FBQ v Commissioner of Police

[2021] NSWCATAD 375

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FBQ v Commissioner of Police [2021] NSWCATAD 375

Hearing dates:

18 November 2021

Date of orders:

21 December 2021

Decision date:

21 December 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J D Little, Senior Member

Decision:

(1)   The decision of the Commissioner of Police of 10 June 2021 is affirmed.

(2)   Otherwise the application is dismissed.

(3) The publication or broadcast of the name of the complainants relating to the criminal proceedings to which this matter refers is prohibited without further order of the Tribunal. The order is made under s 64(1)(a) of the CAT Act.

(4)   The publication or broadcast of any report of the part of the proceedings conducted by the Tribunal in the absence of the Applicant on 18 November 2021 (“Confidential Part of Proceedings”) is prohibited without further order of the Tribunal. The order is made under s 64(1)(b).

(5)   The disclosure of the documents marked “Confidential” and relied upon by the Commissioner in the Confidential Part of the Proceedings listed below is prohibited without further order of the Tribunal. The order is made under 64(1)(d):

(a)   Unredacted copies of a COPS Event Report; the CAD Log; and three notebook entries pf attending officers (“Documents 4, 5 and 6”)

(b)   Copies of nine emails between DPP and the Detective Senior Constable in charge of the investigation (“Documents 7 to 14”),

(6) Except pursuant to the order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.

(7)   A copy of these reasons, without redaction, shall be released to the Applicant and the Respondent.

Catchwords:

ADMINISTRATIVE LAW – access to government information – access application – review of decision that information not held by agency – review of decision that there overriding public interest against disclosure – legal professional privilege – sections 111 and 112 of the GIPA Act

Legislation Cited:

Administrative Decisions Review Act 1997

Children and Young Persons (Care and Protection) Act 1988

Civil and Administrative Tribunal Act 2013

Director of Public Prosecutions Act 1986

Evidence Act 1995

Government Information (Public Access) Act 2009

Interpretation Act 1987

Privacy and Personal Information Protection Act 1998

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Choi v Commissioner of Police [2021] NSWCATAD 156

CLT v Department of Education [2021] NSWCATAD 249

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86

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

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

Danis v Commissioner of Police [2020] NSWCATAD 138

Danis v Commissioner of Police [2021] NSWCATAP 23

DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Kang v Kwan [2001] NSWSC 698

Leech v Sydney Water Corporation [2010] NSWADT 298

Lock the Gate Alliance v Department of Planning and Environment [2019] NSWCATAD 6

McKinnon v Blacktown City Council [2012] NSWADT 44

Miller v Director of Public Prosecution [2012] NSWADT 38

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

Neary v State Rail Authority [1999] NSWADT 107

Raven v The University of Sydney [2015] NSWCATAD 104

Saggers v Attorney General’s Department [2005] NSWADT 193

Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163

Seven Network Ltd v News Ltd [2005] FCA 142

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

Simring v Commissioner of Police [2009] NSWSC 270

Smith v NSW Police Force [2015] NSWCATAD 32

Turnbull v Strange [2018] NSWCA 157

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Zonnevylle v Department of Justice [2019] NSWCATAP 44

Zonnevylle v Department of Justice [2019] NSWCATAP 44

Category:

Principal judgment

Parties:

FBQ (Applicant)
Commissioner of Police, NSW Police (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2021/00222154

Publication restriction:

(1) The publication or broadcast of the name of the complainant’s relating to the criminal proceedings to which this matter refers is prohibited without further order of the Tribunal. The order is made under s 64(1)(a) of the CAT Act.

(2) The publication or broadcast of any report of the part of the proceedings conducted by the Tribunal in the absence of the Applicant on 18 November 2021 (“Confidential Part of Proceedings”) is prohibited without further order of the Tribunal. The order is made under s 64(1)(b).

(3) Except pursuant to the order below, the contends of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.

(4) A copy of these reasons, without redaction, shall be released to the Applicant and the Respondent.

REASONS FOR DECISION

Introduction

1. By application filed 3 August 2021, the Applicant (known as “FBQ”) sought administrative review of an internal review decision made on 10 June 2021 of the Respondent (the “Commissioner”) in response to his application for access to government information made to the Commissioner under the Government Information (Public Access) Act 2009 (the “GIPA Act”).

Background

The events leading to the Applicant’s GIPA Application

2. [Not for publication]

3. [Not for publication]

4. [Not for publication]

5. [Not for publication]

6. [Not for publication]

7. [Not for publication]

The Applicant’s GIPA Application

8. On 15 February 2021, the Applicant made application for access to information under the GIPA Act using the online “community portal”. The application, when printed in hard copy was six pages long with the “Request Description” comprising one paragraph over three pages.

9. [Not for publication]

10. Many of the requests were not framed as categories of records for disclosure – rather they were broad in nature and defined by reference to the Applicant’s narrative, assumptions or personal contentions and, in some cases, required the Commissioner to answer questions or provide explanations, for example:

[Not for publication]

[Not for publication]

11. On 22 February 2021, Mr Bradley Penfold (who is an Information Review Officer, in the InfoLink Unit of the NSW Police Force), acknowledged receipt of the access application and notified the Applicant that it had been determined that, absent further information, the access application was invalid for reasons including that the parameters of the access application were unclear. In that letter, the Applicant was provided with the option of providing further information in order to make the application valid or, alternatively exercise his review rights pursuant to Part 5 of the GIPA Act if he was not satisfied with the Commissioner’s decision. The letter informed the Applicant that any internal review must be lodged within 20 days and any external review to this Tribunal must be lodged within 40 days.

12. On 23 February 2021, the Applicant responded setting out additional information and on 4 March 2021, the Applicant was notified via the “community portal” that the application had been deemed valid.

13. The communication to the Applicant on 4 March 2021 made via the “community portal”, had mistakenly notified the Applicant that the due date for a decision in respect of the application was 15 March 2021. As explained by Mr Penfold during cross-examination, this incorrect date which was automatically generated by the “community portal system”, was a glitch in the system because at that time the system did not take account of subsequent date changes in calculating the decision period. Mr Penfold informed the Tribunal, however that the technology had been subsequently corrected.

14. In any case, on the same day as the Applicant was notified of the incorrect due date, Mr Penfold emailed the Applicant bringing the incorrect date to the Applicant’s attention and clarifying that the end of the decision period was 23 March 2021. The Applicant responded to this clarification email on the same day in the following terms:

“Noted – thanks. Regards …”

15. On 17 March 2021, Mr Penfold wrote to the Applicant and requested his consent to “an additional 20 days to process the application” and requesting that the Applicant advise whether he agreed to that extension by 31 March 2021. The reason for the extension was that “there had been a delay in the return of information”.

16. The Applicant contends that the request that he provide his response by 31 March 2021 was inconsistent with the earlier communication of Mr Penfold that the decision period ended on 23 March 2021 and that, because of this inconsistency, Mr Penfold created a risk that the application would have been a deemed refusal if the Applicant had waited until after 23 March 2021 to respond consistent with Mr Penfold’s advice. Even if it is accepted that an inconsistency arose, nothing comes of this because as explained below, the Applicant responded on the same day consenting to the extension so as a matter of fact, no deemed refusal arose.

17. Approximately an hour later, Mr Penfold again wrote to the Applicant requesting that he refine the scope of the access application specifically with respect to the requested radio communications. In making this request, Mr Penfold noted that the application was “likely to capture a very large amount of information”.

18. [Not for publication]

19. On the same day, the Applicant responded by email agreeing to the extension. The Applicant also agreed to withdraw his request for information concerning radio transmissions and media releases by the Police Media Unit.

20. Despite the Applicant admitting that he sent the email described at paragraph 19, the Applicant disputes agreeing to the extension of time and gives evidence, by way of written statement that he “rejected [Mr Penfold’s] request 17 March 2021 for a 20 working day extension”. Given the objective and contemporaneous documentary evidence in the form of an email from the Applicant in which he expressly consents to the extension of time, I do not accept the Applicant’s allegation that the extension was refused.

21. On 19 March 2021, Mr Penfold requested that the Applicant contact him by telephone. The email states, in part:

“In order to undertake reasonable searches I need to be clear on the information you require and feel a discussion may be the most effective and efficient means to resolve this issue in a timely fashion.”

22. Later on 19 March 2021 at 1.22pm, Mr Penfold and the Applicant had a telephone discussion. The fact that this telephone discussion took place is not in dispute although the Applicant contends it occurred over two telephone calls as the first call “dropped-out’. In any case, following that discussion, Mr Penfold wrote an email to the Applicant. Mr Penfold describes that email as recording the agreed revised scope of the access application and in cross-examination gave evidence that the call was motivated by an attempt to clarify and narrow the application so “it was achievable and within resources”.

23. [Not for publication]

24. At 1.28pm on that same date, the Applicant responded by email in the following manner:

“Thanks Bradley. I look forward to receiving the requested information within the revised timeframes. Regards …”

25. Despite the Applicant’s contemporaneous email in which the Applicant raises no issue as to what Mr Penfold expressly describes as an agreement to refine the scope of the Applicant’s application and in which he expressly refers to “the revised timeframes” - the Applicant, now accuses Mr Penfold of misrepresenting the content of the telephone conversation and that Mr Penfold had artificially truncated the scope of the application by virtue of that email. The Applicant denies agreeing to any refinement and to any revision of the timeframes.

26. Again, the Applicant’s denial of matters evidenced by objective and contemporaneous documentary evidence in the form of an email from the Applicant cannot be reconciled.

27. I do not accept the Applicant’s allegation that he did not agree to a refinement of his application or a revision of the timeframes.

28. [Not for publication]

29. [Not for publication]

30. Accordingly, I find that on 19 March 2021, the scope of the Applicant’s access application was refined to the following information:

1. [Not for publication];

2. The police event report (“COPS event report”);

3. Notebooks of attending officers;

4. [Not for publication]; and

5. [Not for publication]

31. On 22 March 2021, Mr Penfold notified the Applicant of the decision under s58(1)(a) and (d) of the GIPA Act to provide him with partial access to the CAD log and relevant COPS Event Report but that there was a public interest in non-disclosure of certain parts of the CAD log and relevant COPS Event Report. In summary, and as stated in the notification to the Applicant, the following information had been redacted:

1. Names, dates of birth, addresses, email addresses and phone numbers of other people being personal information of third parties which should be protected: s 14, Table 3(a) of the GIPA Act;

2. Information relating to young people under 18 years of age at the time, who came into contact with the police as it is not in their best interests to release that information: s 14, Table 3(a) of the GIPA Act; and

3. Information given to the police in confidence during the investigation so as to maintain the community’s trust in police matters: s 14, Table 1(d) of the GIPA Act.

32. On Monday 3 May 2021, the Applicant enquired as to the progress of his application given Mr Penfold’s indication in his email of 19 March 2021 that the later supplementary decision would be made by 23 April 2021. On that same day, the offices of the Commissioner indicated that Mr Penfold was out of the office but would return on Wednesday 5 May 2021. In cross-examination, Mr Penfold explained that he was on annual leave.

33. On Thursday 6 May 2021, Mr Penfold notified the Applicant of the decision under s58(1)(a) and (d) of the GIPA Act to provide him with access to the Media Log but that there was a public interest in non-disclosure of correspondence between the police and the DPP.

34. In summary, and as stated in the notification to the Applicant, access to the correspondence between the police and the DPP was refused on the basis that it was to be conclusively presumed that there was an overriding interest against disclosure of “excluded information” pursuant to Clause 1 of Schedule 2 of the GIPA Act as the information related to the prosecuting functions of the DPP as well as subject to legal professional privilege, which had not been waived, with reference to s 14(1) of the GIPA Act and Clause 5 of Schedule 1 of the GIPA Act.

35. The result was that there was (and adopting the Document numbering of the parties from their written submissions):

1. partial disclosure of:

1. a COPS Event Report (“Document 1”);

2. the CAD Log (“Document 2”);

3. three notebook entries of attending officers (“Documents 4, 5 and 6”)

2. full disclosure of the media log (“Document 3”); and

3. non-disclosure of nine emails between DPP and the Detective Senior Constable in charge of the investigation (“Documents 7 to 14”)

36. On or around 12 May 2021, the Applicant attempted to apply for an internal review but was informed on 13 May 2021 that that application could not be processed as he had failed to pay the $40 processing fee.

37. An application was subsequently sent by express post and delivered on 20 May 2021 with the processing fee paid. The “date received” was initially registered as 24 May 2021 but was amended to be 20 May 2021 on the request of the Applicant given that this was the date, according to express post, it had been delivered as opposed to some later date such as the date it was processed by the agency. As the date of receipt was 20 May 2021, the decision period ended on 10 June 2021. The Applicant describes these events as the “difficulties experienced in lodging the internal review application”.

38. On 10 June 2021, and consistent with the decision period, the Applicant was advised of the result of that internal review. The result was largely consistent with the initial decisions in that no further information was made available. That decision, in summary was:

1. In respect of Documents 1, 2, 4, 5 and 6 – there were public interest considerations against full disclosure as full disclosure would:

1. reveal an individual’s personal information,

2. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (the “PPIP Act”),

3. not be in the best interests of a child; and

4. be prohibited pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

2. In respect of Documents 7 to 14:

1. It was to be conclusively presumed that there is an overriding public interest against disclosure as it is subject to legal professional privilege, which had not been waived, with reference to Clause 5(1) and (2) of Schedule 1 of the GIPA Act; and

2. was “excluded information” pursuant to Clauses 1, 6(1) and (2) of Schedule 2 of the GIPA Act as the information related to the prosecuting functions of the DPP.

39. By virtue of that internal review, the Commissioner also found that pursuant to s58(1)(b) of the GIPA Act, there was no other information within the scope of the application that was held by the agency.

40. On 19 June 2021, the Applicant made an application seeking access under the PPIP Act seeking certain personal information held by the police (“Privacy Application”).

41. On 25 June 2021, the Applicant made a further GIPA application seeking information on the processing of the GIPA access application the subject of these proceedings (“Second GIPA Application”).

42. On or around 3 August 2021, the Applicant sought administrative review of the decision of the 10 June 2021.

Jurisdiction

43. The Tribunal's jurisdiction derives from s 100 of the GIPA Act. Section 100(1) provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review of the decision.

44. The administrative review application is brought under the Administrative Decisions Review Act 1997 ("the ADR Act"). Section 9 of the ADR Act provides that, in specified circumstances, the Tribunal has "administrative review jurisdiction" over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review.

45. Section 28(1) of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under legislation.

46. Section 63(1) of the ADR Act provides that in determining an application for an administrative review 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 any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all of the functions of the administrator who made the decision.

47. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal.

Issues to be determined

48. There is preliminary question as to the issues that are currently before this Tribunal.

49. The Applicant contends that I should, when considering the scope of the access application, return to the “original application” as it was on 15 February 2021 and prior to any refinement of the categories of information. In support of this, the Applicant seeks a review of the “decision” of 22 February 2021 that the access application of the Applicant was invalid.

48. The Applicant, then contends, that this Tribunal should direct that the Commissioner undertake new searches for materials and make a new access decision with categories of information. It is not clear how this follows given that these new searches were not expressly described as part of the alleged “original application” in any case.

49. In support of these contentions, the Applicant relies upon his allegations that he did not consent to the changes to the ambit of his access application and the application as it was on 15 February 2021 was not unclear.

50. I reject these contentions.

51. First, and as stated above, the jurisdiction of this Tribunal derives from s100 of the GIPA Act. S 100(1) provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review of the decision. The reviewable decision, in this case, is the decision of 10 June 2021 based upon the Applicant’s access application which had been refined and clarified in consultation with him and with his consent consistent with my findings described above.

52. Secondly, the letter of 22 February 2021 notified the Applicant that it had been determined that, absent further information, the access application was invalid. The reasons including that the parameters of the access application were unclear. In that letter, the Applicant was provided with the option of providing further information to make the application valid or, alternatively exercising his review rights pursuant to Part 5 of the GIPA Act if he was not satisfied with the Commissioner’s decision. The Applicant chose the former. In those circumstances the access application was never refused for invalidity as a matter of fact and remained on-foot as it was supplemented by additional information and subsequently further amended. As such, there is no “reviewable decision” in this regard. Consistent with this, it is not the case that there is an “original application” as opposed to a “latter application”. There is but one application initially made on or around 15 February 2021 which has been amended over time in consultation and agreement with the Applicant.

53. Therefore, the scope of the administrative review in these proceedings is limited to reviewable decisions of the Commissioner under ss80(d) and (e) of the GIPA Act, being:

1. The decision that the Commissioner does not hold any further information beyond that which has already been identified as responsive to the Applicant’s access application;

2. The decision to refuse access to parts of the documents in respect of Documents 1, 2, 4, 5 and 6 (being the CAD log, the COPS Event Report and the notebook entries of attending police officers) on the basis that there is an overriding public interest against disclosure; and

3. The decision to refuse access to Documents 7 to 14 (being emails and legal deliberations with the DPP and prosecutors by the Detective Senior Constable in charge of the investigation), on the basis that there is an overriding public interest against disclosure.

4. Additionally, the Applicant seeks to make application under sections 111 and 112 of the GIPA Act.

56. The scope in respect to issue (2) has been further confined as the Applicant has indicated, as stated in his oral and written submissions, that he has “no further interest” in Documents 2 to 6.

57. In respect of Document 1, the access application is limited to 10 lines appearing on page 4 and repeated on page 8 which have been redacted (the “Redacted Paragraph”).

58. It has also been agreed as between the parties that the names and other information enabling identification of any minors should remain redacted pursuant to s64(1)(a) of the CAT Act irrespective of any further disclosure of information. I make an order in this regard consistent with the consent position reached between the parties.

59. The review of these decisions is considered below. The Tribunal’s role in these proceedings is limited to that review and does not extend to other matters raised by the Applicant, including:

1. allegations of misconduct on the part of the NSW Police Force other than in the context of s125 of the Evidence Act 1995 as well as ss 111 and 112 of the GIPA Act as raised by the Applicant;

2. a merits review of the evidence before the Local Court and the strength of the case of the DPP;

3. the merits of the decision of the Local Court;

4. the merits of any decision in respect of the Second GIPA Application; or

5. the merits of any decision in respect of the Privacy Application.

60. In this respect, I note that decision of Raven v The University of Sydney [2015] NSWCATAD 104 at [45] citing Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24]:

“ …proceedings under the GIPA Act … should not be used as a vehicle for the collateral review of the merits or validity of official action”

Evidence

61. In addition to the Applicant’s oral submissions, the Applicant relied on:

1. Written submissions entitled "Submissions of the Applicant" dated 26 October 2021 (Exhibit A1);

2. Statement of the Applicant filed on 26 October 2021 attaching Annexures A to O (Exhibit A2);

3. Bundle of documents comprising a cover sheet and tabs 1 to 10 being identified as being documents obtained by the Applicant “by a subsequent GIPA application” to obtain documentation from the police in respect of the GIPA application the subject of these proceedings (Exhibit A3).

62. Additionally, the Applicant cross-examined Mr Penfold during the hearing.

63. In addition to the oral submissions on behalf of the Respondent, the Respondent relied upon:

1. Written submissions entitled “Submissions of the Respondent” dated 7 October 2021 (Exhibit R1);

2. Statement by the Applicant filed on 26 October 2021 attaching Annexures A to O (Exhibit R2);

3. Statement of Detective Sergeant Ferns filed 7 October 2021 (Exhibit R3);

4. Statement of Mr Penfold filed 7 October 2021 (Exhibit R4); and

5. Written submissions in reply entitled “Submissions of the Respondent in Reply” dated 11 October 2021 (Exhibit R1) (Exhibit R5).

64. The evidence and submissions were conducted in two parts with the consent of the parties. The hearing was conducted primarily in the open and in respect of which, the Applicant was in attendance. Following that open hearing, a confidential hearing was conducted in which the representative of the Commissioner made oral submissions with reference to full copies of the documents the subject of this application without redaction which had not otherwise been disclosed to the Applicant.

The decision that the Commissioner does not hold any further information beyond that which has already been identified as responsive to the Applicant’s access application

65. The Applicant’s case, in part, is that the Commission has not provided him with access to all of the information within the scope of his access application.

66. The Commissioner, by virtue of the decision of 10 June 2021, did expressly decide that no other information within the scope of the application is held by the agency. This decision being pursuant to s58(1)(b) of the GIPA Act which provides that an application may be decided by the agency deciding that the information is not held by the agency. This decision is reviewable by the Tribunal under s 80(e) of the GIPA Act: CLT v Department of Education [2021] NSWCATAD 249.

67. In respect of a decision that information is not held by an agency, s 53 of the GIPA Act states 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”

68. A convenient summary of the Tribunal’s role in conducting a review of a decision that information is not held by an agency is found in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [42]-[44]:

[42] “The role of the Tribunal in reviewing an “information not held” decision (ss 58(1)(b), 80(e)) is “to decide what the correct and preferable decision is having regard to the material then before it”: s 100(1) of the GIPA Act and s 63(1) of the ADR Act. 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.

[43] In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “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”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.

[44] In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

(1) identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

(2) determine whether the agency has proved any relevant factual issues on the balance of probabilities;

(3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; .

(4) applying those findings, decide what the correct or preferable decision is;

(5) affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.”

69. I deal with each of the categories of documents which were part of the Applicant’s access application and whether reasonable searches have been undertaken by the Commissioner.

Consideration

70. The Commissioner’s efforts to search for information responsive to the access application are detailed in the statement of Mr Penfold who, as noted above, is an Information Review Officer of the InfoLink Unit of the NSW Police Force. That unit is responsible for administering the Commissioner’s responsibilities under the GIPA Act (amongst others).

71. Mr Penfolds gives evidence of the processes adopted by the InfoLink Unit to respond to access application and the information management systems utilised by the NSW Police Force.

72. In respect of process, Mr Penfold’s evidence is that when an access application is received by the Infolink Unit, an officer of the Unit will generally review the terms of the application to determine which command or are of the NSW Police Force is likely to hold relevant information. The InfoLink Unit officer will then ask the relevant area to conduct a search of the information in the form of a “trace request” which includes a form called a “GIPA Instruction Sheet”.

73. In respect of information management systems, Mr Penfold informs the Tribunal that information is stored in various formats and on various systems. One of these systems is the Computerised Operational Policing System (also known as COPS) which is used to capture, record and store operational information and intelligence gathered by officers of the NSW Police Force.

74. In respect of categories 1 and 2 (i.e the CAD report and COPS event report), Mr Penfold informs the Tribunal that

1. On 19 March 2021, he conducted searches for information so as to access the CAD Log report. By these searches he identified the relevant CAD report which he then took steps to print out a copy.

2. On that same day, Mr Penfold took steps to obtain the relevant COPS event number. As noted in Choi v Commissioner of Police [2021] NSWCATAD 156:

“A COPS event number is created when an officer enters information into the COPS system after attending to a criminal or non-criminal matter (which is not a purely internal administrative matter). Each event is given a unique number and includes information including the events that occurred; details of witnesses; details of complainants; details of persons of interest; and action taken by police (such as charges being laid or apprehended personal violence orders being applied for). Police may access the COPS system for information relevant to their duties or investigations whether the event was submitted by themselves or another officer allocated to a specific event “

3. After either being provided with the relevant COPS event number or having ascertained it after conducting searches for that number, Mr Penfold searched the Computerised Operational Policing System using an event enquiry. By conducting these searches, Mr Penfold identified the relevant COPS event report and took steps to print out a copy.

4. The searches undertaken above identified a COPS Event Report ("Document 1") and the CAD Log ("Document 2").

5. He is not aware of any additional searches that could be undertaken that are likely to identify additional information or additional searches that should be conducted in respect of categories 1 and 2. There is nothing before the Tribunal that challenges this evidence.

75. In respect of categories 3 and 4 (i.e. notebooks of attending officers and emails and legal deliberations), Mr Penfold informs the Tribunal that

1. On 19 March 2021, he emailed trace requests to the team in charge of access applications pursuant to the GIPA Act at the relevant Police Area Command for notebook entries of the attending officers and relevant email correspondence and legal deliberations with the DPP.

2. [Not for publication]

3. According to the evidence, this took approximately two hours to complete the searches.

76. The searches undertaken above identified three notebook entries of two Senior Constables and one Constable ("Documents 4, 5 and 6"); and nine emails between DPP and the Detective Senior Constable in charge of the investigation ("Documents 7 to 14"). Mr Penfold's evidence is that he is not aware of any additional searches that could be undertaken that are likely to identify additional information or additional searches that should be conducted in respect of categories 3 and 4 and there is nothing before the Tribunal that challenges this evidence.

77. The Commissioner further submits that and the Detective Senior Constable in charge of the investigation was well-equipped to make a judgment as where responsive documents would be located in circumstances where:

1. The access application sought emails sent to and from that Detective Senior Constable; and

2. As a result of his role as Officer in Charge of the investigation, he had detailed knowledge of the investigation and any documents or information relating to the same.

78. In respect of category 5 (i.e. a check with the Police Media Unit within a particular date range), Mr Penfold informs the Tribunal that, in respect of the Police Media Unit check

1. On 19 March 2021, he emailed a trace request to the Police Media Unit for "search of any releases to the media of information regarding the application". The application was identified by multiple identifiers including the Applicant's name, GIPA number and Event Number.

2. On 26 March 2021, the Duty Manager of the Police Media Unit emailed Mr Penfold the Media Log in relation to the incident

79. The searches undertaken above identified the media log which was disclosed to the Applicant without redaction. Mr Penfold's evidence is that he is not aware of any additional searches that could be undertaken that are likely to identify additional information or additional searches that should be conducted in respect of category 5 and there is nothing before the Tribunal that challenges this evidence.

80. In respect of the Applicant’s position, while the Applicant cross-examined Mr Penfold predominantly with respect to the calculation of the decision period and perceived delays, Mr Penfold was not challenged in respect of his evidence that he is not aware of any additional searches that could be undertaken that are likely to identify additional information or additional searches that should be conducted in respect of each of the categories.

81. As such, in respect of categories 1, 2, 3, 4 and 5, The Tribunal is satisfied on the evidence of Mr Penfold that:

1. The Commissioner has provided comprehensive evidence of its information systems and procedure in identifying and collecting information responsive to an access application.

2. The Commissioner implemented its procedure and conducted searches of its information systems responsive to the request for information under categories 1, 2, 3, 4 and 5.

3. No information responsive to categories 1 and 2 was found except the COPS Event Report (“Document 1”) and the CAD Log (“Document 2”);

4. No information responsive to categories 3 and 4 was found except three notebook entries (“Documents 4, 5 and 6”); and nine emails between DPP and the Detective Senior Constable in charge of the investigation (“Documents 7 to 14”).

5. No information responsive to category 5 was found except the Media Log which has been disclosed to the Applicant.

6. The Commissioner has conducted reasonable searches necessary to find the information sought in respect of categories 1, 2, 3, 4 and 5.

82. I accept that the Commissioner has complied with its obligation under s 53(2) of the GIPA Act to conduct reasonable searches for information using the most efficient means reasonably available. The Commissioner’s decision that no further information is held is affirmed as the correct and preferable decision.

The decision to refuse access to the Redacted Paragraph in Document 1 on the basis that there is an overriding public interest against disclosure.

83. The Commissioner describes the information contained in Document 1 which includes the Redacted Paragraph in his written submissions as:

[Not for publication]

84. In this context, the Commissioner submits that there is an overriding public interest against disclosure pursuant to ss 13 and 14 of the GIPA Act.

85. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 13 of the GIPA Act sets out the “public interest test” for determining whether there is an overriding public interest against disclosure of information in the following terms:

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

86. The general public interest considerations in favour of access to government information set out in s 12 of the GIPA Act. Examples of public interest considerations in favour of disclosure of information are:

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

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

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

4. The information is personal information of the person to whom it is to be disclosed.

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

87. Section 14 of the GIPA Act deals with public interest considerations against disclosure. The approach in determining whether there is an overriding public interest against disclosure for the purposes of the GIPA Act was described in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [24]-[25]:

“Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.”

88. In respect of the Redacted Paragraph, the Commissioner relies on the public interest considerations against disclosure described in the Table to s 14(2) of the GIPA Act. That information is subject to the balancing exercise required by s 13 of the GIPA Act, with reference to the principles expressed at s 15 of the GIPA Act. Relevantly, the Commissioner relies on the following public interest considerations against disclosure:

1. Prejudice the supply of confidential information that facilitates effective exercise of the agency's functions: Cl (1)(d) of the Table to s 14;

2. Prejudice the effective exercise by an agency of the agency's functions: Cl (1)(f) of the Table to s 14;

3. Result in disclosure of information provided to an agency in confidence: Cl (1)(g) of the Table to s 14;

4. Reveal the personal information of other individuals: Cl (3)(a) of the Table to s 14; and

5. Contravene an information protection principle under the PPIP Act: Cl (3)(b) of the Table to s 14;

6. In the case if disclosure of personal information about a child – that it would not be in the best interests of the child: Cl (3)(g) of the Table to s 14;

89. The evidence of the Commissioner must satisfy the threshold for each of those clauses, being that it "could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)".

90. In this regard, the test to be applied is an objective one, approached from the viewpoint of a reasonable decision-maker: Neary v State Rail Authority [1999] NSWADT 107. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163, followed in Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (“Barrett”) at [40], Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (“Flack”) at [40] to [41], Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

91. The meaning of the word prejudice is to “cause detriment or disadvantage’ or to ‘impede or derogate from”: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

92. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed.

Public interest considerations in favour of disclosure

93. In addition to the considerations described at paragraph 86, I have also considered the motivation of the Applicant, as explained by him, in obtaining access to the Redacted Paragraph.

94. [Not for publication]

95. In this way, the Applicant’s motivation for seeking the information is personal which, consistent with s 55 of the GIPA Act is relevant when assessing the public interest favouring disclosure, and the weight to be accorded to that interest.

96. [Not for publication]

97. [Not for publication]

98. [Not for publication]

Public interest against disclosure: Cl (1)(d) and Cl (1)(f) of the Table to s 14

99. First, the Commissioner submits that the information the subject of the redacted Paragraph is “confidential information” within the meaning of Cl 1(d) of the Table to s14 of the GIPA Act. In this respect, the Commissioner relies upon the Statement of Sergeant Ferns and the circumstances by which the information was collected.

100. [Not for publication]

101. The Commissioner submits, on this basis, that the information the subject of the Applicant’s application before this Tribunal is “confidential information”. I accept that the Redacted Information is “confidential information” for the purposes of Cl (1)(d) of the Table to s 14 of the GIPA Act.

102. Secondly, the Commissioner submits that releasing the confidential information which is contained in the Redacted Paragraph could reasonably be expected

1. [Not for publication];

2. prejudice the effective exercise of the NSW Police Force of its function; and

3. result in the disclosure of information provided in confidence.

103. As such, the Commissioner contends that each of Cl 1(d), (f) and (g) of the Table to s 14 applies.

104. The Commissioner relied upon Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 at [35] and the authorities summarised therein which support the strong public interest in criminal offences being reported to the police and the sources of information not “drying up” as described in Simring v Commissioner of Police [2009] NSWSC 270 at [69]. As such, the question is not whether the confider of the information in question would in future refuse to supply such information to the agency, but whether it could prejudice others coming forward in the future. See also the recent decision of Danis v Commissioner of Police [2021] NSWCATAP 23.

105. The Commissioner submits that greater weight should be given to these considerations in the case of information supplied by a minor as the community expectations is that the interests of children will be accorded special protection which is reflected in a myriad of legislation such as the Children and Young Persons (Care and Protection) Act 1988. The Commissioner also contends that it is relevant to take into account that the release of information under the GIPA Act is not subject to any limitations as to use or disclosure.

106. In this regard, the Commissioner again relies upon the evidence of Sergeant Ferns and his concerns that disclosure of information of this nature would prejudice the future assistance that may be given to the police and thereby prejudice the performance of their function.

107. The Tribunal has consistently affirmed the confidentiality of statements made by complainants to the Police for the purpose of items 1 (d) and 1 (f)) in the section 14 Table: see for example, Smith v NSW Police Force [2015] NSWCATAD 32; Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 10; DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114: also Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19. Consistent with these authorities, I accept the submissions of the Commissioner that release of the Redacted Paragraph could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the Commissioner’s functions: (Cl (1)(d) of the Table to s 14) and that disclosure could reasonably be expected to prejudice the effective exercise of the Commissioner’s functions: (Cl (1)(f) of the Table to s 14).

108. I further find that the release of the Redacted Paragraph would result in the disclosure of information provided to the agency in confidence: (Cl (1)(g) of the Table to s 14).

109. As such, these considerations need to be weighed against the public interest for disclosure.

Public interest against disclosure: Cl (3)(a) and Cl (3)(b) of the Table to s 14

110. In regard to the public interest consideration against disclosure set out in clause 3(a) of the table to s 14 of the GIPA Act, the term ‘personal information’ is defined in clause 4 of Schedule 4 of the GIPA Act. That clause is in the following terms:

“4 Personal information

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

(2) Personal information includes such things as an individual’s fingerprints,

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

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual’s name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.”

111. Additionally, clause 3(b) of the of the Table to s 14 provides that a further consideration against disclosure is if its disclosure would contravene an information protection principle under the PPIP Act. As submitted on behalf of the Commissioner, the definition of “personal information” in s4(1) of the PPIP Act is substantially in the same terms as the definition of clause 4 of Schedule 4 of the GIPA Act.

112. [Not for publication]

113. The Commissioner maintains reliance on clauses 3(a) and 3(b) despite the concession made on behalf of the Applicant that he seeks disclosure of only the Redacted Paragraph and agrees that the names of any complainant be redacted.

114. In those circumstances, the question arises as to whether the Redacted Paragraph, subject to the refinements agreed by the parties, would disclose “personal information” as defined.

115. The Redacted Paragraph identifies information about the complainant in that it reveals that the complainant held a particular opinion or knew certain things at a particular time. This is consistent with the meaning of “personal information” as defined in clause 4(1) of schedule 4 of the GIPA Act: Turnbull v Strange [2018] NSWCA 157 at [5].

116. As for whether the identity of the complainant is apparent or could reasonably be ascertained from the information, the Information Commissioner has published “Guidelines 4 - Personal Information” which describes considerations which are relevant when determining whether there is an overriding public interest against disclosure. Clause 17 states:

“Whether the identity of a person can “reasonably be ascertained” will depend on the type of information and the context in which it is being used. It is not necessary that the identity of the person be widely known, it will be sufficient to satisfy the definition of personal information if the information is communicated to someone who is able to identify the person.”

117. [Not for publication]

118. This is sufficient to find that the Redacted Information is “confidential information” for the purposes of the GIPA Act. As such, there is a public interest in its non-disclosure consistent with Clause 3(a) of the Table to s 14. Likewise, and for the same reasons, I find that disclosure would be inconsistent with an information privacy principle in the PPIP Act.

Public interest against disclosure: Cl (3)(g) of the Table to s 14

119. [Not for publication]

120. In Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 the Tribunal considered it difficult to see any circumstances in which the best interest of a child could be served by disclosure of their personal information in response to a GIPA Act application.

121. In Danis v Commissioner of Police [2020] NSWCATAD 138, the Tribunal held that Cl 3(g) applied with respect to information given to police in confidence by a child relating to an alleged physical assault.

122. I accept the Commissioner’s submission and in consideration of the highly sensitive nature of the information, I find that it is not in the best interests of the child to disclose the information under the GIPA Act and this is a consideration in weighing up the overall public interest.

123. These findings (as are the findings with respect to clause (3)(a) and (b) of the Table to s 14 below above) are also consistent with the interlocutory application made by the Applicant dated 4 August 2021 seeking that the proceedings be conducted in private; orders prohibiting disclosure of the Applicant’s name and orders prohibiting disclosure of any evidence or other information relating to the criminal proceedings to which this matter refers. Inherent in that application made by the Applicant is an acknowledgement of the highly sensitive nature of the information and the importance of its non-disclosure in appropriate circumstances.

Balancing the competing public interest considerations

124. There are public interest considerations favouring disclosure as identified at paragraphs 93 and 96 above. Against this are the considerations against disclosure identified at paragraphs 99 to 123 above.

125. The Commissioner submitted, and I agree, that disclosure of the Redacted Paragraph could reasonably be expected to:

1. prejudice the effective exercise of its functions,

2. result in disclosure of information provided in confidence,

3. disclose personal information and contravene a information protection principle; and

4. reveal a child’s personal information.

126. I find that the Commissioner has discharged its onus and find that, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure in respect of the Redacted Paragraph.

The decision to refuse access to Documents 7 to 14 on the basis that there is an overriding public interest against disclosure.

127. In these proceedings the Commissioner is relying on a conclusive presumption (s 14(1)) that there is an overriding public interest against disclosure in relation to certain information withheld, specifically that Documents 7 to 14;

1. is subject to legal professional privilege (Clause 5 of Schedule 1 to the GIPA Act); and/or

2. is excluded information of the DPP (and accordingly, are subject to Clause 6 of Schedule 1 of the GIPA Act).

Legal Professional Privilege

128. The conclusive presumption at s 14(1) of the GIPA Act in relation to information which is the subject of legal professional privilege has been discussed in numerous decisions. In Lock the Gate Alliance v Department of Planning and Environment [2019] NSWCATAD 6 the Tribunal held:

“The Tribunal has considered cl 5 of Schedule 1 in numerous matters. Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.

In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are:

(1) the existence of a client and lawyer relationship; and

(2) the confidential nature of the communication or document; and

(3) the communication or document was brought into existence for the dominant purpose of either:

(a) enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or

(b) for use in existing or anticipated litigation.

129. These considerations are embodied within sections 118 and 119 of the Evidence Act 1995.

130. In cases where privilege is claimed over documents created by a lawyer employed "in-house", the case law requires that the lawyer have a degree of independence in respect of the advice given: Seven Network Ltd v News Ltd [2005] FCA 142.

Consideration

131. The Applicant accepted that there was an overriding presumption against disclosure for information which was legally professionally privileged but wanted the Tribunal to review the material and confirm that the claim for privilege was appropriately made. If, after that confidential examination, the Tribunal was satisfied that the elements of legal professional privilege were met, the Applicant indicated that he would “accept that opinion without contest”.

132. In relation to the information withheld on the basis that it was subject to legal professional privilege, the Commissioner submitted that it was plain from the face of those documents that they comprised confidential communications between client and lawyer acting for the client that was made or prepared for the dominant purpose of the client being provided with professional legal services relating to an Australian proceeding in which the client is a party. Consistent with s119 of the Evidence Act 1995, the Commissioner contends the documents are privileged. The Commissioner expressed that it had decided not to waive privilege in relation to any of the information withheld subject to Clause 5 of Schedule 1 of the GIPA Act.

133. On my review of Documents 7 to 14., I agree that those documents contain information that would be privileged from production in legal proceedings on the ground of legal professional privilege and specifically pursuant to s119 of the Evidence Act 1995 which is often referred to as litigation privilege. Accordingly, the information is properly withheld pursuant to Clause 5 of Schedule 1 to the GIPA Act as there is a conclusive presumption that there is an overriding public interest against its disclosure.

134. In response, the Applicant then relies on s125(1)(b) of the Evidence Act 1995. Section 125(1)(b) of the Evidence Act 1995 states:

“125 Loss of client legal privilege: misconduct

(1) This Division does not prevent the adducing of evidence of--

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.”

135. There was nothing in the evidence admitted on this application including the statement of the Applicant, nor in the evidence I considered in the confidential part of this proceedings, justifying the findings that a member of the New South Wales Police Force or a member of the DPP made or prepared a communication or document in furtherance of a deliberate abuse of power or furtherance of a fraud, or that a member of the New South Wales Police Force or DPP had actual or constructive knowledge of this alleged abuse. Even on the “reasonable grounds” standard provided for in s 125(2) of the Evidence Act 1995, the evidence was plainly insufficient to support a finding under s 125(1)(b) or for that matter, under s125(1)(a).

135. It is not enough, for the purposes of s 125 of the Evidence Act 1995 simply to take into account the Applicant’s allegations and “concerns” (as described by him in his written submissions).

136. [Not for publication]

137. As emphasised in the High Court decision of Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 521–2; 141 ALR 545 at 558–9, in order to enliven the power under s125 of the Evidence Act 1995, the evidence must go beyond mere assertion. This is consistent with the decision of Kang v Kwan [2001] NSWSC 698 in which Santow J held that

“the standard for establishing reasonable grounds will depend on the circumstances, though must still be sufficient to give colour to the charge”.

139. [Not for publication]

140. As such, I reject the Applicant’s reliance on s125(1)(b) of the Evidence Act 1995. Accordingly, as the privilege has not been waived, it is to be conclusively presumed that there is an overriding public interest against disclosure of these documents. In light of these matters, I find that the Commissioner made the correct and preferable decision when he decided to refuse access to the Documents 7 to 14 on the basis that they were subject to an overriding public interest against disclosure, as privileged information.

Excluded Information

141. In addition to reliance on Clause 5 of Schedule 1 to the GIPA Act, the Commissioner also relied upon the conclusive presumption that there is an overriding public interest against disclosure of the information that is excluded information of an agency pursuant to s14(1) and Clause 6 of Schedule 1 to the GIPA Act

142. Clause 6 of Schedule 1 of the GIPA Act states:

“6 Excluded information

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

(2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.

(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.”

143. Clause 1 of Schedule 2 of the GIPA Act expressly includes “prosecuting functions” of the DPP as “excluded information” for the purposes of Clause 6 of Schedule 1 of the GIPA Act.

Consideration

144. The Commissioner submits that the information sought is clearly part of the Respondent's prosecution function and therefore excluded information of the Respondent.

145. In support of this contention, the Commissioner relies on the decision in Miller v Director of Public Prosecution [2012] NSWADT 38. In that case the Tribunal determined that documents in relation to a complaint about the conduct of a prosecution were “excluded information” because they contained information, legal analysis and legal opinion that is integral to the prosecution of the matter.

146. [Not for publication]

147. In response, the Respondent submits that it is appropriate that Clause 1 of Schedule 2 of the GIPA Act which expressly includes “prosecuting functions” of the DPP as “excluded information” be interpreted with reference to extrinsic materials pursuant to s 34 of the Interpretation Act 1987. The extrinsic material to which the Tribunal should have regard, according to the Applicant is:

1. the Director of Public Prosecutions Act 1986,

2. the “Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015”; and

3. documents which relate to the behaviour of employees of the office of the DPP such as the guideline entitled “Prosecution Guidelines – Role of the Prosecutor”.

148. The Applicant contends that in this context, “prosecuting function” must be limited to “legitimate and lawful prosecutorial functions undertaken by the DPP” and that misconduct would not fall within this function. While I accept, as a matter of principle that a “deliberate abuse of power”, a commission of a fraud or other action or an improper purpose could not fall within the meaning of ”prosecuting function”, consistent with my findings above, I have not accepted the Applicant’s claims of misconduct occasioned by the New South Wales Police Force or a member of the DPP and there is no material before this Tribunal that would allow it to make such findings.

149. [Not for publication]

150. I further find that the Commissioner made the correct and preferable decision when he decided to refuse access to Documents 7 to 14 on the basis that they were subject to an overriding public interest against disclosure, as excluded information under the GIPA Act

Referrals under section 112 of the GIPA Act

151. The Applicant makes applications pursuant to s 112 of the GIPA Act.

152. Section 112 provides that if the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a GIPA Act function, the Tribunal may bring the matter to the attention of the relevant Minister or the Information Commissioner.

153. As held in Saggers v Environment Protection Authority [2013] NSWADT 204 at [28], in making an application under s112 of the GIPA Act, the Applicant takes on a role comparable to that of prosecutor. He therefore bears the burden of establishing the facts upon which he seeks to rely for the purposes of s 112. In light of the seriousness of the potential gravity of the consequences against those responsible, any allegation in support of a referral under s112 of the GIPA Act must be proved to the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362: Zonnevylle v Department of Justice [2019] NSWCATAP 44 (“Zonnevylle”).

154. Section 112 was discussed by the Appeal Panel in Zonnevylle where it was held that before the Tribunal could form the opinion that an officer failed to exercise a function in good faith, it would be necessary to form the view that the officer’s conduct demonstrated something more than honest ineptitude.

155. In respect of s 112 of the GIPA Act, the Applicant accuses Mr Penfold of misconduct because, in the Applicant’s words, Mr Penfold’s “management of my application was characterised by negligence, spurious claims, intentional delays, inadequate search actions, failing to meet specified timeframes, a lack of understanding of LPP provisions and acting unethically”.

156. The specific allegation made by the Applicant includes an allegation of dishonesty in Mr Penfold’s communication to him of 17 March 2021 in which Mr Penfold requested the Applicant’s consent to an extension because of a “a delay in the return of information”. The Applicant draws the Tribunal’s attention to documents which he says establish that a GIPA Instruction Sheet was not emailed by Mr Penfold until 19 March 2021 and, relying on this, the Applicant urges the Tribunal to find that no work had been undertaken with respect to his application by Mr Penfold as at 17 March 2021 and therefore, the representation that there had been a delay in the return of information was dishonest.

157. In cross-examination, Mr Penfold disputed that this was a misrepresentation. Mr Penfold gave evidence that he had conversations with the relevant individuals prior to 19 March 2021 so as to facilitate the Applicant’s access application. He indicated, in his oral evidence that these conversations, as well as his own considerations, were steps taken to clarify the Applicant’s request so that it was achievable and within resources with such steps also occurring prior to 19 March 2021. Once that clarification was received and agreed too, then he issued the GIPA Instruction Sheets. In this respect, I accept the evidence of Mr Penfold which is consistent with the evidence of the various communications as between the Applicant and Mr Penfold which led to a refinement of the application’s scope.

158. The Applicant also relied upon what he alleged was “unethical conduct” in Mr Penfold’s alleged misrepresentation as to an agreement to an extended decision period and a redefined scope of information sought. In this respect, I have found, as a matter of fact, that the Applicant did agree to the refinement of his application and to an extension of time and so there can be no finding of “unethical conduct” against Mr Penfold on this basis.

159. Otherwise, to the extent that the Applicant accuses Mr Penfold of a “lack of understanding” this allegation appears to rise no higher than the fact that the Applicant disagrees with the outcome of his application and internal review.

160. However, even if I was to accept the allegations of the Applicant against Mr Penfold, the Tribunal does not have the power to bring to the attention of the Minister any conduct that the Tribunal may regard as “improper”. The same reasoning applies to s 111: Zonnevylle at [58]. Rather, an opinion must be formed that the conduct is "a failure to exercise in good faith a function conferred on the officer".

161. Consistent with the submissions of the Commissioner, I find that the Applicant has not proved to the Briginshaw standard, or at all, that Mr Penfold failed to exercise functions under the GIPA Act in good faith. I reject the Applicant’s allegations of dishonesty and unethical conduct as a matter of fact and I find that there is no evidence that Mr Penfold has a lack of understanding of the legislative requirements.

162. I further find that quite apart from failing to act in good faith, Mr Penfold was cooperative and responsive in addressing the Applicant’s application. Such conduct being consistent with his demeanour during cross-examination by the Applicant. In respect of allegations of “delay”, apart from a delay of less than two weeks in respect of the determination dated 6 May 2021, I do not accept that there was any material delay. In this respect the Applicant relies upon his allegation that he did not agree to an extension which I have rejected.

Referrals under section 111 of the GIPA Act

163. The Applicant also makes application pursuant to s 111 of the GIPA Act.

164. Section 111 of the GIPA Act provides:

“111 Referral of systemic issues to Information Commissioner

The ADT may refer any matter to the Information Commissioner that the ADT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally”

165. In respect of s 111 of the GIPA Act, the Applicant relies on what he described as the “broad-based litany of procedural errors and ignoring, or ignorance of, legislative requirements” of “various officers”. These procedural errors being allegedly incorrectly determining receipt and due dates and the rejection of the Applicant’s application for an internal review on 13 May 2021. In respect of the later, however, that rejection was not a procedural error of any officer of InfoLink but due to the fact that the Applicant had not included with his application the application fee.

166. In any case, even if the Applicant was to make out these factual allegations, the test of “good faith” is also relevant to an application under s 111 of the GIPA Act. In Taylor v Destination NSW [2020] NSWCATAD 137 at [10] to [13], the Tribunal held:

[10] “A referral under section 111 applies to a matter that indicates a systemic issue relating to the 'determination of access applications'.

[11] Previously, the consideration of a discrete issue about how an agency has dealt with particular information (such as its manner of recording and maintaining CCTV footage), has not been considered to be a systemic issue for which the Tribunal will refer to the Information Commissioner: Shoebridge v Commissioner of Police, NSW Police Force [2013] NSWADT 302 at [61-62].

[12] Section 111 does not give the Tribunal power to carry out an inquiry into an agency's conduct that is separate from, or additional to, any administrative review proceedings: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [52]. Allegations of a breach of the GIPA Act, including systemic breaches of the GIPA Act, do not provide a source of jurisdiction for the Tribunal: Zonnevylle v Minister for Education [2019] NSWCATAD 28 at [58]

[13] Similarly with respect to referral under s 112 (report on improper conduct), the Appeal Panel has confirmed that the "good faith" test in section 112 also applies to section 111: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [58]. The Tribunal has no power to refer allegations that an agency has committed an offence under the GIPA Act, unless the conduct concerned also meets the test set out in section 112; and this same reasoning applies to section 111.”

167. There is no evidence to satisfy me that any officer of the InfoLink unit, including but not limited to Mr Penfold, failed to exercise functions under the GIPA Act in good faith. Accordingly, the application under s 111 must also fail.

Non-publication orders

168. On 13 September 2021, this Tribunal made orders that:

1. The publication or broadcast of the name of the Applicant is prohibited without further order of the Tribunal. The order is made under s 64(1)(a) of the CAT Act.

2. The publication of any evidence or other information relating to the criminal proceedings to which this matter refers is prohibited without further order of the Tribunal. This order is made under s 64(1)(c) of the CAT Act.

169. In consideration of these orders, all paragraphs marked "[Not for publication]" are not to be published. This order is subject to the qualification that the Applicant and the Commissioner may receive a full copy of these Reasons without redaction.

170. Additionally, I make the following orders:

1. An order that the publication or broadcast of the name of the complainants relating to the criminal proceedings to which this matter refers is prohibited without further order of the Tribunal. The order is made under s 64(1)(a) of the CAT Act.

2. An order prohibiting and restricting the publication or broadcast of any report of the part of the proceedings conducted by the Tribunal in the absence of the Applicant on 18 November 2021 being the confidential part of the proceedings described at paragraph 64 above (Confidential Part of Proceedings”) without further order. The order is made under s 64(1)(b).

3. An order prohibiting and restricting the disclosure of the documents marked “Confidential” and relied upon by the Commissioner in the Confidential Part of the Proceedings being:

1. Unredacted copies of a COPS Event Report (“Document 1”); the CAD Log (“Document 2”);and three notebook entries of two Senior Constables and one Constable (“Documents 4, 5 and 6”)

2. Copies of nine emails between DPP and the Detective Senior Constable in charge of the investigation (“Documents 7 to 14”).

171. The order described at (3) above is made under 64(1)(d).

Orders

1. The decision of the Commissioner of Police of 10 June 2021 is affirmed.

2. Otherwise the application is dismissed.

3. The publication or broadcast of the name of the complainant’s relating to the criminal proceedings to which this matter refers is prohibited without further order of the Tribunal. The order is made under s 64(1)(a) of the CAT Act.

4. The publication or broadcast of any report of the part of the proceedings conducted by the Tribunal in the absence of the Applicant on 18 November 2021 (“Confidential Part of Proceedings”) is prohibited without further order of the Tribunal. The order is made under s 64(1)(b).

5. The disclosure of the documents marked “Confidential” and relied upon by the Commissioner in the Confidential Part of the Proceedings listed below is prohibited without further order of the Tribunal. The order is made under 64(1)(d):

1. Unredacted copies of a COPS Event Report (“Document 1”); the CAD Log (“Document 2”); and three notebook entries of two Senior Constables and one Constable (“Documents 4, 5 and 6”)

2. Copies of nine emails between DPP and the Detective Senior Constable in charge of the investigation (“Documents 7 to 14”),

6. Except pursuant to the order below, the contends of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.

7. A copy of these reasons, without redaction, shall be released to the Applicant and the Respondent.

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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: 21 December 2021