FDY v Commissioner of Police

[2021] NSWCATAD 285

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FDY v Commissioner of Police [2021] NSWCATAD 285

Hearing dates:

30 June 2021

Date of orders:

29 September 2021

Decision date:

29 September 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member

Decision:

(1) The decision of the respondent dated 25 March 2021 is varied to provide for the release to the applicant within 28 days of these Orders of two radio broadcasts made on 21 November 2019 concerning the attendance of NSW police officers at the applicant’s residence, provided information is removed that identifies any third party who has not provided consent for the disclosure of their personal information or where the broadcasts contain information that is unrelated to the attendance of NSW police officers at the applicant’s residence on that date, and the decision of the respondent dated 25 March 2021 is otherwise affirmed.

(2) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis, the submissions made in private hearing before the Tribunal, the record of that part of the proceedings conducted in private hearing and those paragraphs of these reasons identified as [NOT FOR PUBLICATION] is prohibited and is not to be released to the Applicant, his appointed Guardian ad Litem or the public.

(3) By consent of the parties, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of the applicant in these proceedings is prohibited and the name of the applicant will be referred to by pseudonym 'FDY' in the Tribunal's published reasons [2021] NSWCATAD 285.

Catchwords:

ADMINISTRATIVE LAW — Public access to government information — Request for information — Balancing public interest considerations — Prejudice the supply of confidential information that facilitates the effective exercise of an agency’s functions — reveal an individual’s personal information — contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 — contravene a provision of another Act (Surveillance Devices Act 2007) that prohibits disclosure of information

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Police Act 1990 (NSW)
Police Regulation 2015 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Surveillance Devices Act 2007 (NSW)

Surveillance Devices Regulation 2014 (NSW)

Cases Cited:

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

Australian Vaccination Network v Dept of Finance & Services [2013] NSWADT 60

Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53

Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80

Cheung v Commissioner of Police [2019] NSWCATAD 249

Commissioner of Police v Danis [2017] NSWCATAP 7

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

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

Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550

Morgan v Commissioner of Police [2021] NSWCATAD 173

NSW Police Force v Cammilleri(GD) [2012] NSWADTAP 19

Page v Commissioner of Police [2020] NSWCATAD 163

Raven v University of Sydney [2015] NSWCATAD 104

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

Simring v Commissioner of Police [2009] NSWSC 270

Taylor v Office of Destination NSW [2018] NSWCATAD 195

Transport for NSW v Searle [2018] NSWCATAP 93

Category:

Principal judgment

Parties:

FDY (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Guardian ad Litem, Bill Hoyle (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00086251

Publication restriction:

1. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the respondent on a confidential basis, the submissions made in private hearing before the Tribunal, the record of that part of the proceedings conducted in private hearing and those paragraphs of these reasons identified as [NOT FOR PUBLICATION] is prohibited and is not to be released to the applicant, his appointed Guardian ad Litem or the public.

2. By consent of the parties, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of the applicant in these proceedings
is prohibited and the name of the applicant will be referred to by pseudonym 'FDY' in the Tribunal's published reasons [2021] NSWCATAD 285.

REASONS FOR DECISION

Introduction

1. FDY (the applicant) applied to the Tribunal on 18 March 2020 for administrative review of determination by the Commissioner of Police (the respondent) of an access application made under the Government Information (Public Access) Act 2009 (NSW) (the Act).

2. FDY’s access application of 21 November 2019 was in the name of his mother and sought access to information relating to the attendance of NSWPF at her premises (at which the applicant was also residing) on 12 November 2019 (the Incident).

3. By agreement between the parties, the scope of the application was refined to a request for a copy of the following documents in relation to a police event report E75378688:

• Police event report

• Police case report

• Note book entries

• Police & witness statements

• CAD (incident) report

• Triple zero call

• In-car-video (ICV), audio or CCTV footage

• ERISP interviews (recorded or written)

• Photographs

4. On 5 December 2019, the respondent refused access to the information, asserting that there was an overriding public interest against disclosure.

5. FDY sought review of that determination by the Information Commissioner who provided a report dated 17 February 2020 recommending that the respondent make a new decision about the access application by way of an internal review, pursuant to s 93 of the Act.

6. Following receipt of the Information Commissioner’s report, FDY sought review of the respondent’s determination of 5 December 2019.

7. The respondent acted on the Information Commissioner’s recommendation and made a new determination dated 25 March 2020 which is the decision under review in these proceedings (the Decision).

8. In its Decision, the respondent:

1. provided access in full to 3 Incident (CAD) Reports and 4 audio recordings, one of a triple zero call and 3 callbacks;

2. provided partial access to police notebook entries, and otherwise refused access to information within those notebooks on the grounds that there was an overriding public interest against disclosure (relying upon clauses 1(d), 1(f), 3(a) and 3(b) in the Table in clause 14 of the Act (the s 14 Table));

3. provided partial access to a police event report referred to as COPS Event Report E75378688 (the COPS Event Report), and otherwise refused access to information within that report on the grounds that there was an overriding public interest against disclosure (relying upon clauses 1(d), 1(f), 3(a) and 3(b) in the s 14 Table);

4. refused access to footage from body-worn video footage on the grounds that there was an overriding public interest against disclosure (relying upon clause 6(a) in the s 14 Table); and

5. refused access to two radio broadcasts on the grounds that there was an overriding public interest against disclosure (relying upon clauses 1(d), 1(f), 3(a) and 3(b) in the s 14 Table).

9. In these proceedings, FDY sought access to information that had been redacted from the police notebook entries and the COPS Event Report. He also sought access to the body-worn video footage and radio broadcasts that were refused to be released, hoping that the information will enable him to clarify what really led to the Incident on 12 November 2019, whether the Fixated Persons Investigation Unit (FPIU) within the New South Wales Police Force (NSWPF) orchestrated it, and what actually occurred on the day of the Incident when police officers entered the premises where he and his mother resided.

The task for the Tribunal

10. Under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADRAct), the Tribunal’s task is to make the “correct and preferable decision” as to whether access to the requested information should be given, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. The time at which the determination is to be made as to the correct and preferable decision is the date and time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

11. It is well established that, in considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the respondent but may have regard to any relevant material before the Tribunal at the time of its review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In this regard, in undertaking this review, the Tribunal had before it the submissions and evidence from both parties as well as confidential material provided only to the Tribunal Member.

Material before the Tribunal

12. For the applicant, the following material was provided:

• the applicant’s administrative review application dated 21 November 2019;

• the report together with annexures A to F, filed on behalf of the applicant by Guardian ad Litem, Bill Hoyles, on 21 May 2021 (the GAL Report);

• a bundle of documents filed on the morning of the hearing on 30 June 2021, comprising 51 pages relating to FDY’s application to the Australian Federal Police under the Freedom of Information Act 1982 (Cth) (FOI Act), (marked for identification as “Exhibit A1”); and

• a supplementary submission from Mr Hoyles received by the Tribunal and forwarded to the Tribunal member on 6 July 2021, after the hearing in this matter had concluded, referring to the decision of Senior Member Mulvey in Morgan v Commissioner of Police [2021] NSWCATAD 173 (Morgan’s case).

13. For the respondent, the following material was provided:

• submissions filed 22 January 2021;

• affidavit of Inspector Richard Mansley sworn on 3 June 2020 (mark “Exhibit R1”); and

• submissions in reply received by the Tribunal on 8 July 2021 (after the hearing in this matter had concluded) concerning the decision in Morgan’s case.

Oral evidence

14. Inspector Mansley gave oral evidence under cross-examination during the hearing.

Oral submissions

15. Closing oral submissions were made by both parties during the hearing.

Confidential material

16. The respondent also provided to the Tribunal on a confidential basis, unredacted copies of police notebook entries (referenced as pages 9-10 in the Schedule of Documents attached to the Respondent’s Decision), an unredacted copy of the COPS Event Report (referenced as pages 11-16 in the Schedule of Documents), body-worn video footage (referenced as IMS ID-7807530-0003 and IMS ID-7807540-0003 in the Schedule of Documents) and two radio broadcasts of 12 November 2019 referred to in the Schedule of Documents. The confidential material was marked for identification as “Exhibit CR1”.

17. The confidential material was read, viewed and listened to by the Tribunal Member and was not provided to the applicant, the Guardian ad Litem appointed for the applicant or the public.

18. Section 107(1) of the Act (extracted below) requires the Tribunal to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure:

“107 Procedure for dealing with public interest considerations

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

19. To give effect to the prohibition in s 107(1) of the Act, the Tribunal made an order under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) that the confidential material, submissions made in private hearing before the Tribunal, the record of that part of the proceedings conducted in private hearing and those paragraphs of these reasons identified as [NOT FOR PUBLICATION] must not be disclosed to the applicant, the appointed Guardian ad Litem or the public. Section 64(1)(d) is set out below:

“64 Tribunal may restrict disclosures concerning proceedings

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

…

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

Conduct of the Hearing

20. The hearing was conducted by telephone on 30 June 2021.

21. In accordance with s 107(2) of the Act, the Tribunal determined that it was appropriate for a private hearing to occur in respect of the confidential material and the respondent’s submissions in relation to that material.

22. Accordingly, the hearing was divided into a public hearing and a short private hearing (at which the Guardian ad Litem and the applicant did not appear).

Public hearing

23. At the commencement of the public hearing, Mr Hoyles stated that he and the applicant held different views as to what the hearing was about. Mr Hoyles said there were two issues to raise: Firstly, the applicant wished to have an in-person hearing. Secondly, the applicant had provided Mr Hoyles with new material that he wished the Tribunal to take into account (Exhibit A1).

24. With respect to the first issue, Mr Hoyles advised the Tribunal that the applicant sought to have the matter adjourned, reasoning that there was a benefit in having an in-person hearing so that the honesty of the respondent’s witness, and the veracity of his evidence, could be tested under cross-examination. In referring to this issue, no submission was put on behalf of the applicant as to the reliability or credibility of the witness.

25. Ms Mattes, the respondent’s legal representative, argued that there was nothing critical in the matter requiring an in-person hearing and that there were no issues of credit to be examined. Ms Mattes advised that Inspector Mansley was available to dial into the proceedings and, in her view, it was appropriate to proceed with the hearing by telephone, as arranged.

26. Mr Hoyles stated that, speaking as FDY’s appointed Guardian ad Litem, he considered it was in FDY’s best interests for the hearing to proceed.

27. As to the second issue, Mr Hoyles advised that, early on the morning of the hearing, he had received from FDY an additional large volume of new material running to hundreds of pages. In Mr Hoyles’ view, the material was not able to be used in these proceedings. He went on to submit that the applicant sought to rely upon the additional bundle of documents (Exhibit A1) subject to any objection by the respondent, and he foreshadowed that reference would only be made to one page in that bundle.

28. A short adjournment took place to allow Mr Hoyles to send Exhibit A1 to the respondent and Ms Mattes (representing the respondent) and to allow Ms Mattes and the respondent time to read the material. Upon resumption of the hearing, Ms Mattes commented that Exhibit A1 appeared to be of no relevance. However, Ms Mattes advised that she was prepared to allow questions to be put to the respondent’s witness and that she would assess the relevance of them at that time.

29. The Tribunal decided to proceed with the hearing as listed, assuring Mr Hoyles for the benefit of the applicant that there would be adequate time for cross-examination of the respondent’s witness.

Private hearing

30. In a short confidential session following the public hearing, the Tribunal was taken to the confidential material (Exhibit CR1) by Ms Mattes. This was done in the absence of the applicant, the Guardian ad Litem and the public.

31. [NOT FOR PUBLICATION].

32. [NOT FOR PUBLICATION].

33. [NOT FOR PUBLICATION]

34. [NOT FOR PUBLICATION]

35. [NOT FOR PUBLICATION]

Background

36. The GAL Report set out some personal information about the applicant to provide context for his anxiety about the Incident which underpinned the reasons for making his access application and requesting administrative review.

37. FDY was described as being of the Druse faith, which “rejects major principles of mainstream Islam in favour of an eclectic mix of Islam, Christianity Platonic philosophy, and Gnosticism.”

38. The GAL Report submitted that:

1. FDY is “suspected” of being a “threatening person with violent and extremist views” and a person who hates police. Other descriptors were used, however, in my view it is not necessary to note them all in these reasons;

2. FDY is regarded as a “threat” to Australian society such that he has been referred to the Fixated Persons Investigations Unit of the NSWPF and has been identified as a person of interest (POI) under the Subject Target Management Plan (STMP);

3. the STMP engages in “proactive policing” whereby “the POI is under constant scrutiny, has multiple police encounters and home visits, is charged with offences wherever possible (even if they have to subsequently be withdrawn), and evidence is constantly being sought to prove the theory that the POI will commit a crime in the future and it needs to be prevented”.

39. The Tribunal understands the STMP is a NSWPF initiative designed to reduce crime among high-risk individuals, through proactive policing. According to the GAL Report, while there is apparently no formal legal process or obligation to inform a person being monitored and no basis on which an individual can challenge their place on the STMP, the applicant nonetheless believes that he has been identified and placed on the STMP.

40. FDY believes that he is the subject of multiple proactive policing incidents in which police have interacted with him, his elderly mother, his children, and others, with a view to preventing him from allegedly engaging in unspecified future criminal acts. FDY’s assertions were, in general terms and to a limited extent, supported by written evidence of a barrister provided in a matter unconnected with this administrative review, that one particular police officer appeared to be “zealous” in his approach to FDY.

41. The overall impact of FDY’s interactions with government agencies are referenced in a consultant psychologist’s report dated 15 May 2021 annexed to the GAL Report. The report notes the trauma, grief and distress experienced by FDY associated with being arrested and incarcerated (wrongfully) in connection with complaints against him by the Department of Education, and being physically assaulted during incarceration as a result of being labelled a paedophile. The psychologist’s report noted that FDY has suffered the stress of having allegations of sexual abuse of his own children made against him, although that allegation has apparently been removed.

42. Mr Hoyle’s supplementary submission noted that the impact of these matters is not confined to FDY. They have had a detrimental effect upon the health of his mother as well as his children.

43. It is in this context that the applicant suspects that the Incident that occurred on 12 November 2019 was one of the proactive policing practices. In making his access application, FDY sought reassurance that the Incident was not triggered by false accusations having been made against him by the same police informant whom FDY asserts had made multiple other unsubstantiated allegations against him.

Authority to make the Access Application

44. I note for completeness that FDY produced a form of authority to make the application on his mother’s behalf and the respondent agreed to liaise with FDY in relation to the access application. However, in relation to any allegations made (or to be made) about offences committed in connection with the Incident, the respondent advised that no release of information was likely to occur unless it received a signed statement from FDY’s mother.

The Incident on 12 November 2019

45. It is not in dispute between the parties that two officers from Bankstown Police Area Command attended the residence of FDY and his mother on 12 November 2019 for the purpose of conducting a welfare check on FDY’s three children who had not attended school for a week prior to the police visit.

46. Inspector Mansley’s affidavit confirms that members of the community provided information to the police for the purpose of conducting the welfare check at the applicant’s residence.

47. According to the GAL Report, in FDY’s view, the person who raised concerns with the NSW Police was a person who had access to school attendance records. FDY’s account of the children not attending school was that they were absent due to illness (supported by medical certificates) and the children’s mother had telephoned the school in the week before the Incident to advise about the absence of the children.

48. It is also not in dispute that the police entered the premises at a time when FDY’s mother was home alone. FDY’s mother became alarmed after hearing what she described as a “crashing sound”, unaware that it was police undertaking a welfare check on the children, and made a triple zero call.

49. Inspector Mansley’s affidavit states that he reviewed relevant excerpts of two police radio broadcasts at 12:03pm and 4:00pm on the day of the Incident. The excerpts contain the personal information of third parties and other information that Inspector Mansley described as being “sensitive” and “police methodology”.

50. Inspector Mansley also stated that he reviewed the body-worn video footage taken at the applicant’s residence during the police welfare check. The first recording, taken at approximately 12:04pm shows two police officers in full uniform entering the applicant’s residence for the purpose of conducting a welfare check. The police officers found a female resident in the premises and identified themselves as police officers. The second recording, taken at approximately 12:33pm, shows the same two police officers in uniform at the applicant’s residence explaining to the female resident why they had entered her home earlier in the day. The officers identified themselves and spoke with the female occupant who opened the front door and remained standing behind the partially opened door.

51. For the purpose of these reasons, it is not relevant to refer to the many matters noted in the GAL Report as being disputed by FDY.

52. Relevant to the context in which the access application was made, is that FDY disputes the motivation behind the visit by police. In FDY’s view, the visit was orchestrated by police from the FPIU to put pressure on him and his family using his children’s illness and school absence as an “excuse” for the visit.

Legislative framework for access to government information

53. The fundamental and primary applicable law is contained in the Act as discussed below.

Tribunal’s jurisdiction

54. The Tribunal’s jurisdiction to conduct this review is derived from s 100 of the Act, s 9 of the ADR Act and s 28 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

55. The respondent’s Decision is a reviewable decision pursuant to s 80(d) of the Act.

Object of the GIPA Act

56. Interpretation of the Act is governed by s 3 of that Act which provides that the object of the legislation is to open government information to the public:

3 Object of Act

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

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

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

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

(2) It is the intention of Parliament—

(a) that this Act be interpreted and applied so as to further the object of this Act, and

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

Presumption in favour of disclosure of government information

57. Section 5 of the Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

Legally enforceable right to information unless there is an overriding public interest against disclosure

58. Under section 9 of the Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.

Public interest considerations in favour of disclosure

59. Section 12(1) of the Act provides that there is a general public interest in favour of the disclosure of government information. The Act does not limit the range of public interest considerations in favour of disclosure and section 12(2) contains a note setting out examples of those considerations:

12 Public interest considerations in favour of disclosure

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

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

Note.

The following are examples of public interest considerations in favour of disclosure of information—

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

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

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

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

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

Public interest considerations against disclosure

60. Section 14(2) of the Act provides that the public interest considerations listed in the Table may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

61. In this matter, the respondent relied upon the following public interest considerations listed in the s 14 Table, asserting that they could reasonably be expected to have one or more of the stated effects set out in each of the clauses:

• Cl 1(d): prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions;

• Cl 1(f): prejudice the effective exercise by an agency of the agency’s functions;

• Cl 3(a): reveal the personal information of individuals;

• Cl 3(b): contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW); and

• Cl 6: constitute a contravention of a provision of another Act that prohibits the disclosure of information.

62. In particular, cl 6 of the s 14 Table is in the following terms:

1. There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

2. The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.

Public interest balancing test

63. Where information is not subject to a conclusive presumption of an overriding public interest against disclosure (refer to s 14(1) and Schedule 1 of the Act), regard must be had to the public interest balancing test set out in s 13 of the Act.

64. Under s 13 of the Act, there can only be an overriding public interest against disclosure of government information for the purposes of the Act when the public interest test in that section is satisfied as set out below:

“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.”

Principles that apply to determining an overriding public interest against disclosure

65. Under section 15 of the Act, a determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

15 Principles that apply to public interest determination

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

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

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

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

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

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

Personal factors of the application taken into account

66. In deciding an application where it is necessary to balance public interest considerations, an agency and the Tribunal is entitled under section 55 of the Act to take into account the personal factors of the application which are set out below:

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.

67. These personal factors of the application can be taken into account as factors in favour of disclosure: s 55(2).

68. They can also be taken into account as factors against disclosure if (and only to the extent that) they are relevant to the respondent’s and the Tribunal’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 of the Table (but not clause 1, 6 or 7 of the Table). In the present case, the respondent relied upon clauses 3(a) and 3(b) in the s 14 Table. Accordingly, the personal factors of the application may be taken into account as factors against disclosure if they are relevant to consideration of those clauses 3(a) and 3(b) in the s 14 Table that were relied upon by the respondent.

Decision to refuse to provide access because of an overriding public interest against disclosure

69. Section 58 of the Act sets out the range of decisions available to an agency when deciding access applications. Of particular reference to the present case is s 58(1)(d) which the respondent has relied upon in refusing to provide access to information sought on the basis that there is an overriding public interest against disclosure:

58 How applications are decided

(1) An agency decides an access application for government information by—

…

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

…

Requirement to provide reasons where access is refused because of an overriding public interest against disclosure

70. Where an agency refuses to provide access to information because there is an overriding public interest against disclosure it has statutory obligations to provide its reasons and findings of fact for those reasons. Section 61 of the Act is set out below:

61 Notice of decision to refuse to provide access

Notice of an agency’s decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following—

(a) the agency’s reasons for its decision,

(b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based,

(c) the general nature and the format of the records held by the agency that contain the information concerned.

The respondent has the burden of establishing that its decision is justified

71. Under section 105(1) of the Act, in an administrative review of a decision made by an agency, the burden of establishing that its decision is justified lies on the agency, in this case, the Commissioner of Police. This requires the respondent to identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour and indicate the strength of each public interest consideration. The respondent is then obliged to justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].

Powers of the Tribunal in determining an application for administrative review

72. Under section 63 of the ADR Act, the Tribunal may decide:

1. to affirm the administratively reviewable decision, or

2. to vary the administratively reviewable decision, or

3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

4. 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.

Relevant provisions of the Privacy and Personal Information Protection Act

73. The respondent relied upon clause 3(b) of the s 14 Table as a consideration against disclosure on the grounds that disclosure could reasonably be expected to contravene an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 (the PPIP Act).

74. The PPIP Act is described as an Act to provide for the protection of personal information and for the protection of the privacy of individuals generally.

Definition of “personal information”

75. “Personal information” is defined in s 4(1) of the PPIP Act to mean:

“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 whose identity is apparent or can reasonably be ascertained from the information or opinion.”

76. The definition of “personal information” in cl 4 of Sch 4 of the Act mirrors the definition in the PPIP Act. In both Acts, personal information is defined as information about an individual whose identity is apparent or can reasonably be ascertained from the information.

Information Protection Principles (IPPs)

77. Part 2, Division 1 of the PIPP Act identifies 12 information protection principles (IPPs) that apply to the conduct of public sector agencies when handling an individual’s personal information. Section 21, Division 2 of the PPIP Act states that:

(1) A public sector agency must not do any thing, or engage in any practice, that contravenes an information protection principle applying to the agency.

(2) The contravention by a public sector agency of an information protection principle that applies to the agency is conduct to which Part 5 applies.

78. In this case, the respondent considered and relied upon s 18 of the PPIP Act (IPP 11), which provides that personal information is not to be disclosed unless the disclosure is directly related to the purpose for which the information was collected, or the individual concerned is reasonably likely to have been aware that information of that kind is usually disclosed to that other person. The relevant provisions in s 18 of the PPIP Act are set out below:

18 Limits on disclosure of personal information

(1)   A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a)   the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)   the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)   …

Relevant provisions of the Surveillance Devices Act 2007

79. Section 2A of the Surveillance Devices Act 2007 (NSW) (the SD Act) includes, in a description of the objects of the Act, a provision to ensure the privacy of individuals is not unnecessarily impinged upon in connection with the use of surveillance devices:

2A Objects of Act

The objects of this Act are—

(a) to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations, and

(b) to enable law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions, and

(c) to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices.

80. The term “surveillance device” is defined in s 4 of the SD Act to include an optical surveillance device (such as a body-worn video):

surveillance device means—

(a) a data surveillance device, a listening device, an optical surveillance device or a tracking device, or

(b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a), or

(c) a device of a kind prescribed by the regulations.

81. Section 50A of the SD Act sets out the circumstances in which a police officer uses body-worn video:

50A Police use of body-worn video

(1) The use of body-worn video by a police officer is in accordance with this section if—

(a) the police officer is acting in the execution of his or her duty, and

(b) the use of body-worn video is overt, and

(c) if the police officer is recording a private conversation, the police officer is in uniform or has provided evidence that he or she is a police officer to each party to the private conversation.

(2) Without limiting the ways in which the use of body-worn video may be overt for the purposes of subsection (1)(b), the use of body-worn video is overt once the police officer informs the person who is to be recorded of the use of body-worn video by the police officer.

(3) The use of body-worn video by a police officer is also in accordance with this section if—

(a) it is inadvertent or unexpected, or

(b) it is incidental to the use of body-worn video by the police officer in the circumstances set out in subsection (1).

82. Section 39(d) of the SD Act relevantly defines “protected information” as “any information obtained from the use, in accordance with section 50A, of body-worn video by a police officer”, and s 40(1) of that Act creates an offence with respect to “protected information”:

Prohibition on use, communication or publication of protected information

(1) A person is guilty of an offence if—

(a) the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and

(b) the person knows that, or is reckless as to whether, the information is protected information, and

(c) the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section.

Maximum penalty—Imprisonment for 2 years.

83. Section 40(2) of the SD Act creates an aggravated form of the offence in s 40(1) for which the maximum penalty is imprisonment for seven years.

84. Exceptions to the offence provisions appear in ss 40(3)-(9) of the SD Act and relevant regulations in the Surveillance Devices Regulation 2014 (the SD Regulation).

The applicant’s case

85. The applicant’s motivation for seeking access to the withheld information and obtaining ‘closure’ with respect to the Incident has already been discussed.

86. Mr Hoyles cross-examined Inspector Mansley who confirmed that the NSW Police received information from an informant about FDY’s children and that the identity of the informant was redacted from the information provided to FDY because of concerns about confidentiality.

87. It was suggested, on behalf of FDY, that a false and malicious allegation by an informant had triggered the welfare check. Inspector Mansley’s evidence was that he was not aware whether the informant in connection with the request to NSW Police to undertake a welfare check had made any previous allegations against FDY.

88. Mr Hoyles, referring to page 7 of Exhibit A1 (responding to FDY’s FOI application to the Australian Federal Police (AFP)), asked Inspector Mansley whether he was aware whether an AFP alert around the date of 14 November 2019 and an AFP internal email dated 13 November 2019 arose out of the welfare check on his children. Inspector Mansley responded that he had “no idea”.

89. With respect to the body-worn video footage, it was submitted for the applicant that s 40(4A)(c) of the SD Act and Reg 4(1)(c) and Reg 4(1)(d) of the SD Regulation operate as exclusions under the “protected information” provisions of the SD Act and thus permit disclosure of such footage. Section 40(4A)(c) of the SD Act provides:

(4A) Information obtained from the use, in accordance with section 50A, of body-worn video by a police officer may also be used, published or communicated—

(a) …

(b) …

(c) for any purpose prescribed by the regulations.

90. Regulations 4(1)(c) and 4(1)(d) provide:

4 Use, communication or publication of police body-worn video

(1) For the purposes of section 40(4A)(c) of the Act, the information obtained from the use, in accordance with section 50A, of body-worn video equipment by a police officer may be used for the purposes of any one or more of the following—

…

(c) any proceedings of a court or tribunal in which the NSW Police Force or the State is a party or in which a member of the NSW Police Force is called as a witness,

(d) the investigation of a complaint against, or the conduct of, a member of the NSW Police Force,

…

91. Mr Hoyles’ supplementary submission argued that the decision in Morgan’s case should be applied in FDY’s case. In Morgan’s case, a copy of body-worn video footage was released, with the images of third parties pixelated. The case concerned the controversial treatment of Aboriginal people by NSW Police. Mr Hoyles argued that the controversy over how the STMP is being implemented and how it treats individuals who are suspected of being likely to commit offences in the future as being guilty until proven innocent, is analogous to the circumstances in Morgan’s case and that it is in the public interest to disclose the body-worn footage.

The respondent’s case

92. In support of its Decision, the respondent relied on the affidavit and oral evidence of Inspector Mansley, and submissions.

Public interest considerations in favour of disclosure

93. The respondent’s Decision took into account the following considerations in favour of disclosure:

1. the statutory presumption in favour of the disclosure of government information;

2. the general right of the public to have access to government information held by agencies;

3. it could reasonably be expected to enhance Government accountability.

Personal factors of the application

94. The respondent’s Decision did not identify any personal factors to be taken into account, as required under s 61(a) of the Act. However, written submissions on behalf of the respondent recognised that the information related to attendance of the NSWPF at the applicant’s home and involved an encounter with his mother which gave FDY a particular interest in accessing the information, and may be considered to be a personal factor favouring disclosure under s 55 of the Act.

Public interest considerations against disclosure

95. The respondent identified public interest considerations against disclosure with respect to the COPS Event Report, police notebook entries and radio broadcasts as being those set out in cl 1(d), cl 1(f), cl 3(a), cl 3(b) of the s 14 Table. The respondent relied upon the “secrecy provisions” in cl 6 in the s 14 Table to refuse access to the body-worn video footage.

COPS Event Report, notebook entries and radio broadcasts

96. The respondent’s key arguments for refusing access to the COPS Event Report, notebook entries and radio broadcasts are that the information would reveal the identity of third parties and disclose their personal information in breach of the privacy laws. Additionally, it was submitted that disclosure of information provided in confidence by informants and members of the community to the NSWPF, would undermine community trust and confidence in the NSWPF. It was asserted that this could potentially reduce the supply of information to police in circumstances where the NSWPF relies on the cooperation and engagement of the community to provide information that assists the police in the effective exercise of their core functions.

97. Additionally, with respect to the radio broadcasts, the respondent argued that release of the broadcasts would reveal sensitive information and police methodology.

98. In the respondent’s submission, the considerations against disclosure of this information were compelling.

Body-worn video footage

99. The respondent submitted that the requested footage is “protected information” as defined in the SD Act and that the prohibition of the communication or publication of “protected information” comes within the meaning of the “secrecy provisions” in cl 6 of the s 14 Table, thereby constituting a public interest consideration against disclosure.

100. The respondent argued that, having regard to the strict regime established by the SD Act governing the use and disclosure of body-worn video footage, the severity of penalties available under that Act and the policy considerations underpinning the regime, considerable weight should be given to this public interest consideration against disclosure, justifying its refusal to give access to FDY.

Further submissions regarding confidentiality

101. The respondent also relied upon Regulation 76 of the Police Regulation 2015 made under the Police Act 1990 (NSW) which requires police officers to keep all information obtained in the course of their duties strictly confidential:

102. 76 Confidential information

103. (1) A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone.

104. The respondent’s Decision also noted the NSWPF “Customer Service Charter” which is available online to the community and requires police to maintain the confidentiality of information received from members of the public.

Consideration

105. Based on the information before me, including the confidential information, I am satisfied that the reason for the police attendance was to conduct a welfare check upon FDY’s children. Having viewed the body-worn video footage, I am satisfied that the welfare check was conducted in an appropriate manner and that the two officers involved were acting in the execution of their duty as required under s 50A of the SD Act. The officers identified themselves and their use of the body-worn video equipment was overt. Their demeanour was empathetic towards FDY’s mother as they explained the reason for their attendance earlier in the day.

106. There is no evidence before the Tribunal to confirm or refute the suspicions held by FDY about a connection between the Incident and what has been described as proactive policing incidents against him or that the attendance at his home was orchestrated by police from the FPIU as part of the STMP. This is an important matter to note when distinguishing this matter from Morgan’s case (discussed below).

107. I agree with Ms Mattes’ contention that there was nothing in the material before the Tribunal, including the confidential information, to support a finding that a false and malicious allegation had been made against FDY.

Considerations in favour of disclosure

108. In addition to the considerations identified in the respondent’s Decision (statutory presumption in favour of disclosure, the general right of the public to have access to government information, and that disclosure could be expected to enhance Government accountability), I consider the following additional factors in favour of disclosure are to be taken into account:

1. disclosure of the information in the body-worn video footage could reasonably be expected to contribute to positive and informed debate on issues of public importance (s 12(2)(a) of the Act) and, in this respect, it is appropriate to consider whether the conduct of the FPIU would be considered to be an issue of public importance, analogous to the argument in Morgan’s case;

2. disclosure of the information could reasonably be expected to inform the public about the operations of the NSWPF and, in particular, their policies and practices for dealing with members of the public (s 12(2)(b) of the Act) including how they conduct welfare checks.

The personal factors of the application to be taken into account

109. It is not necessary in these reasons to refer to every submission in the GAL Report. It is also not relevant to consider every possible connection of other police enquiries or investigations concerning FDY with the Incident, other than to recognise FDY’s heightened apprehension (as a result of his experience of proactive policing) that the Incident may have been triggered by the FPIU.

110. Nonetheless, in accordance with s 55 of the Act, a number of personal factors are to be taken into account where it is necessary to balance public interest considerations. In this case, the personal factors favouring disclosure include:

1. that the information relates to the attendance of two police officers at FDY’s home concerning allegations about the welfare of his children and involved his mother having an encounter with the officers;

2. FDY’s concerns for the distress felt by his mother during, and as a result of, the Incident;

3. FDY’s motives for making the access application which are not insignificant from his perspective and which have already been discussed in some detail. Importantly, release of the information may assist FDY with understanding the background to the Incident and what actually happened during the police attendance;

4. FDY’s concern that the welfare check on his children was not the real reason for the police visit to his mother’s home, but a visit orchestrated by police from the FPIU as part of the STMP, designed to put pressure on FDY and his family, using his children’s illness and school absence as an excuse for the Incident.

Public interest considerations against disclosure

111. The respondent has, in my view, identified relevant and appropriate considerations against disclosure as being those set out in cl 1(d), cl 1(f), cl 3(a), cl 3(b) and cl 6 in the s 14 Table. These are then required to be balanced against the considerations in favour of disclosure and the personal factors of the application, and a weighting applied.

Caselaw guidance on balancing public interest test considerations

112. A number of cases provide guidance on how to apply the public interest balancing test, the meaning of “could reasonably be expected to” and the meaning of “prejudice”.

113. How to apply the public interest test under section 13 of the Act was confirmed in Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [19]:

“Accordingly, in all cases other than those falling under the terms of Sch 1, the public interest test under the GIPA Act involves the following:

(a) identifying the public interest in favour of disclosure;

(b) identifying the public interest against disclosure; and

(c) determine where the balance lies.”

114. Further guidance on weighing public interest considerations for and against disclosure was provided in Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst) at [94]:

“Ultimately, the balancing of these competing interests is a question fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.”

115. The balancing exercise requires the Tribunal to make a broad value judgment. However, as noted in Page v Commissioner of Police [2020] NSWCATAD 163 (Page) at [51]:

“…that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].”

The meaning of “could reasonably be expected to” in the s 14 Table

116. Each of the public interest considerations (in the present case those set out in clauses 1(d), 1(f), 3(a), 3(b) and 6 in the s 14 Table) contains the introductory words “could reasonably be expected to have one or more of the following effects…”. The Page case referred to the principles to be applied when considering whether disclosure of information “could reasonably be expected” to have a particular effect, drawing from the Tribunal Appeal Panel’s decision in Transport for NSW v Searle [2018] NSWCATAP 93 (Searle) at [68]:

“(1) The appellant bore the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure in cl 1 of the Table in s 14 of the GIPA Act: see s 105.

(2) The words “could reasonably be expected” are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v University of Sydney [2015] NSWCATAD 104 at 48.

(3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Dept of Finance & Services [2013] NSWADT 60 at [22].

(4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].”

Meaning of “prejudice”

117. The Page case also relied on the decision in Hurst at [60] as affirmed in Searle at [68] to understand the meaning of “prejudice” and how to determine whether the disclosure of information could reasonably be expected to prejudice the future supply of information from an informant:

“(5) “Prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

Three categories of information to consider when determining the correct and preferable decision

118. In deciding what the correct and preferable decision is, my reasons deal with three issues:

• Issue 1: COPS Event Report and police notebook entries;

• Issue 2: Body-worn video footage; and

• Issue 3: Radio broadcasts.

Issue 1: COPS Event Report and police notebook entries

Clauses 1(d) and 1(f) of the s 14 Table – prejudice the supply of confidential information that facilitates the effective exercise of an agency’s functions; prejudice the effective exercise by an agency of the agency’s functions

119. Inspector Mansley’s affidavit evidence was that both the notebook entries and the COPS Event Report contain information provided by members of the community to police officers for the purpose of having a welfare check on the applicant’s children undertaken at the address of the applicant and his mother.

120. I accept that it is essential for members of the community to feel comfortable in providing full and frank information to police officers and support staff regarding incidents (which would include welfare checks on families and children) and suspected crimes. I also accept that witnesses and informants are more likely to feel comfortable in providing information to police in the knowledge that the information they provide will remain confidential and not expose the individuals to reprisal action within the community or legal action.

121. Whilst, as a general comment, the community at large will not have knowledge of Regulation 76 of the Police Regulation 2015, the NSWPF’s Customer Service Charter is available online and it is likely that members of the community who have visited the police website will have an expectation that information provided to police officers will be kept confidential.

122. On the material before me, I find that the individuals who supplied the NSWPF with the information in the notebook entries (and reflected in the COPS Event Report) did so on the understanding that the information would remain confidential.

123. In broad summary, Inspector Mansley’s evidence was that:

1. the NSWPF relies to a significant extent on reports from community members or informants as to incidents and crimes underway or suspected (often through emergency triple zero calls or calls to a local police station), in order to carry out its core functions effectively and efficiently;

2. information received from the community can have a significant impact upon the speed and effectiveness of the police response and its ability to prevent criminal conduct or harm to members of the community;

3. disclosure of information in response to GIPA applications would adversely affect the willingness of members of the community to cooperate with the police, and would likely undermine public confidence in the police generally.

124. I accept his evidence as being reliant upon his knowledge and experience of more than 30 years of service with the NSWPF.

124. Emergency triple zero calls to police have been considered by the Tribunal in relation to cl 1(d) and 1(f) of the s 14 Table. In Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80 (Camilleri) at [40] and [45]-[46], the Tribunal observed that the expectation of confidentiality in relation to triple zero calls was well established and that “it is of little, and perhaps no, consequence that the caller does not care whether confidentiality is afforded to their communication”.

125. The test in relation to cl 1(d) is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether the agency will be able to obtain such information in future if trust and confidence in the NSWPF has been eroded: Camilleri at [38].

126. The respondent contended that the NSWPF would be unable to obtain the type of information it received from the informant or similar sources in the future if such information was disclosed. The question as to prejudice to future supply is not to be determined by reference to the particulars of each particular situation but at a “broader operational level”. It is not necessary to show that it could reasonably be expected to occur on every occasion: NSW Police Force v Cammilleri (GD) [2012] NSWADTAP 19 at [21], [22] and [26].”

127. I accept that the community’s trust and confidence in the NSWPF and the continued receipt of confidential information is essential to the effective performance of the NSWPF functions.

128. If that type of information was not provided to NSWPF in the future, it was argued that this would prejudice the respondent’s ability to effectively exercise its functions which include “the protection of persons from injury or death”: s 6(3) of the Police Act 1990 (NSW). It was argued this would encompass the respondent’s ability to conduct welfare checks, similar to the Incident.

129. Relying upon the decision in Simring v Commissioner of Police [2009] NSWSC 270 at [69], it is reasonable to expect that if the community trust in the police maintaining the confidentiality of information provided to it, is breached, the flow of information to police could dissipate. I also accept that, if that were to occur, it would severely impact the respondent’s effective exercise of its functions, including carrying out welfare checks.

130. In balancing the personal factors of the application and the considerations in favour of disclosure, I find that the balance weighs against disclosure, to ensure the community continues to feel comfortable in providing information to police and remains confident that such information will remain confidential.

131. I am therefore satisfied there is an overriding public interest consideration against disclosure of the information redacted from the COPS event report and the notebook entries under cl 1(d) of the s 14 Table. I give this consideration a substantial amount of weight.

Clause 1(f) – prejudice the effective exercise of an agency’s functions

133. Likewise, I am satisfied that there is an overriding public interest consideration against disclosure of information redacted from the COPS Event Report and notebook under cl 1(f) of the s 14 Table since the police rely heavily upon members of the community to provide information and make statements to the police that enable the respondent to investigate potential crimes.

134. I also give this consideration a substantial amount of weight since the potential prejudice to the exercise of the respondent’s functions outweighs any public interest in favour of disclosure.

Clause 3(a) and clause 3(b) of the s 14 Table

135. Clause 3(a) in the s 14 Table provides that there is a public interest against disclosure of information if disclosure of the information could be reasonably be expected to reveal the personal information of individuals.

136. The term “reveal” is defined in schedule 4, clause 1 (Definitions) of the Act to mean “disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).”

137. The personal information of an informant (name, address, contact numbers and email address) is contained in the COPS Event Report. The personal information of an informant (name and contact number) is also contained in the notebook entries. This personal information clearly renders the identity of those informants apparent.

138. Disclosure of the information that has been redacted from the COPS Event Report and the notebook would “reveal” the personal information of the informants. There is no evidence before the Tribunal that the personal information of the informants has been publicly disclosed. I am satisfied that the information was given in confidence to police for the purpose of having a welfare check undertaken.

139. I am satisfied that the respondent has justified that cl 3(a) is a relevant public interest consideration against disclosure of the information. In my view, when balanced against the personal factors and considerations in favour of disclosure, the consideration in cl 3(a) should be given significant weight against disclosure.

140. Likewise, I am satisfied that the respondent has justified that cl 3(b) is a relevant public interest consideration against disclosure of the information that has been redacted from COPS Event Report and the notebook. Agencies, including the NSWPF, are expected to comply with the statutory obligations under the PPIP Act and disclosure of the information would contravene s 18 of that Act.

141. The exemptions that apply under s 18 of the PPIP Act do not apply to the circumstances in this case. The disclosure of information is not directly related to the purpose for which the information was collected (refer to s 18(1)(a)), and the informants involved were not aware that their personal information would be disclosed (refer to s 18(1)(b)) to FDY. Disclosure would therefore be a clear contravention of s 18 of the PPIP Act (IPP 11).

142. Accordingly, I am satisfied that cl 3(b) of the s 14 Table applies as a consideration against disclosure. I give the consideration significant weight and find that it outweighs any personal factors and any considerations in favour of disclosure.

143. I affirm the respondent’s Decision with respect to the COPS Event Report and the police notebook entries.

Issue 2: Body-worn video footage

144. I am satisfied that the footage requested by FDY is “protected information” and therefore subject to the prohibition against disclosure under the SD Act.

145. I am satisfied that s 40(1) of the SD Act is a “secrecy provision” for the purposes of cl 6 of the s 14 Table. It is clear from the language used, structure and context of the SD Act that this legislation creates a very strict and limited regime through which information obtained through the use of surveillance devices (such as body-worn video equipment) can be disclosed.

146. The intent of the legislation to limit the impact of surveillance on the privacy of individuals was recognised in Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324 (Voitenko) at [87]:

“The provisions of the SD Act … establish important prohibitions upon the use of recordings or the product produced by the use of surveillance devices, in particular upon the use of ‘protected information’ as defined. These, inter alia, seek to limit the use of such information to the sphere of law enforcement investigations and for use in criminal proceedings in the event of a criminal prosecution(s). The prohibition under s 40 in other words evidences a legislative intent to limit the impact of surveillance upon the right to privacy.”

147. The strictness of the regime was recognised in Cheung v Commissioner of Police [2019] NSWCATAD 249 (Cheung) at [55]:

“The use of surveillance devices, including body-worn video, is an essential and integral part of the detection and investigation of criminal offences in New South Wales. The legislation governing the use of such devices is also designed to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices. As a result, the Surveillance Devices Act and Regulation establish a strict regime for the collection, use and disclosure of information gathered through the use of the surveillance device, including body-video footage. In my view, for these reasons considerable weight should be given to this public interest consideration against disclosure.”

148. The strictness of the regime is reflected in the serious penalties available for breaches of s 40(1) and s 40(2) of the SD Act, as noted in the Voitenko decision at [99]:

“the fact that a breach of s 40 … is punishable by a term of imprisonment with the above maximum penalties underscores the legislature’s intention to secure protected information by the imposition of a substantial punishment in the event of a transgression.”

149. It is noteworthy that the public interest consideration under cl 6 of the s 14 Table “extends to consideration of the policy that underlies the prohibition against disclosure.” In this regard, the respondent’s submissions noted that one of the objects of the SD Act to restrict the use, public and communication of information obtained through the use of surveillance devices was identified in p.1 of the Explanatory Note to the Surveillance Devices Bill 2007. Further, the second reading speech to the Surveillance Devices Amendment (Police Body-Worn Video) Bill 2014 reinforces privacy considerations, the restrictive prohibitions on the use, communication and publication of information and the limited nature of any permitted exceptions:

“Appropriate safeguards in the bill maintain an individual’s right to privacy by regulating the use, communication and publication of information obtained from body-worn video devices. The restrictions that currently apply to information obtained from other types of surveillance devices will generally apply to information obtained using body-worn video devices. The restrictions will prohibit the use, communication and publication of information unless necessary for a specified purpose such as the investigation of a complaint against a police officer.” (Parliamentary Debates, Legislative Assembly, 22 October 2014, 1639)

150. Additionally, as pointed out in the respondent’s submissions, the exceptions to the prohibition on use, communication and publication are limited to three classes in ss 40(3)-(9) of the SD Act. In essence, there are exceptions for the purposes of law enforcement activities; exceptions to protect the safety of persons or property; and exceptions in relation to the conduct of public officers.

151. None of the permitted exceptions to the offence provisions as set out in ss 40(3)-(9) of the SD Act and cl 4 of the SD Regulation apply in these proceedings. The use in relation to disclosure under the GIPA Act is not referred to in the SD Regulation.

152. I consider that the case before me should be distinguished from Morgan’s case for a number of reasons:

1. Morgan’s case involved what was described as a long history of over-policing of Aboriginal people in Australia and the issue of Aboriginal deaths in custody. This is an issue that, in my view, satisfies the example of a public interest consideration in favour of disclosure in s 12(2)(a) of the Act. FDY’s belief that he has been the subject of over-policing are not insignificant and have had a profound effect upon him and no doubt his family. However, the history concerning the treatment of Aboriginal people by police is a much larger and more prevalent issue, coming within the meaning of s 12(2)(a) of the Act. It has been the subject of public inquiries and ‘Black Lives Matter’ protests, driving public opinion and community support with “great strength of feeling”: Commissioner of Police v Bassi [2020] NSWSC 710 at [18]-[19];

2. the circumstances in Morgan’s case involved Mr Morgan himself being recorded via the use of body-worn video cameras. It was therefore accepted that Mr Morgan may have had a legitimate interest in reviewing the footage in order to assess whether he might have any available cause of action;

3. two of the persons who appeared in the footage in Morgan’s case provided their consent for the release of their identity (notwithstanding Senior Member Mulvey found that cl 3(a) of the s 14 Table was a relevant public interest consideration against disclosure). In the case before me, no individual depicted in the footage has provided their consent;

4. Morgan’s case involved a decision to provide access in a form other than that requested by the applicant. The respondent had provided view-only access in circumstances where the applicant had requested a copy of the footage. However, in the proceedings before me, the Tribunal’s task is to decide whether the respondent’s Decision to refuse access to the footage is the correct and preferable decision;

5. in Morgan’s case, the Tribunal accepted that s 12(2)(a) of the Act applied as a consideration in favour of disclosure in circumstances where the “personal information of third parties could be appropriately anonymised.” Privacy concerns could largely be overcome by pixelating the footage so as to remove the personal information of bystanders who were incidentally depicted in the footage. However, in these proceedings before me, having viewed the footage, I am satisfied that pixelation of the footage would not overcome the privacy concerns and therefore would not overcome the public interest considerations against disclosure.

153. Drawing from the reasoning in Hurst’s case, balancing competing interests is a question of fact and degree, and is not one of mathematical calculation. In carefully considering the balancing test, the personal factors favouring disclosure are persuasive. It is understandable, as a result of his prior experiences with the police and having suffered incarceration (apparently without cause), that FDY would suffer anxiety associated with the Incident, and suspect involvement of the FPIU and the informant in relation to previous unsubstantiated charges.

154. I have already distinguished the circumstances of Morgan’s case from FDY’s circumstances. On balance, I do not consider that s 12(2)(a) of the Act operates as a consideration favouring disclosure in FDY’s case alongside the personal factors of the application, to outweigh the consideration in cl 6 of the s 14 Table.

155. I have also turned my mind to clause 12(2)(b) of the Act and am of the view that the benefit of informing the public about police practices for dealing with members of the public does not necessarily extend to knowledge of police methodology when undertaking welfare checks and the safety and wellbeing of children may be at risk.

156. I am satisfied that disclosure of the body-worn video footage to FDY would constitute a contravention of s 40 of the SD Act since the legislation creates a very strict and limited regime through which information obtained through the use of surveillance devices can be disclosed, and none of the exceptions are engaged in this case.

157. Consistent with the reasoning in Cheung, recognising the strictness of the SD Act, I attach considerable weight to the public interest consideration against disclosure in cl 6 of the s 14 Table and affirm the respondent’s Decision on the video footage.

Issue 3: Radio broadcasts

158. With respect to the two radio broadcasts, I have taken into account the persuasive personal factors of the application alongside the public interest considerations in favour of disclosure and weighed them against those considerations against disclosure in cl 1(d), cl 1(f), 3(a) and 3(b) of the s 14 Table.

159. I have applied a broad value judgment consistent with the reasoning in Page and Searle and given considerable weight, in particular, to the personal factors of the application. In my view, FDY’s motives for making his access application weigh heavily in favour of granting access. On the proviso that certain information is removed from the broadcasts (discussed below), release of the broadcasts may assist FDY to understand the background to the Incident and reveal some of the steps taken by NSWPF in relation to the information it received to conduct the welfare check.

160. I have decided that access should be given with information deleted, as appropriate, where it identifies any third party who has not provided consent for the disclosure of their private information or where it contains information that is unrelated to the Incident.

161. I consider that releasing the redacted broadcasts may relieve FDY’s anxiety over what led to the Incident. At the same time, my view is that release of the redacted broadcasts will not disclose sensitive information or police methodology.

162. Provided the information as noted above is removed from the broadcasts, the public interest considerations against disclosure in cl 1(d), cl 1(f), cl 3(a) and cl 3(b) are outweighed by the considerations in favour of disclosure and the personal factors of the application.

Conclusion

163. In making the correct and preferable decision, I am required to be satisfied that the respondent’s Decision was justified.

164. For the reasons given above, I am satisfied that, with the exception of the respondent’s determination of the request for access to two radio broadcasts, the respondent’s Decision was justified.

Orders

165. Accordingly, I make the following orders:

1. The decision of the respondent dated 25 March 2021 is varied to provide for the release to the applicant within 28 days of these Orders of two radio broadcasts made on 21 November 2019 concerning the attendance of NSW police officers at the applicant’s residence, provided information is removed that identifies any third party who has not provided consent for the disclosure of their personal information or where the broadcasts contain information that is unrelated to the attendance of NSW police officers at the applicant’s residence on that date, and the decision of the respondent dated 25 March 2021 is otherwise affirmed.

2. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the respondent on a confidential basis, the submissions made in private hearing before the Tribunal, the record of that part of the proceedings conducted in private hearing and those paragraphs of these reasons identified as [NOT FOR PUBLICATION] is prohibited and is not to be released to the applicant, his appointed Guardian ad Litem or the public.

**********

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

Registrar

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

Registrar

Amendments

05 November 2021 - By consent of the parties, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of the applicant in these proceedings is prohibited and the name of the applicant will be referred to by pseudonym 'FDY' in the

Tribunal's published reasons [2021] NSWCATAD 285.

Decision last updated: 05 November 2021