FVA v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 236

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FVA v Commissioner of Police, NSW Police Force [2023] NSWCATAD 236

Hearing dates:

14 July 2023

Date of orders:

14 July 2023

Decision date:

14 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – failure of the applicant to appear at the hearing – matter determined in the absence of the applicant - whether overriding public interest against disclosure - confidential information - information provided in confidence

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Freedom of Information Act 1982 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Health Records and Information Privacy Act 2002 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

State Records Act 1998 (NSW)

Cases Cited:

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

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

Commissioner of Police, NSW Police Force v Camilleri [2012] NSWCATAP 19

DZ v NSW Police [2002] NSWADT 274

Davis v Secretary, Department of Education [2022] NSWCATAD 55

FA v NSW Police [2003] NSWADT 196

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

Fisher v NSW Police [2002] NSWADT 267

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

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111

Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317

Simring v Commissioner of Police [2009] NSWSC 270

Smith v Commissioner of Police [2012] NSWADT 85

Taylor v Destination NSW [2017] NSWCATAD 272

Transport for NSW v Searle [2018] NSWCATAP 93

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Woolley v Lismore City Council [2013] NSWADT 10

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FVA (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

No appearance (Applicant)
McCullough Robertson (Respondent)

File Number(s):

2023/00077447

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent [COMMISSIONER OF POLICE, NSW POLICE FORCE].

REASONS FOR DECISION

Background

1. These proceedings concern a request that FVA (the applicant) made to the Commissioner of Police, NSW Police Force (the respondent) seeking access to information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) (the GIPA request). The GIPA request was lodged on 21 July 2022 and sought access to the following information:

Pursuant to the GIPA Act 2009, I would like access to a copy of:

- Call recording of a call received by Police Assistance Line on 11 July 2022 by (name provided) seeking wellbeing and/or whereabouts of (name provided), (name provided) and (FVA).

- Transcript of that call recording.

- And a complete Police incident report that exists.

2. On 1 September 2022, the respondent made a decision and decided to provide the applicant with part of the information sought by the GIPA request pursuant to s 58(1)(d) of the GIPA Act, except where there is an overriding public interest against disclosure.

3. The respondent identified that the public interest considerations in favour of disclosure of the requested information are: (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 the agencies; and (3) the release of the information requested could reasonably be expected to promote accountability of this agency.

4. The respondent identified the following public interest considerations against disclosure of the requested information and stated that pursuant to s 72(2)(d) of the GIPA Act, it is not in the public interest to provide him with recordings of either 000 or Police Assistance Line (PAL) calls made by other people for the following reasons.

Clause 1(d) of the Table to s 14(2) of the GIPA Act

5. The respondent stated that 000 and PAL calls are an important source of information, particularly for this agency’s criminal investigations, and people who make such calls assume their information will be kept confidential. Therefore, granting you access to the information could prejudice this agency’s investigation function if people became concerned with their information being released, and important sources of information dry up.

6. The information in the schedule of documents, redacted under cl 1(d), includes responses and statements given in confidence by the report reporting the incident. People who provide information to police trust that it will be kept confidential unless it is used for court proceedings, or on their authority. If confidential information is disclosed under the GIPA Act, people will lose trust in police matters. If that trust is breached, the flow of information to police officers could dry up, which would severely impact this agency’s complaint investigation function, this position was upheld in Simring v Commissioner of Police [2009] NSWSC 270 at 69.

7. The respondent stated that it gave this consideration strong weight.

Clause 3(a) of the Table to s 14(2) of the GIPA Act

8. The respondent stated that the recordings also contain information what could identify the callers. As there is nothing in the GIPA request or its records to indicate that the applicant had already heard the recordings, or that they are in the public domain, it was satisfied that releasing copies to the applicant would reveal personal information.

9. The respondent stated that the information in the schedule of documents, which was redacted under cl 3(a), includes names, addresses, dates of birth, contact phone numbers of other people. Therefore, it is their personal information as defined in the Act. There is nothing in the GIPA request or in its records to indicate that this information is in the public domain and disclosure would therefore reveal the information and breach the rights of the people concerned to have their information protected.

Clause 3(b) of the Table to s 14(2) of the GIPA Act

10. The respondent stated that the NSWPF has a responsibility to maintain any personal details and information provided by the public in accordance with Principle 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA). The information in the schedule of documents, which was redacted under cl 3(b), consists of the information listed in the above paragraph. As the documents were created for the primary purpose of the police investigation, disclosure under the GIPA Act is secondary to that purpose. Therefore, disclosure of this information would contravene principle 18 of PPIPA.

11. The respondent stated that it gave this consideration strong weight.

12. The respondent stated that it applied the public interest test under s 13 of the GIPA Act and decided, but it decided to give more weight to the considerations against disclosure and it therefore decided that there was an overriding public interest against disclosure of the redacted and/or withheld information.

13. The respondent stated that it conducted reasonable searches and that the only information held/created in relation to this GIPA request was the information listed in the schedule of documents. Accordingly, it decided:

1. To release a Computer Aided Dispatch (CAD) report for incident (number provided) in part;

2. To refuse the applicant access to the call recording; and

3. A police incident report was not held.

Internal review

14. On 18 September 2022, the respondent received an application for internal review from the applicant, which sought review of the original decision for the following reasons:

Given this decision is a reviewable decision under section 80(a) of the GIPA Act, I would like to seek a review under Part 5 of the GIPA Act by applying for: an internal review by another officer of the department for the reasons mentioned below to access the call recording and full CAD report pertaining to the CAD id (number provided):

a. I understand from the redacted CAD report received that it was a “Concern 4 Welfare” call and hence the public interest considerations against disclosure should not be applied given the information itself relates to the concern for welfare.

b. My understanding is that the information received in the call may not be accurate. While I've received a copy of the CAD report, a number of key items has been redacted under section 14, table of the. GIPA Act, plus I did not receive a copy of the call recording and a transcript of that call as requested. I understand that this information is about me and I have the right to access all information pertaining to the call, especially when I want to be sure that the person called and claimed to be who they are was the same actual person. And that I can only know by listening to the call recording to identify the voice. And even if they are the same person, then I understand they don't reside in the same jurisdiction and hence there should not be any restriction applied in disclosing the information requested, though it was a Concern 4 Welfare call anyway.

c. The Information provided for other two people named are my parents and currently visiting me on a tourist visa upon my invitation and sponsorship and residing with me and any of their personal information redacted under Section 14 Table, clause 3(a) and 3(b) is already available to me. Moreover, they both would like to access the call recording as well to ascertain what was exactly reported and by whom given, they are claiming to be a family member.

d. By accessing this type of information, I will be able to ascertain if there is any fraudulent activity going on i against my name. And it will help me to secure my identity and take any necessary steps, if required.

Department’s decision that I do not agree with AND why

As outlined above that I do not agree that this kind of order is an excluded information. And relates to judiciary functions and that the information requested should be disclosed. Below are some more reasons why:

The GIPA Act Establishes a presumption. In favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. In accordance with s 9(1) of the GIPA act, The applicant has a legally enforceable right to access the information requested..

But general public interest consideration in favour of access to government information set out in s 12 of the GIPA act Name that the balance is always weighted In favour of disclosure. In addition to the general public interest, the following examples are identified....

With the above comprehensive grounds for review, please can you review the decision: released in part and grant approval to have the requested information released in full and provide access as soon as possible...

Disclosure log: I object to have the information released being included in the disclosure log, due to the nature of my requested information, is confidential…

15. On 12 October 2022, the respondent issued an internal review decision, which decided that an Incident report was not held and that there was otherwise an overriding public interest against disclosure of the disputed information.

External review by the Information and Privacy Commissioner

16. On 24 November 2022, the applicant applied to the Information and Privacy Commissioner (IPC) For an external review of the respondent’s decision, on the following grounds:

a. I understand from the redacted CAD report received that it was a Concern 4 Welfare call and hence the public interest considerations against discloses should not be applied given the information itself relates to the concern for welfare.

b. Plus, I've recently reported an incident event ID (number provided) with NSW Police, which was regarding unlawful covert surveillance being conducted on me by unknown offenders and my communications are monitored/restricted and my whereabouts have also been monitored since quite some time i.e. probably since last couple of years. It seems to be an organised or a white collar crime or some kind of corruption and more than one organisation may as well be involved in it. The investigations on this event ID are still ongoing by NSW Police. This is one of the primary reasons I would like to secure this information as I am of the view that the person who made the Concern 4 Welfare call is likely to be involved or a part of the group/lobby who is doing unlawful covert surveillance upon me.

c. My understanding is that the information received in the call may not be accurate. While I received a copy of the CAD report, a number of key items has been redacted under Section 14 table of the GIPA Act, Plus, I did not receive a copy of the call recording and a transcript of that call as requested. I understand that this information is about me and I have the right to access all information pertaining to the call, especially when I want to be sure that the person called and claiming to be who they are was the same actual person. And that I can only know by listening to the call recording to identify the voice. And even if they are the same person, I understand section 55(1)(a) and (1)(b) should be applied as a personal factor in providing the applicant with access to the information. Moreover, the person reporting doesn't seem to reside in the same jurisdiction and hence requested information can be disclosed given it was a Concern 4 Welfare call anyway.

d. The information provided for two other people named on my parents and any of their personal information redacted under Section 14 Table, clause 3(a) and 3(b) is already available to me.

e. By accessing this requested information in full, I will be able to ascertain what suspicious activity is going on in/ against my name and help me to take any necessary steps.

17. On 22 February 2023, the IPC issued a Review Report under the GIPA Act and concluded that the respondent’s decision was justified. It therefore declined to make a recommendation to the respondent.

Application for administrative review

18. On 8 March 2023, the applicant applied to this Tribunal for administrative review of the internal review decision “received” 19 October 2022, and the decision of the IPC “received” 27 February 2023, on the following grounds:

In the specific circumstances, an overriding public interest consideration against disclosure should be avoided altogether, including any clauses such as T1(d), T3(a), T3(b) applied. I've concerns that the person called and claiming to be who they are was not the same actual person, which only I can identify by listening to the voice in call recording. And have concerns about the accuracy of the statements will stop. I also submit that. S 55(1)(a), (1)(b) should be applied as personal factor in favour as per the attached statement under my police event ID (number provided) as it relates to white collar-crime, conspiracy, probable corruption, an unlawful surveillance.

19. In a letter to the Tribunal dated 8 March 2023, the applicant stated:

I've attached an application for administrative review where I've highlighted some high level grounds for review. For a notice of decision by the agency. I am attaching this supplementary letter to describe some special circumstances which also accounts to “Obstruction of justice.” I recently notified NSW Police and Building Manager where I reside, of a breaking into my apartment. Notice of decision of internal review pertaining to the original application was stolen along with some other articles at the time of reporting… see request NSWPF Infolink unit to send me a copy of the “Notice of decision of internal review” via email, which I received an attached with my application; However, I've had some doubts in relation to the version of the Internal review of decision I've sent to Information and Privacy Commission such that I can verify the correct version before lodging the application with NCAT. To my surprise, I PC advised that they have not even received my correspondence... Even though I've a confirmation that IPC have reviewed it, given my review application to the Commission wouldn’t have been considered valid in the absence of those documentation. Anyway, I've attached another correspondence for your reference with IPC staff. I've not received a response from the Commissioners yet, however, I would like to request that before proceeding with the hearing. Tribunal should secure the version of the document from IPC which I've sent to them which they have received on 9 December 2023 (sic). Or this matter can be discussed in a preliminary hearing.

As I understand it, someone was definitely trying for me not to file this administrative review application in a timely manner, which also accounts for “obstruction of justice”. This has been reported to local police and I am told that investigations are underway regarding the break in for all dates I've provided in the attached email and verbally. This also accounts to the same events I've described in an attached statement for event (number provided). And with the Commission's response it definitely seems there is some malicious intent and it seems Commission may have been involved in this kind of activity or along with another entity, NSW Police Force or Building Management of the building where I reside. I would like the Tribunal/registry to take this information into account as well…

20. The applicant lodged the following documents with his current application:

1. Voluntary statement to NSW Police dated 12 May 2022.;

2. Email to IPC dated 7 March 2023 (including an email chain dating back to 3 March 2023);

3. Email from Australia Post to the applicant regarding “Tracking” of information sent to the IPC;

4. Letter from IPC to the Applicant dated 20 February 2023, advising of the Outcome of the External Review;

5. Copy of the external review decision dated 20 February 2023;

6. Letter from the IPC to the applicant dated 14 February 2023, providing an update regarding the application for external review;

7. Letter from the IPC to the applicant dated 6 February 2023. Regarding request for external review;

8. Letter from the applicant to the IPC dated 8 December 2022;

9. Letter from the IPC to the applicant dated 30 November 2022;

10. Letter from the applicant to the IPC dated 4 November 2022;

11. Copy of the internal review decision dated 12 October 2002 and attached documentation; and

12. Copy of the GIPA request.

Procedural matters

21. On 1 May 2023, Senior Member McAteer conducted a case conference, at which the applicant appeared in person Mr Roberts appeared for the respondent. The Senior Member made the following the orders:

1. The respondent was to file and serve its evidence by 1 June 2023.

2. The applicant was to file and serve his evidence including notice of any witnesses required for cross-examination at hearing by 26 June 2023;

3. The respondent was to file and serve a reply, if any by 7 July 2023;

4. He made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act, which prohibited the broadcast of the applicant’s name; and

5. He listed the matter for hearing on 14 July 2023 and made the following notations:

The respondent will seek instructions of. (a) Whether bearing in mind that the identity of the caller may have already been provided by police to the applicant, whether they can arrange for him to access the call recording under terms in s 72(1) and (2) of the GIPA Act, (such as listening to the recording) and (b) Whether an officer with relevant expertise can meet with the applicant unexplained, the call record Documents to him in sufficient detail that they technical terms are clearly understood. (i.e. reference to “Duplicate identified” etc.)

22. On 28 June 2023, Principal Member Simon Amended the orders made by the Tribunal on 1 May 2023, such that the applicant was required to comply with order (2) by 30 June 2023 and the respondent was required to comply with order 3 by 12 July 2023. She confirmed the hearing date of 14 July 2023.

Applications to issue summonses

23. On 28 June 2023, the applicant applied to issue multiple summonses, which are set out below.

Summons to attend and give evidence and produce to (AJ)

24. The applicant asserted that this witness “will provide further information on the call/calls in question, unlawful surveillance and conspiracy which is directly related to the issue and the proceedings and is required to attend the hearing at the Tribunal for cross-examination and to give evidence or explain their awareness and involvement”.

25. The Tribunal refused this application on the basis that the applicant had not established that the proposed witness was able to provide evidence of relevance to the matter before the Tribunal.

Summons to attend and give evidence to (SJ)

26. The grounds for issue of this summons are identical to those for (AJ).

27. The Tribunal refused this application on the basis that the relevance to the issue to be determined is not clear.

Summons to attend and give evidence to (AJ2)

28. The grounds for issue of this summons are identical to those for (AJ1).

29. The Tribunal refused this application on the basis that the relevance to the issue to be determined is not clear.

Summons to attend and give evidence to (CAC)

30. The applicant asserted that this proposed witness was the building manager of the building where he resided and “would provide further details on the unlawful surveillance and conspiracy which is directly related to the issue and the proceedings and is required to attend the hearing at the Tribunal for cross-examination and to give evidence to explain their awareness and involvement”.

31. The Tribunal refused this application because it was not satisfied that the proposed witness has any relevance to the issue in dispute.

Summons to attend and give evidence to Andrew Tudehope

32. The applicant sought to issue a summons to this proposed witness on the following grounds:

As per the supplementary letter provided by the applicant to the tribunal outlining the special circumstances, there have been a number of anomalies identified in the correspondence received from IPC and its staff, during the entire period of the commission’s review and following the stealing of the related documentation of this review in a series of home invasions at the applicant’s residence. The intruders of the home invasions had an intent to commit strictly indictable offence. It seems commission had awareness and/or may have been involved in this kind of activity, along with another entity, NSW Police Force and/or Strata Building Management of the building where the applicant reside.

The IPC staff managed the applicant’s application for review by the Commission which is directly related to the NCAT proceedings and hence their in person attendance is required for cross examination and to give attendance.

33. The Tribunal refused his application on the basis that it was not satisfied that the evidence of the summonsed person had any relevance to the issues in dispute.

Summons to attend and give evidence to the Commissioner & CEO of the IPC

34. The applicant relied upon the same grounds as the proposed summons to Mr Tudehope.

35. The Tribunal rejected the application on the basis that it was not satisfied that the evidence of the summonsed person has any relevance to the issue in dispute.

36. On 29 June 2023, the Registrar advised the applicant that all of the applications to issue summonses were refused and set out the grounds of refusal.

Request for review of decision to refuse to issue summonses

37. On 7 July 2023, the applicant wrote to the Tribunal requesting a “Summons review”. He stated:

I refer to the above matter and requested summons at this stage of the proceedings. I would like to provide some further rationale for summons and would like to request a review from a Tribunal member on my application to issue summons, for the summons to be issued, as these are the mandatory considerations. Please note this should be ready in conjunction with the reasons for the request in the summons application forms.

Given I’ve raised concerns In the hearing that my communications and devices have been intercepted and/or interfered with and specifically targeted by unknown entities. This has been reported to NSW Police with evidence provided in the past via various Police complaints.

I also raised with the Tribunal at the hearing and by providing A supplementary letter at the time of applying for the Tribunal review, that They have been home invasions at my residence and wanted the intents of the home invasions occurred at the applicants residence. Appeared to be the stealing of legal documents specifically pertaining to this GIPA application Among other things and/or intentions. This was reported to the police and also advised to the Commission in order to get a copy of the review decision. And with the commission's response, it definitely seems there is some malicious intent and it seems Commission may have been involved in this kind of activity along with another entity, NSW Police Force or Strata/Building Management of the building where I reside.

As per the requested summons, I've been understanding that summons recipients are aware and/or Involved w.r.t., call/calls in question, unlawful surveillance and conspiracy, which is directly related to the issue. I've reached out to a few summons recipients who are known to me and were even aware of my parents visiting without even me telling them, i.e. (AJ), (AJ2), (SB) and (SJ) to take the documents or things. And they have advised that they can't provide it without a court issued document and hence the summons are even more significant to be issued to those individuals for cross examination and to give evidence to explain their awareness and involvement as they are key witnesses.

Similarly for the other summons recipients, i.e. Andrew Tudehope who is the IPC staff reviewed the applicant’s application. I've an understanding that the individual is aware of what's going on as per applicant’s interactions and some of the contradictory responses which are received from them, especially after the home invasion incident where relevant documents were stolen. And hence Mr Tudehope is required for the cross examination.

Plus, re commissioner and CEO - IPC, Miss Elizabeth Tydd is also required to produce the documents or things as outlined in the summons and to attend for cross examination which is critical to fact finding IPCs awareness and/or involvement in such activity.

Re the summons recipient, Miss (CAC), the individual was the building manager of the premises where I reside and with my interaction and questions raised on the previous home invasions, understand Miss (CAC) is very well aware of the unlawful surveillance and conspiracy and throw light on how the incident of the call which is in question may have happened.

38. The applicant requested that the timetable be further amended, such that the matter would be listed for hearing on 18 August 2023.

39. On 11 July 2023, the Registrar wrote to all parties advising that the Tribunal had received an application for an extension of time to comply with procedural directions and that the requesting party must advise the other parties and ask them to agree with the proposed changes. Any comments about this application should be provided to the Tribunal in writing by 13 July 2023 and the Tribunal would then consider the application on the papers.

40. On 11 July 2023, the respondent formally objected to the application to change the timetable.

Request to amend the timetable refused

41. On 13 July 2023, Principal Member Simon determined the request to amend the timetable on the papers and she refused the application for an extension of time.

42. The Principal Member noted that the applicant had previously been granted an extension of time and that the matter was listed for hearing and that the issue in relation to the summonses would be dealt with at the hearing. She also ordered that any further application in relation to an extension of time to be dealt with at the hearing.

43. However, the applicant sent a further email to the Tribunal dated 13 July 2023, in which he stated, relevantly:

As just discussed with the registry staff, I refer to the attached orders I just received regarding “The requests for the extension of time are refused and the matter remains listed for the hearing.” Please note I am still awaiting a response from the registry as per my attached emails from 11 July 2023, and 8 July 2023. My summons request still needs to be reviewed by a Tribunal member and a decision is required to be made on that prior to the hearing. And once those summons are approved, I've requested a timetable to be adjusted. Note that I have not submitted any submissions as yet, as can only be submitted once a review decision on the summons has been made and summons issued, given the documents or things produced will become a part of the applicant submissions.

Furthermore, I am unsure what is the urgency in having this hearing tomorrow as this is an application for an administrative review? Please can you go back to the Tribunal member and request review on the summons prior to the hearing and adjust the timetable as requested? If this can't be changed, then please can you request reasons from the member? If an application for the summons needs to be heard in an intermediate hearing, then it can be adjourned to 20 July 2023 to make a determination on summons and provide a further timetable considering the issuance, service and production of documents or things under summons.

Note that I would still request to have the hearing date of 14 July 2023 vacated as per the reasons outlined in my correspondence dated 8 July 2023, as per the above pending actions by the Tribunal. Please can I request to have this action? And get back to me by 4:00 PM today?

44. On 13 July 2023, Principal Member Simon instructed the Registry to issue the following email to the parties:

The contents of the email from the applicant dated 13 July 2023 are noted. The email does not demonstrate that it has been copied to the Respondent and it is unclear if they are on notice of the requests being made. The application for adjournment, the review of the refusal to issue the summonses and the application for extension of time will all be dealt with by the Tribunal Member at the hearing on 14 July 2023. The parties are on notice that they are expected to attend and the matter may proceed in the absence of either party.

45. At 4:25pm on 13 July 2023, the applicant sent the following further email to the Tribunal:

Copying Defendants Legal representative Mr Nathan Roberts if a consent is required to have tomorrow's listing vacate and have the issue of summons be determined first, or have the matter relisted on 20 July 2023 for the summons or a timetable to be heard.

The Registrar - Please can you advise and have the request actioned? Note that there is no urgency for the hearing to occur tomorrow.

46. Further, at 5:06pm, the applicant sent yet another email to the Registry:

Dear Registrar,

Can you please get back to both parties on my previous email this evening? There appears to be no objection from the defendant and there is no urgency for the hearing to occur tomorrow.

47. I note that the emails dated 4:25pm and 5:06pm were sent outside the Registry’s usual operating hours.

The hearing

48. The matter came before me for hearing on 14 July 2023. Mr N Roberts appeared for the respondent, but there was no appearance by or on behalf of the applicant.

49. Mr Roberts advised the Tribunal that he had this morning sent an email to the applicant, advising him that the Tribunal had yesterday informed the parties that they were to attend the hearing today and that the matter could proceed in the absence of either party. He also stated that a witness was in attendance for cross-examination at the applicant’s request.

50. The Tribunal attempted to contact the applicant on his mobile phone. However, the phone rang out unanswered and eventually went to voicemail. I left a message for the applicant, advising that I was conducting a hearing of his application for administrative review and that he had not appeared. I stated that I would attempt to call him again in a further 5 minutes and that he should answer his phone, failing which I may have no option but to dismiss the matter under s 55 of the NCAT Act or to proceed to hear the matter in his absence.

51. I stood the matter in the list for a period of five minutes.

52. When the hearing resumed, I called the applicant again via his mobile phone and he eventually answered it. I advised the applicant that I was calling from NCAT and I referred to the order that he received yesterday, advising him that the hearing was proceeding today. I asked why he was not in attendance. The following exchange followed:

Applicant - I have responded a couple of times and also left a voicemail as well…

Tribunal: The hearing is proceeding. Do you wish to participate by way of telephone? A witness is here, available for cross-examination as per your request, and the only person who is not here is yourself, after you were told that the matter was proceeding.

Applicant: But I have requested…

Tribunal: The adjournment request was refused on the basis that the Tribunal is now the decision maker, it is a hearing de novo and if you wish to have your matter heard, this is your opportunity to do so. So, do you wish to participate by phone or do you wish me to proceed in your absence

Applicant: I would like to have it relisted Member.

Tribunal: No. It is listed for hearing today. You made an application for an adjournment and that application was refused by Principal Member Simon, and you have decided not to attend.

Applicant: Yes because I cannot because I have a Supreme Court matter on Monday and I am right now at the Court in the Registry to have the Court file reviewed and to go from there and I have requested …

Tribunal: Well I will have no option, since you have chosen not to attend after your adjournment application was refused by a Principal Member, the matter will proceed in your absence. It is an application for administrative review of a decision under the Government Information (Public Access) Act. You do not bear any onus of proof. The respondent does. So if you choose not to participate that is your choice, but the matter is proceeding today. So what do you say.

Applicant: Well Registrar…

Tribunal: I am not a Registrar, I am a Senior Member… How long will it take you to travel from Queens’ Square to Goulburn Street?

Applicant: No, it’s going to take time. The thing is I haven’t provided my submissions.

Tribunal: That is a problem then.

Applicant: Yes, that is why I was requesting that the summonses that I requested could be reviewed by a Member because I had a right to have those reviewed…

Tribunal: The witness is sitting here, available for cross-examination, and the only person who is not here for the hearing is yourself. I ask you again, as the Tribunal has extended the timetable several times and you have not provided any reason for failing to file submissions, and you cannot unilaterally decide when you will and will not attend a hearing date.

Applicant: I have requested… I have provided many reasons…

Tribunal: Yes, and the requests have been determined and refused by Principal Member Simon and you received that communication yesterday and you are still not here. So I ask you again, how long will it take for you to travel from Queens Square in Sydney to Goulburn Street for your hearing today?

Applicant: No I’m not going to attend. You can count me as no-appearance. I reserve my rights. I would still like to have the summons reviewed.

Tribunal: No, the witness is here to be cross-examined. The Tribunal told you that it intended to deal with these issues at the hearing today and you have chosen not to attend.

Applicant: It needs to be relisted.

Tribunal: No, this is your opportunity for a hearing and you have just informed me that you will not be appearing.

Applicant: Is there anyone there from IPC?

Tribunal: You are not here to pursue that issue. You have chosen not to attend…. You were told that these issues would be dealt with at the hearing today, but you are not here to enable me to deal with them, so I will deal with the application for administrative review in your absence as you’ve just informed me that you will not be appearing.

Applicant: Well my request would be to have it relisted. I will have you proceed if you would like to, but I would like to cross-examine…

Tribunal: You were told the issues you raised would be dealt with today and you have chosen not to attend.

Applicant: Because of the other summonses… What is the urgency?

Tribunal: The matter is listed for hearing. You have told me for the first time this morning that you are reviewing a file in the Supreme Court registry. That is not a sufficient reason for failing to attend the hearing of your application.

Applicant: No there are other reasons Member. I have requested summons, I haven’t prepared my submissions because I am expecting some documents to be produced under those summons, which I would like to have provided in an affidavit.

Tribunal: If you had been here this morning, we could have dealt with the issue of the summonses. You are not here to make submissions on so I cannot hear from you on that, so I will have no option now but to proceed in your absence.

Applicant: I reserve my rights to have it set aside.

Respondent: If you wish to reserve your rights to lodge an appeal on the basis that you decided to not attend, after being served with a copy of the order and decision made by Principal Member Simon, then that is a matter for you.

Applicant: I reserve my right to set aside.

Tribunal: You do not have any automatic right to set aside because you did not attend the hearing.

Applicant: Yes, so I have the right for where there is a non-appearance….

Tribunal: No. If I dismiss the matter under s 55 of the NCAT Act, you have an opportunity to apply for reinstatement, but I am not going to dismiss the matter under s 55. I am going to hear it in your absence and s 55 does not apply. You have had every opportunity to comply with the directions made by the Tribunal throughout the history of the matter including preparing for the hearing today and you have chosen not to do so.

Applicant: But, why is there no equal opportunity being given to the applicant?..

Tribunal: Everyone is here, but you are not, and the matter is listed for hearing. You are not here, by your choice.

Applicant: No it is not by my choice, I have a valid reason…

Tribunal: You have chosen to be at the Supreme Court registry rather than attending your hearing.

Applicant: I have a Supreme Court hearing on Monday.

Tribunal: You have an obligation here. The matter was listed for hearing weeks ago and that is not a good enough reason.

Applicant: This is an administrative review matter and it has some criminality matters involved that I have to commence… it is important for me to deal with. That is why I have requested a few times for it to be adjourned. I will leave it up to you Member because I think we are just going around and around in circles…

Tribunal: You applied for an adjournment. The application was considered by Principal Member Simon and it was rejected. You were specifically advised that these issues would be determined at the hearing today and yet you have decided not to attend. So the matter is proceeding in your absence.

53. The applicant then disconnected and the hearing proceeded in his absence.

The evidence

54. The respondent relied upon the following evidence, which was admitted without objection:

1. Affidavit of Sergeant Aaron Gaskell sworn 30 May 2023 – Ex A;

1. Affidavit of Matthew Smith affirmed 31 May 2023 – Ex B.

55. Sergeant Gaskell deposed that he commenced the role of CAD Systems Coordinator in February 2023 and he is responsible for managing the CAD business support unit. This team supports users of the Police CAD system, and assists with says He added activities related to operational information, investigation assistance, system maintenance, and technical upgrades.

56. Sergeant Gaskell stated that. Bay Police C ID System is an incident and resource management system. And provides the ability to communicate information from the community through 000 and other sources, to frontline police, enabling a timely response to request for assistance.

57. When an incident that requires police attendance is reported to the NSWPF, including 000 calls, police assistance line calls and front counter enquiries at a police station, a CAD incident is created. Each CAD incident is automatically assigned a unique incident number, followed by the date that it was created on. Each CAD incident contains the informant's name and contact number, the incident type number, the incident address or location, and a description of what is occurring or the type of assistance that is requested.

58. Based on the geographical location of the incident, the police CAD system automatically assigns the CAD incident to the correct police radio channel, and a police dispatcher broadcast the information over the police radio and requests nearby police vehicles to attend. One of the many automated features of the police CAD system is the “duplicate incidents” function. Whenever a CAD incident is in the process of being created, the police CAD system automatically searches for nearby CAD incidents, to determine if the current CAD incident being created is a possible duplicate of an existing incident.

59. If the police CAD System has identified a possible duplicate, the user creating the new CAD incident will be prompted to review the possible duplicate. If the existing incident is related to the same incident that the new CAD incident is being created for, the user will have the option to merge the two incidents together. If the existing incident is unrelated to the new CAD incident, the user will dismiss the prompt and continue creating the news CAD incident as per normal. The duplicate incidents feature is regularly used for incidents such as motor vehicle collision on a main road. Police 000 call takers may receive numerous phone calls from members of the public in relation to the same incident, with all informants providing slightly different locations in the same vicinity.

60. Where possible duplicate CAD incidents are identified, the call taker can merge the CAD incidents to ensure that all of the information about a single event is located in one place, and that there are not multiple CAD incidents that relate to the same incident.

61. In relation to the CAD incident sought in the GIPA request, Sergeant Gaskell stated that this was created at 1:22 PM on 11 July 2022, and it related to a concern for welfare at an address (which was provided) in St. Leonards. A redacted copy of this CAD report that was provided to the applicant.

62. In his affidavit affirmed on 31 May 2023, Matthew Smith, Senior Advisory Officer for the Infolink Unit of the NSWPF, stated that part of his role is being responsible for managing GIPA applications and/or internal reviews and that he was personally responsible for determining the applicant’s application for internal review.

63. Mr Smith set out the procedure followed by the respondent in issuing the first decision, including searching for information within the scope of the GIPA request. He confirmed that a redacted CAD report for the relevant incident was released to the applicant, but the respondent refused the applicant access to the call recording and decided that it did not hold a copy of a police incident report. The respondent did not identify any transcript of the original call recording in the schedule to the original decision.

64. Mr Smith stated that the CAD report is in a class of information only accessible by a limited number of officers or employees of NSWPF, where access is required for their role, and held in strict confidence of accessed. The NSWPF Customer Charter requires police to maintain the confidentiality of information received from members of the public. A copy of the Customer Service Charter was annexed to the affidavit. He stated that in his opinion and based upon his experience, disclosure of the redacted parts of the CAD report and the call recording would or could prejudice the effective exercise of the NSWPF’s functions (specifically its law enforcement functions of detecting and investigating crime and protecting the community) by revealing identifying details of the caller and thereby:

1. Undermining the confidence of the caller and other members of the public that, if they contact the NSWPF to provide information (including via the Police Assistance Line), their details will be kept confidential;

2. Discouraging members of the public from contacting NSWPF; and

3. Prejudicing the supply of information to the NSWPF.

65. A breach in the trust that individuals or the community have in the NSWPF maintaining confidentiality over information supplied that may prejudice the future supply of information to the NSWPF would have detrimental effects on the NSWPF’s key functions.

66. Mr Smith deposed to the process he undertook in making the internal review decision, including undertaking searches for information within the scope of the GIPA request. He stated that the call recording has not been released to the applicant and that the respondent does not hold a copy of a police incident report. He also stated:

30. From my experience, when police have some interaction with a member of the public, an Event Report is created. The nature of the Event Report can vary from occurrence only, when members of the NSWPF speak with members of the public with no further action to be taken, or may outline circumstances warranting further investigation.

31. From my experience, an Event Report of this type is linked to the profiles of those persons mentioned in the recording, or the address recorded. For completeness, I conducted searches of the COPS profiles of all persons named in the call recording as well as a search of the relevant address. No report relating to this incident was attached to any of those profiles.

32. It is also my experience that where interactions with NSWPF are transitory or of a minor nature, no report will be created.

33. In relation to transcripts of call recordings, I know from my experience that transcripts of calls are not made automatically. Transcripts of call recordings are only made if the matter goes before the court, or further investigation is undertaken as part of the NSWPF investigative functions.

67. In relation to the application for external review, Mr Smith stated that he is aware that the applicant applied to the IPC and he annexed a copy of the applicant’s and the IPC’s Review Report to his affidavit. He concluded that the IPC was satisfied that the NSWPF’s decision was justified and made no recommendation to the NSWPF.

Confidential hearing

68. Section 49(2) of the NCAT Act provides that, “The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it 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.”

69. As the respondent lodged a copy of the call recording and an unredacted copy of the CAD Report with the Tribunal on a confidential basis, the Tribunal decided to consider the confidentiality of that information in a private hearing under considered this information in a confidential pursuant to s 107 of the GIPA Act.

70. [NOT FOR PUBLICATION]

71. [NOT FOR PUBLICATION]

Resumption of the open hearing

72. At the completion of the confidential hearing, the Tribunal resumed the open hearing.

Respondent’s submissions

73. The respondent filed submissions on 1 June 2023. After setting out a lengthy background to the dispute before the Tribunal, the respondent argued that the issues in dispute are:

1. Whether the respondent has identified all information relating to the GIPA request;

2. Whether the redactions to the CAD report are justified; and

3. Whether the call recording should be released to the applicant.

74. The respondent submitted that under s 53 of the GIPA Act, it must conduct reasonable searches for the government information requested by the applicant.

75. In Smith v Commissioner of Police [2012] NSWADT 85, Judicial Member Isenberg stated, at [27]:

In making a decision as to the sufficiency of an agency search for documents which an applicant claims to exist, there are two questions:

(a) Are there reasonable grounds to believe that the requested documents exist and other documents of the agency?; and if so,

(b) Happy search efforts made by the agency to locate such documents being reasonable in all the circumstances of a particular case.

76. In relation to the first LEM office test, the tribunal has observed that it is not enough for an applicant to simply assert non-compliance on the basis of a general distrust of the agency. As observed by O'Connor, DC J. In Cianfrano v The Director General, Department of Commerce and Anor (No. 2) [2006] NSWADT 195, at [69]:

An applicant comrade seems to make material or submissions before the Tribunal which persuades the tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrusted of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting an affidavit evidence.

77. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [31]-[44], the Appeal Panel reviewed the authorities relating to s 53 of the GIPA Act and provided the following summary (at [44]):

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

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

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

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

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

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

78. In respect to the first link of the test in Smith, the Respondent argued that the applicant did not raise any concerns regarding the Sufficiency of searches until the Case conference on one May 2023., at which stage he suggested that the words “Duplicates identified” In the CAD report suggests that other records may exist within the scope of the application. However, he has not identified why those words suggest that other documents exist within the scope of the GIPA request and he does not otherwise provide any credible material or information as to why he does not consider that the respondent has conducted reasonable searches, identifying all the information responding to the GIPA request.

79. The respondent argued that the applicant appeared to have (incorrectly) Assumed that the respondent has more documentary evidence than has already been disclosed. Without identifying any reasonable basis to believe that any such information exists. It argued that the applicant has not satisfied the first limb in Smith except, potentially, In respect to the duplicates identified notation on the CAD report. This is addressed in the evidence of Mr Smith.

80. In respect to the second limb in Smith, the evidence of Sergeant Gaskell is that the “duplicates identified” notation in the CAD report is a reference to an unrelated incident that was automatically identified to be ideal to the CAD report. However cover did not fall within the scope of the GIPA request. the respondent stated that the evidence of Mr. Smith and Sergeant Gaskell makes it clear that the applicant has made Aronia's assumptions. About the existence of any additional documents held by the respondent within the scope of the GIPA request.

81. Having regard to the evidence of Mr Smith, the respondent argued that it has undertaken reasonable searches in response to the GIPA request and identified all documents within the scope that are reasonably able to be identified. Therefore, its decision that it does not hold the information sought by the applicant, other than what has been identified in the original decision and the internal review decision, should be affirmed.

82. The respondent then addressed the public interest test under s 13 of the GIPA Act. However, it argued that there are only two items to which the Tribunal needs to apply the public interest test, namely: (1) the CAD report (which has been released to the applicant subject to some redactions); and (2) the call recording (which has not been released).

83. The respondent identified the public interest considerations in favour of disclosure under s 12 of the GIPA Act are being:

1. The Statutory presumption in favour of the disclosure of government information (ss 5 and 12 of the GIPA Act);

2. The general right of the public to have access to government information held by agencies unless there is an overriding public interest against disclosure of the information (s 9 of the GIPA Act); and

3. The information sought, or at least some of it, relates to the applicant.

84. The respondent accepted that these factors should be given some weight.

85. However, the applicant’s application for administrative review also referred to ss 55(1)(a)-(b) of the GIPA Act, and the respondent specifically noted that the applicant’s request “relates to white-collar crime, conspiracy, probably corruption and unlawful surveillance.” Notwithstanding the applicants allegations, there is no reasonable basis to believe that the matters subject of the current application have any connection with any “white-collar crime, conspiracy, probably corruption and unlawful surveillance”. Accordingly, no weight should be given to those matters.

86. The respondent, identified the following public interest considerations against disclosure, namely that disclosure could reasonably be expected to:

(1) Prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency’s functions (cl 1(d) to the table in s 14(2) of the GIPA Act);

(2) Reveal an individual’s personal information (cl 3(a) to the table in s 14(2) of the GIPA act); and

(3) Contravene an information protection principle under the PPIPA or a HRIPA (cl 3(b) of the table in s 14(2) of the GIPA Act).

87. The respondent stated that the words “could reasonably be expected to” preface the clauses in the table to s 14 of the GIPA Act and have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 (NSW) and the Freedom of Information Act 1982 (Cth).

88. In Leech v Sydney Water Corporation [2010] NSWADT 298, the Administrative Decisions Tribunal gave the following explanation of 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.

(emphasis added)

89. In relation to cl 1(d), respondent argued that the Tribunal has held that for this to apply, the relevant information must not only be confidential information, but it must also be information that facilitates the effective exercise of an agency’s functions.

90. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWCATAP 19, the Tribunal’s Appeal Panel agreed with a submissions that an examination of the considerations in s 14 of the GIPA Act is to be examined at a broad operational level. Also in Camilleri, the Appeal Panel said (at [33]):

In its written submissions to the Tribunal below, reiterated on appeal, the agency submitted that there is an expectation, if not an express undertaking, that information reported to Police will be kept confidential and will only be used and disclosed by the Police in the conduct of law enforcement activities. In support of this view, the submissions drew on the observations of Smart AJ in Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270, and also similar observations in a number of Tribunal decisions, for example, Fisher v Commissioner of Police [2002] NSWADT 267, DZ v NSW Police [2002] NSWADT 274 and FA v NSW Police [2003] NSWADT 196.

(Emphasis added)

91. The Tribunal also acknowledged in Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 at [72] “in the usual case, information supplied to NSW Police will be treated as confidential”.

92. The respondent stated that Mr Smith’s evidence is that:

1. The respondent has a Customer Service Charter that requires police to maintain the confidentiality of information received from members of the public;

2. Disclosure of the call recording and redacted parts of the CAD report would or could have the effect of prejudicing the exercise of NSWPF’s functions of investigating crime and community protection by undermining that trust (specifically detecting and investigating crime and protecting the community by revealing identifying details of the caller) and thereby;

1. Undermining the confidence of members of the public that if they provide information to NSWPF, their details will be kept confidential;

2. Discouraging members of the public from contacting NSWPF; and

3. Prejudicing the supply of information to NSWPF; and

3. Prejudice the future supply of information to the NSWPF.

4. More particularly, the Charter provides that the NSWPF will, when dealing with the community and their calls to the NSWPF’s Police Assistance Line, “maintain your confidentiality”.

93. Although the call recording in this matter was for the purposes of a welfare check, in Camilleri, the Appeal Panel considered whether there should be a distinction between informants and other people who seek police assistance when dealing with the issue of the expectation of confidentiality. The Appeal Panel said:

45. … Essentially the conditions as to confidentiality are set by the organisation responsible for the phone-in facility, whether it is a help line for people seeking counselling or an emergency services number…

46. In the case of emergency services-type contact it will be the wish of many callers that there be some immediate action taken by the relevant service (police, fire brigade, ambulance, as it may be). They would, we think, expect their information to be used to address the concern to which it relates. It does not follow from that confidentiality is thereby not expected, or not guaranteed, in respect of extraneous uses of the information.

94. The Tribunal has previously accepted that there is a real risk that members of the public will be less inclined to provide information to the respondent in the future if there is a chance that information of the kind at issue may be publicly disclosed and that, without the flow of information to the respondent, the respondent’s ability to prevent and detect crime would be impacted significantly, and this would “have the impact of significantly impacting the effective exercise of the respondent’s functions”.

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

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

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

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

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

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

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

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

126. Section 14 relevantly provides:

14. Public interest considerations against disclosure

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

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

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

127. Clause 1(d) of the table to s 14(2) provides:

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)—

…

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

128. Clause 3(a) of the table to s 14(2) provides:

3 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—

(a) reveal an individual’s personal information,

129. Clause 3(b) of the table to s 14(2) provides:

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—

…

(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,…

130. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, 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 paragraph [104]. Subsections 15(a) - (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only s 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act.

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

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

53. Searches for information held by agency

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

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

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

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

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

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

55. Consideration of personal factors of application

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

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

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

(c) any other factors particular to the applicant.

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

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

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

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

136. Section 107 of the GIPA Act provides:

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.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of—

(a) the public and the applicant, and

(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

Public interest considerations in favour of disclosure

137. The reviewable decision identified relevant public interest factors in favour of disclosure of the disputed information. I agree with those public interest considerations and I agree that these should be given some weight.

Public interest considerations against disclosure

138. The respondent contends that, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure.

Clause 1(d) of the table to s 14(2) of the GIPA Act

139. I am satisfied that cl 1(d) applies to the disputed information, because it is confidential information and it facilitates the effective exercise of an agency’s functions.

140. I note that Camilleri is authority for the proposition that cl 1(d) must be considered at a broad operational level and that the issue of confidentiality must be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts the service within which the information was released. Further, in Seremetis, the Tribunal acknowledged that in the usual case, information supplied to the respondent will be treated as confidential.

141. Based upon the unchallenged evidence of Mr Smith, the respondent’s Customer Service Charter requires police to maintain the confidentiality of information received from members of the public. He also stated that disclosure of the call recording and redacted parts of the CAD report would or could prejudice the effective exercise of the respondent’s functions of investigating crime and community protection by undermining that trust by revealing identifying details of the caller and thereby: (1) undermining the confidence of members of the public that if they provide information to the respondent, their details will be kept confidential; (2) discouraging members of the public from contacting the respondent; and (3) prejudicing the future supply of information to it.

142. Further, Mr Smith’s unchallenged evidence is to the effect that the Customer Service Charter provides that the respondent will, when dealing with the community and their calls to the NSWPF’s Police Assistance Line, “maintain your confidentiality”.

143. For these reasons I am satisfied that this consideration should be given significant weight.

Clause 3(a) of the table to s 14(2) of the GIPA Act.

144. I accept the respondent’s argument that the call recording contains information that could identify the callers and that this is personal information as defined in cl 4(1) of Sch 1 of the GIPA Act.

145. I accept the respondent’s evidence that there is nothing in either the GIPA request or its records that indicates that the applicant has already heard the recording, or that it is in the public domain. On that basis, I am satisfied that releasing a copy of the call recording to the applicant would reveal the caller’s personal information.

146. I also accept the respondent’s evidence that the information in the CAD record, which was redacted under cl 3(a), includes names, addresses, dates of birth, contact phone numbers of other people. Therefore, it is their personal information as defined in the Act.

147. I accept the respondent’s evidence that there is nothing in the GIPA request or in its records to indicate that this information is in the public domain and that disclosure would reveal the information and breach the rights of the people concerned to have their information protected.

148. For these reasons, I am satisfied that this consideration should be given strong weight.

Clause 3(b) of the Table to s 14(2) of the GIPA Act

149. The respondent stated that it has a responsibility to maintain any personal details and information provided by the public in accordance with s 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). The information in the CAD record, which was redacted under cl 3(b), consists of the information listed described in relation to cl 3(a).

150. I am satisfied that as the CAD record was created for the primary purpose of the police investigation, and disclosure under the GIPA Act is secondary to that purpose, disclosure of this information would contravene principle s 18 of the PPIP Act.

151. I am satisfied that this consideration should be given strong weight.

Balancing the Public Interest

152. In considering whether to disclose the disputed information, I am required to apply the public interest test under s 13 of the GIPA Act. I have done so in accordance with the principles set out in Flack.

153. Having done so, I am satisfied that there is an overriding public interest against disclosure of the disputed information.

Conclusion

154. For the reasons set out above, I am satisfied that the correct and preferable decision is to affirm the respondent’s decision.

Orders

155. I order that the decision under review is affirmed.

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

Registrar

Decision last updated: 29 August 2023