DRF v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 5

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DRF v Commissioner of Police, NSW Police Force [2019] NSWCATAD 5
Hearing dates:	14 November 2018
Date of orders:	02 January 2019
Decision date:	02 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure of the name of the applicant and the names of the persons named in the applicant’s statement in these proceedings is prohibited. (2) Pursuant to s 64(1)(b) and (d) of the Civil and Administrative Tribunal Act the publication or disclosure to the applicant of the paragraphs of these reasons marked “Not for publication” is prohibited. (3) Pursuant to s 64(1)(b) and (d) of the Civil and Administrative Tribunal Act the publication or disclosure to the applicant of the Confidential Annexure to these reasons is prohibited until the expiry of 28 days from the date of the decision. (4) Pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act the publication or disclosure to the applicant of the confidential evidence and submissions filed by the respondent in these proceedings and the record of the confidential hearing, is prohibited. (5)   The decision under review is varied as set out in the Confidential Annexure to these reasons.
Catchwords:	ADMINISTRATIVE LAW – government information – public interest considerations against disclosure – prejudice to supply of confidential information – prejudice to effective exercise of policing functions – prejudice to detection, prevention or investigation of contraventions of the law – public interest in favour of disclosure where disclosure may show improper or illegal conduct - proactive policing - public interest in favour of disclosure of a person’s personal information – public interest in favour of informing the public about proactive policing
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Law Enforcement Police Powers and Responsibilities Act 2002 (NSW)
Cases Cited:	Battin v University of New England [2013] NSWADT 73 Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Desmond v Commissioner of Police, NSW Police Service [2005] NSWADT 272 Director General, Department of Education and Training v Mullett & Anor (GD) 2002 NSWADTAP 13 Hall v Roads and Maritime Services [2012] NSW ADT 239 Fisher v Commissioner of Police, New South Wales Police Service and Anor [2002] NSWADT 267 McLennan v University of New England [2013] NSWADT 113 Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 Simring v Commissioner of Police, NSW Police [2009] NSWSC 270
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DRF (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: C Trahanas (Applicant)   Solicitors: Public Interest Advocacy Centre (Applicant) Sparke Helmore (Respondent)
File Number(s):	2018/00204279
Publication restriction:	Section 107 of the Government Information (Public Access) Act 2009 and an order under s 64(1)(b) and (d) of the Civil and Administrative Tribunal Act of the applies to the paragraphs and Annexure in these reasons marked “Not for publication”.

REASONS FOR DECISION

Background

1. On 6 February 2018 the applicant applied to the respondent under the Government Information (Public Access) Act 2009 (“the GIPA Act”) for access to:

1. his complete bail and criminal history report; and

2. all Computerised Operational Policing System (COPS) event records, custody management records and bail decisions concerning him from 1 May to 31 May 2015 and from 31 December 2015 to 31 August 2017.

2. The respondent released some information in full and other information was released with redactions. The applicant seeks a review of that decision regarding specific COPS records which were redacted before release. He wishes to obtain access to the redacted information in those entries, apart from any redacted information which is the personal information of other individuals.

The issues

3. There is a presumption in favour of the disclosure of government information under the GIPA Act unless there is an “overriding public interest against disclosure”: s 5.

4. Section 12 provides:

“ 12 Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   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.”

5. Section 13 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.”

6. Section 15 provides:

“15 Principles that apply to public interest determination

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

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

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

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

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

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

7. The respondent withheld the redacted information on the ground that it was subject to a number of overriding public interest considerations against disclosure which in its view outweighed the public interest in favour of disclosure. One of those public interest considerations, the consideration regarding disclosure of a person’s personal information, is no longer in issue as the applicant does not press for any other person’s personal information.

8. The table to s 14 of the GIPA Act lists the public interest considerations against disclosure which are the only other considerations that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information (s 14(2)).

9. The public interest considerations against disclosure which are currently pressed by the respondent are:

1. Disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (s 14 Table Item (1)(d)),

2. Disclosure of the information could reasonably be expected to have the effect of prejudicing the effective exercise by an agency of the agency’s functions ( s 14 Table Item (1)(f)), and

3. Disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (s 14 Table Item 2(b)).

10. The words “could reasonably be expected” in s 14 mean that there must be a reasonable expectation (not fanciful, imaginary or contrived) that the disclosure could have the prescribed effect (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590). The word “prejudice” in this context should be given its ordinary meaning of “cause detriment or disadvantage” (McLennan v University of New England [2013] NSWADT 113).

11. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. The responsibility for establishing that the public interest considerations against disclosure on which it relies apply and that, on balance, those considerations outweigh the public interest considerations in favour of disclosure, rests on the respondent: Hall v Roads and Maritime Services [2012] NSW ADT 239 at [25].

12. The respondent accepts that two public interest considerations exist in favour of disclosure, namely, that the records generally contain information which is personal information of the applicant, and the public has a general right to access government information held by agencies.

13. The applicant submits that there are two additional public interest considerations in favour of disclosure, namely:

1. the redacted Information could reveal or substantiate that the NSW Police Force (NSWPF) has engaged in misconduct or improper or unlawful conduct, by acting without power in stopping and searching the applicant; and

2. the information sought could inform the public about policies and practices of the NSWPF for dealing with members of the public.

The respondent does not agree that the first consideration is available on the evidence.

14. The task of the Tribunal is to determine whether the agency has substantiated its reliance on any of the identified considerations against disclosure, and if so, those considerations must be weighed against the considerations which favour disclosure, bearing in mind what is said in s 15.

Confidentiality

15. Section 107 of the GIPA Act provides:

“107 Procedure for dealing with public interest considerations

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

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

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

(a)   the public and the applicant, and

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

16. Section 64 of the Civil and Administrative Tribunal Act 2013 provides:

“64 Tribunal may restrict disclosures concerning proceedings

(1)   If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a)   an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)   an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c)   an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)   an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3)   The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4)   For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.”

17. I conducted part of the proceedings in the absence of the applicant and their legal representative pursuant to s 107(2) of the GIPA Act and made orders prohibiting the publication or disclosure of that evidence. Sections of these reasons which contain information which is subject to these orders or would disclose information which is subject to an overriding public interest against disclosure is marked “Not for publication” and may not be disclosed to the public or the applicants.

18. The applicant also sought an order under s 64(1) of the Civil and Administrative Tribunal Act that his name and the name of the persons mentioned in his evidence not be published. Stops and searches of the applicant and his friends referred to in these proceedings occurred when he was under the age of 18 and it was submitted that release of this type of information in a publicly available decision could stigmatise the applicant. The Children (Criminal Proceedings) Act 1987 s 15A and Young Offenders Act 1997 s 65 recognise that the identity of a child should be protected in criminal proceedings.

19. The respondent neither opposed nor consented to the order.

20. Section 64(1) provides that if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may make an order prohibiting or restricting the disclosure of the name of any person. I am satisfied that it is desirable to make such an order, given that the incidents referred to in the applicant’s statement and in the material before the Tribunal occurred when the applicant was a child within the meaning of the Children (Criminal Proceedings) Act. While I am not aware of the other persons’ ages at the time, the references concern sensitive personal information and they are not parties to these proceedings, so I have determined that they should also not be disclosed.

Whether the public interest considerations against disclosure are substantiated

Disclosure could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of that agency’s functions – s 14 Table 1(d)

21. As stated in Director General, Department of Education and Training v Mullett & Anor (GD) 2002 NSWADTAP 13 in relation to the similarly worded cl 13(b)(ii) of the Freedom of Information Act 1989 and cited in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], this consideration:

“…requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary.”

22. The respondent submits that the NSWPF’s core function is to provide police services, which includes the prevention and detection of crime. One of the primary means by which it delivers that function is by the collection and use of information from members of the public. It is submitted that there is an expectation that information reported to the NSWPF in relation to crime of the kind redacted in the subject documents will be kept confidential and will only be used and disclosed by the NSWPF in the conduct of relevant law enforcement activities. In Camilleri at [40] the Appeal Panel of the then Administrative Decisions Tribunal referred to the long history of cases· which "recognise the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies.”

23. The prejudice is said to arise because persons who provided information to the police about crime would be reluctant to do so if they knew that information would not be kept confidential. In this regard, the respondent relied upon the decisions of Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 and Fisher v Commissioner of Police, New South Wales Police Service and Anor [2002] NSWADT 267. In those cases the information concerned related to the informant’s identity. However in Fisher Senior Member Britton also said:

“It seems to me to be a matter of common sense, as well as consistent with the weight of authority, that unless there is clear evidence to the contrary, information given by informers to police must be presumed to have been given on a confidential basis.” ( at [34])

24. I accept that even where the person is not named, it is possible that disclosure of the information provided may, by its nature, give a clue as to who was the source of the information. Those cases also expressed the view that the public interest in preserving the flow of information to police from informers about crime is very great.

25. The applicant submits that the respondent must still establish that the information in question is confidential and refers to Camilleri at [33-34] where it was stated that the question of whether information is confidential must be examined, at least primarily, by reference to evidence as to the conditions under which it conducts the service within which the information is received.

26. There was no evidence as to the actual circumstances in which the information in question was received except where those circumstances were referred to in the COPS entries themselves. The respondent relied on evidence from Mr Mathew Smith, Senior Advisory Officer attached to the External Information Access Unit of the respondent. The Unit receives and responds to applications under the GIPA Act.

27. Mr Smith said that COPS is the respondent’s central database for the storage of information relating to its functions including criminal incident logs, intelligence and information about criminal charges. It can contain highly sensitive and confidential information about NSWPF practices and procedures, and how police discharge their duties. COPS can also contain information relating to allegations of criminal activity which come from any number of sources including police, other agencies or the general public.

28. Mr Smith stated that where a person provides information to the respondent in relation to crime or a police investigation, he believed that they do so with an expectation that their identity and the precise nature of the information they provide will not be disclosed to the person in question or the general public. Such disclosure could lead to the informer being identified and create a risk of harm or reprisal.

24. While Mr Smith’s belief may be correct, not all the COPS entries indicate that information relied on by police in taking action was confidential in nature, and in some cases it is clear that it was not confidential.

Disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions – s 14 Table 1(f)

30. The Respondent submits that if information held by NSWPF relevant to criminal activity was released to the public, it could alert offenders and potential offenders to what the NSWPF already knows, which could in turn enable them to avoid detection and subvert police action. This would jeopardise the effective exercise of NSWPF's policing functions.

31. Mr Smith’s evidence was that disclosing information about investigations may substantially prejudice any investigation or prosecution of the alleged offence if the person who is the subject of the investigation is aware of it. COPS also contains information about police investigative techniques. Disclosure of such techniques would cause significant prejudice to the ability of NSWPF to effectively carry out investigations and operations because members of the public could subvert them.

32. There was no evidence before the Tribunal from police who have interacted with the applicant or police officers who perform the kind of work which is reported in the COPS entries.

33. [NOT FOR PUBLICATION]

34. The applicant submits that the test for determining this public interest consideration is not whether the exercise of functions by the NSW Police is prejudiced, but whether the effective exercise of those functions is prejudiced. Some prejudice may be tolerated. There is no basis for concluding that disclosing the reason why the applicant was stopped and searched could reasonably be expected to enable the applicant to "manipulate an investigation" and "avoid the successful investigation or prosecution of an offence" as suggested by Mr Smith.

35. I accept that police intelligence is a crucial tool in policing and is protected from disclosure because its release could reasonably be expected to prejudice policing activity by alerting persons engaged in criminal acts to information which may assist them to avoid detection. However where the information is self-evident or from a source which known to or is available to the applicant, it is less probable, in my view, that the respondent can demonstrate the required prejudice.

Disclosure could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law – s 14 Table 2(b)

36. As stated by Senior Member Higgins in relation to the similar exemption in cl 4(1)(e) of Schedule 1 to the former Freedom of Information Act 1989 (NSW), this consideration operates:

“… to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods”.

Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 at [17].

An actual contravention of the law is not required to exist in order to establish the ground (UC v Commissioner of Police, NSW Police [2005] NSWADT 272).

37. The applicant submits that the respondent’s evidence on this point is very general and inexact.

Evidence

38. The following evidence of the applicant is unchallenged. He is Aboriginal and between March 2015 to August 2017, when he was aged between 15 and 17 years, he resided in Western Sydney. In late 2015 he attended Blacktown Police Station to provide a victim statement to police. He saw a photograph of himself on a wall upstairs in the police station, as well as photographs of four of his friends. He did not ask and was not told why his photograph was on the wall.

39. In early 2016 he and a friend were waiting for some other friends near a shopping centre in Blacktown when they were approached by two police officers who asked him what they were doing. He replied “Nothing” and asked why they had approached them. One police officer said:

“Because we can. We can come to your house, pull you up in the street when you’re loitering and move you on, search you and take you home.”

40. The same police officer also said:

“We can make you go home because you’re on the STMP.”

41. The applicant said he did not know what the STMP was. He said that he overheard police officers telling other friends of his in 2017 that “You are on the STMP. We are going to keep an eye on you.”

42. He said that between March 2015 and late August 2017 he was regularly stopped, searched or told to move on by police officers and he felt harassed and targeted by police.

43. The applicant also adduced evidence of a 2017 report by Dr Vicki Sentas and Camilla Pandolfini for the Youth Justice Coalition NSW: Policing Young People in NSW: a study of the Suspect Targeting Management Plan. The report identified the Suspect Targeting Management Plan (STMP) as a police intelligence tool and a policing program. It stated that the aim of the STMP was to prevent future offending by targeting repeat offenders and people police believe are likely to commit future crime. This practice is referred to as targeted, or proactive policing.

44. The authors state their findings were based on available quantitative data on program participants, de-identified case studies drawn from interviews with lawyers, publicly available guidance given to police on STMP procedures, and analysis of case law and legislation. Their research was limited by the lack of publicly available information on the STMP. The findings included:

1. Data showed the STMP disproportionally targeted young people, particularly Aboriginal and Torres Strait islander people, and had been used against children as young as ten years old. (This data was drawn from available statistical information on persons who were the subject of a STMP during 2014-2015 across ten NSWPF local area commands in NSW).

2. In three case studies, the fact that a young person was placed on an STMP was found by the courts to not ground the requirement for reasonable suspicion to conduct a search. These case studies indicate a risk that the STMP may be being used more widely by police as the grounds (or part grounds) for reasonable suspicion to stop and search.

3. The STMP might be inadvertently diminishing police understanding of the lawful use of powers in the Law Enforcement (Powers and Responsibilities) Act 2002.

4. The operation of the STMP was not transparent or accountable as criteria for placement on the STMP are not publicly available, individuals cannot access their STMP plan and it is unclear what criteria are used by police to remove a person from the STMP.

45. The applicant also adduced evidence of media articles about the STMP and the above report, and a Hansard transcript of a Budget Estimates Committee hearing in the NSW Parliament on 9 November 2017 in which questions were asked of the Commissioner of Police about the STMP. According to the transcript the Commissioner informed the hearing about the STMP.

“It is based on a predictive style method of policing …over the last particularly 10 years we have moved to disruption and prevention through predictive styles of policing…. We have a risk assessment template that helps us identify those potential recidivist offenders and it puts in place some strategies in terms of trying to disrupt their activity to minimise opportunities for them to commit crimes.”

46. Under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (“the LEPR Act”) (referred to in the report) police may stop, search and detain a person without a warrant, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:

“(a)   the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

(b)   the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,

(c)   the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in    connection with the commission of a relevant offence,

(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.” (s 21)

47. Under s 197, police may give a direction:

“(1)   A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place (referred to in this Part as relevant conduct):

(a)   is obstructing another person or persons or traffic, or

(b)   constitutes harassment or intimidation of another person or persons, or

(c)   is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or

(d)   is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or

(e)   is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.”

48. The direction must be reasonable in the circumstances (s 197(2)). If the police stopped, searched, detained or gave a direction to a person in the absence of the conditions specified, this would be unlawful.

49. There is information which the police must provide at the time of using a power in the LEPR Act. Section 202(1) provides:

“202 Police officers to provide information when exercising powers

(1)   A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power:

(a)   evidence that the police officer is a police officer (unless the police officer is in uniform),

(b)   the name of the police officer and his or her place of duty,

(c)   the reason for the exercise of the power.”

50. The police obligations are summarised in the Youth Justice Coalition report as follows:

“When exercising the search power or issuing a direction, the police officer must provide certain information to the person subject to the power, including:

•   Evidence that they are a police officer (unless the police officer is in uniform);

•   Their name and place of duty; and

•   The reason they are using the power.

This information needs to be provided to the person subject to the power as soon as reasonably practicable, or, in the case of a direction, requirement or request, before giving or making the direction, requirement or request.

If a person subject to the power asks for this information, it must be given.” (p. 18).

Whether the considerations against disclosure apply to the information

51. Below I consider each COPS entry individually by reference to their “E” number in relation to whether the remaining public interest considerations 1(f) and 2(b) claimed by the respondent are established.

1. E66128539

1. S 14 item 1(d) was relied upon in relation to this COPS entry which covers a missing persons report made concerning the applicant. After the applicant was no longer regarded as missing he was stopped and searched with nothing found.

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. Page 3 contains a brief statement relating to the search of the applicant on 21 August 2017. There are sections of this statement which in my view do not come within 1(d).

5. [NOT FOR PUBLICATION]

6. Accordingly on the available evidence I am satisfied that 1(d) applies to most, but not all, of the information above.

7. On page 3 there are some redacted words relating to the search of the applicant. Item 1(f) is relied on in relation to these words. For the confidential reasons stated above in relation to ground 1(d) I consider that only the last few words could, if disclosed, reasonably be expected to prejudice the effective exercise of police operations.

2. E58078559

1. [NOT FOR PUBLICATION]

2. I am satisfied that disclosure of the redacted information could reasonably be expected to prejudice the effective exercise of police functions and that the respondent has established that 1(f) applies to the information. I am also satisfied that 2(b) applies as disclosure could reasonably be expected to prejudice the detection or otherwise dealing with a possible contravention of the law.

3. E59455012

1. [NOT FOR PUBLICATION]

2. Therefore the information in the third sentence is not in the nature of intelligence and I am not satisfied that disclosure would prejudice the effectiveness of policing functions.

3. The information in the second and third sentences if disclosed could reasonably be expected to prejudice the effectiveness of policing functions in the area and in their detection of crime, therefore I am satisfied that 1(f) and 2(b) are established.

4. For the reasons above I am satisfied that the respondent has established the application of 1(f) to some but not all of the redacted information.

4. E59473221

1. [NOT FOR PUBLICATION]

2. For the above reasons I am satisfied that the respondent has established that 1(f) applies to the redacted information but 2(b) does not.

5. E257405395

1. [NOT FOR PUBLICATION]

2. For the above reasons I am satisfied that the respondent has established that 1(f) and 2(b) apply to the redacted information.

6. E60358772

1. [NOT FOR PUBLICATION]

2. As the content of some of the information is already known to the applicant, I am satisfied that the respondent has established that 1(f) applies to some but not all of the information.

7. E60831847

1. [NOT FOR PUBLICATION]

2. For the reasons stated above I am satisfied that the respondent has established that consideration 1(f) applies to the information.

8. E61354412

1. [NOT FOR PUBLICATION]

2. Accordingly I am not satisfied that this information comes within either 1(f) or 2(b).

9. E62382624

1. [NOT FOR PUBLICATION]

2. For the reasons stated above I am satisfied that 1(f) applies to some but not all of the information.

10. E62575729

1. [NOT FOR PUBLICATION]

2. I am satisfied that the respondent has established that considerations 1(f) and 2(b) apply to the information.

11. E63685641

1. This information related to an occasion when the applicant was stopped and searched. The primary reason stated for the search was suspicion of possession of unlawfully obtained or stolen property.

2. [NOT FOR PUBLICATION]

3. For the reasons stated above I am satisfied that the respondent has established that considerations 1(f) and 2(b) apply to the majority of but not all the information.

12. E124847801

1. [NOT FOR PUBLICATION]

2. I am satisfied that 1(f) and 2(b) apply to the second sentence of the information only as its disclosure could reasonably be expected to prejudice effective policing and detection of contraventions of the law.

13. E227317298

1. [NOT FOR PUBLICATION]

2. For the reasons stated above I am satisfied that the respondent has established that consideration 1(f) applies to some but not all the information.

14. E63844714

1. [NOT FOR PUBLICATION]

2. In my view it is reasonable to expect that disclosure of this information could prejudice effectiveness of policing operations within the meaning of 1(f).

15. E64070612

1. [NOT FOR PUBLICATION]

2. I am satisfied that the respondent’s claims in respect of some but not all of the redacted information is established.

16. E64340213

1. [NOT FOR PUBLICATION]

2. In my view it is reasonable to expect that disclosure of this information could prejudice effectiveness of policing operations within the meaning of 1(f).

17. E64402938

1. [NOT FOR PUBLICATION]

2. I am satisfied that the information falls within 1(f) but not 2(b).

18. E64599419

1. [NOT FOR PUBLICATION]

2. I am satisfied that disclosure of the information could if disclosed reasonably be expected to prejudice the effectiveness of policing operations and therefore 1(f) applies.

19. E64838653

1. [NOT FOR PUBLICATION]

2. It could reasonably be expected that disclosure of this information could prejudice the effectiveness related policing activity and therefore 1(f) applies.

20. E65024047

1. [NOT FOR PUBLICATION]

2. For the reasons stated above disclosure of the information in question could reasonably be expected to prejudice the effectiveness of policing operations in the area and 1(f) applies.

21. E65056273

1. [NOT FOR PUBLICATION]

2. Disclosure of this information could reasonably be expected to prejudice policing effectiveness in the area and also the detection of contraventions of the law.

22. E65519964

1. All the redacted information in this entry contains information about third parties. The applicant has indicated that he does not seek personal information of other persons.

23. E66183753

1. [NOT FOR PUBLICATION]

2. This information, if disclosed, could reasonably be expected to prejudice the effectiveness of policing operations in my view and therefore falls within 1(f).

24. E66553085

1. The redacted section on page 2 relates to the applicant being searched at Mount Druitt Railway Station on 7 June 2017. He was issued with a transport infringement notice for travelling without a ticket and was searched. The primary reason stated for the search was ‘Suspected possession of illegal drug’.

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. In those circumstances I am not satisfied disclosure of this information would prejudice the effectiveness of policing operations or the prevention, detection or investigation of a contravention of the law.

5. [NOT FOR PUBLICATION]

6. For the reasons stated above I find that 1(f) and 2(b) apply to part but not all of the information.

25. E61328771

1. The relevant redacted section on page 4 deals with knowledge of police about the applicant and his companions and the area they were located. I am satisfied that disclosure of this information would, if disclosed prejudice the effectiveness of policing functions and come within 1(f).

26. E60700323

1. The redacted information on page 1 relates to an occasion on 3 May 2018 when the applicant was searched and directed to move on by police.

2. [NOT FOR PUBLICATION]

3. It is reasonable to expect that disclosure of this knowledge could prejudice the effectiveness of policing operations and therefore would fall within 1(f).

4. [NOT FOR PUBLICATION]

5. The above information relating to third parties falls within 1(f) and in any event the applicant is not pressing for access to the personal information of other persons. The information relating to the applicant, however, concerns matters which are within the applicant’s knowledge or which the police should have, and presumably did disclose to the applicant under s 202 of the LEPR Act. These factors make it improbable in my view that disclosure could reasonably be expected to prejudice effective police functions or the detection, prevention or investigation of any offence.

27. E67852489

1. The redacted information appears on an entry relating to an occasion when the applicant was stopped and searched. The record indicates that a check on the applicant was conducted by police. It also notes that the applicant smelled of cannabis. The applicant relies on 1(f) and 2(b).

2. On the information before me I am not satisfied that disclosure of the information could reasonably be expected to prejudice the effectiveness of policing operations or the prevention, detection or investigation of a contravention of the law as it is general in nature. I am also not satisfied that the information is confidential or sensitive or that it could lead to the identification of the persons who provided it.

Public interest considerations in favour of disclosure

52. As set out above, I am satisfied that some of the redacted information comes within one or more of the public interest considerations against disclosure. I now consider the considerations in favour of disclosure which may be applied to that information.

Disclosure could show that the NSWPF has acted improperly or unlawfully

53. In this regard, the applicant relies on the evidence in the COPS entries and the applicant’s evidence that he was stopped and searched or given a move on direction during the period covered by the entries, multiple times.

54. The applicant submits that the number and nature of occasions on which the applicant was stopped, searched and/or given a direction provides a reasonable basis for doubt that the police actions were based on reasonable suspicion under s 21, and instead that the applicant was subjected to proactive policing which is part of the STMP.

55. The Youth Justice Coalition report states:

“Reasonable suspicion is less than a reasonable belief but more than a possibility. Reasonable suspicion is not arbitrary, and an officer must be able to show some factual basis for the suspicion. What is important is the information in the mind of the officer stopping the individual at the time that he or she exercised their power. The suspicion will still be reasonable even if the facts later turn out to be wrong.” (p.16)

56. The respondent submits that it would be a serious matter for the Tribunal to find that this consideration applied and any such finding must have a reasonable basis in evidence (Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [136]. Further it submits that the material before the Tribunal does not show that the applicant was subject to “proactive policing”. The fact that a person was frequently stopped and searched without anything being found does not of itself demonstrate improper or unlawful conduct. The use of a STMP was not submitted to be unlawful, unless it was relied upon as a reason to stop and search someone in the absence of the conditions required to be met under the LEPR Act.

57. In considering this issue I have had regard to the COPS entries, the evidence of the applicant and respondent and the relevant provisions of the LEPR Act. There is no evidence before me which is sufficient to make a finding that disclosure of any of the information would show that police had acted improperly or unlawfully.

58. It may be that some information could potentially lead to such a finding in combination with other information, but the public interest in disclosing such information on this speculative basis is weak.

Disclosure will inform the public about policies and practices of the NSWPF

59. The applicant submits that the release of the Information may inform the public about proactive policing policies and practices, including the STMP, of the NSWPF. He submits that this should be accorded considerable weight because these policies and practices have a disproportionate effect on a particularly vulnerable portion of the population, namely young people and Aboriginal and Torres Strait Islander people.

60. Secondly the applicant submits that while the public is aware of the existence of the STMP, there is limited publicly available information about, and therefore limited means of public scrutiny and oversight of, the operation of the STMP, either generally or in relation to its application to individuals. This is supported by the research concerning the STMP.

61. Thirdly the STMP is a matter of public interest, as evidenced by the media reports and Hansard transcript.

62. The respondent accepts that release of the information may inform the public about the policies and practices of police but does not accept the submissions above concerning the STMP.

63. [NOT FOR PUBLICATION]

64. On the evidence I am satisfied that disclosure of the information in the COPS entries which is subject to a public interest consideration against disclosure could inform the public about policing practices. In addition there is some information which could inform the public about proactive policing.

The information is personal information of the applicant

65. Personal information is defined in Schedule 4[4] of the GIPA Act as:

“information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.”

66. A large proportion of the redacted information in the COPS entries includes information and opinions about the applicant and his identity is apparent in the information. I am satisfied that it is personal information of the applicant.

67. According to Guideline 4 issued by the Information Commissioner, which I am required to consider under s 15, the public interest in providing people with access to their own information is extremely strong and should only be displaced where the considerations against disclosure are overriding.

Balancing the public interest considerations

68. As noted above there is a general public interest in favour of disclosure of government information, and the information in question is personal information of the applicant and is naturally of significant concern to him. However, the information is also of importance to police in their important functions of safeguarding the community and detecting and investigating crime. Also, some of the information relates to wider matters and it cannot be released under a condition that it is only disclosed to the applicant.

69. I am also satisfied that informing the public about policing practices and proactive policing is a public interest consideration in favour of disclosure. In my view these considerations are less significant in the present case than the public interest in the applicant having access to his own information. This is partly because of the nature of the information and my view that it is not, in the main, capable of contributing a significant amount to the public understanding of these issues. These considerations must also be weighed against the public interest consideration against disclosing information which is important to policing functions and the detection, investigation and prevention of crime, as well as, in one case, possible prejudice to the supply of confidential information which policy rely upon.

70. I have conducted the balancing exercise in relation to the information in entries where I have determined that public interest considerations against disclosure have been substantiated. In those cases I consider that the public interest considerations against disclosure, where established, are more significant than those in favour of disclosure, with the exception of entry E60831847. Disclosure of that entry would provide the applicant with personal information. It would also provide him and the public with some information relating to proactive policing as applied to the applicant.

Conclusion

71. Pursuant to s 63(3)(b) of the Administrative Decisions Review Act 1997 I have determined to vary the decision under review with regard to certain information. I have set out the details of the variation in a confidential annexure.

Orders

1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure of the name of the applicant and the names of the persons named in the applicant’s statement in these proceedings is prohibited.

2. Pursuant to s 64(1)(b) and (d) of the Civil and Administrative Tribunal Act the publication or disclosure to the applicant of the paragraphs of these reasons marked “Not for publication” is prohibited.

3. Pursuant to s 64(1)(b) and (d) of the Civil and Administrative Tribunal Act the publication or disclosure to the applicant of the Confidential Annexure to these reasons is prohibited until the expiry of 28 days from the date of the decision.

4. Pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act the publication or disclosure to the applicant of the confidential evidence and submissions filed by the respondent in these proceedings and the record of the confidential hearing, is prohibited.

5. The decision under review is varied as set out in the Confidential Annexure to these reasons.

**********

CONFIDENTIAL ANNEXURE A

Not for publication until expiry of 28 days from date of decision

E66128539

Page 3 release the words “self confessed cannabis user”.

E59455012

Page 1 release the words in the first redacted sentence “well known for robbery offences.”

E60358772

Release redacted information on page 2 relating to the warnings to the applicant.

E61354412

Release all redacted information on page 2.

E62382624

Release the second and third sentences of the redacted information on page 1.

E63685641

Release the words “POI is also on bail” only.

E124847801

Release the first sentence only of the redacted information on page 1 which continues onto page 2.

E227317298

Release redacted information on page 2 with the exception of sentence “POI also has recent intel for drug use and supply”.

E64070612

Release the words “The YP had also been charged with drug possession on multiple previous occasions” and “Due the YP appearing to avoid police questions”.

E66553085

The information that the applicant is on the STMP for Blacktown should be released.

The words “POI has inte” (sic) should be released.

E60700323

Release the primary reason for the search, being: “To ensure he was not in possession of an item used or to be used” and the words “POI is known for property stealing offences and is currently on strict bail for these offences”

E67852489

Release the redacted information on page 2.

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

Amendments

19 February 2019 - Amendment made to [51] points 27(a) and (b) added.

Confidential Annexure published at expiration of 28 day period.

Decision last updated: 19 February 2019