GGC v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 57

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GGC v Commissioner of Police, NSW Police Force [2024] NSWCATAD 57

Hearing dates:

19 February 2024

Date of orders:

05 March 2024

Decision date:

05 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R C Titterton OAM, Senior Member

Decision:

1.   The decision of the respondent dated 4 September 2023 is varied so as to provide access to the applicant of the information appearing in:

(a)   the last sentence of the second last paragraph on page 3 of COPS Event Report E84662526;

(b)   the second last paragraph on page 2 of COPS Event Report E80938452; and

(c)   the fourth paragraph on page 3 of COPS Event Report E55128475.

2.   The decision of the respondent dated 4 September 2023 is otherwise affirmed.

3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication and broadcast of the name of the applicant is prohibited.

Catchwords:

ADMINISTRATIVE LAW — access to government information — whether, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 61, 63(3)

Government Information (Public Access) Act 2009 (NSW), ss 3, 5, 12, 13, 14, 15, 54, 55, 58, 73, 84, 100

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 36(1)(e)

Privacy and Personal Information Protection Act 1998 (NSW), s 18

Cases Cited:

Adams v Commissioner for Police (NSW) [2022] NSWCATAD 178

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

Commissioner of Police Force v Barrett [2015] NSWCATAP 68

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

EMC v University of Sydney [2021] NSWCATAD 234

FLF v Children's Guardian [2022] NSWCATAD 380

FNJ v Commissioner of Police (NSW) [2022] NSWCATAD 130

Hrdavec v State of New South Wales [2022] NSWCA 52

Leech v Sydney Water Corporation [2010] NSWADT 298

Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254

R v Rondo [2001] NSWCCA 540

Texts Cited:

Nil

Category:

Principal judgment

Parties:

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

Representation:

Solicitors:
Public Interest Advocacy Centre (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00343898

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication and broadcast of the name of the applicant. For this purpose, the pseudonym ‘GGC’ will be used for the name of the applicant.

REASONS FOR DECISION

Introduction

1. By application filed 30 October 2023 the applicant, seeks administrative review of an internal decision of the respondent of 4 September 2023 (the Internal Review Decision). The Internal Review Decision relates to an initial access application made by the Public Interest Advocacy Centre (PIAC) on 5 July 2023 on behalf of the applicant.

2. The applicant acknowledges that since her application was filed the respondent has decided to release additional information to the applicant under s 58(1)(a) of the Government Information (Public Access) Act 2009 (NSW) (GIPA) since the Internal Review Decision. Nevertheless, the applicant presses her claim for access to the remaining information that has been withheld from release (the Disputed Information).

3. In summary, the applicant submits that the correct and preferable decision is for some or all of the Disputed Information to be released to the applicant on the basis that:

1. the extent of the information presently withheld by the respondent is greater than what is necessary to protect another individual's personal information or to avoid contravening an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP); and/or

2. the public interest in disclosure in this instance outweighs the public interest in the protection of another individual's personal information or avoiding contravening an IPP.

4. For the reasons given below, I have decided to reject the submission that that the correct and preferable decision is for some or all of the Disputed Information to be released to the applicant.

Relevant principles

5. I was greatly assisted with comprehensive submissions from Ms K Sinclair of PIAC for the applicant, and Ms E Daley of the Crown Solicitor’s Office.

6. I could see no substantive difference in those submissions as to the relevant principles to be applied in applications. Indeed, the applicant expressly adopted many of the respondent’s submissions.

7. I summarise those principles as follows.

Administrative Decisions Review Act 1997 (NSW)

8. The task of the Tribunal is to determine the correct and preferable decision, having regard to any relevant factual material and applicable written or unwritten law before it, and is able to exercise all functions conferred or imposed on the decision maker: Administrative Decisions Review Act 1997 (NSW) (ADRA), s 61(1)-(2).

9. The Tribunal’s consideration is not limited to the materials that were before the respondent at the time the Internal Review Decision was made: FNJ v Commissioner of Police (NSW) [2022] NSWCATAD 130 at [3].

10. The Tribunal is to re-make the respondent's decision and may determine to affirm or vary the Internal Review Decision, or to set aside the Internal Review Decision and either substitute its own decision or remit the matter for reconsideration by the decision maker in accordance with any directions or recommendations: ADRA, s 63(3).

GIPA

11. The Internal Review Decision followed an internal review conducted by the Respondent. Section 84(1) of GIPA provides that this involves “making a new decision, as if the decision being reviewed ... has not been made”.

12. Section 15(a) of GIPA provides that agencies must exercise their functions to promote the object of GIPA. The object of GIPA is set out in s 3 as follows:

3   Object of Act

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

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

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

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

(2)  It is the intention of Parliament—

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

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

13. An agency can provide access to information sought, or refuse to do so because there is an overriding public interest against its disclosure (OPIAD): GIPA s 58(1).

14. A grant of access cannot be made subject to conditions: GIPA, ss 15(e) and 73, FNJ at [26].

Presumption in favour of disclosure

15. There is a presumption in favour of disclosure of information unless there is an OPIAD, and the applicant has a legally enforceable right to access information unless there is an OPIAD: GIPA, s 5.

Test to determine whether OPIAD

16. Whether there is an OPIAD is to be determined pursuant to the “public interest test” in s 13 of GIPA which provides:

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

17. The public interest considerations against disclosure are set out in s 14 of GIPA as follows:

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.

(4)  The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

18. This is an exhaustive list of the public interest considerations against disclosure: FNJ at [20].

19. The Table accompanying s 14 (the Table) is set out in Attachment A.

20. The public interest considerations in favour of disclosure are set out in s 12 of GIPA as follows:

12   Public interest considerations in favour of disclosure

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

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

Note—

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

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

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

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

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

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

(3)  The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

21. The public interest test provides a structured approach, first requiring any relevant s 14 grounds to be identified, then weighing those against any relevant s 12 factors: Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59]; FLF v Children's Guardian [2022] NSWCATAD 380 at [75].

22. Although consideration of any s 14 ground should be examined at “the broader operational level of the relevant agency” (Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [26]), the “particulars of the "instant situation" that is before the Tribunal ... should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations”: FNJ at [99]; Adams v Commissioner for Police (NSW) [2022] NSWCATAD 178 at [63].

Consultation regarding public interest considerations

23. Section 54 of the GIPA relates to consultation with other persons (including other agencies and governments) before providing access to information in certain circumstances.

24. While the respondent has determined not to consult the individuals whose personal information is alleged to be contained within the Disputed Information, the applicant submits that this option remains available to the respondent and is a reasonable and appropriate avenue for resolving this dispute. Those individuals, if they had made an application under the Act, would have a right to access the information held by the agency about them, other than to the extent that exceptions apply.

Consideration of personal factors

25. Section 55 of GIPA relates to the consideration of personal factors of an application, including as relevant to public interest considerations, and relevantly provides as follows:

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 and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

(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.

Onus on Respondent to justify decision

26. In an application for review under s 100 of GIPA, the onus lies on the respondent to justify the decision not to provide access to government information.

The respondent’s submissions

27. The respondent submits that disclosure of the Disputed Information is subject to the overriding public interest against disclosure. The respondent notes that it no longer relies on the considerations set out in items 1(f) and 2(b) of the Table, and confines its submissions to the considerations in items 3(a) and (b) of the Table. That is:

3   Individual rights, judicial processes and natural justice

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,

(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,

28. After setting out the background to the application and the applicable legal principles, the respondent then makes the following submissions grouped as follows.

Applying the public interest test

29. In summary, the respondent submits that:

1. there will be an overriding public interest against disclosure of information where the public

2. interest considerations against disclosure outweigh those favouring disclosure: GIPA, s 13;

3. in relation to public interest considerations against disclosure, the Table to s 14 of GIPA sets out the only considerations that may be taken into account when applying the s 13 public interest test: GIPA, s 14(2);

4. the considerations against disclosure in the Table to s 14 arise where the disclosure of information "could reasonably be expected" to have the relevant effect. This requires a decision-maker to make a judgment "as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous": Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190. The words "could reasonably be expected" have their ordinary meaning; require the application of an objective test, approached from the view-point of the reasonable decision-maker, and involve something more than a mere possibility, risk or chance, which is based on real and substantive grounds, as opposed to being purely speculative, fanciful, imaginary or contrived: Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

Public interest considerations favouring disclosure

30. The respondent acknowledges that the following public interest considerations in favour of disclosure apply to the Disputed Information:

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

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

3. disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. The respondent accepts that the conduct and operations of the NSW Police Force are matters of public importance;

4. disclosure of the information could reasonably be expected to inform the public about the operations of the NSW Police Force

31. At Annexure A to her Application for Administrative Review, the applicant submits that the following additional public interest considerations in favour of disclosure apply:

1. disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds: GIPA, s 12(2) example (c).

2. disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct: GIPA, s 12(2) example (e).

32. With respect to example (c), the respondent submits that it is clear from those parts of the COPS reports that have been released that the events in question occurred while NSW Police Force officers were on patrol, in the usual course of their patrol duties. They did not involve a diversion of NSW Police Force resources of any significance. Accordingly, if the Tribunal finds that this consideration applies, it should be afforded minimal (if any) weight.

33. With respect to example (e), the respondent submits that there would need to be cogent and persuasive evidence for this consideration to apply: see EMC v University of Sydney [2021] NSWCATAD 234 at [206] and Commissioner of Police Force v Barrett [2015] NSWCATAP 68 at [135]-[136]. The respondent submits there is is nothing in the material presented by the applicant to date, or on the face of the Disputed Information, which would support the application of this consideration.

34. The respondent submits that there are also two personal factors which may be taken into account under s 55 for the purposes of determining whether there is an overriding public interest consideration against disclosure.

35. First, the applicant seeks access to the Disputed Information for the purposes of obtaining legal advice with respect to the lawfulness of police searches to which she was subjected.

36. Secondly, the applicant is aware of the identity of the persons with whom she was associating at the time of the relevant searches. The respondent acknowledges that the applicant's motivation for seeking access to the Disputed Information is a factor in favour of providing access (s 55(2)). However, for the reasons outlined later in the respondent’s submissions, the respondent submits that the applicant's relationship with the persons whose personal information is contained in the Disputed Information is a factor against providing access (s 55(3)).

Public interest considerations against disclosure

Item 3(a) – disclosure would reveal personal information

37. The respondent submits that in considering whether information is "personal information" it is necessary to consider:

1. whether the information is "about an individual"; and

2. whether the identities of the individuals is apparent or can reasonably be ascertained.

Information is about an individual

38. The respondent submits that it is apparent on the face of the Disputed Information that it constitutes information or an opinion about individuals other than the applicant. In particular, it is comprised of information about those individuals' interactions with the NSW Police Force and criminal intelligence about those individuals. There is no suggestion that this information has been publicly disclosed.

Ascertainment of identities

39. The respondent submits that the individual the subjects of the Disputed Information are known to the applicant and are persons with whom she was associating at the time of the searches. Accordingly, even though the individuals are not named in the Disputed Information, the remaining information could still allow the individuals to be identified by the applicant and other persons familiar with the individuals involved. This is particularly so having regard to the fact that the released information in each report identifies the time, date and location of each incident, the movements of the vehicle, and the registration details of the vehicle.

40. Accordingly, the respondent submits that disclosure of the Disputed Information could reasonably be expected to reveal personal information about third parties. On this basis, it is submitted that item 3(a) applies as a public interest consideration against disclosure.

41. The respondent then provides detailed submissions as to why disclosure of the Disputed Information on p 6 of COPS Report E61556034, p 6 of COPS Report E84662526 and pp 2, 3 and 4 of COPS Report E55128475 could reasonably be expected to reveal personal information.

Weight to be attributed to item 3(a) as a public interest consideration against disclosure

42. In summary, the respondent submits:

1. item 3(a) should be accorded significant weight when balancing the public interest in respect of the Disputed Information. The information that would be revealed comprises information about police interactions with individuals other than the applicant and criminal intelligence relating to the activities of those individuals. It is highly personal and sensitive in nature. To disclose such information would constitute a serious invasion of the privacy of the individuals to which the information relates;

2. while the applicant has identified a legitimate motive for seeking access to the Disputed Information, the Tribunal should consider the consequences that would flow from disclosure of the information beyond the applicant, and the potential implications such disclosure would have for the individuals concerned;

3. having regard to the nature of the information in issue, it may be presumed that the relevant individuals would generally object to the information being disclosed without their consent. In light of the fact that the information relates in part to police intelligence, the respondent is of the view that it is not appropriate for the respondent to consult with the relevant individuals in order to obtain their views about the disclosure. If the Tribunal were minded to release the information, however, the respondent considers that the Tribunal should provide the relevant individuals with an opportunity to be heard.

Item 3(b) – disclosure would contravene an IPP

43. The respondent submits that disclosure of the Disputed Information would contravene the disclosure IPP in s 18(1) of PPIP, namely that disclosure of the Disputed Information would not be a form of lawful disclosure as provided for by s 18(1) of PIPP because:

1. disclosure would be for a purpose other than that for which the information was collected;

2. the Disputed Information is not information which is usually disclosed to individuals such as the applicant. The individuals to which the information relates are not reasonably likely to be aware that the information of this kind is usually disclosed to GIPA applicant. The individuals concerned have not been made aware of the proposed disclosure, and the respondent does not consider that it would be appropriate to do so, given the nature of the information that has been withheld; and

3. there is no basis for a belief that disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of any person.

44. The respondent concludes by submitting that item 3(b) applies as a consideration against disclosure, and should be accorded significant weight when balancing the public interest.

Balancing the public interest

45. The respondent acknowledges that the Disputed Information on p 3 of E8466252, p 6 of E61556034 and p 4 of E55128475 is relevant to the decisions made by NSW Police officers to search the applicant on the three occasions in question.

46. In addition, the respondent accepts that disclosure of the Disputed Information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance, and to inform the public about the operations of the NSW Police Force.

47. The respondent submits that it is appropriate to afford reasonable weight to these considerations in favour of disclosure.

48. However, the respondent submits that the information on pp 2 and 3 of E55128475 is only relevant to the decisions made to search other individuals.

49. Nonetheless, the respondent submits that these considerations are outweighed by the considerations against disclosure. Disclosure of the Disputed Information would intrude on the privacy of other individuals and reveal sensitive personal information about those individuals relating to suspected criminal activity. The prejudice that would flow from the disclosure of this information to the individuals to which the information relates should be accorded determinative weight, in circumstances where, once released, disclosure is to the "world at large" and may prejudice third parties' reputation and life in the community.

50. In conclusion, the respondent submits that the public interest considerations against disclosure far outweigh the public interest favouring disclosure such that there is an overriding public interest against disclosure of the information requested.

The applicant’s submissions

Summary

51. The applicant submits that the correct and preferable decision is for some or all of the Disputed Information to be released to the applicant on the basis that:

1. the extent of the information presently withheld by the Respondent is greater than what is necessary to protect another individual's personal information or to avoid contravening an IPP; and/or

2. the public interest in disclosure in this instance outweighs the public interest in the protection of another individual's personal information or avoiding contravening an IPP.

Considerations the Applicant submits weigh in favour of disclosure

52. The applicant submits that examples (a), (b), (d) and (e) set out under s 12(2) are relevant considerations. These are set out above.

Personal factors

53. The applicant also submits that that details of the applicant's personal factors and the context and subject all support the applicant's submission that the public interest considerations in favour of disclosure are relevant and should be afforded significant weight in deciding where there is an OPIAD of any information.

54. The personal factors are stated as:

28. The Applicant is an Aboriginal woman. At all relevant times, she lived in rural NSW.

29. The Disputed Information relates to incidents where individual police officers, on behalf of the Respondent, have exercised search powers under the Law Enforcement (Powers. and Responsibilities) Act 2002 (NSW) (LEPRA) on the Applicant and/or on a vehicle that the Applicant was driving or in which she was a passenger. The Applicant made the initial access application in order to determine whether these search powers were lawfully exercised.

30. On each occasion, it appears police purportedly exercised their search powers on the Applicant on the grounds that police suspected the Applicant had in her possession or under her control a prohibited plant or prohibited drug (together, 'illicit drugs'), pursuant to sections 21(1)(a)), 21(1)(d) or 36(1)(e) of LEPRA. As discussed further a… the precondition to the exercise of this power is the police officer suspecting 'on reasonable grounds' that certain circumstances exist.

31. Over a six year period, from July 2014 to July 2022, police officers exercised search powers on the Applicant and/or her vehicle on at least seven occasions. During a number of these searches, it was not clear that there were reasonable grounds to support the use of these search powers.

55. After setting out two such occasion by way of example, the applicant submits that:

32. On the first of these occasions, police did not detail why the certain location or intelligence gave rise to their suspicion that the Applicant was in possession of an illicit substance. In the second, there is authority in NSW that reasonable suspicion is not lawfully raised by avoiding eye contact with police or looking nervous." it appears on face value that in both instances, the police lacked lawful

33. The Disputed Information relates to three other searches of the Applicant.  …

56. The applicant then summarises the information available to her in the redacted COPS Event Reports E84662526, E61556034, and E55128475 which were available to her.

Section 12 factors

57. The applicant notes that the respondent has accepted that the examples in (a), (b) and (d) of s 12(2) apply to the Disputed Information.

58. The applicant further submits that the consideration in example (e) is relevant and should be given significant weight because:

1. pursuant to ss 21(1)(a), 21(1)(d) or 36(1)(e) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), police must have “reasonable grounds to suspect” someone is in possession of illicit drugs, before they can exercise their discretion to conduct personal searches or searches of vehicles without a warrant;

2. the meaning of “reasonable suspicion” or “suspects on reasonable grounds” was considered in R v Rondo [2001] NSWCCA 540 and which set out the following principles:

1. reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E [Crimes Act section in question at the time]. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence;

2. reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value;

3. what is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances;

3. it has been pointed out on many occasions that the long-standing test of a suspicion based on reasonable grounds involves both a subjective and an objective element. A suspicion is something less than a belief that the person has committed an offence. If challenged, the officer must be able to demonstrate some factual basis for holding the suspicion, being a basis which a reasonable person would accept as providing support for the suspicion, whether or not such a person would necessarily draw the relevant inference: Hrdavec v State of New South Wales [2022] NSWCA 52 at [16].

59. The requirement that police must hold a reasonable suspicion is one of the primary legal protections citizens have against arbitrary police searches. Searches that occur in the absence of any reasonable suspicion are unlawful and can give rise to claims in tort for false imprisonment, assault and battery.

60. The applicant submits that the information withheld could reasonably be expected to reveal or substantiate whether the decision to exercise police search powers on the applicant (on the occasions detailed in the relevant event reports) was proper and lawful.

61. The applicant then sets out specific submissions in respect of each COPS Event Report.

Factors the respondent submits weigh against disclosure

62. In response to what the applicant describes as the respondent's “modified position”, the applicant challenges the proposed varied decision to refuse access to the Disputed Information on the basis of items 3(a) and 3(b) of the Table.

63. In principle, the applicant does not challenge the withholding of information to the extent that it is necessary to protect the identity of third parties. However, the applicant submits that where redactions have been made, particularly to entire paragraphs, those redactions should be reduced to only what is necessary to address any OPAID.

64. The applicant concludes with references to the Second Reading Speech for the relevant Bill, and submits in summary that it was the intention of Parliament that a “high bar” be created for the withholding of government information.

65. The applicant submits where the Respondent has identified s 14 grounds of some relevance to the information (including those considerations within items 3(a) and 3(b)), its approach to deciding there is an OPIAD resulted, and continues to result, in more information being withheld than can be justified.

The respondent’s submissions in reply

66. The respondent provided submission in reply, which I will consider below where appropriate.

Consideration

67. During the course of her oral submissions, Ms Sinclair made a submission to the effect that the applicant, who does not have access to the Disputed Information, wanted the Tribunal to independently review the Disputed Information and to determine for itself whether the respondent’s claims were justified.

68. Therefore, my first step is to examine the Disputed Information myself.

Examination of Disputed Information

COPS Report E84662526

69. As to p 3 of COPS Report E84662526, in relation to the redacted information in the upper area of p 3 (which I understand is no longer sought by the applicant), the redacted information contains information that reveals an individual’s personal information, being the person’s name, address and date of birth, that individual not being the applicant.

70. In relation to the remaining redacted information in the middle of p 3, having examined the information I accept as accurate the respondent’s submission that this event report concerns an incident in which NSW Police Force officers conducted a search of a vehicle occupied by the applicant and one other person, as well as conducting personal searches of the applicant and the other person.

71. I accept the respondent’s submission that the redacted information reveals criminal intelligence about both the applicant and the other person, and the information about the applicant cannot be extracted from the information about the other person.

COPS Report E55128475

72. As to COPS Report E55128475:

1. I am satisfied that the redacted information in the upper area of p 2 (which I understand is no longer sought by the applicant), contains information that reveals an individual’s personal information, being the person’s name, address and date of birth, that individual (the first person of interest) not being the applicant. I am also satisfied that the redacted information reveals criminal intelligence about the first person;

2. I am satisfied that the redacted information sought in the lower area of p 2 records:

1. records personal information and criminal intelligence about the first person of interest; and

2. personal information (namely their name) and criminal intelligence about a second person of interest and criminal intelligence about a vehicle of interest.

3. I am satisfied that the redacted information sought in the upper area of p 3 records personal information (namely their name) and criminal intelligence about the second person of interest.

4. I am satisfied that the redacted information sought in the lower area of p 3 records criminal intelligence about the first and second persons of interest and the vehicle of interest.

5. I am satisfied that the redacted information sought in p 4 reflects the same criminal intelligence in relation to the vehicle of interest also redacted on pp 2 and 3.

COPS Report E61556034

73. As to COPS Report E61556034, I am satisfied that the redacted information sought on p 6 contains personal information about three persons (other than the applicant) being their names and in relation to one of three persons, their address and criminal intelligence relating to that person.

Conclusion

74. I am satisfied that the Disputed Information constitutes information or an opinion about individuals other than the applicant, and that the information comprises criminal intelligence about those persons and their interaction with the NSW Police Force.

75. I accept that disclosure of the Disputed Information could reasonably be expected to:

1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance: s 12(2)(a);

2. inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public: s 12(2)(b);

3. reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct: s 12(2)(e).

76. I give some weight to the applicant's personal factors, namely that over a six year period, police officers exercised search powers on the applicant (being an indigenous woman) and her vehicle on at least seven occasions, and that during a number of these searches, it was not clear that there were reasonable grounds to support the use of these search powers.

77. However, in my view, the public interest considerations against disclosure of the redacted information in the COPS Reports outweigh the public interest considerations in favour of disclosure.

78. I consider there is substance in the respondent’s submission that disclosure of the Disputed Information would intrude on the privacy of other the individual and reveal sensitive personal information about those individuals relating to suspected criminal activity. I also accept that that disclosure may prejudice the other persons’ reputations and life in the community.

79. I have given significant weight to the public interest considerations against disclosure in item 3(a) of the Table. The personal information in the COPS Reports was gathered by police officers in the exercise of their investigative functions and, because of the circumstances in which it was gathered, it is personal and sensitive to each individual. I am therefore satisfied that disclosure of the Disputed Information could reasonably be expected to reveal personal information about those persons, and that cl 3(a) applies as a public interest factor against disclosure of the Disputed Information.

80. I have also given significant weight to the public interest considerations against disclosure in item 3(b) of the Table, namely that the disclosure of the Disputed Information would contravene the disclosure IPP in s 18(1) of PPIP, namely that disclosure of the Disputed Information would not be a form of lawful disclosure as provided for by s 18(1) of PIPP. I am satisfied, as submitted by the respondent, that:

1. disclosure would be for a purpose other than that for which the information was collected;

2. the Disputed Information is not information which is usually disclosed to individuals such as the applicant.

81. I have given some weight to the public interest consideration that the applicant be provided with personal information about herself. But, in relation to p 3 of COPS Report E84662526, it is not feasible to separate the personal information of the applicant from the sensitive personal information of other individuals and this has affected the weight I have given to this consideration.

82. Weighing up these factors, in my view, the public interest considerations against disclosure of the redacted information in the COPS Reports outweigh the public interest considerations in favour of disclosure.

Other

83. At the conclusion of the hearing, the applicant’s representative made an application for anonymisation of the applicant’s name. As the application was neither opposed nor consented to by the applicant, I have decided to make that order.

Orders

84. The Tribunal orders:

1. The decision of the respondent dated 4 September 2023 is varied so as to provide access to the applicant of the information appearing in:

1. the last sentence of the second last paragraph on page 3 of COPS Event Report E84662526;

2. the second last paragraph on page 2 of COPS Event Report E80938452; and

3. the fourth paragraph on page 3 of COPS Event Report E55128475.

2. The decision of the respondent dated 4 September 2023 is otherwise affirmed.

3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication and broadcast of the name of the applicant is prohibited.

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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: 05 March 2024