submissions. I do not consider that the material referred to in, or the documents annexed to his affidavit substantiate the facts and allegations asserted in his written submissions or establish, as a matter of objective fact, that the police had falsified records or acted unlawfully in relation to their investigation of the assault incident. Taken at its highest, and adopting a benevolent approach to his affidavit, Mr. Danis strongly believes the NSWPF have engaged in serious misconduct in their investigation of the alleged assault, but the fact that he strongly holds those beliefs does not turn them into matters of fact as opposed to mere assertion or allegation. I have come to this conclusion for the limited purpose of determining whether there is a reasonable basis for concluding that the disclosure of the DVD could reasonably be expected to reveal police misconduct. Of course, it is not the function of the Tribunal in these proceedings to finally determine the substantive merits of Mr. Danis' complaints of police misconduct or for these proceedings to be used as a vehicle for the collateral review of the merits or validity of the action taken by the NSWPF in relation the assault incident.

118. If, contrary to my finding, cl 3(1)(e) is a relevant consideration it is, for the reasons I have already given, a matter entitled to be given limited weight in determining where the balance of the public interest lies.

119. It follows that I conclude that 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, that there is a public interest in the transparency and public scrutiny of the actions of the NSWPF in exercising their investigation and enforcement functions in relation to allegations of child abuse and assaults.

Personal factors

120. Under section 55 of the GIPA Act, the personal factors of the applicant, including identity and motives, can be taken into account as factors in favour of providing the applicant with access to the information (s 55(2)).

121. Both Mr. Danis and the Commissioner agree that the relevant personal factors in favour of disclosure in this matter are that he is a parent of the child who has been interviewed by the police and that he has previously viewed the DVD and read the transcript. These personal factors are a public interest consideration that tend in favour of disclosure. The Commissioner did not rely on any personal factors, including Mr. Danis' motivation for wanting access to the DVD as a public interest consideration against disclosure. Accordingly, no issue arises in these proceedings as to any personal factors that may be taken into account as public interest considerations against disclosure under s 55(3).

Issue 4: allegations that the Commissioner has not acted in good faith

122. Before I move on to consider where the balance of the public interest lies, I need to deal with Danis’ submissions that the Commissioner has applied the public interest considerations against disclosure as a smokescreen for, and to "conceal" the police misconduct and unlawful conduct alleged by him. He repeats these allegations several times in his written submissions. He contended that the “public interest is regularly misused by the police to cover up their dishonest, improper, negligent or illegal conduct, to erode civil liberties and deprive citizens of their rights (and that) this is the case here”. He further submitted that the Commissioner's submissions in support of his decision to refuse access to the DVD on public interest grounds "are a smokescreen concocted to protect the OIC (officer in charge) and other police officers who deliberately and repeatedly engaged in such conduct … (and) they are against the object and provisions of the GIPA Act and should, therefore, be rejected" (at [37] of his submissions in reply). The Commissioner did not make any submissions in writing or orally during the course of the hearing on this issue.

Consideration

123. The legal basis of Mr. Danis' concerns is not identified in his submissions. There are two possible explanations. The first is that he believes the police have behaved in this way but without making any specific allegations of acting dishonestly or not in good faith. If that is so, in my opinion, it is quite inappropriate and such a submission should not be advanced. The alternative explanation is that, although he did not frame his case in the terms in s 112 of the GIPA Act, in effect he alleges the NSWPF has failed to exercise their functions under the Act in good faith. Under s 112, the Tribunal may:

If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

124. Because of the way his case was presented, the elements of s 12 were not explored at the hearing. Nonetheless, had Mr. Danis made an application for a finding that the Commissioner, in responding to his access application, had failed to exercise his responsibilities under the GIPA Act in good faith, I would have rejected it. There is no substance to this allegation. There is no evidence as to which ‘officer’ of the Commissioner is said to have acted in bad faith. It is not sufficient to make an allegation against the NSWFP as an agency. Even putting aside that obstacle, Mr. Danis provides no evidence in his affidavit to support his allegations that the Commissioner has applied the public interest considerations in s 14 to “conceal” and “cover-up" police misconduct. As to the statements made in his written submissions, these do not rise above mere assertion or allegation. There is no doubt that Mr. Danis strongly holds the views that he does however the strength of his belief does not transform that belief into fact. For all these reasons, I am not satisfied on the material before me that any officer of the Commissioner has failed to exercise a function under the GIPA Act in good faith.

Issue 5: Balancing the Public Interest

125. The final issue to be determined is whether the Commissioner has established that there is an overriding public interest against the disclosure of the DVD. That requires me to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: Flack at [19] and Hurst at [47]. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that involves more than a mere arithmetic exercise. It is not simply a case of determining whether there are more factors in favour of disclosure as opposed to against disclosure. The exercise is more subtle. It includes an assessment of which factor is more or less significant than others in the circumstances of each case.

126. The general public interest in favour of the disclosure of government information under s 12(1), together with the presumption in favour of disclosure (under s 5), and the public’s legally enforceable right to government information (under s 9) are key considerations in view of the overall objectives of the GIPA Act and carry significant weight.

127. In relation to the public interest considerations in favour of disclosure under s 12(2), I have determined that disclosure in this matter could reasonably be expected to promote accountability and transparency in the exercise of the NSWPF’s functions in investigating assaults on children. This is an important consideration that is directly related to the primary objective of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective…." under s 3(1) of the GIPA Act.

128. Under section 55 of the GIPA Act, the personal factors of the applicant can be taken into account as factors in favour of providing access to the information (s 55(2)). The relevant personal factors in favour of disclosure are that Mr. Danis is a parent of the child who was interviewed by the police and that he has already seen the DVD and read the transcript. This is a public interest consideration in favour of disclosure that is entitled to considerable weight.

129. In relation to the public interest considerations in cl 1(d) and (g). I consider that the public interest consideration in cl 1(d) carries significant weight. Ensuring confidential communications with police about child abuse/ assault cases is an essential aspect of police operations. The difficult task of obtaining information from victims or witnesses of child assault would be made more challenging if their confidentiality was breached. In my view, this is a real and serious consideration that should be given substantial weight. For similar reasons, I also consider that the disclosure of sensitive information given by a child to the NSWPF in confidence is a serious consideration that should be given significant weight.

130. In relation to the considerations in cl 3 (a) and (g), in my view protecting personal, sensitive information about a child in relation to the investigation of a reported assault is a matter of considerable consequence and importance and is entitled to significant weight.

131. In relation to the public interest consideration in cl 3(f), I have concluded that it could not be reasonably expected that the disclosure of the DVD would expose the child to a real risk of harm. If, however, I am wrong, I do not consider that this consideration is entitled to a great deal of weight given the absence of any current evidence that there is a material risk of harm.

132. While accepting that significant weight is to be attached to the personal factors of the application and the public interest considerations pointing towards disclosure, I have concluded that, on balance, the public interest considerations against the disclosure of personal and sensitive information relating to a child given in confidence that could prejudice the supply of confidential information in the future about alleged assaults should be given greater weight.

Conclusion and Orders

133. For the preceding reasons, the correct and preferable decision is to affirm the Commissioner’s decision to refuse access to the DVD information. Accordingly, the Tribunal orders that:

1. The decision of the respondent dated 15 August 2019 to refuse access to a copy of the DVD and transcript of the DVD is 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: 25 May 2020