Eggleton v Secretary, Department of Communities and Justice

[2022] NSWCATAD 310

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Eggleton v Secretary, Department of Communities and Justice [2022] NSWCATAD 310

Hearing dates:

21 July 2022

Date of orders:

23 September 2022

Decision date:

23 September 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The Remitted Decision of the respondent dated 9 April 2021, as varied by the respondent from 9 April 2021 to 21 July 2021, is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – onus of proof - scope of GIPA application - reasonable searches - access and form of access – confidential hearing and evidence

Legislation Cited:

Civil and Administrative Tribunal Act 2011 (WA)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Administration of Sentences) Regulation 2014 (NSW)

Evidence Act 1995 (NSW)

Freedom of Information Act 1982 (Vic)

Government Information (Public Access) Act 2009 (NSW)

Government Sector Employment Act 2013 (NSW)

Industrial Relations Act 1996 (NSW)

Privacy and Personal Information Protection Act

State Records Act 1998 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [61]

Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]

Cheung v Commissioner of Police [2019] NSWCATAD 249

Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95 at [62]

Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [25]

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

Crewdson v Central Sydney Area Health Service [2002] NSWCA 345

Eggleton v Commissioner of Police [2022] NSWCATAD 218

Eggleton v Secretary, Department of Communities and Justice [2022] NSWCATAD 67

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]

Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]

GA v The University of Sydney [2009] NSWADT 230

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]

Hansen v Commissioner of Police [2020] NSWCATAD 89

Hooper v Willoughby City Council [2021] NSWCATAD 208 at [130]

Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at [32]

Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]

Jackson v University of New South Wales [2019] NSWCATAD 224

Jenkinson v Department of Education and Communities [2013] NSWADT 280

Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]

Lonsdale v University of Sydney [2015] NSWCATAP 277 at [57]

Luxford v Department of Education and Communities [2016] NSWCATAD 118

McLachlan v Commissioner of Police, NSW Police Force [2019] NSWCATAD 109 at [82]-[83]

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7]

Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]

Miriani v Transport for NSW [2021] NSWCATAD 16

Miskelly v Secretary, Department of Education [2019] NSWCATAD 48

Neary v State Rail Authority [1999] NSWADT 107 at [35]

Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAD 22 at [41]

Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; (1992) 108 ALR 163; (]

Seremetis v NSW Department of Justice [2019] NSWCATAD 118 at [46]

Seven Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210

Sharpe v Grobbel [2017] NSWSC 1065 at [35]

Sheehy v Commissioner of Police [2018] NSWCATAD 73

Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 at [14]

South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 at [45]-[46]

Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]

Taylor v Destination NSW [2017] NSWCATAD 272 at [17]

Turner v Corrective Services NSW (No 2) [2013] NSWADT 232

Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 at [41]-[42]

Watts v Department of Planning and Environment [2016] NSWCATAD 42 at [71]

Willner v City of Port Phillip (Review and Regulation) [2015] VCAT 1320

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [42]

YG & GG v Minister for Community Services [2002] NSWCA 247 at [55]

Zonnevylle v Department of Justice [2018] NSWCATAD 96 at [9]

Texts Cited:

Not applicable

Category:

Principal judgment

Parties:

Rickie Eggleton (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Solicitors:
Self-represented - Applicant
Mr J Cahill & Ms Z Dunford (Office of General Counsel) - Respondent

File Number(s):

2021/00030874

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent [Secretary, Department of Communities and Justice].

Reasons for decision

Background

1. These proceedings concern a request that Rickie Eggleton (the applicant) made to the Secretary, Department of Communities and Justice (the respondent) on 16 June 2020 for the release of documents under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act) relating to himself, as follows:

1. All Offender Integrated Management System (OIMS) Case Notes 1/7/2009 to present for himself.

2. All records held in case management folder/s 1/7/2009 to present for himself.

3. CCTV, body camera & handheld recorder footage of reported assault to himself by custodial officers on the 19 January 2020 at approx. 11:30am in Cell 129, Block I, Shortland C.C.

4. CCTV footage from the internal cell camera & external yard camera monitoring cell 129, Block I, Shortland CC on the 19 January 2020 for the time period 8:30am to 3:30pm.

5. CCTV footage from the 2 corridor cameras monitoring cell 129 Block I for the period showing the cell entry by officers into cell 129 on the 19 January 2020 at approx. 11:30am footage to include 10 min prior to entry & 10 min after exit of cell.

6. All cell intercom recordings & transcripts for the housing of himself, cell 129, Block I, Shortland CC for the period 24^th Dec 2019 to 14^th Apr 2020.

7. All documents, reports, notes, correspondences, inter-departmental communications & inter-government agency communications held by Shortland CC & CSNSW Professional Standards Branch relating to the investigation of the reported assault of himself on 19 January 2020 for the period 19 January 2020 to present.

8. All notes, documents, reports & inter-departmental communications held by CSNSW Inmate Support Hotline held 23/3/17 to present for himself.

9. All documents regarding the reporting of an assault on himself at Shortland CC on 19 January 2020 including, correspondences between himself & General Manager Shortland CC, “Incident detail report”, “Incident Checklist”, “Incident witness report”. “Officers involved statements”, “Use of force reports (as required under Crimes (Administration of Sentences) Regulation 2014, NSW, Part 6, Div 2, 133), “Misconduct report”. “Inmate injury questionnaire”, “Injury/Incident report notification of desire for Police to conduct an investigation form”, “Report to Police of alleged incident/assault.”

10. Inmate request forms lodged Hunter CC Ref # 19/130, 3/2/19; Ref # 19/272, 11/3/19; Ref # 19/319, 22/3/19; Ref # 19/325, 28/3/19; Ref # 19/577, 2/5/19; Ref # 19/587 6/5/19; Ref # 19/588. 6/5/19; Ref # 19/610, 10/5/19; Ref # 19/628, 15/5/19.

11. Inmate Application Form lodged Hunter CC on 22^nd May 2-19 to SAS Ms Bennett regarding complaint of officers actions threats on 15 May 2019.

12. Inmate Application Form lodged Hunter CC ref # ACT13 lodged 14^th July 2019.

13. Use of Force by Custodial Officer Report & other documentation required for reporting under the Crimes (Administration of Sentences) Regulation 2014 NSW Part 6, Div 2, 135 in relation to the use of force of custodial officers to himself on 19 January 2020 & 30 April 2019 for the period 30 April 2019 to present.

2. On 16 September 2020, the respondent issued a Notice of Decision under the GIPA Act and he decided: (1) to provide the applicant access to some of the information sought (s 58(1)(a)); (2) to refuse access to some of the information sought on the basis that there is an overriding public interest against its disclosure (s 58(1)(d)); (3) that he does not hold some of the information requested; and (4) in respect of cell intercom recordings, there is an overriding public interest against providing the information in the way requested, being a copy of the intercom recordings (s 72(2)(d)). He also redacted third-party personal information and staff names under s 74 of the GIPA Act, as these were “out of scope” of the GIPA application.

3. The respondent identified relevant public interest considerations in favour of disclosure of the information sought under s 12 of the GIPA Act and placed considerable weight on those factors. He also identified relevant public interest considerations against disclosure, namely cll 1(f) and 1(h) of the Table to s 14(2) of the GIPA Act and ultimately decided that the public interest considerations against disclosure outweighed those in favour of disclosure. Therefore, that information was not released or redacted, where appropriate.

4. The respondent decided that cl 6(1) to the table in s 14(2) of the GIPA Act applied because Corrective Services NSW (CSNSW) has additional restraints upon disclosure of information (reflecting the highly sensitive nature of the information held). For example, if security classification or custodial intelligence records of an inmate were released to the world at large, it would have the effect of revealing sensitive information regarding the inmate in connection with CSNSW, which has the potential to damage the reputation of that person or related persons as well as its methodologies in ensuring that correctional centres are secure.

5. In relation to the “intercom recordings” sought in the GIPA application, the respondent decided that while the public interest is in favour of providing access, the public interest is more heavily weighted against releasing a hard copy to the applicant and he provided listening access under s 72(2) of the GIPA Act.

6. The respondent also referred to s 257(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act), provides that a person must not disclose any information obtained in the connection with the administration or execution of that Act. He decided that the intercom recordings contain personal information of CC staff (their distinct voices and personal opinions) and disclosure would reveal personal information about them in circumstances where it was not reasonably practicable to obtain the consent of all staff in view of the number of recordings that were sought. He also relied upon cl 3(a) of the Table to s 14(2) of the GIPA Act, decided that disclosure could reasonably be expected to reveal an individual’s personal information and placed significant weight on this consideration if a copy of the recordings was to be provided to the applicant (but lesser weight it if he was provided with listening-only access).

7. The respondent also stated that he considered possible voice distortion, but he does not have the capability or capacity to do this in-house and a private contractor would need to be engaged, likely at a high cost given the number of persons involved, and those costs would be unreasonable: s 72(2)(a) of the GIPA Act.

8. On 20 October 2020, the applicant applied for an internal review.

9. On 4 December 2020, the respondent issued a Notice of Review Decision. He decided to provide the applicant with access to further information that was found in relation to items 10 and 11 but affirmed his previous decisions: (1) to redact some information from items 1, 3 and 9 (s 58(1)(d)); (2) that he did not hold certain information sought in items 10 and 12 (s 58(1)(b)); and (3) to provide listening-only access it item 7 (s 72(1)(c)). He also relied upon cll 2(g) and 3(b) of the table to s 14(2) of the GIPA Act as additional public interest considerations against disclosure.

10. On 3 February 2021, the applicant filed the current application in the Tribunal and sought administrative review of the respondent’s decisions dated 16 September 2020 and 4 December 2020, on the following grounds:

1. The applicant has a legally enforceable right to a review of the decisions made by an agency in respect to a GIPA application as provided within the GIPA Act section 80(d), (e), (h) and (i).

2. The agency did not adequately consider the public interest considerations in favour of disclosure under GIPA Act section 12(1) and (2) and note (a) – (e) Considerable weight should have been given to these considerations as they underpin the objectives of the Act at section 3(1) ‘in order to advance a system of responsible and representative democratic government that is open, accountable, fair and effective…’

3. The applicant being subject to the Crimes (Administration of Sentences) Act has a legal right to disclosure of information sought that was obtained under the Crimes (Administration of Sentences) Act section 257 when the disclosure is made, ‘(a) with the consent of the person from whom the information was obtained, (c) for the purposes of any legal proceedings.’

4. The applicant has a legal right to the disclosure of information sought under the Privacy and Persona Information Protection Act (PPIFP Act ) (sic) section 14, being with the purpose of invoking the provision provided at section 15 of the PPIFP Act to seek from the agency their action to “make appropriate amendments (whether by way of correction, deletions or additions) to ensure that the personal information - (a) is accurate, and (b)… is relevant, up to date, complete and not misleading.” At contention with the agency and purpose for access is the determining of accuracy, completeness and that the information held is misleading.

5. The agency did not take into consideration its duty at law under the PPIFP Act section 16 when considering reasons for disclosure of information, that being the agency “must not use the information without taking such steps that are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading”. A reasonable step is to afford access for determination by the person to whom the access relates is accurate and not misleading when it is being used for the making of decisions concerning the applicant’s health, wellbeing, and safety.

6. The agency did not proportion appropriate weight to the public interest for disclosure when considering release of item 1, 2, 3, 7, 8 and 9 in the application nor provisions provided and purposes of disclosure under Crimes (Administration of Sentences) Act section 257 and Privacy and Personal Information Protection Act section 14, 15 and 16.

7. The agency did not take into adequate consideration GIPA Act section 72(2)(d) that makes provision for the agency to consider whether disclosure of the information sought, in a form other than that requested by the access applicant would alter the balance between the competing public interest so that the public interest considerations against disclosure no longer outweigh the public interest consideration in favour of disclosure if access is granted in an alternative form. That being the information sought in the forms given in section 72(1)(a), (c) and (d). Nor enough consideration of precedence was given in favour of provision in alternative forms such as provided in Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 and Cheung v Commissioner of Police [2019] NSWCATAD 249.

8. That the adequacy of searches undertaken were not adequate given that documents sought at item 12 of the application is deemed an auditable item as defined by the agencies CSNSW Custodial Operations Policy and Procedure Manual 9.1, and further states that ultimately is required to be stored and forwarded to Corporate Records.

9. The applicant has a duty as given in the Uniform Civil Procedures rule 5.4 discovery of documents from prospective defendant, to ensure that he has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendants before making an application to the Supreme Court for claim for relief for discovery of documents. Seeking a review under s 100 of the GIPA Act may be a necessary requirement of the Supreme Court for access prior to the application of a discovery order.

10. The GIPA Act does not restrict the purpose to which the information can be sought or used once disclosed. The agency did not proportion enough weight to the public interest for disclosure for release of information that raises allegations of misconduct, or crime within an agency and the cost effective access to information of interest, when determining to proceed with legal action. The object of the GIPA Act at s (b) states “…so as to facilitate and courage, promptly and at the lowest reasonable cost, access to government information.” Information that might otherwise be given via alternative means by action through the court.

11. The agency redacted names of officers throughout released documents despite schedule 4, cl 4(3)(b). Names of officers do not account to personal information.

12. Not all intercom recordings were provided for the requested period and the agency did not provide any indication as to why these have not been released.

Procedural directions

11. On 3 March 2021, Senior Member Higgins conducted a case conference. The applicant was self-represented and Ms Sheen and Ms Jeyasingham appeared for the respondent. The Senior Member remitted the internal review decision to the respondent for reconsideration and ordered him to advise by 9 April 2021, whether that decision was affirmed, varied, or set aside and if there is a new decision. She ordered the applicant to advise whether he was continuing or withdrawing his application by 26 April 2021 and listed the matter for further case conference on 26 April 2021.

12. The Senior Member noted that on 25 February 2021, the applicant filed a bundle of documents, including an 8 page overview that set out the matters of which he sought a review. He also sought leave to apply for an external review of a 2019 decision by the respondent (i.e. LEGAL 3724/19) and the Tribunal advised him to lodge a fresh application for administrative review and an application for an extension of time in which to lodge it, together with his supporting evidence and written submissions.

13. On 26 April 2021, Senior Member Lonsdale conducted a case conference. The applicant was self-represented and Ms Jeyasingham appeared for the respondent. The Senior Member ordered: (1) the applicant to serve a list of any information that he considered “missing” from the information provided to him (which he referred to as “RIT” documents) by 30 April 2021; (2) the respondent to file and serve any further information in respect of the “RIT” documents and any further recordings within the scope of item 6 of its Remitted Decision dated 9 April 2021 for the period from 24 February 2020 to 14 April 2020; (3) the applicant to file and serve a schedule identifying his outstanding issues by 4 June 2021; and (4) noted that the applicant took issue with the decision that certain information was “not held” and that all or part of the information in other categories was not released.

14. At a case conference on 7 June 2021, Senior Member Higgins ordered the applicant to file and serve a written response to the respondent’s letter dated 3 June 2021 and any matters arising from the decision dated 9 April 2021. She ordered the respondent to file and serve its reply to matters raised in the applicant’s written response by 28 June 2021 and listed the matter for a further case conference on 5 July 2021.

11. However, the case conference was deferred to 26 July 2021, when Senior Member McAteer ordered: (1) the applicant to identify in writing the remaining documents that he asserts are held by the respondent, so that they can be considered for release or otherwise by 9 August 2021; and (2) the respondent to file and serve his response to that request by 6 September 2021. The matter was listed for case conference on 6 September 2021.

12. At the case conference on 6 September 2021, Senior Member Perrignon ordered: (1) the respondent to file and serve his evidence and submissions on or before 18 October 2021; (2) the applicant to file and serve his evidence and submissions by 31 December 2021; (3) the respondent to file and serve all evidence in reply, submissions and a summary of legal arguments on or before 28 January 2022; (4) the respondent to file with the Tribunal on a confidential basis by 18 October 2022: (a) documents considered to be subject to a conclusive overriding public interest against disclosure in a sealed envelope marked “conclusive presumption documents”; and (b) documents considered to be subject to a non-conclusive overriding public interest against disclosure in a sealed envelope marked “non-disclosure documents”. He listed the matter for hearing on 14 February 2022, but gave the applicant leave to apply to the Registrar to vary the timetable if he had difficulties filing and serving evidence (as he was in gaol).

13. The Senior Member noted that the parties agreed that the disputed issues were: (1) Whether the documents listed in the applicant’s “schedule” dated 1 August 2021 are within the scope of the access application; (2) Whether reasonable searches have been made; and (3) Whether access, or greater access, ought to be granted to items 1, 2, 3, 7, 9, 10, 12 and 13 in the schedule to the respondent’s letter dated 25 June 2021.

14. On 3 December 2021, Senior Member Ransome vacated that hearing date and listed the matter for directions on 8 February 2022, but that date was later adjourned to 22 February 2022. On 22 February 2022, Principal Member Pearson ordered: (1) the respondent to file and serve further redacted copies and other documents and arrange for the applicant to view the recorded footage by 22 March 2022; (2) the applicant to file and serve any further evidence and submissions by 19 April 2022; and (3) the respondent to file and serve all evidence in reply, submissions, and a summary of legal arguments by 10 May 2022. She listed the matter for directions on 17 May 2022.

15. However, on 16 May 2022, Senior Member Montgomery granted an extension of time for the applicant to comply with order (3) above to 17 May 2022. On 17 May 2022, Senior Member Ransome conducted a directions hearing and ordered: (1) the respondent to file and serve any further evidence by 24 May 2022; and (2) the applicant to file and serve any further evidence and submissions by 31 May 2022. She listed the matter for hearing on 21 July 2021 and noted that both parties “flagged” that they would be “seeking confidentiality orders in relation to some documents to be filed” and that this issue would be dealt with at the start of the hearing.

The Reviewable Decision

20. I note that the application seeks administrative review of the respondent’s decisions dated 16 September 2020 and 4 December 2020. However, I am satisfied that they were superseded by the Remitted Decision dated 9 April 2021 and the reviewable decision in this matter is that dated 9 April 2021.

21. On 9 April 2021, the respondent decided: (1) to provide the applicant access to some of the information sought in the GIPA application (s 58(1)(a)); (2) that some of the requested information was not held (s 58(1)(b)); and (3) to refuse to provide access to some of the information sought because there was an overriding public interest against disclosure (s 58(1)(d)). He attached a schedule of documents identifying which documents and/or parts of documents contained information that was not to be released to the applicant.

22. The respondent stated that he conducted reasonable searches with respect to items 6 and 12 of the GIPA application. In relation to item 6, searches at Shortland CC were conducted by Honeywell (which manages the intercom recordings for the CC) for the period from 24 December 2019 to 14 April 2020 for cell 129 Block I, and voice recordings were then extracted from the intercom system for those dates. The Acting Governor confirmed the search results in an email dated 9 April 2021. In relation to item 12, searches were conducted by both Shortland CC and Hunter CC, as the applicant was located at Hunter CC on 14 July 2019 (when the inmate request form was allegedly lodged). However, the form was not located and Hunter CC reported that the reference number provided by the applicant “ACT12” is not a number that it uses. The Governor confirmed this in an email dated 9 April 2021.

23. The respondent stated that Shortland CC conducted searches because the case management file was then managed at that CC and this is where inmate request forms are usually held. However, a search of the case management file did not locate the form and searches were conducted of other electronic records (including an electronic copy of the case management file and its “M” drive, which contains a register of all inmate application forms) lodged using the relevant MIN as a search term. An entry in the OIMS case notes dated 14 July 2019 possibly referred to the particular inmate request form and provided:

Offender has also requested an inmate application to lodge another complaint about a staff member and a possible AVO against him. This application was later on submitted.

24. However, no inmate application was found and he decided that it was “not held”.

25. The respondent stated that he applied the public interest test, as required by s 13 of the GIPA Act. He identified relevant public interest considerations in favour of disclosure as being: (1) the statutory presumption in favour of disclosure of government information held by agencies; (2) the general right of the public to have access to government information held by agencies; (3) disclosure of the information could reasonably be expected to advance the fair treatment of individuals in accordance with the law in their dealings with the agencies; and (4) disclosure of the information could reasonably be expected to contribute to the administration of justice generally, including procedural fairness. He identified the following relevant public interest considerations against disclosure:

Items 1, 7, 9 and 13

26. The respondent decided that cll 1(f) and (h) of the table to s 14(2) of the GIPA Act apply to items 1, 7 and 9 in full and to item 13 in part.

27. Clause 1(f) provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions. He stated that “prejudice” means “to cause detriment or disadvantage” and that three of CSNSW’s crucial functions would be prejudiced if the information was publicly released: (1) Ensuring the safety and wellbeing of staff through adherence to agency policies and procedures regarding managing staff when allegations of misconduct are made; (2) Managing personnel through the misconduct processes; and (3) Maintaining the security and safety of CCs. These functions depend on the confidentiality of misconduct investigations and there are no grounds to believe that the conduct of the investigation in this matter departs from CSNSW’s obligations of confidentiality.

28. The respondent relied upon para 9A-11.4 of the NSW Public Service Commission Personnel Handbook, which provides:

Confidential information obtained during the investigation shall not be disclosed except for the purpose of the investigation of any action arising from the investigation, or for the purpose of obtaining advice from the union and/or a legal representative. This is to protect the integrity of the process and the privacy rights of the persons concerned.

29. The respondent also relied upon the Work Health and Safety Act 2011 (NSW), which provides a legislative framework that relates to all workplaces in NSW. The objects of that Act are set out in s 3 and specifically provides for ‘protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work…’ The primary duty of care imposes a function on the department ‘to ensure as far as reasonably practicable, the health and safety of workers’.

30. The respondent stated that as the PSB advised him that the investigation was ongoing, he decided that releasing information in relation to an ongoing investigation into staff misconduct would prejudice the ability of the department to effectively exercise its personnel management functions. If the information was to be released, the health and wellbeing of staff could be negatively impacted, inaccurate conclusions may be drawn about the culpability of the staff and their wellbeing would suffer.

31. In Jenkinson v Department of Education and Communities [2013] NSWADT 280, the Tribunal accepted that the disclosure of information in question could reasonably be expected to prejudice the respondent’s effective exercise of its functions in respect of the health and wellbeing of staff.

32. An additional function of CSNSW is the investigation of allegations of staff misconduct. Investigations into allegations of staff assaults on inmates must be thorough and appropriate actions must be taken based on the findings. If the information was publicly available, contributions by potential witnesses or participants in the investigation could be affected and the outcome of the investigation could be prejudiced. This would undermine CSNSW’s capability to ensure the safety and security of CCs by thoroughly investigating allegations.

33. Further, information contained in the disputed records would, if disclosed, reveal the PSB’s process of conducting workplace investigations and release of that information would prejudice future investigations by revealing those processes.

34. Clause 1(h) of the table to s 14(2) of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to 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).

35. The respondent decided that as the misconduct investigation was ongoing, release of information in relation to it was highly likely to prejudice the integrity and undermine its outcome. If that information was publicly available, parties to the investigation may attempt to influence the outcome and individuals who could assist may be reluctant to contribute out of concern over the possibility that their contributions would be made public. The confidentiality of the investigative material is crucial to the proper investigation of the applicant’s allegations. The respondent therefore gave this factor significant weight.

36. The respondent ultimately decided that the public interest considerations against disclosure under cll 1(f) and 1(h) of the table to s 14(2) of the GIPA Act outweighed those in favour of disclosure.

Clause 3(a) to the table to s 14(2) – Reveal an individual’s personal information

37. The respondent said that some of the information contained in the OIMS case notes and the case management file consists of the personal information of individuals other than the applicant. He relied upon cll 3(a) and 3(b) to the table in s 14(2) of the GIPA Act as justifying redaction of that information. There was no evidence that this personal information had previously been publicly disclosed and he therefore gave this consideration significant weight.

38. Further, s 15(b) of the GIPA Act requires agencies to have regard to any relevant guidelines issued by the Information Commissioner when determining whether there is an overriding public interest against disclosure. The Information Commissioner published Guideline 4 – Personal information as a public interest consideration under the GIPA Act, which sets out what is meant by ‘personal information’ in the GIPA Act and includes examples of what should be considered personal information: see para 1.2.

39. The respondent also referred to s18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) which provides that an organisation that holds personal information must not disclose it for a purpose other than that for which it was collected. While there are a number of exceptions to this principle, none seem to apply to this matter and cl 3(b) should be given significant weight.

Form of Access – Item 6 – Intercom recordings

40. The respondent stated that additional cell intercom recordings were located by searches conducted for the purpose of making the remitted decision. He stated that in the initial decision, the applicant was given listen-only access in relation to intercom recordings from 14 April 2020.

41. However, while the applicant requested transcripts, he decided that this would require the creation of a new record, as cell intercom recordings are not transcribed. In accordance with s 75(2) of the GIPA Act, he decided not to create a new record. However, he decided to release a full copy of the intercom recordings to the applicant.

24 May 2021 – External review of decision by NCAT – Release of further documents

42. On 30 April 2021, the applicant identified 15 additional items that he alleged were “missing” from the information provided to him (a combination of ‘RIT documents’ and incident reports). In response, the respondent conducted further searches at Hunter CC, Parklea CC, South Coast CC, Shortland CC, Clarence CC, and Custodial Corrections. He received a response that the RIT assessments and IRMs are only found within the case management file (a hard copy file that moves with inmates as they are transferred between CCs), which was then held at Clarence CC.

43. The respondent sent further search requests to the remaining CCs to ensure that he satisfied his obligation to conduct reasonable searches. Hunter CC found no further information and the other CCs were able to provide only limited information (set out in a schedule of documents) and a copy of the additional recordings.

44. On 3 June 2021, the respondent advised the Tribunal and the applicant, that he understood that the applicant sought a review of his decisions regarding 1, 3, 7 and 9 of the GIPA application and sought full disclosure of that information.

45. The respondent stated that in relation to item 13 and the incident on 30 April 2019, information was previously sought in a GIPA application that the applicant made in 2019. The applicant had now asked the Tribunal to grant leave to externally review that decision out of time and that application was being considered by the Tribunal.

46. On 20 June 2021, the respondent received the applicant’s further response, which stated that he did not seek a review of decisions made regarding items 4, 5, 6 and 8, but he sought a review of decisions regarding items 1, 3, 7 and 9 and disputed that reasonable searches were conducted in relation to items 2, 12 and 13. He complained about redactions in some documents in item 10.

47. On 31 August 2021, the respondent advised the Tribunal that he had received a “schedule of missing” documents from the applicant (“schedule”), which listed 78 items that the applicant alleged to be “missing” from the information provided. These comprised “RIT documents’, incident reports, inmate request forms and “use of force” documentation.

48. The respondent stated that in response, he conducted additional searches at Mid North Coast CC and a further 21 documents were located. He was satisfied that reasonable searches were conducted and set out a table of documents and his response to each item.

The hearing

49. The matter came before me for hearing on 21 July 2022. The applicant appeared in person and Mr Cahill and Ms Dunford appeared for the respondent. Ms A McKenzie and Ms J Singh (acting solicitors for the respondent) also observed the AVL hearing.

Application to issue a Summons

50. On 10 June 2022, the applicant lodged an Application for issue of a Summons with the Tribunal, seeking production of the CCTV footage from Hunter CC that was recorded on 30 April 2019. He stated, relevantly:

In dispute is the existence of Use of Force documents concerning the incident to the applicant on the 30^th April 2019 at the Hunter Correctional Centre. The Crimes (Administration of Sentences) Regulation section 133 requires all instances of Use of Force to be reported in writing. The CCTV footage sought in this summons depicts the application for physical force by a custodial officer which is required to be reported. The footage will assist the Tribunal to make the correct and preferable decision in relation to the existence of Use of Force documents.

51. The respondent objected to the issue of the Summons and asserted that the information sought lacked a legitimate forensic purpose, as it was not relevant to any issue in dispute in these proceedings. He noted that in the “identification schedule”, the applicant asserted that the CCTV footage dated 30 April 2019 is “evidence of existence” of the “use of force” documents sought in item 13, and that there “appeared to be a dispute” regarding the scope of item 13.

52. The respondent argued that the CCTV footage does not assist the Tribunal to determine whether he conducted reasonable searches with respect to item 13. He stated that a “reasonable reading” of the applicant’s submissions suggests that he asserts that CSNSW should have created “use of force” in accordance with proper procedure. However, whether those documents should have been created is not an issue in for determination by the Tribunal in these proceedings and it lacks jurisdiction to determine it.

53. The respondent argued that the CCTV footage is not evidence about the sufficiency or reasonableness of the searches that were conducted for “use of force” documents and it does not assist the Tribunal to determine the scope of item 13. In any event, the applicant was given access to the CCTV footage in his previous GIPA application and he is aware of its contents.

54. The respondent stated that in accordance with para 32(d) of the NCAT Procedural Direction 2 (PD2), he attempted to resolve this objection with the applicant. He noted that the applicant’s letter dated 12 July 2022 indicates that he sought access to the CCTV footage in relation to a separate grievance that he has with CSNSW regarding alleged “systemic inmate abuse and managerial corruption.” This is a separate and distinct matter and is not relevant to the matters in dispute in the current proceedings.

55. In Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95 (Choi) the Appeal Panel determined at [62]:

To attempt to use proceedings under the GIPA Act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the Tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345; GA v The University of Sydney [2009] NSWADT 230.

56. Also in Choi (at [60]) the Tribunal also held that the applicant’s request to issue summonses for multiple police witnesses to appear was made with the object of “conduct[ing] a de facto review of the investigation that police conducted into her … allegation.” The respondent argued that the summons and the applicant’s correspondence dated 12 July 2022 demonstrate that the object of the summons is not to answer the real issues in dispute in these proceedings, but to conduct a review into the actions of CSOs at Hunter CC, in an attempt to establish whether CSNSW’s procedure was followed during the incident on 30 April 2019. This scenario is similar to that considered by the Tribunal in Choi.

56. In Choi, the Appeal Panel also relied upon the decision in Lonsdale v University of Sydney [2015] NSWCATAP 277 at [57] (Lonsdale), which sets out the nature of the administrative review process and the roles of the respondent agency and the review applicant. In Lonsdale (at [57]), the Appeal Panel noted that consistent with s 105 GIPA Act, it is for the respondent agency to put on the material relevant to the matters in dispute and for the Tribunal to scrutinise that material. The role of the review applicant is then to test that evidence. The Appeal Panel (at [34]) noted that the Tribunal should be mindful when allowing summonses, having regard to the guiding principles of the CAT Act at s 36(1).

57. The respondent stated that based on the approach in Lonsdale and his onus under to s105 of the GIPA Act, he has a responsibility to make his own case regarding the issues in dispute, while the applicant has the ability to test that evidence and case.

58. In any event, issuing a summons for the purpose of bringing into the proceedings material that is not relevant to the matters in dispute, and which constitutes a de facto review of an agency’s conduct, is not consistent with the Tribunal’s guiding principle that the Tribunal’s practices should facilitate the just, quick, cheap resolution of the “real issues” in dispute: ss 36(1) and (4) of the CAT Act.

59. In Zonnevylle v Department of Justice [2018] NSWCATAD 96, Principal Member Titterton considered whether a summons was issued for a legitimate forensic purpose, and he stated (at [9]):

The overriding principle in relation to summonses is that the evidence sought to be obtained (be it documentary or testimonial) has apparent, as distinct from actual, relevance to the case, In other words, the information sought needs to be able to “throw light on the issues in the case”: Sharpe v Grobbel [2017] NSWSC 1065 at [35]. To put the matter another way, a summons must only be issued for a legitimate forensic purpose. The onus if on the party attempting to procure the evidence to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27].

61. The respondent stated that he gave the applicant an opportunity to identify a legitimate forensic purpose for issuing the summons and he failed to do so. The information sought by the summons does not “throw a light” on the issues in dispute and the summons should be set aside.

62. On the morning of 21 July 2022, the applicant filed and served his submissions dated 20 July 2022.

63. The applicant stated that the matter before the Tribunal “is simply whether sought government information is held and if so whether it should be released in the public interest.” He rejected the respondent’s assertions that there is no legitimate forensic purpose for the summons and that it sought material for collateral purposes and he asserted that he has a legal right to adduce evidence before the Tribunal that is relevant to the matters to be decided at the hearing by way of a summons under s 48 of the CAT Act.

64. The applicant stated that the information sought by the summons directly relates to the “matters that will be heard” and it is necessary for the Tribunal to have the information before it so that it can make the correct and preferable decision. He also stated that this material would assist the Tribunal to determine that the respondent erred in his “not held” decision in relation to item 13 and that “use of force” documents do exist and it will “give weight” to his arguments regarding the public interest considerations in favour of disclosure.

65. The applicant noted that in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173, Principal Member Britton held (at [42]) that:

…The burden of establishing that the decision is justified lies on the agency: s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.

66. The applicant stated that while the respondent bears the onus of proving that its decision is justified, this does not mean that he cannot tender or summons evidence before the Tribunal and the fact that he is seeking personal information relating to difficulties concerning his custody does not taint the current review application. He stated that in Miriani v Transport for NSW [2021] NSWCATAD 16 (Miriani), Senior Member Molony stated:

24. The Tribunal, when conducting reviews under the GIPA Act, is not generally concerned with the motivations of applicants seeking access to government information…

[28] It is not unusual for applications to be made for access to government information in the hope of using that information to support of litigation against others, or to seek information to demonstrate maladministration, incompetence or corruption. Members of the public seeking access to government information are exercising the right to do so given to them by the GIPA Act. They are not required by the GIPA Act to explain their motivations…

30. If one of his objects is to obtain correspondence concerning his name between the NSW Police and Transport for NSW, that should not be a concern of the agency or the Tribunal. That is information that he has a right to access under the GIPA Act. The issues will be whether such information is held and if so whether it should be released in the public interest.

67. The applicant argued that the Tribunal must determine the same issues as those in Miriani, namely whether the information is held and, if so, whether it should be released in the public interest and the information sought in the summons “will allow the Tribunal to make an informed decision.”

68. The applicant also argued that because he was only given view-access to the CCTV footage in his previous GIPA application means that unless it is produced under summons, he cannot tender it in these proceedings. Therefore, the Tribunal should reject the respondent’s application to set aside the summons.

69. Ms Dunford made brief oral submissions at the hearing. She stated that the respondent relied upon the Tribunal’s decision in Eggleton v Commissioner of Police [2022] NSWCATAD 218, in which I refused to grant leave to issue a summons to give evidence to an employee of the respondent who had not provided a statement in the matter.

70. Ms Dunford also stated that while the applicant asserts that the CCTV footage relates to items 3, 7 and 9 of the GIPA application, those items relate to an incident at Shortland CC and have nothing to do with the incident at Hunter CC on 30 April 2019 (the subject of the current matter). In any event, the CCTV footage does not shed any light on the real issue in dispute with respect to items 3, 7, 9 and 13, namely whether the respondent conducted reasonable searches. There is also an issue regarding the scope of item 13.

71. Ms Dunford stated that while the applicant referred to” the public interest test” in relation to all of those items, the respondent did not apply the public interest test to item 13 because he decided that “use of force” documents were not held.

72. In any event, a summons cannot be issued for information that has already been provided to the applicant unless the Tribunal decides otherwise: s 79 of the GIPA Act. As the applicant was previously provided with that information, the Tribunal should set aside the summons.

73. The applicant made brief oral submissions. He argued that there “is no connection” between the Tribunal’s decision in his GIPA application against the Commissioner of Police and the current matter “because different issues are involved.” He also asserted that the summons has a legitimate forensic purpose because item 13 seeks “use of force” documents and these “could include a wide range of documents including CCTV footage’. In other words, he alleged that the CCTV footage is, in itself, a “use of force” document and that the respondent should produce it.

74. Mr Cahill stated that this was the first notice to the respondent that the applicant asserted that the CCTV footage dated 30 April 2019 is a “use of force” document within the scope of item 13 of the GIPA application. He stated that the footage was within the scope of the applicant’s previous GIPA application against the respondent, with respect to which Senior Member Ransome refused to grant an extension of time to apply for administrative review and dismissed his application: Eggleton v Secretary, Department of Communities and Justice [2022] NSWCATAD 67.

Consideration – The Summons has no legitimate forensic purpose

75. For the reasons that follow, the Tribunal determined that the summons has no legitimate forensic purpose and that it should be set aside.

76. In his submissions prior to the hearing, the applicant argued that the CCTV footage dated 30 April 2019 established that the “use of force” documents sought in item 13 of his GIPA application exist because CSNSW should have created them in response to the incident shown in the footage.

77. However, during the hearing the applicant asserted that the CCTV footage is in itself “a use of force” document within item 13 and that it should be released to him. He did not previously make that assertion, despite the Tribunal allowing him three opportunities to clarify the scope of his GIPA application.

78. As the respondent was not on notice of that assertion prior to the hearing, I am satisfied that with respect he did not make a reviewable decision on it for the purposes of s 80 of the GIPA Act and that the Tribunal would not have jurisdiction to review it in these proceedings under s 100 of the GIPA Act.

79. However, in my view the fact that CCTV footage of an incident exists does not prove that CSNSW actually created any “use of force” documents in response it. I am also satisfied that the real dispute in relation to item 13 is whether the respondent conducted reasonable searches as required by s 53 of the GIPA Act and that the CCTV footage sought by the summons was not relevant to that dispute.

80. In any event, I note that the GIPA application had expressly asserted that the CCTV footage was a “use of force” document within item 13, the respondent would have been entitled to refuse access on the basis that access was provided during the applicant’s previous GIPA application.

Opening arguments

Respondent’s opening argument

81. Mr Cahill stated that the factual background was straight forward. He provided details of the charges of which the applicant was convicted (which are not set out in this decision) and stated that he was assaulted whilst in custody and that he was moved between various CCs.

82. Mr Cahill stated that Ms Sheen’s evidence is to the effect that when the applicant was moved between CCs, there were 12 applications for information before the respondent, of which five were formal, one was informal, one was an internal review, three were subject to administrative review and one was “in consultation”. There was some cross-over between these applications and the respondent argued that in this GIPA application, the applicant is attempting to access information that was previously refused to him.

83. Mr Cahill noted that the Tribunal gave the applicant three opportunities to clarify the scope of his GIPA application, but he took this as an opportunity to try to extend its scope beyond the items that were the subject of the original decision.

84. Mr Cahill referred to the respondent’s open tender bundle and stated that the GIPA application is found at Tab 1 and the Remitted Decision dated 9 April 2021 is found Tab 7. He argued that the issues for determination are:

1. The scope of the GIPA application;

2. Whether reasonable searches were conducted for documents that are within the scope of the GIPA application; and

3. Whether there are overriding public interest considerations with respect to the decision to allow the applicant listen-only access to the intercom recordings.

85. In relation to issue (1), Mr Cahill raised a preliminary jurisdictional issue regarding items 2, 10, 12 and 13 of the GIPA application. This is inter-related to the issue of reasonable searches and arises if the Tribunal finds that the information now sought by the applicant is within the scope of the GIPA Application. The Tribunal needs to determine whether reasonable searches were conducted and Ms Sheen’s evidence is relevant to this matter.

86. In relation to issue (2), Mr Cahill stated that this matter could be a test case based on the Appeal Panel’s decision in Wojciechowska regarding the apparent realignment of the onus of undertaking searches upon the agency. However, the Tribunal should consider the information released to the applicant and find that the applicant must show reasonable grounds for believing that further documents exist.

87. With respect to issue (3), Mr Cahill stated that the applicant was denied access to very few documents and the decision to refuse access was made under cll 1(e), 3(a), 3(b), 3(d) and 6(1) of the table to s 14(2) of the GIPA Act. Items 1, 3, 7 and 9 of the GIPA application sought information regarding an assault at Shortland CC and those documents are dealt with in the documents from the Professional Standards Branch of CSNSW (PSB). Mr Baker’s evidence addresses this issue.

88. In relation to issue (4), Mr Cahill said there is a dispute about the form of access that should be given to the applicant with respect to item 3. The respondent relies upon cll 3(a), 3(b) and 6(1) of the table to s 14(2) of the GIPA Act and Mr Karakalan’s evidence is relevant to this issue.

89. Mr Cahill confirmed that the redacted documents that were released to the applicant are found at Tab 8 of the respondent’s open tender bundle.

Applicant’s opening argument

90. The applicant agreed with the issues identified by Mr Cahill, but he said that his submissions dated 8 February 2022 and 19 April 2022 dealt with them in relation to items 1, 3, 7 and 9 of the GIPA application.

Applicant’s evidence

91. The applicant did not file any open evidence, but he relied upon written submissions dated 8 February 2022, 19 April 2022, and 31 May 2022. For ease of reference, the Tribunal marked these as Exhibits “A”, “B” and “C”, respectively.

92. At the hearing, the applicant stated that he had filed “confidential submissions and evidence” on/about 22 April 2022 and a “USB” drive on about 31 May 2022, and that this “evidence” is relevant to whether there are public interest considerations in favour of releasing the disputed information.

93. The Tribunal was unable to locate the applicant’s “confidential submissions and evidence” and Ms Dunford undertook to email them to the Tribunal and these were received a short time later.

94. The Tribunal asked the applicant to explain the purpose of filing “confidential submissions and evidence”. He replied to the effect that he wants the Tribunal to consider them because they are relevant to items 5, 7 and 9 of the GIPA application and it “will raise a debate about the treatment of inmates.”, but he does not want the evidence or submissions to be reported in the Tribunal’s decision.

95. The Tribunal observed that if the submissions and evidence are “confidential”, and that the Tribunal cannot report on them in its decision in the current matter, it is difficult to see how they could possibly generate a debate on any matter. In any event, issues regarding the “treatment of inmates” are outside the scope of the current application.

96. Mr Cahill argued that the “confidential submissions and evidence” are not relevant to the matters in dispute in these proceedings.

97. The Tribunal rejected the tender of the applicant’s “confidential submissions and evidence” as not being relevant to matters in dispute in these proceedings.

Respondent’s evidence

98. The respondent relied upon the following affidavits, which were admitted into evidence and marked as follows: (1) Affidavit of Julian Baker sworn 29 October 2021 + a confidential exhibit – Exhibit 1; (2) Affidavit of Julian Baker sworn 24 May 2022 – Exhibit 2; (3) Affidavit of Elizabeth Sheen affirmed 15 October 2021 + confidential exhibit - Exhibit 3; and (4) Affidavit of Julian Karakalan affirmed 24 May 2022 – Exhibit 4.

99. The respondent also relied upon his written submissions dated 1 November 2021 and 18 May 2022, respectively.

Evidence of Ms Sheen

100. I note that in Ex 1, Ms Sheen affirmed that her substantive position is Open Government Information and Privacy Advisor in the Open Government, Information and Privacy unit in the Legal Section of the respondent. She has held the position of Assistant Manager since October 2018 and as part of that role she was authorised by the Principal Officer of the respondent (under s 9(3) of the GIPA Act) to decide applications under the GIPA Act. This involved, inter alia: (1) conducting, and advising on, searches of government records in the custody and control of the respondent in answer to (for example) subpoenas to produce documents and GIPA applications; (2) deciding GIPA applications; (3) conducting internal reviews of GIPA decisions made by other officers within the Unit; (4) having conduct of proceedings before the Tribunal in relation to GIPA applications; and (5) Managing the conduct of GIPA applications allocated to other officers within the Unit. She has acquired knowledge and experience in searching for and locating government records, including those relating to CSNSW, which is an agency administered by the respondent.

101. Ms Sheen referred to the Exhibit to her affidavit, which contains documents numbered from 1 to 36. She said that the GIPA application is found at Tab 1 and it was received on 16 June 2020 and was allocated to Mr G Nalopo to decide under her supervision. The internal review was undertaken by Ms S Li, a solicitor within the Unit who was then on secondment from the Information and Privacy Commission.

102. Ms Sheen stated that she has the conduct of the current proceedings. She stated that if an applicant is in CSNSW custody when the GIPA application is received, searches will generally be undertaken by the CC in which the applicant is housed, but if they are out of custody at that time, searches will generally be undertaken by the last CC in which they were housed before being released. The rationale being this process is that the current CC will hold any hard copy files relating to the applicant, such as their case management file and that CC is in the best position to advise the Unit’s deciding officer of any concerns CSNSW has regarding the potential release of those files. However, other categories of files may be held by specialised business units within CSNSW. Searches for those records (i.e. Education, Psychology or Corrective Services Intelligence) will be conducted by the relevant business units.

103. Ms Sheen said that CSNSW Policy requires that certain government records be kept at a particular CC even if the inmate has moved to another centre. These include an Incident Package, which is created following the occurrence of certain incidents at a CC and contains records including CCTV footage. However, some documents related to such an incident, such as misconduct forms and witness statements, may be placed on the hard copy of the inmate’s case management file. The Incident Package is kept at the centre where the incident occurred.

104. After an inmate is released, their case management file is archived at CSNSW Corporate Records. While the case management file is a hard copy file, it is sometimes held in electronic form as a scanned version, that that version of the file will be made for a particular purpose (i.e. a GIPA application) and is therefore only a record of what was in it when it was scanned. Therefore, the hard copy file is considered to be the current, authoritative version of the file.

105. Inmate application forms and Inmate request forms are hard copy documents, which are signed by inmates and placed on the case management file. However, before they are placed on that file they are often required to be submitted for processing at the centre where they are lodged. Therefore, searches for records sought by the GIPA application may be conducted at multiple CCs and business units within CSNSW.

100. Ms Sheen gave extensive evidence about the methodology of initiating searches for government information within the OIMS database and she stated that the Unit predominantly uses the “Movements” portion of the Convictions, Sentences and Appeals report. A copy of that report was included at Tab 2 of the exhibit to her affidavit. The Unit Officer will then consider relevant business units within CSNSW and send requests for searches to them. Once those searches are completed, the search officers within the relevant business units complete a search certificate with detail so the searches conducted and their results. These are then sent to the Unit, where they are filed for review by the Deciding Officer. Details of these searches and the records that were and were not located will be included in the Notice of Decision.

101. Ms Sheen stated that she made the Remitted Decision and that in making it, she considered the matters raised in the application for internal review dated 20 October 2020 and the current Application to the Tribunal. She caused further searches to be conducted at CSNSW for documents within items 7, 10 and 12. She stated that:

1. In relation to further searches at Shortland CC, copies of emails and the search certificate are at Tab 17 of the exhibit and she said that she is satisfied that those further searches were reasonable;

2. In relation to further searches at Hunter CC, copies of emails and the search certificate are found at Tab 18 of the exhibit and she stated that she is satisfied that those further searches were reasonable; and

3. On 9 April 2021, she issued the Notice of Remitted Decision.

108. However, on reviewing that decision, Ms Sheen said that she “misapprehended” the following matters:

1. With regard to item 13, she noted in the Remitted Decision, “incident 19 January 2020 – refused T1.” However, Mr Nalopo actually decided that the whole of item 13 was “not held”. This was a misapprehension because she confused item 13 (which included a request for documents in relation to an incident on 19 January 2020) with other items of the GIPA application (which also called for documents concerning 19 January 2020, in respect of which the respondent had refused access under “T1” (being clause 1 of the Table to s 14(2) of the GIPA Act)). This error was conceded to the applicant at a case conference after the Remitted Decision as a result of the applicant raising this as an inconsistency. However, the Notice of Remitted Decision did not include item 13 because the applicant did not raise item 13 in his request for internal review.

2. With regard to item 10, she noted that this was “not pressed”. However, further searches were conducted for item 10 as part of the Remitted Decision, with the result being that they were “not held”. This misapprehension was based on the fact that the application for internal review and the current Application, to some extent, called for the review of the adequacy of searches for different items of the application.

109. Ms Sheen stated that on/about 29 April 2020, the applicant sent a letter to the respondent providing a “list of information that he considered to be missing”, which is found at Tab 21 of the exhibit. She noted that the applicant considered the documents listed as (a), (b), (c) and (d) to be part of the case management file (item 2) and that he considered those listed as (e) to be an annexure to Form 19/314 (item 10). She caused further searches to be conducted at the following CCs and the emails and search certificates received from those CCs are found in the exhibit as follows: (1) Hunter CC – Tab 22; (2) Parklea CC – Tab 23; (3) South Coast CC -Tab 24; (4) Further searches at Shortland CC – Tab 25; and (5) Further searches at Clarence CC – Tab 26.

110. On 24 May 2021, Ms Sheen filed and served a document marked “Release of further Documents”, copies of the further records located (forming part of the missing information) and a copy of the Secretary’s response dated 24 May 2021, which are at Tab 27 of the exhibit.

111. On 7 June 2021, the Tribunal ordered the applicant to provide the respondent with a further list of the documents that he considered were “missing”. On or about 18 June 2021, the applicant sent a letter containing a further list of missing information and Ms Sheen said that she understood that this “missing information” fell within items 2, 10, 12 and 13 of the GIPA application.

112. Ms Sheen caused further searches to be conducted by Clarence CC and she requested that Custodial Corrections also conduct searches of the archived volume 1 of the applicant’s case management file. It replied that the file was held by Clarence CC and on 26 July 2021, she received a reply from Clarence CC forwarding part of the further missing information, namely: (1) a bundle of RIT documents between 11/07/2019 and 15/07/2019; (2) a Bundle of RIT documents between 17/07/2019 and 23/07/2019; (3) OIMS incident report dated 28/08/2018 (reference no IRM 238829); and (4) a two-page document titled “Part 3 Risk Intervention Team (RIT) management plan” dated 24/12/2019. Copies of these records were subsequently released to the applicant and copies of emails to/from Clarence CC and the search certificate are found at Tabs 30 and 31, respectively, of the exhibit.

113. Ms Sheen stated that she was satisfied that the further searches by Clarence CC were reasonable, because some of the further “missing documents” were located, and that the entirety of the case management file had been searched.

114. On 26 July 2021, the Tribunal ordered the applicant to provide the respondent with a further list of “missing documents”. On or about 1 August 2021, he sent a further “Schedule of Missing Documents” which listed information falling within items 2, 12 and 13 of the GIPA application.

115. In response, Ms Sheen caused further searches to be conducted by various CCs and she also enquired of CSNSW about where else searches could be made. On 9 August 2021, she sent an email to Custodial Corrections requesting additional searches of the OIMS database and on 10 August 2021, she received a response that attached some information that was on the additional list of further information, namely: (1) OIMS incident report dated 17/07/2019 with reference no. IRM 234509; (2) OIMS incident report dated 24/07/2019 with reference no IRM 235260; (3) OIMS incident report dated 13/08/2019 with reference no IRM 237273; and (4) OIMS incident report dated 28/08/2019 with reference no IRM 238829. Copies of those records are at Tab 34 of the exhibit. These were later released to the applicant.

116. Ms Sheen also caused further searches to be conducted at Mid-North Coast CC and on 20 August 2021, she received a search certificate and some of the additional further information from that CC, namely: (1) a number of OIMS incident reports (IRM 168478, IRM 184162, IRM 184174, IRM 213235 and IRM 226610); (2) OIMS incident report ref: IRM 234059; (3) RIT documents dated 17/07/2019; (4) OIMS incident report ref: IRM 235260; (5) OIMS incident report ref: IRM 238829; (6) OIMS incident report ref: IRM 246407; and (7) a 2-part document headed “Part 3 Risk Intervention Team management plan” dated 15/04/2020. Copies of those records are at Tab 25 of the exhibit and copies were released to the applicant on 31 July 2021.

117. Ms Sheen affirmed that the contents of her affidavit are true to the best of her knowledge, information and belief.

Ms Sheen’s oral evidence

118. The applicant required Ms Sheen to attend for cross-examination and Mr Cahill called her. She was affirmed and stated that her affidavit sets out all of her evidence in relation to the searches that were conducted, and the information that was located, in response to the GIPA application and that its contents are true and correct.

119. In cross-examination, the applicant asked Ms Sheen whether she had received any documents from Hunter CC regarding “use of force”. She replied to the effect that she could not recall and said that that she would need to refer to her affidavit.

120. The applicant referred to Tab 18 of the exhibit and noted that in relation to item 12, Ms Sheen corresponded with Ms Cook of Hunter CC. He asked if there was any confusion about the nature of the forms that were requested? Ms Sheen replied to the effect that she did not recall whether there was any confusion. She said that the GIPA application requested an Inmate Application Form and said that she gave Ms Cook the reference number so that she could conduct searches.

121. The applicant then said that he had no further questions for Ms Sheen.

122. Mr Cahill did not wish to conduct any re-examination and the Tribunal released her from cross-examination.

Confidential hearing

123. [NOT FOR PUBLICATION]

124. [NOT FOR PUBLICATION]

125. [NOT FOR PUBLICATION]

Resumption of the open hearing

Evidence Julian Baker

126. I note that that in his affidavit sworn on 29 October 2021 (Ex. 1), Julian Baker deposed that he is a Legal Officer attached to the Professional Standards Branch (PSB) of CSNSW, which is a business unit within the respondent. In that capacity, he has the day to day carriage of the misconduct process arising from the alleged “reported assault” upon the applicant by corrective service officers (CSOs) on or about 19 January 2020.

127. Mr Baker stated that he is aware that the applicant has requested access to the government information in items 3, 7 and 9 of the GIPA application. He referred to the confidential exhibit to his affidavit, which contains true copies of documents within PSB’s control relating to the alleged “reported assault” (within the scope of items 7 and 9), and a USB drive that contains a copy of the relevant CCTV footage (within the scope of item 3). He stated that PSB does not hold copies of any body-worn camera or hand-held recorder footage taken of the “reported assault”.

128. Mr Baker deposed that the documents in the confidential exhibit relate to the misconduct process managed by PSB under Pt 5 of the Government Sector Employment Act 2013 (NSW) (GSE Act) and Pt 8 of the Government Sector Employee Rules (GSW Rules). That process had not yet been completed. He stated that if findings of misconduct are made under R 40 of the GSE Rules, it is open to CSNSW to take action against the officers under s 69(4) of the GSE Act. Some of the actions included under s 69(4) are appealable to the NSW Industrial Relations Commission under either Ch 2, Pt 6 or Ch 2, Pt 7 of the Industrial Relations Act 1996 (NSW). The PSB represents the Industrial Relations Secretary on behalf of the respondent in any such proceedings. The statutory process is complemented by the Managing Misconduct Procedure Policy of the respondent (annexed to his affidavit) which contemplates a risk management approach.

129. Mr Baker deposed that the officers named in respect of the alleged “reported assault” against the applicant have a right to procedural fairness throughout the misconduct process. The release of information under items 3, 7 and 9 of the GIPA application while that process is ongoing, including any appeal or review process, has the real potential to adversely impact the process and/or cause prejudice to the officers involved – particularly if their identities become known.

130. [NOT FOR PUBLICATION]

131. [NOT FOR PUBLICATION]

132. [NOT FOR PUBLICATION]

133. [NOT FOR PUBLICATION]

134. [NOT FOR PUBLICATION]

135. [NOT FOR PUBLICATION]

136. [NOT FOR PUBLICATION]

137. [NOT FOR PUBLICATION]

138. [NOT FOR PUBLICATION]

139. [NOT FOR PUBLICATION]

140. [NOT FOR PUBLICATION]

Mr Baker’s oral evidence

141. As the applicant required Mr Baker to be available for cross-examination, Mr Cahill called him and he was sworn in. He confirmed that the contents of his Affidavits (Ex. 1 and Ex. 2) are true and correct.

142. However, the applicant stated that he had “no questions” for the witness.

143. Accordingly, the Tribunal released Mr Baker from cross-examination.

Further confidential hearing

144. [NOT FOR PUBLICATION]

145. [NOT FOR PUBLICATION]

146. [NOT FOR PUBLICATION]

147. [NOT FOR PUBLICATION]

Resumption of the open hearing

Evidence of Mr Karakalan

148. In his affidavit affirmed on 24 May 2022 (Ex. 4), Mr Karakalan deposed that he is the Manager of the Digital Production Unit of CSNSW (the Unit), which is a business unit within the respondent. Amongst other things, the Unit performs the following functions: (1) Producing, including filming and post-production), video material for CSNSW; (2) Travelling across NSW to regional and metropolitan CCs to conduct filming; (3) Facilitating the production of training video material for CSNSW; and (4) Generating and producing print material for CSNSW. As Manager, he has the day-to-day carriage of managing projects and overseeing staff within the Unit, liaising with CCs, the Deputy Secretary and other business units within CSNSW where necessary to perform the functions of the Unit.

149. Mr Karakalan referred to the applicant’s request for information, including CCTV footage from Shortland CC from 19 January 2020. He said that the Unit’s functions do not extend to the pixilation of CCTV footage and he referred to and annexed a quote from an external provider “Sky Jellyfish” dated 16 May 2022. He stated that the Unit is sometimes required to pixilate portions of video footage that it produces and that the Unit does contain staff who have the technical expertise to pixilate video footage, but the Unit does not have the resources to pixilate CCTV footage obtained from CCs and that pixilation of video film is not something that is regularly performed.

150. Mr Karakalan stated that allocating staff to perform pixilation of CCTV footage would take them away from their regular roles and duties in performing the functions of the Unit, which is staffed by a small team of five full-time staff, who do not have additional resources in order to pixilate CCTV footage. He further stated that DCJ Legal does not have the technology or technical expertise to perform pixilation and any request for pixilation would require outsourcing to a third party.

151. Mr Karakalan referred to the quote from Sky Jellyfish and stated that his enquiries indicate that they provide video and pixilation services to the Queensland Government. He said that the quote was more of a pricelist, indicating their prices for various items of pixilation per minute. However, the quote was not obtained for this particular matter and it does not refer to pixilation of CCTV footage that is the subject of the GIPA application. He stated that he viewed the CCTV footage in question in this matter and noted that it contains 2 individuals and is a total of 2 minutes long. He also observed that during the footage, the 2 individuals leave the frame twice and mask the other individual or the applicant a total of 4 times. Based on his reading of the quote, the cost of pixilating the footage would therefore be approximately $300 to $380 plus GST.

152. Mr Karakalan stated that the Unit does not regularly engage third party contractors, but that it would consider seeking advice from DCJ Legal on any commercial or privacy considerations arising from such a contractual arrangement. It is his experience that the Unit very rarely engages with DCJ Legal.

Mr Karakalan’s oral evidence

153. As the applicant wished to cross-examine Mr Karakalan, he was called and affirmed and he confirmed that the contents of Ex. 4 are true and correct.

154. In cross-examination, the applicant referred to para 8 of Ex. 4 and asked the witness, “What are the purposes of pixilation?” He replied to the effect that pixilation blurs out faces and distinguishing features (such as tattoos). He said that while any footage of inmates that CSNSW produces is pixilated, CSNSW does not pixilate CCTV footage and that a third-party provider would be required to undertake pixilation because his Unit does not have the capacity to do this. He said that at para 14 of his affidavit he provided an estimate of the cost involved in pixilation (approximately $300 + $380 + GST).

155. The applicant asked Mr Karakalan if there was any footage in the CCTV that would require pixilation? He replied to the effect that information such as time stamps etc. could be blurred as a result of pixilation.

156. In re-examination, Mr Karakalan stated that if a person could be identified by body shape, the image of the “whole person” would need to be pixilated and this would result in increased costs. He also said that the costs that he discussed in Ex. 4 are based on the pixilation of faces only.

157. Mr Karakalan was then excused from the proceedings.

Submissions

Applicant’s Written Submissions

158. In Ex. A, the applicant stated that there is a dispute with respect to items, 1, 2, 3, 7, 9, 10, 12 and 13 of the GIPA application, but no dispute about items 4, 5, 6, 8 and 11.

159. In relation to item 1, the applicant said that he seeks unredacted copies of the OIMS case notes dated 8 September 2019 and 19 January 2020. He said that he does seek the names of staff of CSNSW and Justice Health staff and argued that this is not “personal information” as defined in sch 4 cl 4(3) of the GIPA Act.

160. In relation to item 2, the applicant said that he does not press for access to the redacted information in the case management file, but he sought a review of the respondent’s “implied” decisions that documents were “not held”.

161. The applicant referred to his “schedule” dated 1 August 2021”, which lists documents that the respondent has not located and he argued that this “is an implied not held decision”. He also asserted the respondent refused to provide access to documents that he decided were outside the scope of the GIPA application. He argued that these documents are within its scope and the Tribunal should order the respondent to conduct further searches.

162. In relation to item 3, the applicant sought a review of the respondent’s decision to refuse access to internal cell camera footage dated 19 January 2022, but he did not press his claim for “body worn camera and hand-held camera footage”.

163. In relation to items 7 and 9, the applicant pressed his claims for full disclosure on public interest grounds.

164. In relation to item 10, the applicant pressed for unredacted copies of all documents contained in Tab 8 of the respondent’s open tender bundle.

165. In relation io item 12, the applicant sought a review of the respondent’s “not held” decision. He alleged an inconsistency between that decision and email correspondence to Ms Sheen dated 20 August 2021, argued that the respondent’s searches were inadequate and that the Tribunal should order him to conduct further searches.

166. In relation to item 13, the applicant asserted that the information sought is within the scope of his GIPA application and that the respondent did not conduct reasonable searches.

167. In relation to matters generally, the applicant argued that the Tribunal should consider an “out of scope” decision as an implied decision to refuse to provide access to information in response to a GIPA application, so that the decision is reviewable under s 80(d) of the GIPA Act.

168. In Ex. B, the applicant responded to the public interest considerations against disclosure raised by the respondent in relation to items 1, 3, 7, 9 and 13 of the GIPA application. He noted that these items arise from the PSB’s investigation of the alleged assault upon him on 19 January 2020 and that the investigation has been closed.

169. The applicant complained that view-only access was granted to the CCTV footage on 23 March 2022 at North Coast CC and said that limitations were imposed and he was limited to playing the footage 3 times without pausing. This meant “viewing ability to take notes was unreasonable and not appropriate to allow any practical utility” and he argued that the limitations were unnecessary and were contrary to the object of the GIPA Act. He pressed for a hard copy of the CCTV footage. Otherwise, he repeated his previous arguments that searches were inadequate, the names of CSNSW’s staff are not ‘personal information’ as defined in sch 4 cl 4 of the GIPA Act, and that the redactions were not justified.

227. The respondent argued that this matter is distinguishable from the Seven Network case because in that matter, the applicant offered to pay the costs of pixilation by a third party under the respondent’s direction. Therefore, the Senior Member Robinson was not required to formally determine this issue. He argued that the Tribunal should reject the applicant’s request for a hard copy of pixilated CCTV footage, but he conceded that there is a dearth of legal authority on this issue.

228. However, the respondent referred to the applicant’s reasons for seeking the CCTV footage, which are set out in Exhibit C and discussed previously in this decision, and he observed that an investigation of the matters raised by the applicant are not contingent him receiving a hard copy (pixilated or not). This is because the investigating body could simply obtain a copy of the footage directly, which means that the public interest considerations in favour of disclosure that the applicant relies upon can be satisfied without him obtaining a hard copy.

229. The respondent argued that s 74 of the GIPA Act does not impose any obligation upon him to redact the CCTV footage, particularly in circumstances where the applicant has previously been granted view access to it. His decision regarding the form of access was made under s 72(2)(d) because he decided that there are overriding public interest considerations against provision of a hard copy under cll 3(a), 3(b) and 6(1) of the table to s 14(2) of the GIPA Act.

230. The respondent stated that the documents listed as items 1(a)-(g) of the applicant’s “schedule” dated 1 August 2021 are outside the scope of item 13, but they are within the scope of his previous GIPA application, in which Senior Member Ransome dismissed his application for administrative review.

231. The respondent stated that items 4(a)-(f), 16, 17, 18, 20, 21, 22 and 26 in the applicant’s “schedule” dated 1 August 2021 are outside the scope of item 2 and that items 16, 17 and 18 are within the scope of the applicant’s prior GIPA application which was the subject of Senior Member Ransome’s orders (see above).

232. The respondent stated that he agreed to include items 8 and 35(1) -(g) of the applicant’s “schedule” dated 1 August 2021 in the GIPA application, the information could not be located.

233. The applicant attempted to attract jurisdiction by arguing that his decisions that certain items in his “schedule” dated 1 August 2021 are outside the scope of the GIPA application were implied decisions to refuse to grant access, which are reviewable under s 80 of the GIPA Act, and that the respondent failed to conduct reasonable searches for that information. However, he ignored the threshold issue, which is that the respondent did not agree that those items were within the scope of the GIPA application and the Tribunal did not make any order to that effect.

234. The respondent concluded that the reviewable decision is his Remitted Decision dated 9 April 2021, as varied to date in relation to items 8 and 35(a)-(g) of the applicant’s “schedule” dated 1 August 2021. He stated that a respondent is entitled to certainty regarding the scope of an access application so that it can comply with its obligations under the GIPA Act: s 49.

Respondent’s oral submissions

235. Mr Cahill made brief oral submissions but did not raise any new matters.

Applicant’s oral submissions

236. The applicant stated that his GIPA application relates to personal information about violence perpetrated upon him as an inmate and that the information sought “evidences a systemic failure by CSNSW”. He relied upon his submissions dated 19 April 2022 (Ex. B) and argued that there is a strong public interest in allowing the public to oversee CSNSW’s practices. He said that the CCTV footage shows “unlawful conduct” and “corrupt conduct” and it should be released “in order to promote public debate about the way that CCs are operating”.

237. The applicant also maintained that the considerations in cl 6(1) of the table to s 14(2) of the GIPA Act can be overcome by redaction and this consideration should be given little weight.

238. The applicant complained that Ms Sheen did not search for inmate application forms or make enquiries of Senior Corrections Officer Vernier or Senior Corrections Officer Smith, and that inmate application forms are required to be registered under the Custodial Operation Policy & Procedures – para 9.1. In relation to item 10, which sought inmate request forms at Hunter CC, a listed registration number (19325) remains outstanding and there is a dispute about redaction.

239. The applicant stated: (1) he wants an unredacted copy of the case note (item 1); (2) In relation to item 2, he disputes that the respondent conducted reasonable searches. The documents in his schedule (in Ex. 3) form part of the case management file and are within the scope of the GIPA application; (3) The respondent’s concerns about item 3 can be overcome by pixilation; (4) In relation to item 7, the information released to him included full redaction of email images and full redaction is not required because it is only necessary to remove personal information and the names of custodial officers is not personal information under sch 4 cl 4; and (5) In relation to item 9, he has received a redacted version of the report, but the respondent decided that some of the information sought was “out of the scope” of the GIPA application because it was entered after 16 June 2020. He does not press for “out of scope” documents, but he presses his request for the names of the custodial officers.

Respondent’s oral submissions in reply

240. Mr Cahill stated that in relation to item 2 of the GIPA Application, the respondent relies upon Ms Sheen’s evidence (Ex. 3), that the “missing” documents listed in the applicant’s “schedule” dated 1 August 2021 are not kept in the case management file. Otherwise, the respondent agrees that not all records in the case management file were produced and some information was redacted as a result of overriding public interest considerations against disclosure.

241. In relation to item 12, Ms Sheen’s evidence (Ex. 3) is that extensive searches were conducted and in relation to item 3, the respondent relies upon Mr Baker’s affidavit (Ex 1).

242. In relation to item 10, redactions were limited to the names of other inmates and the applicant’s partner under cll 3(a) and 3(b) of the table to s 14(2) of the GIPA Act. Further, redacted inmate request forms were released to the applicant with the Remitted Decision. In any event, cl 4(4) of sch 4 of the GIPA Act is not as wide as the applicant alleges and cl 4(3)(b) of sch 4 is quite limited and provides that “personal information” extends beyond names etc. Clause 6(1) of the table to s 14(2) also applies as this is material that might infringe the secrecy provisions in s 257 of the CAS Act.

243. In relation to the issue of redacting images from CCTV footage, the respondent relies upon the Mr Baker’s evidence and maintains that the footage is not in itself a “use of force” document and it is outside the scope of the GIPA application.

Request for written submissions from the respondent

244. The Tribunal ordered the respondent to file and serve any further submissions regarding the issue of the redaction of CSOs names in item 10 documents (inmate request forms 19/325 and 19/577) by 4 August 2022.

245. The Tribunal then reserved the matter for determination after 4 August 2022.

246. On 28 July 2022, Mr Cahill sent an email to the Tribunal and advised that the respondent had decided to provide the applicant with full access to those inmate request forms and that these had been emailed to him.

Consideration

Legal principles

247. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".

248. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states:

63.   Determination of administrative review by Tribunal

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

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

The GIPA Act

250. In respect of access applications, s 9(1) of the GIPA Act relevantly provides:

A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

251. I am satisfied that the Remitted Decision dated 9 April 2021 (as varied by agreement between the parties from 9 April 2021 to date) is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.

252. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.

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

254. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".

255. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.

256. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

1. identify the public interest in favour of disclosure (s 12);

2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

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

257. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

258. Section 14 relevantly provides:

14. Public interest considerations against disclosure

(1) 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.

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

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

259. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

260. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows:

53. Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

261. Section 55 of the GIPA Act refers to “personal factors” that may be brought into consideration with respect to an agency’s determination of whether there is an overriding public interest against disclosure of information. This provides:

55. Consideration of personal factors of application

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

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

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

(c) any other factors particular to the applicant.

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

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

262. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world”.

263. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

Matters in dispute

264. I am satisfied that the following matters are in dispute:

1. Are the documents listed in the applicant’s “schedule” dated 1 August 2021 outside the scope of the GIPA application;

2. Has the respondent conducted reasonable searches as required by s 53 of the GIPA Act;

3. Should the applicant be given access to the disputed information sought in items 1, 2, 3, 7, 9, 10, 12 and 13 of the GIPA application; and

4. If ‘yes’, what form of access should be granted.

The scope of the GIPA Application

265. The respondent argued that his “out of scope” decisions are not reviewable under s 80 of the GIPA Act and that the Tribunal lacks jurisdiction to review those decisions in this matter. However, I reject that argument and find that these decisions are akin to “deemed refusal” decisions and that they are reviewable in the current proceedings under s 100 of the GIPA Act.

266. Based upon a consideration of all of the evidence in this matter, including the Tribunal’s procedural orders, the correspondence between the parties and the parties’ extensive submissions, I am satisfied that:

1. The Tribunal provided the applicant with three separate opportunities to clarify the scope of the GIPA Application;

2. That following each such opportunity the applicant filed and served a “schedule” of documents that he asserted were “missing” from those produced by the respondent. In “schedule” the applicant sought to further expand the scope of the GIPA application and the “schedule” dated 1 August 2021 post-dated the Remitted Decision; and

3. In his opening statement to the Tribunal, the applicant sought to further expand the scope of item 13 by asserting that the CCTV footage (with respect to which he sought to have a summons to produce issued to the respondent) was in itself a “use of force” document that should be released to him.

267. I am satisfied that items 1(a)-(g) of the applicant’s “schedule” dated 1 August 2021 are outside the scope of item 13 of the GIPA application. However, these items were within the scope of the previous GIPA application against the respondent, which was the subject of Senior Member Ransome’s decision: Eggleton v Secretary, Department of Communities and Justice [2022] NSWCATAD 67.

268. In relation to items 4(a) to (f) in the applicant’s “schedule” dated 1 August 2021, the respondent asserts that these items are outside the scope of the GIPA application but does not explain why he holds that view. In response, the applicant merely asserts that the documents are within its scope. In determining this dispute, I have compared the items listed in the GIPA application with the documents described in the “schedule”.

267. I note that while the “schedule” asserts that the “missing” information relates to an incident that occurred on “12 July 2019”, the GIPA application does not expressly refer to an incident on that date. I am therefore satisfied that documents 4(a) to (f) in the applicant’s “schedule” are outside the scope of the GIPA application.

268. I accept the respondent’s argument that items 16, 17, 18, 20, 21, 22 and 26 of the applicant’s schedule dated 1 August 2021 are outside the scope of item 2 of the GIPA application. However, I note that these items were within the scope of the previous GIPA application against the respondent which was the subject of Senior Member Ransome’s decision (discussed previously in this decision).

269. I note that the respondent agreed to include item 8 of the applicant’s “schedule” dated 1 August 2021 as being within item 12 of the GIPA application and to include items 35(a) to (g) as being within item 13 of the GIPA application. However, he decided that no such information could be located and these items will be discussed in relation to the issue of “reasonable searches.”

Reasonable searches

272. The applicant asserts that the respondent has not conducted reasonable searches as required by s 53 of the GIPA Act and that the Tribunal should order him to conduct further searches for his “missing” information.

273. However, in my view it is not sufficient for the applicant to merely assert that the searches were inadequate and he must establish that there are reasonable grounds for believing that further documents exist.

274. I note that the applicant attempted to achieve this by arguing that the CCTV footage evidences the existence of the “use of force documents” sought in item 13 of the GIPA application, because CSNSW should have created them following the incident to which the footage relates.

275. However, in my view, Ms Sheen’s evidence overwhelmingly supports a finding that the respondent conducted extensive searches in an attempt to locate the information that was sought and was within the scope of the GIPA application. I accept Ms Sheen’s evidence in relation to this issue and note that it was not significantly challenged by the applicant in cross-examination.

276. I am satisfied that the respondent conducted reasonable searches as required by s 53 of the GIPA Act.

Other disputed information – the Public interest test

Public interest considerations in favour of disclosure - s 12 of the GIPA Act

277. In the Remitted Decision, the respondent identified the following public interest considerations in favour of disclosure as being: (1) the statutory presumption in favour of disclosure of government information held by agencies; (2) the general right of the public to have access to government information held by agencies; (3) disclosure of the information could reasonably be expected to advance the fair treatment of individuals in accordance with the law in their dealings with the agencies; and (4) disclosure of the information could reasonably be expected to contribute to the administration of justice generally, including procedural fairness.

278. The applicant identified further public interest considerations in favour of disclosure under cl 12(2) of the GIPA Act, namely: (a) it is his personal information; (b) disclosure could reasonably be expected to inform the public about the operation of the agency’s CCs and, in particular, their policies and practices for dealing with inmates; (c) disclosure could reasonably be expected to promote open discussion on CCs’ treatment of inmates, to enhance government accountability or contribute to positive and informed debate on this issue of public importance; (d) disclosure could reasonably be expected to reveal or substantiate that the agency’s staff (and members of another agency) have engaged in misconduct or negligent, improper or unlawful conduct; and (e) disclosure could reasonably be expected to advance the treatment of individuals in accordance with the law in their dealings with agencies.

279. The applicant argued that there that other relevant “personal’ factors in favour of releasing the disputed information, namely: (1) to ensure that personal information held by the agency is accurate, up to date, complete and not misleading, as this affects his health safety and management whilst in custody: PPIPA s 16; (2) to request the agency to amend personal information to ensure that his records held are, accurate, up to date, complete and not misleading as these aspects can affect his health safety and management whilst in custody: PPIPA s 15; (3) To support and evidence to the CSNSW’s Commissioner numerous concerns that he has raised regarding incidents of inmate harassment, intimidation and violence along with misconduct, unlawful and corrupt conduct by custodial staff towards him, in order to achieve safer, healthier more beneficial management of himself; and (4) To advocate for improved management to prevent serious injury or loss of life to himself.

Items 7 and 9

280. The respondent decided that there are public interest considerations against its disclosure of unredacted information under cll 3(a), 3(b) and 6(1) of the table in s 14(2) of the GIPA Act and that these factors outweigh those in favour of providing access to the “personal information” of CSOs and in abrogating the secrecy provision in s 257(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act) by disclosing the disputed information.

281. The respondent conceded that cl 4(3) of sch 4 of the GIPA Act provides that “personal information” does not include “information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions”. However, he argued that the case-note discloses that the CSOs were involved in the matters subject to the investigation by PSB and that cl 4(3)(b) of sch 4 does not exclude this highly sensitive information from the definition of “personal information”.

282. The respondent relies upon the evidence of Mr Baker in relation to the reasons for not releasing information to the applicant and his evidence was not challenged in cross-examination.

283. I accept the respondent’s submission that a significant factor weighing against release of the “personal information” is that under s 73, disclosure is effectively “disclosure to the world at large”: Shermann v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 at [14]. He stated that there is no evidence that this “personal information” has previously been publicly disclosed and therefore, release of an unredacted case note would reveal personal information to both the applicant and the world at large. Therefore:

1. Clause 3(a) to the table in s 14(2) of the GIPA Act applies and the Tribunal should afford it significant weight as there is a strong public interest in the respondent fulfilling its obligations under the PPIP Act to protect “personal information”;

2. Clause 3(b) to the table in s 14(2) of the GIPA Act applies. Section 18(1) of the PPIP Act incorporates the information protection principle limiting the disclosure of “personal information” and none of the exceptions to s 18(1) apply to disclosure of the “personal information” in the case note. This should be given significant weight.

3. Clause 6(1) of the table to s 14(2) of the GIPA Act applies and CSNSW is subject to a significant legislative restraint on disclosure of information, which reflects the sensitive nature of information that it holds. Section 257(1) of the CAS Act provides that a person must not disclose any information obtained in connection with the administration or execution of that Act and that disclosure in contravention is an offence and subject to a maximum penalty of 100 penalty units or imprisonment for 2 years, or both. The 2020 case-note contains information obtained in connection with the administration and execution of the CAS Act and it is reasonably likely that releasing it would amount to a disclosure in contravention of s 257(1) of the CAS Act.

4. While s 11 of the GIPA Act provides that it overrides the secrecy provision in s 257(1) of the CAS Act, the public interest consideration against disclosure of the redacted “personal information” outweighs those in favour of disclosure because this is sensitive information held in connection with the administration of the CAS Act and individuals should have confidence in the respondent’s commitment to comply with its legislative obligations.

5. But for the operation of the GIPA Act, it is likely that this personal information would never be disclosed and disclosure outside the GIPA Act would be an offence attracting a significant penalty.

284. I am satisfied that these public interest considerations against disclosure should be given significant weight.

285. However, I am also satisfied that these public interest considerations against disclosure apply equally to the other disputed information sought by the applicant.

CCTV footage

286. In relation to the CCTV footage (item 3), the applicant seeks a pixilated hard copy of the CCTV footage, but the respondent provided him with view-only access on/about 22 March 202 and he took issue with the terms of that access.

287. In Eggleton v Commissioner of Police [2022] NSWCATAD 218, the applicant sought access to CCTV footage based on similar arguments to those relied upon in this matter. The respondent decided to provide view-only access and relied upon s 72(2) of the GIPA Act, which provides that the agency must provide access in the way requested by the applicant unless, amongst other things:

1. to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

2. there is an overriding public interest against disclosure of the information in the way requested by the applicant.

288. In Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48, the Appeal Panel stated:

[62] …the circumstances set out in s 72(2)(d) of the GIPA Act are only applicable after an agency has identified any public interest consideration against the disclosure of the information in the form sought and where a public interest consideration against disclosure is identified, weighing that public interest consideration against the public interest consideration in favour of disclosure in the form sought (i.e. the s 13 test). In weighing the competing public interests the agency can take into account any relevant factor falling with s 55 and the inability to grant conditional access (see s 73(1)). …

[64] On the other hand, if the s 13 test is satisfied and there is an overriding public interest against disclosure of the information in the form sought, in my view, para 72(2)(d) makes provision for the agency to consider whether disclosure of the information sought, in a form other than that requested by the access applicant, would alter the balance between the competing public interests so that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure if access is granted in an alternative form. This approach, in my view, is also consistent with the structured approach to decision making under the GIPA Act, as noted by the Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25].

289. I note that Mr Karakalan gave evidence to the effect that the respondent does not have the ability and capacity to “redact” the CCTV footage by way of the pixilation. He said that while he provided a quote that he obtained from a third party contractor in relation to another matter, which suggested that the costs might be relatively moderate, in his oral evidence he said that the quote was for pixilation of faces only and pixilation of other “personal information” would incur additional costs.

290. The applicant argued, as he did in his application against the Commissioner of Police, that the respondent should release the CCTV footage to him because CSNSW has previously released footage to media outlets for entertainment purposes. He relied upon the decision in the Seven Network case.

291. However, there is no evidence before me that the respondent has previously released the CCTV footage that is the subject of this item to any media outlets or otherwise caused it to be publicly broadcast.

292. In any event, I note that in the Seven Network case, the Senior Member was required to determine who should pay the costs of pixilation in circumstances where there was no dispute between the parties about its release. He referred to the decision in Willner v City of Port Phillip (Review and Regulation) [2015] VCAT 1320 (Willner), in which the Victorian Civil and Administrative Tribunal refused an application for access to CCTV footage on the basis that “it was not practicable to grant access to the footage with such deletions to render it not an exempt document… given the cost burden on Port Phillip rate payers.”

293. In Willner, s 25 of the Freedom of Information Act 1982 (Vic) required a document to be produced with such deletions as would make the document not exempt from disclosure “if it is practicable for the agency or Minister to grant access” to such a document. However, there is no equivalent provision in the GIPA Act.

294. Based on the evidence before me, I am satisfied that providing the applicant with a hard copy of the CCTV footage, would interfere unreasonably with the respondent’s operations: cll I(f) and (h) of the table to s 14(2) of the GIPA Act.

295. As I found in Eggleton v Commissioner of Police (supra), I am satisfied that the GIPA Act makes no provision for the respondent to require the applicant to pay any costs associated with pixilation of CCTV footage.

296. In any event, the applicant gave particular reasons for seeking a hard copy of this footage in his written submissions (Ex. C), which significantly overlap with those lodged in support of his application to issue the summons to the respondent. These were largely to the effect that he wished to raise public awareness regarding the treatment of inmates and to provide information to a list of external bodies for investigation etc.

297. I accept the respondent’s argument that any investigation by an external body does not depend upon the applicant being given a hard copy of the footage (whether pixilated or not), because the investigating body can simply obtain a copy of the CCTV footage directly from him.

298. I note that there is no longer a dispute regarding the inmate request forms sought in item 10 of the GIPA Act and that no determination is required,

Balancing the public interest considerations

299. In applying s 13 of the GIPA Act, I have adopted the approach discussed in the decisions including Flack and Hurst, which are discussed previously in this decision.

300. For the reasons set out above, I am satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by those in cll 1(f), 3(a), 3(b) and 6(1) of the Table to s 14(2).

Conclusions

301. For the reasons set out above I am satisfied that the correct and preferable decision is to affirm the Remitted Decision of the respondent dated 9 April 2021, as varied by the respondent from 9 April 2021 to 21 July 2021.

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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: 23 September 2022