ECN v Commissioner of Police

[2020] NSWCATAD 153

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	ECN v Commissioner of Police [2020] NSWCATAD 153
Hearing dates:	10 March 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Lonsdale, Senior Member
Decision:	(1)   The decision of the respondent is set aside in respect of documents 5, 9, 22 and 23 and in substitution for that decision the respondent is to disclose those documents to the applicant within 28 days of the publication of these reasons. (2)   The decision of the respondent is varied in respect of documents 1, 2 and 3 in that the following parts of those documents are to be disclosed to the applicant within 28 days of the publication of these reasons: (a)   Document 1 (excluding the words commencing at “that” and concluding with “officer” in paragraphs 1 and 2 as well as the words commencing at “It is” and concluding with “standard”) is to be disclosed to the applicant. (b)   Page 1 of document 2 (excluding the words commencing at “Issue 2:” and concluding “to investigate” on page 1) is to be disclosed to the applicant. (c)   Pages 2 and 3 of document 2 (excluding the words commencing “He was” in paragraph 2 of page 3 and concluding “the matter” and excluding the section commencing at “FINDINGS” on page 3 and concluding “and 2 together”) are to be disclosed to the applicant. (d)   Page 8 of document 2 is to be disclosed to the applicant. (e)   Document 3 (excluding the words commencing at “However” and concluding with “interview” in paragraph 4, the words commencing at “A legal” and concluding with “findings” in paragraph 5 and the words commencing at “and therefore” and concluding “this date” in paragraph 8) is to be disclosed to the applicant. (3)   The decision under review is otherwise affirmed.
Catchwords:	ADMINISTRATIVE LAW – public access to government information – Request for information by complainant about a complaint under Part 8A of Police Act 1990 alleging police misconduct – Whether prejudice to the supply of confidential information – Whether prejudice to the effective exercise of an agency’s functions – Whether disclosure would reveal a deliberation, consultation, opinion or advice – Whether prejudice an investigation – Whether prejudice the prevention, detection or investigation of a contravention or possible contravention of law – Personal information – balancing public interest considerations
Legislation Cited:	Evidence Act 1995 (NSW) Freedom of Information Act 1989 (NSW) Government Information (Public Access) Act 2009 (NSW) Law Enforcement Conduct Commission Act 2016 (NSW) Police Act 1990 (NSW)
Cases Cited:	Anderson v University of Sydney [2018] NSWCATAD 196 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 Eyes v Wyong Shire Council [2015] NSWCATAD 214 Head v Commissioner of Police (NSW) [2010] NSWADT 27 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Jacobs v The Queen [2013] NSWSC 633 Jenkinson v Department of Education and Communities [2013] NSWADT 280 Larsson v Office of Environment and Heritage [2014] NSWCATAD 136 Leech v Sydney Water Corporation [2010] NSWADT 198 Luxford v Department of Education and Communities [2016] NSWCATAD 118 McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 McKinnon v Blacktown City Council [2012] NSWADT 44 Neary v State Rail Authority [1999] NSWADT 107 Raven v University of Sydney [2015] NSWCATAD 104 Robinson v Department of Health [2002] NSWADT 222 Searle v Transport for NSW [2018] NSWCATAP 93 Sheehy v Commissioner of Police [2018] NSWCATAD 73 TW v TX [2005] NSWADT 262
Texts Cited:	None cited
Category:	Principal judgment
Parties:	ECN (Applicant) Commissioner for Police (Respondent)
Representation:	Counsel: C Winnett (Applicant)   Solicitors: Arnold Bloch Leibler (Applicant) Norton Rose Fulbright (Respondent)
File Number(s):	2019/00333252
Publication restriction:	Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 107 of the Government Information (Public Access) Act 2009 (NSW), the record of the part of the proceeding conducted in private on 10 March 2020 is not to be released to either the applicant or the public.

REASONS FOR DECISION

Background

1. This is an application under s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for administrative review of a notice of decision of the respondent dated 29 August 2019 (Notice of Decision).

2. The applicant was arrested by a police officer (Arresting Officer) on 15 September 2018 and charged with four criminal offences. By letter dated 19 December 2018, the respondent informed the applicant that all the charges against the applicant had been withdrawn.

3. By letter dated 6 December 2016 (Complaint Letter) the applicant’s solicitor raised concerns with the respondent regarding (amongst other things) the charges, the events surrounding the arrest of the applicant and the conduct of the Arresting Officer. By letter dated 13 December 2018, the applicant was informed that the respondent would investigate the concerns raised in the Complaint Letter as a complaint under Pt 8A of the Police Act 1990 (NSW) (Police Act).

4. An access application under the GIPA Act was made by the applicant on or around 18 July 2019 (Access Application). Following agreed refinements, the Access Application sought:

1. The complete brief of evidence in relation to the charges against the applicant.

2. The complete file for a complaint made by the applicant.

3. Internal training manuals and policy and procedures regarding the use of force during the arrest of an unarmed individual in force as at 15 September 2018.

5. The Notice of Decision provided access to part of the information identified as within the scope of the Access Application. Between 26 November 2019 and 14 January 2020, the respondent released further information (either wholly or in part) to the applicant.

Duplicate documents

6. At the commencement of the hearing, the respondent produced a table of information that identifies 27 documents as being within the scope of the Access Application. Nine documents in the table of information are marked as duplicates of other documents. I have reviewed the documents provided to the Tribunal on a confidential basis and am satisfied that:

1. the information contained in documents 6, 7, 8, 10, 11, 12 and 13 has been consolidated into document 4;

2. document 19 is a duplicate of document 4; and

3. document 24 is a duplicate of document 21.

Information to which the application relates

7. Leaving aside the duplicate documents outlined above, the information to which the application relates is contained in 18 documents, which the parties generally agree fall into two categories for this matter:

1. Documents 2, 3, 4 and 27 in respect of all or part of which the respondent claims there is conclusive presumption against disclosure on the basis of legal professional privilege (LPP Information).

2. Documents 1 to 27 (excluding the LPP Information) in respect of which the respondent claims there are overriding public interests against disclosure (Complaint Documents).

Scope of review by the Tribunal

8. Section 80 of the GIPA Act sets out the reviewable decisions that may be the subject of review by the Tribunal. The reviewable decision in this matter is the refusal to disclose the information contained in the Complaint Documents and the LPP Information (see s 80(d) of the GIPA Act).

Confidentiality of part of hearing

9. Prior to the hearing the respondent filed, on a confidential basis for the Tribunal only, copies of the information that it refused to disclose to the applicant as well as a confidential statement and confidential written submissions.

10. Section 107(1) of the GIPA Act provides that the Tribunal must ensure that information in which there is an overriding public interest against disclosure is not disclosed. Section 107(2) of the GIPA Act provides that the Tribunal must receive evidence and hear argument in the absence of the applicant and the public, if necessary, to prevent the disclosure of such information. Accordingly, and following submissions from the parties, I conducted part of the proceedings in the absence of the applicant.

11. During the confidential part of the proceeding, I asked the respondent to identify the information it claimed to be subject to an overriding public interest against disclosure or a conclusive presumption of an overriding public interest against disclosure and, where relevant, compare it to information disclosed to the applicant before the hearing.

The GIPA Act

12. Section 5 of the GIPA Act provides a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure.

13. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure.

14. Section 13 of the GIPA Act provides that there will only be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 14 of the GIPA Act contains a table (Table) which sets out the only public interest considerations against disclosure that can be taken into account.

15. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

16. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision.

Material before the Tribunal

17. The applicant filed and served written submissions and materials before the hearing. At the hearing, the applicant relied on the affidavit dated 21 February 2020 of the applicant (Exhibit A1) and the affidavit dated 21 February 2020 of Ms Ford, the applicant’s solicitor (Exhibit A2) and its 19 exhibits.

18. The respondent filed and served written submissions and materials before the hearing. At the hearing, the respondent relied on:

1. The Amended Witness Statement dated 24 January 2020 of Superintendent and Commander David Roptell (Exhibit R1) and its Annexure “A” to “C”.

2. The Affidavit of Chief Inspector and Manager of the Operational Legal Advice Unit Duane Carey dated 4 March 2020 (Exhibit R2).

3. The Witness Statement of Acting Inspector and Manager of the Operational Legal Advice Unit Renata Sala dated 22 January 2020 (Exhibit R3).

19. The respondent also relied on a confidential affidavit during the confidential part of the hearing.

Evidence of Superintendent and Commander Roptell

20. Superintendent and Commander Roptell (SI Roptell) is the delegate of the respondent for complaints under Pt 8A of the Police Act in the area in which the applicant was arrested. SI Roptell is also the Chair of the relevant Complaints Management Team (CMT) formed to oversee such complaints.

21. SI Roptell was called as witness during the hearing. Relevantly for this matter, in cross-examination, SI Roptell:

1. Accepted that Pt 8A of the Police Act sets out requirements on the respondent for the carrying out of investigations and that the investigative requirements encompass the work of the CMT.

2. Agreed that the NSW Police Force Complaint Handling Guidelines – Professional Standards Command dated February 2016 (Guidelines) require, amongst other things, the relevant police officer carrying out the investigation to obtain all evidence relevant to an investigation, undertake an analysis of evidence and prepare an investigation report with logical findings flowing from the investigative work.

3. Agreed that the CMT is required to take minutes and that CMT undertakes a quality review process with respect to investigations.

4. Accepted that all officers of the CMT and the officer assigned to carry out the investigation are all officers who have taken the oath in cl 7 of the Police Regulation 2015 (NSW) (Police Regulation).

5. Accepted that the oath in the Police Regulation requires officers to discharge their duties (including as witnesses for an investigation under Pt 8A of the Police Act) according to law regardless of whether information arising from the discharge of these duties may become publicly known.

6. Agreed that police officers are expected to give factual answers (although SI Roptell remarked that police officers may chose not to answer on the basis that an answer may incriminate them).

7. Stated that he considered that police officers carrying out investigative functions under Pt 8A of the Police Act would duly carry out their role regardless of whether information arising from the discharge of these functions may become publicly known.

22. In re-examination, SI Roptell:

1. Stated that, in addition to discussing evidence obtained for an investigation, the CMT also discussed a range of other issues arising from an investigation including disciplinary matters, conduct issues, the welfare of police officers and broader issues that may affect police operations (such as future investigative strategies).

2. Stated that police officers the subject of an investigation would have an expectation that their personal information would be protected.

3. Stated that the welfare of police officers could be impacted by the release of information in investigation of allegations (which may or may not be sustained) and this is particularly the case in conduct matters.

Evidence of Acting Inspector Renata Sala

23. Acting Inspector and Manager of the Operational Legal Advice Unit Renata Sala (AI Sala) was not called as a witness. Relevantly, the Witness Statement of AI Sala states (and I summarise and paraphrase):

1. The respondent’s Operational Legal Advice Unit (OLAU) receives requests for advice from various units of the respondent and allocates each request for advice to a “legal consultant” for completion. Legal consultants are Senior Police Prosecutors who may, or may not, have legal qualifications.

2. The legal consultant provides the draft advice to their “coordinator” for review. The legal consultant who prepared the draft legal advice in this matter (document 27) was not a solicitor. Following this review the advice is provided to the Manager of OLAU.

3. The Manager of OLAU is required to be admitted solicitor with a practising certificate. The Manager of OLAU reviews each advice and may recommend changes. The Manager of OLAU signs each advice, once satisfied with it.

Evidence of Chief Inspector Carey

24. As noted above, the respondent relied on the Affidavit of Chief Inspector and Manager of the Operational Legal Advice Unit Duane Carey (CI Carey) dated 4 March 2020 which states that he is the Manager of the OLAU of the respondent. CI Carey holds the substantive position of Manager of OLUA but was on leave at the time evidence was required to be filed in this matter.

25. Relevantly, CI Carey’s affidavit states (and I summarise and paraphrase):

1. CI Carey reviewed the Witness Statement of AI Sala and, subject to one clarification identified below, agrees with the description contained therein for the preparation of legal advice by OLAU.

2. In respect of the legal advice in this matter (document 27), CI Carey states that he:

1. Reviewed the request for advice and all evidence supplied.

2. Reviewed the draft advice prepared by the Sergeant to ensure all legal issues had been identified and addressed.

3. Reached his own view with respect to the advice.

4. Settled and signed the advice.

3. If there are questions regarding the advice, those questions are referred to CI Carey as “for all intents and purposes, the advice is [his]”.

26. CI Carey’s affidavit clarifies a statement made in the statement of AI Sala that advice is “routed” to CI Carey. CI Carey’s affidavit states that advice is not “simply routed” to him. Rather, as Manager of OLAU, CI Carey is responsible for all written advice from OLAU.

27. CI Carey was cross examined at the hearing. The respondent did not challenge CI Carey’s evidence regarding the statements set out in [25] and [26], above.

Submissions of the applicant

28. The applicant’s oral and written submissions included the following (and I paraphrase and summarise):

1. If there is information contained in a document that the Tribunal decides should be disclosed to the applicant pursuant to the GIPA Act, then that information should be disclosed even if other information in the same document needs to be redacted so it is not disclosed.

2. The GIPA Act requires the Tribunal to consider public interest against disclosure in respect of each piece of information based on the evidence before the Tribunal.

3. Claims of “prejudice” for the purposes of relevant parts of the Table must be based on “real and substantial grounds” and it will not be sufficient for the decision maker to “proffer a view” (Searle v Transport for NSW [2018] NSWCATAP 93 at [68](3)-(5)) and if the opinion of a witness on these matters is not reasonably held, it should be rejected (McKinnon v Blacktown City Council [2012] NSWADT 44 at [56]-[58]).

4. A significant amount of information was disclosed to the applicant before the hearing, which the applicant submits was collected during the investigation and must have formed the basis of the investigator’s findings. Some of this information was disclosed to the applicant in respondent’s written submissions filed for the hearing and the applicant was also provided with copies of the following before the hearing:

1. CCTV footage from the place of the applicant’s arrest.

2. Body worn footage (and transcript of the footage) from the Arresting Officer and several other police officers involved in the arrest of the applicant.

3. Signed statements of the Arresting Officer and another police officer involved in the arrest of the applicant.

4. Signed witness statements of seven police officers and six other persons obtained after the respondent commenced an investigation into the applicant’s complaint.

5. The applicant is the complainant under Pt 8A of the Police Act and knows the details of her complaint. The applicant submits this includes the “potential criminal offences and alleged serious misconduct” canvassed in the investigation’s terms of reference.

6. The applicant is aware that the allegations in her complaint were not sustained for the reasons set out in a letter from the respondent dated 5 July 2019 (No Further Action Letter).

7. If information has been already been disclosed to the applicant, it cannot be disclosed or revealed by giving the applicant access to it under the GIPA Act. Further, these prior disclosures reduce the weight that should be accorded to the public interest considerations against disclosure.

8. The secrecy provisions in Pt 14 of the Law Enforcement Conduct Commission Act 2016 (NSW) (LECC Act) and Pt 8A of the Police Act are not relevant in this matter.

9. The applicant’s personal factors that should be given significant weight. These include:

1. the applicant’s interest in receiving a full explanation of how her complaint was handled. In this regard, the applicant submits that she considers the No Further Action Letter did not adequately explain why her complaint was dismissed.

2. The public interest in ensuring that the respondent acts fairly, with lawful authority and in compliance with appropriate guidelines.

3. The public interest in ensuring that Aboriginal people, such as the applicant, are treated appropriately by the respondent while in custody and that complaints are fairly and thoroughly resolved.

10. The applicant’s written and oral submissions also addressed numerous other legal arguments relevant to the overriding public interests against disclosure claimed by the respondent and to assist the Tribunal.

Submissions of the respondent

29. The respondent’s oral and written submissions included the following (and I paraphrase and summarise):

1. Pursuant to s 123 of the Police Act, complaints under Pt 8A of the Police Act are subject to the LECC Act. Complaints that allege criminal offending and/or serious misconduct are notified to the Law Enforcement Conduct Commission.

2. Complaints under Pt 8A of the Police Act are registered and managed in a secure information system. The Guideline stipulates that information obtained for an investigation under Pt 8A is strictly confidential. This is the basis on which police officers investigate allegations and participate in the investigative process.

3. The respondent does not agree that significant amounts of information in the Complaint Documents or the LPP Information have already been disclosed to the respondent.

4. The Tribunal has accepted on many occasions that the release of information generated in the investigation of “internal complaints or allegations of misconduct in the workplace” could reasonably be expected to prejudice agencies’ functions in conducting such investigations and in performing their human resource functions.

5. In Sheehy v Commissioner of Police [2018] NSWCATAD 73, the Tribunal found that cl 1(d) of the Table applied to an investigation under Pt 8A of the Police Act.

6. In other relevant decisions, the Tribunal has previously found that employees may feel inhibited in providing frank and honest views on issues relating to complaints about employees if they are aware that the information may be disclosed.

7. Complaints involving conduct issues raise particularly sensitive issues that may result in disciplinary action if substantiated. Confidentiality of the investigative process allows these sensitive matters to be investigated and action taken, or the allegation dismissed, according to the evidence.

8. The respondent’s written and oral submissions also addressed numerous other legal arguments relevant to the overriding public interests against disclosure claimed by the respondent and to assist the Tribunal

Consideration

30. While the parties disagreed in respect of certain factual matters (for example, whether and when the Complaint Letter should be identified as a complaint under Pt 8A of the Police Act and the scope of an offer to travel to Sydney to discuss the investigation and the circumstances in which that discussion did not take place) much of the relevant factual background was not in dispute because it arises from the circumstances of the applicant’s arrest and the information documented as a result. Accordingly, the issues for the Tribunal in this decision focus on whether (and if so, the extent to which) information identified as within the scope of the Access Application should be disclosed to the applicant under the GIPA Act.

31. I will first consider the Complaint Documents, as these require consideration of ss 13 and 14 of the GIPA Act. I will then turn to the LPP Information, as this requires consideration Sch 1 to the GIPA Act.

Complaint Documents

Notice of Decision

32. In the Notice of Decision, the respondent variously relies on clauses 1(d), 1(e), 1(f), 1(h), 2(b) and 3(a) of the Table. These clauses, relevantly, provide that there is a “public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)”:

“1   Responsible and effective government

…

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

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

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

…

(h)   prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

2   Law enforcement and security

…

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

…”

33. Clause 3(a) of the Table contains the same test in relation to personal information being revealed but does not include the reference to “whether in a particular case or generally”.

34. Each of the above considerations in cls 1, 2 and 3 of the Table share certain following common elements. It is convenient to set out these common elements and set out the approach of the Tribunal before the turning to the relevant considerations.

Reasonably be expected

35. The words “could reasonably be expected to” have been held to require “something which is more than a mere risk or chance”. It must be based on real and substantial grounds, and not be purely speculative, fanciful, imaginary or contrived” (see Leech v Sydney Water Corporation [2010] NSWADT 198 at [28]). While it must be a ‘real’ risk, the chance of it materialising need not be more probable than not (Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36]). The phrase “‘simply calls for an objective assessment, on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact” (Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]).

Prejudice

36. Prejudice under the GIPA Act has been held to have 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 (Hurst) at [60]).

Approach of the Tribunal

37. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 the Appeal Panel stated at [26] that the Tribunal must first assess the effect of the claimed public interest consideration in the Table at a “broader operational level” and at [37] that “the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged”. Subject to this assessment, the Tribunal is to carry out the balancing exercise provided for in s 13 of the GIPA Act. In determining whether the public interest against disclosure outweighs the public interest in favour of disclosure. The Tribunal stated in Hurst at [70] that the balancing of the competing interests “is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation”.

38. The GIPA Act relates to information. If an applicant is entitled to particular information in a document, the applicant should be given access to that information by redacting information in a document that should not be disclosed (see Anderson v University of Sydney [2018] NSWCATAD 196 at [85]).

39. The Tribunal has found in numerous prior decisions that disclosure under the GIPA Act is considered to be disclosure to the world at large.

40. I will now consider the information in the Complaint Documents.

Document 1 – Letter to the Arresting Officer

41. The respondent determined not to disclose document 1 on the basis of cls 1(d), 1(f) and 3(a) of the Table.

42. I accept the evidence of SI Roptell that investigations involving the conduct of serving police officers under Pt 8A of the Police Act are particularly sensitive due to the matters raised and the potential impacts for all parties involved. I accept the evidence of SI Roptell (and as prescribed by section 4.2 of the Guideline) that the investigative process conducted by the respondent is confidential and I find that this is, in part, to protect the complainant, witnesses and subjects of an investigation while all relevant evidence is obtained and assessed.

43. I also accept the evidence of SI Roptell that police officers have an expectation that personal information obtained during an investigation into the relevant police officer’s conduct would not be publicly disclosed (in this regard and from my review of the information before the Tribunal, I am satisfied that the personal information contained in document 1 has not, for the purposes of the definition of “reveal” in cl 1 of Sch 4 to the Act, been publicly disclosed).

44. In Jenkinson v Department of Education and Communities [2013] NSWADT 280, the Tribunal accepted that disclosure of information supplied during an investigation of a complaint could reasonably be expected to prejudice the effective exercise by the Department of its functions in respect of the health and wellbeing of staff. I come to the same conclusion in respect document 1 as a document supplied in the course of an investigation under Pt 8A of the Police Act.

45. In Sheehy v Commissioner of Police [2018] NSWCATAD 73 (Sheehy) the applicants sought access to information arising from an investigation under Pt 8 of the Police Act and at [65] the Tribunal found that the “disclosure of these internal investigation files would prejudice the future effectiveness of internal investigations into police officers in the future”. I come to the same conclusion in respect of document 1 given the evidence and facts in this matter.

46. In my view the disclosure of document 1 could not reasonably be expected to prejudice the supply of confidential information to the respondent for the purposes of cls 1(d) of the Table. Document 1 is a letter issued to the Arresting Officer. It is not information supplied to the respondent. However, for the reasons set out above, I do find that the disclosure of document 1 could reasonably be expected to:

1. Prejudice the effective exercise of the respondent’s functions for the purpose of cl 1(f) of the Table.

2. Reveal personal information for the purpose of cl 3(a) of the Table.

47. I now turn to the balancing exercise required by s 13 of the GIPA Act. The public interest consideration in cl 1(f) should be given significant weight as the function supports the effective investigation of conduct matters involving public officials with substantial responsibilities. However, and as noted in Hurst, the balancing exercise involve questions of fact and degree, requiring the weighing of competing matters. I have reviewed document 1 and compared the information contained in it to the information which has already been disclosed to the applicant by the No Further Action Letter, in particular. In Eyes v Wyong Shire Council [2015] NSWCATAD 214, the Tribunal considered the effect of information that had been previously disclosed and stated at [42] that the weight to be attributed to the public interest considerations against disclosure must be very low. In addition, in this matter the applicant is the complainant under Pt 8A of the Police Act and is aware of the identity of the Arresting Officer, the allegations made and (through information disclosed before the hearing) the finding that the allegations were not substantiated. In view of these prior disclosures, the consideration against disclosure should be given little weight. On balance I consider that the public interest of informing the public about the operations of the respondent and the applicant’s interest in having information regarding her complaint should be given greater weight. Subject to my comment below regarding cl 3(a), document 1 should be disclosed.

48. I consider that the public interest in not revealing personal information should be given greater weight than the public interest and applicant’s personal factors in favour of disclosing the information. The relevant personal information arises from the sensitive matter of allegations about conduct matters and has not been publicly revealed. Accordingly, the personal information contained in document in document 1 is to be redacted before the document is disclosed.

Document 2 – Investigation report

49. The respondent determined not to disclose document 2 on the basis of cls 1(d), 1(f), 1(h), 2(b) and 3(a) of the Table.

50. I accept the evidence of SI Roptell that police officers would carry out their duties (including as an investigator under Pt 8A of the Police Act and as a witness for such an investigation) according to law and regardless of whether information arising from the discharge of these duties may become publicly known. An investigation under Pt 8A of the Police Act also requires information from members of the public who are under no obligation to provide information. In Robinson v Department of Health [2002] NSWADT 222 at [71], the Tribunal held that the effectiveness of an agency’s investigative functions depends on the co-operation of those who have information relevant to the investigation. In this regard, I accept the written evidence of SI Roptell that the ongoing confidentiality of the information “encourages the provision of voluntary and open and honest information”.

51. For the reasons above and as also set set out in relation to document 1, I am satisfied that document 2 was prepared by the respondent as a confidential document and that document 2 facilitates the effective exercise of the respondent’s functions.

52. I also accept the evidence of SI Roptell that investigation reports will identify lines of enquiry and potential conduct issues that may not be apparent from the allegations received by the respondent in order to identify additional matters for investigation and broader operational issues for the respondent. In considering cl 2(b) of the Table, the Tribunal stated in McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 6 at [97]:

“the basis of this consideration is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods. There is no need for an actual contravention of the law since the clause encompasses both actual and possible contraventions. The consideration is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law.”

53. From my review of the information before the Tribunal, I am satisfied that the personal information contained in document 2 has not been publicly disclosed and based on the evidence of SI Roptell, I accept that police officers have an expectation that their personal information will be treated confidentially.

54. I do not accept that the disclosure of document 2 could reasonably be expected to prejudice the conduct, effectiveness or integrity of any investigation for the purposes of cl 1(h). The complainant is the applicant and made the allegations the subject of the investigation. The Guideline sets out how investigations are to be conducted in some detail. Further, the investigating officer assigned to carry out the investigation will, for the reasons set out above, carry out his or her duties without regard to the risk of public disclosure. However, I do find that the disclosure of document 2 could reasonably be expected to:

1. Prejudice the supply of information that facilitates the effective exercise of the respondent’s functions for the purposes of cl 1(d) of the Table to the extent that the information is required from members of the public. I do not accept this prejudice arises with respect to information provided by police officers given the evidence before the Tribunal that they would perform their duties and functions despite a risk of public disclosure.

2. Prejudice the effective exercise of the respondent’s functions for the purposes of cl 1(f) of the Table for the reasons set out above and in relation to document 1.

3. Prejudice the prevention or investigation of a possible contravention of the law by disclosing investigatory methods that are not publicly known for the purposes of cl 2(b).

4. Reveal personal information for the purposes of cl 3(a) of the Table.

55. Turning to the balancing exercise required by s 13 of the GIPA Act, each of the public interests against disclosure outlined above are significant. I have reviewed document 2 and the information disclosed to the applicant before the hearing. From my review I have determined that almost all of the information contained in the section entitled “Evidence” has already been disclosed to the applicant. For the reason stated in relation to document 1, the weight to be attributed to these considerations should be very low. On balance, I consider that the public interest of informing the public about the operations of the respondent and the applicant’s interest in having information regarding her complaint should be given greater weight than the public interests against disclosure in cls 1(f), 1(d) and 2(b) of the Table.

56. On balance, I consider that the public interests against disclosure should be given greater weight than those in favour of disclosure in respect of the remaining sections of document 2 in respect of which the relevant information has not been disclosed. In my view, greater weight should be given to the public interests because they support robust investigation processes that allow allegations of potential misconduct to be investigated on a confidential basis and to ensure relevant information is provided from all sources. In addition, the information contained in the sections of document 3 entitled “Issue 3” and “Other Issues” do not directly relate to an allegation raised in the Complaint Letter and, in my view, this reduces the weight that should be given to the public interests in favour of disclosure of these sections of document 2.

57. For the same reasons as identified in respect of document 1, the personal information contained in document 2 is to be redacted before the document is disclosed.

Document 3 – Commander’s certification

58. The respondent determined not to disclose document 3 on the basis of cls 1(d) and 1(f) of the Table and cl 5 of Sch 1 to the GIPA Act.

59. For the reason set out in relation to document 2, I do not consider that the disclosure of document 3 would prejudice the supply of information of this kind in future – police officers will carry out their duties regardless of whether information may be disclosed at a later time. In addition, document 3 is a certification from a senior manager and was prepared as part of that person’s employment duties such that the supply of the information could not reasonably be expected to be prejudiced (see TW v TX [2005] NSWADT 262 at [23]). Given this, I find that the disclosure of document 3 could not reasonably be expected to have the effect set out in cl 1(d) of the Table.

60. I do consider that the disclosure of document 3 could reasonably be expected to prejudice the effective exercise of the respondent’s functions for the purpose of cl 1(f) of the Table for the reasons set out above in relation to documents 1 and 2.

61. Turning to the balancing exercise required by s 13 of the GIPA Act, I consider that the public interests in favour of disclosure outweigh those against disclosure. While cl 1(f) is a significant consideration, the weight to be attributed to it must be very low where the information contained in document 3 has already been disclosed. I have reviewed document 3 and am satisfied that almost all of the information contained in it has been disclosed to the applicant.

62. However, certain information contained in document 3:

1. Sets out the conclusion of legal advice and identifies that conclusion with respect to issues discussed in document 2. I consider that this information is subject to a conclusive presumption against disclosure pursuant to cl 5 of Sch 1 to the GIPA Act and as discussed further below. This information should not be disclosed.

2. Contains personal information and for the same reasons as identified in respect of document 1, the personal information contained in document 3 is to be redacted before the document is disclosed.

Document 4 – Minutes of CMT meetings

63. The respondent determined not to disclose document 4 on the basis of cls 1(d), 1(e), 1(f) of the Table and cl 5 of Sch 1 to the GIPA Act.

64. The Guideline sets out the role of the CMT. The CMT provides oversight of the investigation. The CMT provides an advisory function and is intended to improve the quality of investigations under Pt 8A of the Police Act.

65. I accept that police officers will perform their duties as directed or required at law regardless of whether information may be disclosed at a later time. However, I do not consider that SI Roptell’s evidence in this regard can, logically, be taken to apply without limits. In my view, the effective participation by officers involved in the investigation of other officers requires such police officers to offer lines of enquiry or investigative strategies to enhance the effectiveness of the investigation based on their personal experience and knowledge. In this regard, I accept SI Roptell’s written evidence which states that it is of critical importance to the success of the CMT meetings that members are able to discuss complaints freely and without concern that the discussions will be disclosed.

66. In Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [106] the Tribunal accepted that the disclosure of a deliberative process which would result in staff feeling inhibited in providing frank and honest views, or declining to participate in the process, outweighed the potential benefit from the disclosure of the withheld information. In McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 at [84], the Tribunal came to a similar conclusion with respect to the deliberations of the CMT in respect of an investigation under Pt 8A of the Police Act.

67. In my view, the disclosure of document 4 could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given in such a way as to prejudice that deliberative process for the purposes of cl 1(e) of the Table because police officers would be less willing to contribute and this would impede the function of the CMT and investigations.

68. Turning to the balancing exercise required by s 13 of the GIPA Act, I consider that a public interest that supports the effective oversight of complaints under Pt 8A of the Police Act should be given significant weight. From my review of the information before the Tribunal, the information contained in document 4 has not previously been disclosed to the applicant. On balance, I consider that the applicant’s personal interests and the public interest in the operations of agencies and how they will deal with members of the public should be given less weight. Accordingly, document 4 should not be disclosed.

69. As document 4 is a consolidation of documents 6, 7, 8, 10, 11, 12, 13 and 14, my decision in respect of document 4 applies to these documents as well.

Documents 5 and 9 – Delayed investigation advice to LECC and Report for investigation file

70. The respondent determined not to disclose document 5 and 9 on the basis of cls 1(e) and 1(f) of the Table.

71. While the respondent has not put forward evidence sufficient for me to form a view in respect of cl 1(e) in respect of these document, for the reasons set out in relation to document 2 above, I consider that disclosure of these documents could reasonably be expected to prejudice the investigative functions of the respondent for the purposes of cl 1(f).

72. Turning to the balancing exercise required by s 13 of the GIPA Act, I consider that the public interests in favour of disclosure outweigh those against disclosure. The information contained in documents 5 and 9 has been disclosed to the applicant in the written evidence of SI Roptell. As such, the weight to be attributed the public interest considerations against disclosure must be low. Accordingly, documents 5 and 9 should be disclosed to the applicant.

73. To the extent these documents contain other information, in my view that information is limited to the public officials who sent and received the information. There is no evidence before the Tribunal that supports a finding that such information is confidential. Accordingly, documents 5 and 9 should be disclosed.

Documents 15 and 16 – Memoranda

74. The respondent determined not to disclose these documents on the basis of cls 1(d), 1(e), 1(f), 1(h) and 3(a) of the Table.

75. Document 15 identifies how an evidentiary issue should be investigated and, in so doing, identifies alternate investigation strategies that could be used. Document 16 contains information of substantially the same nature. In my view and for reasons set out above in relation to document 2, the effective exercise of the respondent’s investigative functions under Pt 8A of the Police Act would be prejudiced by disclosing the investigative strategies for the purpose of cl 1(f) of the Table. For the reasons set out in relation to document 4, I consider the disclosure of these documents may also prejudice a deliberative process for the purpose of cl 1(e) of the Table.

76. Turning to the balancing exercise required by s 13 of the GIPA Act I consider that the public interest in ensuring effective oversight of complaints under Pt 8A of the Police Act should be given significant weight. From my review of the information before the Tribunal, the information contained in documents 15 and 16 has not previously been disclosed to the applicant. On balance, I consider that the applicant’s personal interests and the public interest in the operations of agencies and how they will deal with members of the public should be given less weight. Accordingly, documents 15 and 16 should not be disclosed.

Documents 17 and 18 – advice and memorandum

77. The respondent determined not to disclose these documents on the basis of cls 1(e) and 1(f) and for document 18 only, cls 1(h) and 3(a) of the Table.

78. In my view, the disclosure of information contained in documents 17 and 18 could reasonably be expected to prejudice the effective exercise of the respondent’s functions for the purpose of cl 1(f) of the Table. The information could identify one or more witnesses relevant to an investigation and the disclosure of such information, as a result, could reveal issues in an investigation before all evidence is obtained and may result in witnesses being less willing to participate in investigations under Pt 8A of the Police Act.

79. Turning to the balancing exercise required by s 13 of the GIPA Act, I consider that the public interests in favour of disclosure outweigh those against disclosure. While cl 1(f) is a significant consideration, the weight to be attributed to it must be very low where the information contained in documents 17 and 18 has already been disclosed. In my view, the information contained in documents 17 and 18 has been disclosed to the applicant in the written evidence of SI Roptell. On balance, I consider that documents 17 and 18 should be disclosed.

Document 20 – Investigation plan

80. The respondent determined not to disclose document 20 on the basis of cls 1(d), 1(e), 1(f), 1(h), 2(b) and 3(a) of the Table.

81. Document 20 was prepared approximately 1 month after the respondent received the Complaint Letter. I accept the written evidence of SI Roptell that document 20 reflects a preliminary stage of the investigation the purpose of which is to capture all possible issues for the investigation arising from the allegations made, whether specified in the allegations or not. I also accept the evidence of SI Roptell that, in his experience, investigations benefit from this broad preliminary analysis. In my view, the disclosure of the information contained in document 20 would impede this benefit and thereby the effectiveness of the investigative process. In my view, the disclosure of document 20 could reasonably be expected to prejudice the effectiveness of the respondent’s functions for the purpose of cl 1(f) of the Table.

82. Turning to the balancing exercise required under s 13 of the GIPA Act, I consider that greater weight should be given to the public interest of retaining a robust and confidential investigation process that identifies all possible matters arising from complaints and to ensure relevant evidence is obtained. From my review of the information before the Tribunal, the information contained in document 20 has not previously been disclosed to the applicant. Accordingly, document 20 should not be disclosed to the applicant.

Document 21 – Terms of reference

83. Document 21 is the terms of reference for the investigation. The respondent determined not to disclose document 20 on the basis of cls 1(d), 1(e), 1(f), 2(b) and 3(a) of the Table.

84. For the same reasons I have set out in respect of document 20, I consider that the disclosure of document 21 reasonably be expected to prejudice the effectiveness of the respondent’s functions for the purpose of cl 1(f) and, on balance, should not be disclosed to the applicant.

Document 22 – Conflict of interest form

85. The respondent determined not to disclose document 22 on the basis of cls 1(d) and 1(f) of the Table.

86. Document 22 appears to be a standard form, which has been completed by ticking whether a possible conflict arises for a person with involvement in the investigation process. Section 4.1 of the Guideline deals with conflicts of interest in investigations under Pt 8A of the Police Act and sets out a number of questions that should be asked of a person involved in an investigation. Many of these questions are, in substance, the same as those contained in document 22 and could not, therefore, be said to be confidential for the purposes of cl 1(d) of the Table. In addition, the Guideline requires document 22 to be completed by police officers carrying out investigations under Pt 8A of the Police Act and, on this basis, it does not appear that the future supply of the relevant information could be prejudiced by the disclosure of document 22 for the purposes of cl 1(d) of the Table.

87. For the same reason (and because the information contained in document 22 conforms with a widely known governance process for agencies such as the respondent) I do not consider the disclosure of document 22 could reasonably be expected to prejudice the effective exercise of the respondent’s investigative functions for the purpose of cl 1(f) of the Table. Accordingly, document 22 should be disclosed.

Document 23 – Letter to investigator

88. The respondent determined not to disclose document 23 on the basis of cls 1(d) and 1(f) of the Table.

89. Document 23 appoints a police officer as the investigator for the purposes of Pt 8A of the Police Act. Part 8A of the Police Act recognises that one or more police officers may be appointed to investigate a complaint (see s 136 of the Police Act). The respondent did not put forward evidence that the appointment or name of the police officer appointed was confidential (and the name of the officer was disclosed to the applicant before the hearing). In the circumstances, I do not consider that document 23 could reasonably be expected to have the effects set out in cls 1(d) or 1(f) of the Table. Accordingly, document 23 should be disclosed

Document 25 – Minutes CMT Assessment

90. The respondent determined not to disclose document 25 on the basis of cls 1(d), 1(e), 1(f) and 3(a) of the Table.

91. Document 25 comprises the assessment of the CMT regarding matters arising from the investigation and includes strategies in response to matters arising from the investigation. For the reasons set out in relation to document 4, I consider that document 25 could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given in such a way as to prejudice that deliberative process for the purposes of cl 1(e) of the Table.

92. Turning to the balancing exercise required by s 13 of the GIPA Act, I consider that the relevant public interest against disclosure should be given significant weight. From my review of the information before the Tribunal, the information contained in document 25 has not previously been disclosed to the applicant. While the public interests in favour of disclosure are also important, on balance I consider they should be given less weight. Accordingly, document 25 should not be disclosed.

Document 26 – Triage form to manage complaint

93. The respondent determined not to disclose document 26 on the basis of cls 1(d), 1(e), 1(f) and 3(a) of the Table.

94. While the requirement for a triage process has been disclosed to the applicant by the production of the Guideline and the written evidence of SI Roptell, I am satisfied that the information contained in document 26 has not been disclosed. For the reasons set out in relation to document 20, I consider that the disclosure of document 26 could reasonably be expected to prejudice the effectiveness of the respondent’s functions for the purpose of cl 1(f).

95. Turning to the balancing exercise required under s 13 of the GIPA Act, I consider that greater weight should be given to the public interest that supports a robust investigation process and the identification of all possible matters arising from complaints. While the public interests in favour of disclosure are also important, on balance I consider they should be given less weight. Accordingly, document 26 should not be disclosed.

LPP Information

96. The LPP Information is contained in:

1. Part of document 2 – Investigation Report dated 4 July 2019.

2. Part of document 3 – Internal Memorandum (undated).

3. Part of document 4 – Consolidated minutes of the meetings of the CMT.

4. Document 27 – Legal advice dated 4 June 2019.

97. The Tribunal has previously stated Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31]:

"The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information."

98. Clause 5 in Sch 1 to the GIPA Act provides for such a conclusive presumption if the information would be privileged from production in legal proceedings on the ground of legal professional privilege, unless the privilege has been waived. The Tribunal has previously found that cl 5 of Sch 1 to the GIPA Act adopts the tests for the existence of legal professional privilege in the Evidence Act 1995 (NSW) (Evidence Act) (see Larsson v Office of Environment and Heritage [2014] NSWCATAD 136 at [25]).

Document 27 – request for legal advice and legal advice

99. As document 27 is the legal advice (and the request for the legal advice) it is convenient to consider it before documents 2, 3 and 4.

100. As outlined in the evidence of CI Carey and AI Sala, document 27 was prepared by a person who did not hold the certificate necessary to practice law in NSW but was reviewed and signed by CI Carey who did hold such a certificate. In Jacobs v The Queen [2013] NSWSC 633 (Jacobs), the Supreme Court considered whether advice was provided by a “lawyer” as defined in s 117 of the Evidence Act. In Jacobs, the advice was advice prepared by a Senior Sergeant Cooke of OLAU, who was not a legally qualified person but was a qualified Police Prosecutor. The evidence in Jacobs was that the work of Senior Sergeant Cooke was “closely supervised” and “signed off by” by the Manager of OLAU including the words “I agree with this advice”. At [13], Davies J said that he does “not entertain any doubt in the light of that, that the advice which has been given … is the advice of a lawyer within the meaning of s 117 [of the Evidence Act]”.

101. I have reviewed the legal advice and am satisfied it has been signed by CI Carey (including the words “I agree with this advice”). I accept the evidence of CI Carey and AI Sala with respect to the process through which advice is generally obtained from OLAU and the way in which document 27 was prepared and signed by CI Carey. Accordingly, I find that document 27 is information in respect of which it is to be conclusively presumed that there is an overriding public interest against disclosure pursuant to cl 5 of Sch 1 to the GIPA Act.

Documents 2, 3 and 4

102. Significant parts of document 27 are reproduced in document 2 (the relevant parts being all of pages 4 and 5 with the exception of the first paragraph of page 4 of document 2). One sentence in document 3 describes the conclusion of document 27 with reference to various findings and issues identified in document 2. The minutes of one meeting of the CMT contained in document 4 summarise the nature and conclusions of document 27.

103. I have previously found that documents 2, 3 and 4 were prepared on a confidential basis. In addition, the request for advice was made in respect of matters arising from the investigation in respect of the Complaint Letter and it is consistent with the provision of this advice that the matters contained in the advice have been reproduced in documents 2, 3 and 4. In my view, the reproduction or summary of parts of document 27 in these other documents that were prepared on a confidential basis by the respondent (and with a limited number of police officers with authority to view those documents) does not waive the privilege. Accordingly, I find that the parts of documents 2, 3 and 4 and that reproduce or summarise the contents of document 27 are subject to the same conclusive presumption as document 27 and should not be disclosed. My conclusions regarding documents 2, 3 and 4 are in addition to my conclusions above in respect of these documents.

Orders

1. The decision of the respondent is set aside in respect of documents 5, 9, 22 and 23 and in substitution for that decision the respondent is to disclose those documents to the applicant within 28 days of the publication of these reasons.

2. The decision of the respondent is varied in respect of documents 1, 2 and 3 in that the following parts of those documents are to be disclosed to the applicant within 28 days of the publication of these reasons:

1. Document 1 (excluding the words commencing at “that” and concluding with “officer” in paragraphs 1 and 2 as well as the words commencing at “It is” and concluding with “standard”) is to be disclosed to the applicant.

2. Page 1 of document 2 (excluding the words commencing at “Issue 2:” and concluding “to investigate” on page 1) is to be disclosed to the applicant.

3. Pages 2 and 3 of document 2 (excluding the words commencing “He was” in paragraph 2 of page 3 and concluding “the matter” and excluding the section commencing at “FINDINGS” on page 3 and concluding “and 2 together”) are to be disclosed to the applicant.

4. Page 8 of document 2 is to be disclosed to the applicant.

5. Document 3 (excluding the words commencing at “However” and concluding with “interview” in paragraph 4, the words commencing at “A legal” and concluding with “findings” in paragraph 5 and the words commencing at “and therefore” and concluding “this date” in paragraph 8) is to be disclosed to the applicant.

3. The decision under review is otherwise affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 June 2020