Flack v Commissioner of Police, New South Wales Police

[2011] NSWADT 286

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Decision date:	07 December 2011
Jurisdiction:	General Division
Before:	S Higgins, Deputy President
Decision:	The decision of the respondent is affirmed.
Catchwords:	Government Information (Public Access) - whether public interest considerations against disclosure outweigh the public interest considerations favouring disclosure - whether disclosure could reasonably be expected to reveal an individual's personal information or contravene an information protection principle - whether disclosure could reasonably be expected to prejudice the supply to an agency of confidential information
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Crimes (Domestic and Personal Violence) Act 2007 Freedom of Information Act 1989 (repealed) The Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998
Cases Cited:	Leech v Sydney Water Corporation [2010] NSWADT 298 Re Chandra and Department of Immigration and Ethnic Affairs (1984) 6 ALN N257 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
Category:	Principal judgment
Parties:	Susan Flack - Applicant Commissioner of Police, NSW Police Force - Respondent
Representation:	Applicant in person K Sato (for the Respondent) N Case (for the Information Commissioner)
File Number(s):	103304

REasons for decision

Introduction

1. GENERAL DIVISION: (S HIGGINS, DEPUTY PRESIDENT). The applicant, Ms Susan Flack, seeks review of a decision of the respondent, the Commissioner of Police, to refuse her access to information she sought access to under the Government Information (Public Access) Act 2009 (GIPA Act).

1. On 29 January 2010, the applicant and her husband, were each served with a provisional Apprehended Personal Violence Order (provisional APVO), issued by the Local Court, on application by Constable Rebecca Whitfield. The orders were sought on an ex parte basis under the Crimes (Domestic and Personal Violence) Act 2007 and were in force for twenty-eight days from the date of each order. The applicant and her husband were each named as a defendant in the respective orders and the protected persons were a neighbour and the neighbours son. The orders directed the applicant and her husband to attend the Local Court on 9 February 2010.

1. In response to the provisional APVO the applicant and her husband obtained the issue of a subpoena from the Local Court, which directed the respondent to produce all documents relating to Constable Whitfield's ex-parte application to the Local Court. On 9 February 2010, the respondent withdrew the proceedings and no documents were produced in answer to the subpoena.

1. On 26 October 2010, the applicant and her husband made a formal application to the respondent for access, under the GIPA Act, to the documents for which production had been sought in the subpoena issued by the Local Court. The respondent identified nine documents falling within the applicant's request for access. The respondent determined that the applicant be granted access to one document in its entirety, three documents in part (an Event Summary Report and Contents page of a Brief of Evidence) and access was refused in regard to the remaining documents (3 witness statements and two police notebook entries).

1. The respondent determined the withheld information (i.e. the information in the documents for which access was refused and the deleted information in those documents for which access was granted in part), was information for which the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure. In particular it found that the withheld information, if disclosed, could reasonably be expected to have the effect of: (a) revealing personal information about an individual other than the applicants, (b) contravening an information protection principle under the Privacy and Personal Information Protection Act 1989 (PPIP Act), or (c) prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions.

1. Following the initial planning meeting of the applicant's application for review, the respondent provided the applicant with a full copy the Summary Event (No. E40282843) and a copy, in part, of the witness statement of Constable Whitfield dated 9 February 2010. It is a three-page statement and the applicant was provided with a copy of the statement, excluding the information relating to persons other than the applicant, her husband and the police officers.

1. The respondent has otherwise contended that its decision is the correct and preferred decision and should be affirmed. The applicant, on the other hand, presses for access to the withheld information.

1. On 22 March 2011, the parties agreed to the application being determined on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 . As the respondent sought to file and serve written submissions in reply to the submissions served by the applicant on this day and the representative of the Information Commissioner indicated that the Information Commissioner sought to make written submissions, orders were made for the filing and serving of such submissions and the filing and serving written submissions in reply, if any. The Information Commissioner filed and served written submissions on 18 April 2011 and filed and served, with the consent of the parties, supplementary submissions on 13 May 2011. The respondent filed and served written submissions in reply on 13 and 31 May 2011and the applicant filed and served written submissions in reply on 14 June 2011.

1. The written submissions filed and served by respondent on 18 March and 31 May 2011 contained, in part, information that had been deleted on the grounds that this deleted information fell within the terms of subsection 107(3) of the GIPA Act. A full copy of the written submissions (i.e. including the confidential material) was provided to the Tribunal in confidence under that subsection. In addition to its written submissions the respondent relied on the evidence contained in a statement, dated 15 March 2011, of Senior Sergeant Wayne Thurlow. Again, the statement of Senior Sergeant Thurlow contained, in part, information that fell within subsection 107(3) and the applicant was provided with a copy of the statement with this information deleted. A full copy of the statement of Senior Sergeant Thurlow was provided to the Tribunal in confidence under subsection 107(3) of the GIPA Act.

1. The respondent also relied on two further statements, dated 1 March 2011, which were received by the Tribunal in confidence pursuant to subsection 107(3) of the GIPA Act.

1. The role of the Tribunal in reviewing the decision of the respondent is to determine whether the decision of the respondent under the GIPA Act to refuse the applicant access to the information in issue is the correct and preferred decision, having regard to the applicable law and the relevant facts (see subsection 63(1) of the Administrative Decisions Tribunal Act 1997).

Relevant legislation - The Government Information (Public Access) Act 2009

1. The GIPA Act came into operation on 1 July 2010. It repealed the Freedom of Information Act 1989 (FOI Act) and put into place a new legislative scheme under which a person could seek access to information that it held by the government.

1. The objects of the GIPA Act are set out in section 3 which provides as follows:

3 Object of Act

(1) In order to maintain 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.

1. 'Government information' is broadly defined in section 4 of the Act to mean 'information contained in a record held by an agency'. There is no dispute in this application that the NSW Police Force is an agency for the purposes of the GIPA Act. Nor is it disputed that the information for which the applicant has sought access is 'government information'.

1. Subsection 9(1) of the GIPA Act provides that a person who makes an access application for government information has a legally enforceable right to access the information requested, unless there is an 'overriding public interest against disclosure' of the information. Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

1. Subsection 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) sets out a number of specific public interest considerations in favour of disclosure of government information. These considerations are not exhaustive and include a consideration that the information is personal information of the person to whom it is to be disclosed (see paragraph 12(2)(d) of the GIPA Act.).

1. However, section 13 of the GIPA Act sets out the test that is to be applied in regard to requests for access to government information. That test is in the following terms:

13 Public interest test

There is an overriding public interest against disclosure 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.

1. Section 11 provides that the Act overrides other statutory provisions that prohibit disclosure apart from the 'overriding secrecy laws' that are set out in Schedule 1. Where government information falls within the terms of one of the overriding secrecy laws set out in Schedule 1, clause 1 of that Schedule provides that it is conclusively presumed that there is an overriding public interest against disclosure of such information. The information that is the subject of this application does not fall within this category of information.

1. Accordingly, in all cases other than those falling under the terms of Schedule 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.

1. The public interest considerations against disclosure are limited to those set out in the table to section 14 of the GIPA Act. The table to section 14 include the following:

Table

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

(a) ...

...

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

2 Law enforcement and security

...

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information, disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) reveal an individual's personal information,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 ,

(c) ...

1. The term 'personal information' is defined in clause 4 of Schedule 4 of the GIPA Act. It relevantly provides as follows:

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, retina prints, body samples or genetic characteristics.

(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.

1. The term 'reveal' is defined in clause 1 of Schedule 4 of the GIPA Act to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'.

1. Section 55 of the GIPA Act makes provision for the personal factors of the applicant for access to be taken into account, in certain circumstances, when determining the relevant public interest considerations. That section is in the following terms:

55 Consideration of personal factors of application

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

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

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

(c) any other factors particular to the applicant.

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

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

(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information.

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note . An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73

1. Section 58 of the GIPA Act sets out how an access application is to be determined. Subsection 58(1) provides that an agency can decide an access application for government information by:

58 How applications are decided

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

(a) deciding to provide access to the information, or

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

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

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note. These decisions are reviewable under Part 5.

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

1. There is no dispute that the decision of the respondent is a reviewable decision by the Tribunal (see section 38 of the ADT Act and sections 80 and 100 of the GIPA Act). Subsection 105(1) of the GIPA Act places an onus of justifying the decision the subject of review on the agency concerned.

1. Subsection 104(1) of the GIPA Act gives the Information Commissioner a right to be heard in proceedings before the Tribunal in relation to a review of a decision made pursuant to the GIPA Act.

Consideration

1. I have considered all the material that has been placed before the Tribunal. As I have indicated, the first step is to consider the public interest considerations in favour of the disclosure of the information for which the applicant seeks access. As I have indicated the information in dispute relates to the witness statement of Constable Whitfield, (Document 1 (in part)) two witness statements (Document 2 and Document 3) and the two police notebook entries (Document 4 and Document 5). The police notebook entries are those entered into the notebook of Constable Whitfield.

1. Document 2 is a typed statement of a witness, dated 29 January 2010. The first paragraph of the statement expressly states that the statement sets out the evidence that the witness would be prepared, if necessary, to give as a witness in court (a statement of this nature is also contained in the introductory paragraph of the statement of Constable Whitfield). Document 3 is a typed statement of a witness, dated 8 February 2010, containing the same express statement as to the purpose for which the statement was made.

1. Document 4 consists of pages 38 to 48 of the police notebook and the relevant entry contains a hand written statement of a witness and the personal details of that witness that were obtained by Constable Whitfield during the evening of 29 January 2010. The first paragraph of the statement also contains the same express statement as to the purpose for which the statement is made. Document 5 consists of pages 63 to 65 of Constable Whitfield's notebook and contains personal details about persons, other than the applicant and her husband. The date these details were noted is stated to be 8 February 2010.

1. As was pointed out by the Tribunal in the recent decision of Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40]:

40 It is important to note that the definitions of 'government information', 'personal information', and 'reveal' in the GIPA Act operate on information alone, not, as was the case under the Freedom of Information Act 1989 , with respect to documents. The issue for consideration is not whether the document has been publicly disclosed, but whether the information they contain has been publicly disclosed. The effect of s 105(1) is to place the burden, of establishing that a decision with respect to an access application is justified, on the agency. In circumstances such as the present, that burden includes establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not.

1. While I understand the applicant's concerns about being served with a provisional APVO on 30 January 2010, when the respondent police officers allegedly failed to act on her complaint about the neighbour's son allegedly having thrown eggs on her home during the evening of 25 January 2010, an inquiry into this alleged failure and why the police subsequently acted on the complaint of the neighbour are matters over which the Tribunal has no jurisdiction.

1. Public interest considerations in favour of disclosure : In my view, other than the general interest in favour of disclosure there are predominantly two specific public interest considerations in favour of the disclosure of the information in issue. These are: (a) the information is personal information about the applicant and her husband and (b) the fact that information had already been disclosed to the applicant as part of the Local Court proceedings.

1. In this regard, I note the one-page summary of the grounds (i.e. alleged factual circumstances) on which Constable Whitfield made her ex-parte application to the Local Court for the provisional APVOs. The summary begins by stating there has been a long history of neighbour disputes between various neighbours in the vicinity of where the applicant and her husband reside. It is noted on the summary that, on 25 January 2010, there was an alleged incident involving the applicant and her husband. The allegation appears to have risen as a result of eggs being thrown at the home of the applicant and her husband. It is alleged that the applicant and her husband responded aggressively to this incident and searched for the whereabouts of the neighbour's eldest son. Other neighbours contacted the neighbour to say they were concerned about the safety and welfare of the neighbour and their eldest son as a result of the behaviour of the applicant and her husband that evening. The neighbour and her family were not at their home that evening. Her eldest son was also not at home that evening. It is stated that he was staying with a friend that evening. On 27 January the other neighbours again raised their concerns with the neighbour about the events of 25 January and the alleged 'actions and verbal aggression' shown by the applicant and her husband. These concerns the summary states allegedly 'brought fear to the victim about her safety and the safety of her family'. It is noted that on 28 January 2010, the police attended the home of the neighbour for the 'purpose of serving a Personal Violence Order' on the neighbour's son as a result of the egg throwing incident. On the following day, 29 January the neighbour called the police and a statement was obtained 'in relation to the incident'. The summary concludes by stating that the neighbours 'requested Police apply for a Personal Violence Order' against the applicant and her husband 'for their behaviour and threats made towards, the neighbour's son on 25 January 2010'.

1. The summary names the neighbour and her son, but does not name the other neighbours. Nor does the summary identify the person, if any, who had made a witness statement in support of Constable Whitfield's application to the Local Court.

1. In her written submissions, the applicant contends that the NSW Police failed to correctly identify that the victim of the events were herself, her husband and their children. It would appear that the applicant had complained to police after eggs were thrown at her home and when the police failed to act she personally made an application for the issue of a Personal Violence Order against the son of the neighbour. That she and her husband were subsequently served with the provisional APVO, obtained by the police and seeking protection of the neighbours son, came as a complete surprise to her and her husband. Furthermore it has caused her considerable angst. In her submissions the applicant explained that she was seeking access to the information as she wanted to see what her neighbours had in fact said as she believes the police acted improperly in seeking the provisional APVO against her and her husband. She was concerned that it was obtained on the basis of false information that was not supported by statements of the neighbours.

1. In my view, having regard to the information in dispute, its disclosure would not reveal information of a kind that would substantiate the applicant's concern about misconduct by the police.

1. Public interest considerations against disclosure : As I have indicated, the respondent relies on a number of the public interest considerations against disclosure that are listed in the table in section 14 of the GIPA Act. It is convenient to first deal with the public interest consideration in clause 3(a) of the Table.

1. The information in dispute in each of the Documents 1 to 5 clearly contains personal information of individuals other than the applicant and her husband. However, Documents 2, 3 and 4 also contains personal information about the applicant and her husband. Personal information, as I have already noted is very broadly defined to mean information or opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

1. The issue is whether the disclosure of the disputed information 'could reasonably be expected' to reveal the personal information of the persons other than the applicant and her husband. The respondent and the Information Commissioner have both made submissions on how 'reasonableness' should be construed in the context of this clause and clause 1 of the Table.

1. In my view the construction argued for by the respondent is correct in that the words 'could reasonably be expected to' should be given their ordinary meaning and are distinguishable from the words 'would involve the unreasonable disclosure' as contained in clause 6(1) of the repealed FOI Act. That is, the three-step approach to the issue of 'reasonableness' in clause 6(1), as stated in Re Chandra and Department of Immigration and Ethnic Affairs (1984) 6 ALN N257, is of no relevance in determining the issue of reasonableness in clause 1 and 3 of the Table to section 14 of the GIP Act.

1. The word 'reasonable' in the context in which it appears in clause 1 and 3 of the Table is that set out by the Tribunal in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. That decision concerned the construction of the words 'could be reasonably expected to' in clause 7(1)(c), of the Schedule 1 of the repealed FOI Act. These words were also contained in clauses 4, 4A, 5, 13(b), 14, 15, and 16 of Schedule 1 of the repealed Act. At [25] the Tribunal gave the following explanation on the accepted construction of these words:

'25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority . 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.'

1. That is, the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. 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. That fact being established to the relevant standard of proof, on the balance of probabilities.

1. In my view, the information in dispute if disclosed could reveal personal information about persons other than the applicant or her husband. To the extent the information is personal information about the applicant and her husband, I am satisfied that given the context in which this information is contained that if it is disclosed, that disclosure could reasonably be expected to reveal the personal information of the other persons.

1. The Information Commissioner and the respondent have also provided detailed written submissions on the construction and application of clause 3(b) of Table 1 of section 14 of the GIPA Act. As I understand the submissions of the Information Commissioner, clause 3(b) incorporates the information privacy principles contained in sections 8 to 19 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). However, it does not include the incorporation of the exemptions contained in Division 3 of Part 2 of the PPIP Act. In particular it does not incorporate the exemptions contained in section sections 23 and 27, which relate to the respondent in regard to its law enforcement functions. The effect of these sections being that the respondent is not required to comply with the information protection principles in so far as they relate to personal information collected, stored, used and disclosed as part of its law enforcement functions.

1. The respondent does not appear to disagree with this position, and contends that Parliament intended clause 3(b) of the Table to 'simply' describe a category of information the disclosure of which would breach an IPP were it not for the GIPA Act. In my opinion, this construction of clause 3(b) of the Table is correct. However, I also agree with the Information Commissioner, that in considering whether the disclosure of the information could be reasonably expected to have the effect of contravening an information protection principle under the PPIP Act the extended meaning of 'personal information' in subsection 4(3) of the PPIP Act, in particular paragraph (b) would apply (i.e. personal information does not include information about an individual that is contained in a publicly available publication). However, I am not persuaded that section 14 of the PPIP Act is of any relevance to clause 3(b) of the Table.

1. The relevant information protection principle in this application is that contained in section 18 of the PPIP Act, which provides as follows:

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) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

1. It is the contention of the respondent that disclosure of the information in dispute does not fall into any one of the abovementioned categories of the circumstances in which personal information can be disclosed. On the material before the Tribunal, the information in dispute was collected for the purpose of Constable Whitfield obtaining a court order and not for the purpose of disclosing it to the applicant pursuant to an application under the GIPA Act. Second, the persons to whom the information relates were clearly informed that the information that was collected would only be disclosed to the court for the purpose of Constable Whitfield obtaining a court order and any proceedings that may follow. And thirdly, there is no evidence of the circumstances prescribed in paragraph 18(1)(c).

1. In my view, for the reasons I have already stated the fact that the applicant was provided with a summary of the grounds on which Constable Whitfield made her application to the Local Court, that summary does not identify from whom a witness statement was obtained (if any) and what was said by that witness. While an inferences might be drawn, or assumptions be made from the information in this regard, in my view the summary does not go so far as to find that the information in one or more of the Documents is contained in a publicly available publication.

1. Accordingly, I am satisfied that the respondent has established the clause 3(b) public interest against disclosure grounds.

1. I would make similar findings in regard to the clause 1(d) public interest disclosure grounds.

1. There is no dispute that in determining whether information is confidential information, that this can be inferred from the circumstances in which the information was provided. In this application, the information was provided to the respondent as part of his its statutory law enforcement functions. That is, the respondent's officers obtained the information in response to a complaint by a person(s) about alleged aggressive behaviour by the applicant and her husband. As I have already indicated, the person(s) who provided their personal information to the respondent's officers clearly did so only on the basis that the information they gave would remain confidential, subject to being required to give their evidence, as contained in the statement, to the Court. That necessity did not arise, as the proceedings commenced against the applicant and her husband were withdrawn. Had, the proceedings proceeded it is arguable that any confidentiality in the information may have been removed: see Richards (supra) at [36] and [41]. If I am wrong, this fact of disclosure is nevertheless arguably relevant for the purpose of determining where the balance lies between the public interest in disclosure and the public interest against disclosure.

1. The real issue in regard to this public interest against disclosure ground is whether, the disclosure of the information could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions. That is, it is not a question as to whether the particular confider of the information in issue would in future refuse to supply that information. It is a question as to whether information of this nature (a) facilitates the effective exercise of the respondent's functions and (b) the disclosure of such information could reasonably be expected to prejudice the supply of such information.

1. In my view it goes without saying that the nature of the information in dispute and the circumstances in which it was obtained by the respondent is information that facilitates the effective exercise of the respondent's functions: see paragraphs 7 to 14 of the statement of Senior Sergeant Thurlow. I am also satisfied on the basis of Senior Sergeant Thurlow's evidence that disclosure of information of this nature could reasonably be expected to prejudice the supply of such information to the respondent.

1. Where does the balance lie? For the reasons set out above, I have found that the respondent has established public interest considerations against disclosure. I have also found that there are public interest grounds for disclosure, these being that the information, in part, is personal information about the applicant and her husband. While I accept that there has been a disclosure of the personal information of the applicant, her husband and the neighbour and the neighbour's son. That information is contained in the document prepared by Constable Whitfield for her application to the Local Court. It is not a disclosure of the personal information as contained in the information deleted in Constable Whitfield's statement or the information in the remaining documents.

1. I note that the applicant's motives for making the access application are to see whether the information contained in the documents discloses improper conduct of the police and not for the purpose of questioning what her neighbours (if any) had said about her and her husband.

1. In my view balancing the respective public interest considerations for and against disclosure, the public interest considerations against disclosure outweigh the public interest considerations for disclosure. As I have noted, the applicant and her husband have been provided with the information on which Constable Whitfield made her application to the Local Court for the provisional APVO issued against the applicant and her husband. The evidence is that the police withdrew their application for the order 9 days after it was obtained and before any witness statements for the purpose of the proceedings were provided.

1. Accordingly, I find that the decision of the respondent is the correct and preferred decision and the appropriate order is that the decision of the respondent be affirmed.

Decision last updated: 07 December 2011