Guimaraes v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 372

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Guimaraes v Commissioner of Police, NSW Police Force [2022] NSWCATAD 372

Hearing dates:

29 April 2022

Date of orders:

21 November 2022

Decision date:

21 November 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

(1) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of the confidential material provided by the Commissioner of Police, NSW Police is prohibited.

(2) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the confidential material provided by the Commissioner of Police, NSW Police is prohibited.

(3) The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Government Information (Public Access Act) 2009 – effect of disclosure of information under Government Information (Public Access Act) 2009 – for information to be revealed it must be publicly disclosed – effect of s 63 of Administrative Decisions Act 1997

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90

Battin v University of New England [2013] NSWADT 73

Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5

DDT v Charles Sturt University [2017] NSWCATAD 329

Eastman v Nepean Blue Mountains Local Health District [2022] NSWCATAD 263

EIF v Legal Aid NSW [2020] NSWCATAD 113

Flack v Commissioner of Police, New South Wales Police (2011) NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Jenkinson v Department of Education and Communities (NSW) [2013] NSWADT 280

Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43

Taylor v Destination NSW [2020] NSWCATAD 137

Category:

Principal judgment

Parties:

Christopher Guimaraes (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

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

File Number(s):

2021/00358203

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of the confidential material provided by the Commissioner of Police, NSW Police is prohibited.
Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the confidential material provided by the Commissioner of Police, NSW Police is prohibited.

REASONS FOR DECISION

Introduction

1. This is an application for review of a decision by the Commissioner of Police, New South Wales Police Force (‘the Commissioner’ or ‘the respondent’) in response to an access application by Christopher Guimaraes (‘the applicant’) under the Government Information (Public Access) Act 2009 (‘the GIPA Act’).

Background

2. In his access application lodged on 7 October 2022 (‘the application’) the applicant sought:

‘I would like all the information regarding the history of employment within the New South Wales Police Force for Sargent William Collins. I would like to access all information (with the removal of other names) regarding complaints and reports filed or made involving Sargent William Collins.’

3. The application was refined by agreement between the parties seeking the following:

‘A list of commands where the identified officer has been employed as a uniformed officer.

The following data from NSW Police Force complaint database:

the initial complaint made by any member of the public against the officer while working as a uniformed officer and

the outcome of these complaints.’

4. The respondent determined in the original application to refuse to provide access to the Commands list and the Complaint Summary because there was an overriding public interest against disclosure of that information pursuant to s 58(1)(d) of the GIPA Act.

5. It was following this decision that the applicant lodged an application for administrative review of that decision pursuant to Part 5, Division 4 of the GIPA Act. The application was lodged on 17 December 2021.

Applicable legislation

6. The object stated under section 3(1) of the GIPA Act is to open government information to the public by authorising and encouraging proactive public release of government information (section 3(1)(a)); and giving members of the public an enforceable right to access government information (section 3(1)(b)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object: section 3(2)(a).

7. The term “government information” is defined in section 4 of the GIPA Act as information contained in a record held by an agency. The term “record” is defined in clause 10 of Schedule 4 as:

10 Meaning of “record”

(1)   In this Act -

record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.

(2)   A reference in this Act to a record includes a reference to a copy of the record.

(3)   For the purposes of the definition of record in this Act, the knowledge of a person is not a record.

8. Clause 12 of Schedule 4 of the GIPA Act provides:

12    Government information held by agency

(1)   A reference in this Act to government information held by an agency is a reference to -

(a)   information contained in a record held by the agency, or

(b)   information contained in a record held by a private sector entity to which the agency has an immediate right of access, or

(c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or

(d)   information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister).

(2)   Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet).

(3)   Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency.

(4)   Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency’s business or functions is not government information held by the agency.

9. Division 3 of the GIPA Act sets out the process for dealing with access applications. Section 51 provides:

51 Initial decision as to validity of application

(1)   When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either—

(a)   acknowledging receipt of the application as a valid access application, or

(b)   notifying the applicant that the application is not a valid access application.

Note—

An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications.

(2)   An agency’s decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received.

Note—

The decision as to the validity of an application is reviewable under Part 5.

(3)   An acknowledgement of receipt of a valid access application must include the following—

(a)   the date by which the application is required to be decided (subject to any suspension or extension of the time for deciding an application),

(b)   a statement that the application will be deemed to have been refused if not decided by the required date,

(c)   the following statements about the inclusion of information in the agency’s disclosure log (unless the agency considers it unlikely that information about the application will be included in the disclosure log)—

(i)   a statement that information concerning the application is likely to be included in the agency’s disclosure log and that the applicant can object to this,

(ii) a statement about the right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the applicant’s objection,

(d)   such details of rights of review in connection with access applications as the Information Commissioner may from time to time direct.

(4)   Acknowledging receipt of an application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application.

(5) An agency’s decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5.

10. Section 53 of the GIPA Act provides:

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.

11. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it unless there is an overriding public interest against disclosure.

12. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.

13. Section 13 of the GIPA Act provides that there is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. The balancing exercise set out in section 13 "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].

14. Section 14(1) of the GIPA Act provides that 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 to the GIPA Act. The public interest considerations listed in the Table to section 14 of the GIPA Act 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.

15. Access is restricted only when there is an overriding public interest against disclosure: see Taylor v Destination NSW [2020] NSWCATAD 137 at paragraph [6].

16. An agency can decide an access application in a number of different ways. Section 58 of the GIPA Act provides:

58 How applications are decided

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

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

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

(c)   deciding that the information is already available to the applicant …, or

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

(e)   deciding to refuse to deal with the application …, or

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

Note—

These decisions are reviewable under Part 5.

...

17. Relevantly, Part 5 of the GIPA Act provides”:

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part—

(a)   a decision that an application is not a valid access application,

(b)   a decision to transfer an access application to another agency, as an agency-initiated transfer,

(c)   a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

(d)   a decision to provide access or to refuse to provide access to information in response to an access application,

(e)   a decision that government information is not held by the agency,

(f)   a decision that information applied for is already available to the applicant,

(g)   a decision to refuse to confirm or deny that information is held by the agency,

(h)   a decision to defer the provision of access to information in response to an access application,

(i)   a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),

(j)   a decision to impose a processing charge or to require an advance deposit,

(k)   a decision to refuse a reduction in a processing charge,

(l)   a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,

(m)   a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).

18. Section 105 of the GIPA Act provides that the Respondent bears the onus of satisfying the Tribunal that its decision is justified.

19. Section 63 of the Administrative Decisions Review Act 1997 provides:

63 Determination of administrative review by Tribunal

In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

20. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

21. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

1. to affirm the administratively reviewable decision, or

2. to vary the administratively reviewable decision, or

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

4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Public Interest Considerations in favour of disclosure

22. The general public interest favouring the disclosure of government information is recognised by section 12(1) of the GIPA Act. The Respondent has identified the following public interest considerations in favour of disclosure of the withheld information:

1. The general public interest in favour of disclosure of government information.

2. Persons involved in complaints made to and considered by government agencies have an interest in the information prepared in connection with that complaint and the outcome of any review or investigation of the complaint.

3. The disclosure of the information captured by the scope of the application could reveal the reason for the agency decision in relation the investigation and any background or contextual information that informed the decision.

23. I accept that these considerations are relevant in this matter. I also find that disclosure of the information could reasonably be expected to promote openness and transparency and accountability regarding misconduct policy, complaints management and investigation processes and allow members of the public to be informed regarding decision-making process in relation to complaints management.

24. I am satisfied that the issues that the Applicant has raised can be regarded as falling within these considerations. In my view, these considerations should be given reasonable weight.

Public Interest Considerations against disclosure

25. The Respondent relies on several public interest considerations listed in the Table to section 14 of the GIPA Act. The Respondent relies on the overriding public interest considerations against disclosure in clauses 1(d), (f) and (g) and 3(a), (e) and (f) of the table.

26. Clause 1 of the table to section 14 of the GIPA Act provides:

1   Responsible and effective government

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

…

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

…

(f)   prejudice the effective exercise by an agency of the agency’s functions,

...

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

…

(e)   reveal false or unsubstantiated allegations about a person that are defamatory,

(f)   expose a person to a risk of harm or of serious harassment or serious intimidation,

…

27. Section 55 of the GIPA Act provides for the consideration of personal factors of application. Section 55 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.

(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.

Note—

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

28. It is apparent that the Applicant is concerned about lack of transparency within the agency. The applicant was arrested and charged with certain offences after traffic stop for the purpose of random alcohol and drug testing on 19 March 2021. The charges included assault officer in the execution of duty. Those charges are yet to be determined by the local court. The applicant seeks to access information about complaints made concerning one of the officers who was involved in his arrest. He submitted:

As a member of the public I seek access to complaints made by the public towards an acting uniformed officer. The officer is not undercover or at risk of being identified as this information is easily accessible. I have requested all personal information to be removed. The information provided is of high public interest as the information is provided by the public. The officer is not a member of the public whilst wearing the police uniform and that is the only information being provided.

29. As I have noted above, the need for transparency is a consideration in favour of release of the withheld information. The Applicant’s submissions and material provides a useful context for his access application, and I have taken it into account as provided for by section 55 of the GIPA Act. I give the applicants personal circumstances moderate weight.

30. Section 73(1) of the GIPA Act provides:

73 Access to be unconditional

(1)   An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.

31. The public interest considerations against disclosure need to be examined at a broad operational level and that many of those considerations are concerned with systemic features of the operation of government: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5.

32. The words ‘could reasonably be expected to’ require the Tribunal to determine whether the effect that is alleged to occur with disclosure of the information could reasonably be expected.

33. The term 'prejudice' has its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

CONFIDENTIALITY

34. Section 66(3) of the NCAT Act enables the respondent to disclose to the Tribunal information that is subject to an overriding public interest against disclosure under the GIPA Act and requires the Tribunal to "do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal ... unless the person or body disclosing the information ... consents to the further disclosure".

35. The respondent relies on confidential evidence in these proceedings. The Confidential Bundle is dealt with by the Tribunal in accordance with the requirements of s. 107 of the GIPA Act, as it is the subject of these proceedings and is claimed to be subject to an overriding public interest against disclosure.

36. The respondent also seeks to adduce certain evidence in the affidavit of Mr Holgate, and to make certain submissions, on a confidential basis. This confidential material appears in red text in the confidential versions of each filed with the Tribunal, but has been redacted in the open versions served on the applicant. The respondent relies on s 107 of the GIPA Act as to reveal their contents would also reveal information subject to an overriding public interest against disclosure or, in the alternative, on s 64(1)(d) of the NCAT Act as the basis for adducing this material confidentially.

37. The respondent also seeks to adduce certain material in the affidavit of Mr Holgate, and to make submissions, subject to an order under s 64(1)(c) of the NCAT Act that it be restricted from publication. The respondent relies on s. 107 of the GIPA Act as to reveal their contents would also reveal information subject to an overriding public interest against disclosure.

38. I accept the respondent’s submissions and make a confidentiality order restricting that evidence from publication.

The specific public interest considerations against disclosure in this matter

Clause 1(d) and (f) - prejudice a supply to an agency of confidential information that facilitates the effective exercise of the agency’s functions and prejudice the effective exercise by an agency of the agency’s functions.

39. It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's functions (clause 1(d)).

40. The relevant elements of clause 1(d) are that:

1. the information was obtained in confidence;

2. the information facilitates the effective exercise of the agency's functions; and

3. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future.

41. In Eastman v Nepean Blue Mountains Local Health District [2022] NSWCATAD 263, SM Montgomery said at [59]-[62]:

59   With respect to the first limb of clause 1(d), in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 (“Camilleri”), the Appeal Panel outlined the general approach to determining whether or not information is confidential information.

60   The Panel held:

"In our view, the question of whether the information supplied is 'confidential information' 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 received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service."

61   The Tribunal has accepted regularly that complaints regarding alleged misconduct are made in confidence. In Williams v Department of Industry and Investment (NSW) [2012] NSWADT 192, the Department's Internal Audit Bureau conducted an investigation into workplace bullying and harassment. At paragraph [82], the Tribunal accepted that information supplied orally to the investigators, and recorded in transcripts, was supplied in confidence.

62   In MJ v Department of Education and Commerce [2013] NSWADT 213 the Tribunal held at paragraph [73]:

"It is well established that a function of an agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of the complaint and any action taken in regard thereto remains confidential, to the extent required by law."

Was the information sought held in confidence ?

42. The information in issue in this matter is the Complaints Summary contained in the confidential bundle (R1). Chief Inspector Mark Holgate gives evidence that the respondent's receipt, use and management of such complaint information is dealt with in accordance with Part 8A of the Police Act, and that it is his experience and expectation that strict statutory and procedural rules apply to ensure its confidentiality. In particular:

a. Part 8A of the Police Act, in combination with the NSWPF's policies and procedures, provide comprehensive rules for the way complaints are investigated, including several statutory requirements to keep complaint information confidential subject to limited exceptions, such as under s. 170 of the Police Act (use of documents in legal proceedings);

b.    the NSWPF treats all information received in a complaint investigation - including the fact that the complaint has been made and its substance - as strictly confidential. All NSWPF officers, including those attached to the Professional Standards Command that is responsible for maintaining standards of professional conduct and discipline in the NSWPF, are required to abide by the NSW Police Force Code of Conduct and Ethics in this regard;

c.    there are procedures in place to protect the confidentiality of complaint information once received, including the appointment of Professional Standards Duty Officers who are required to monitor the security of information handled in the course of an investigation, and limiting access to the physical and electronic databases that store complaint information to certain authorised persons;

d.    more generally, a central tenet of the way in which NSWPF handles complaints and complaint information is that this information is only shared and accessible on a "need to know basis".

e.    consistent with this central tenet, the NSWPF maintains confidentiality over complaints and complainant identities throughout the complaint investigation process and after its resolution, such that the findings of complaints will not be shared unless necessary - for example, in order to afford procedural fairness to an officer the subject of a complaint investigation that results in a "sustained" finding; and

f.   in Mr Holgate's experience, persons who provide personal information in the context of misconduct investigations have an expectation that their information will not be divulged to the public.

43. I am satisfied that the complaint information in the Complaints Summary is "confidential information", having regard to the circumstances in which it is received, and the legislative and administrative framework that governs its storage and use. I am satisfied that this information was obtained by the respondent in confidence.

44. I also accept that the complainants in a Complaints Summary will typically participate in an investigation in the expectation that their contributions will be treated as confidential wherever possible. This would be applicable in this matter. I am satisfied that the withheld information is information that was obtained in confidence (MJ v Department of Education and Commerce at [73]).

45. The second limb of clause 1(d) relates to prejudice. ‘Prejudice under the GIPA Act has been held to have its ordinary meaning, that is, ‘to cause detriment or disadvantage’ or ‘to impede or to derogate from’; see Hurst v Wagga Wagga City Council at [60]. Clause 1(d) is concerned with the future supply of confidential information, in determining whether disclosure would prejudice the supply of information. The test is not whether the particular person would, in future, refuse to supply that information but whether information of the kind in question facilitates the exercise of the respondent’s functions, and, where the disclosure of such information could reasonably be expected to prejudice the supply of such information; see Flack v Commissioner of Police, New South Wales Police (2011) NSWADT 286 at [52]. Prejudice is to be determined at a broader operational level and whether disclosure of the type of information would impair the general ability of the agency to obtain that type of information in the future - Commissioner of Police & New South Wales Police Force v Camilleri.

46. The respondent is not necessarily required to provide direct evidence from the providers of relevant information in order to satisfy the Tribunal that clause 1(d) is engaged; see Transport for New South Wales v Searle at [61]-[65]. The following was said about matters the Tribunal may have regard to in examining the application of clause 1(d): ‘The considered and understandable confidentiality to the process, the rationale for such confidentiality and the natural implication for future supply if such confidentiality was to be undermined’ - see Transport for New South Wales v Searle at [63].

47. Chief Inspector Holgate sets out the critical importance at each stage of the process of managing complaints. I accept based upon his extensive experience that publicly disclosing the substance of complaints or information that tends to identify complainants would deter members of the public from making complaints. This can occur even where personal information about a person is anonymised. Disclosure of the information in my view would prejudice the future supply of information relating to the respondent’s complaint handling processes.

Does the information facilitate the effective exercise of the agency’s functions?

48. In a number of cases, the tribunal has found that disclosure of information given in relation to an investigation could reasonably be expected to prejudice the effective exercise by the agency of its functions. Agencies will be less likely to receive information of this kind if there were not some assurance of confidentiality: see for example Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43; Jenkinson v Department of Education and Communities (NSW) [2013] NSWADT 280.

49. In DDT v Charles Sturt University [2017] NSWCATAD 329, the Tribunal concluded at paragraphs [48] – 49]:

“The fact that a report into a complaint may be disclosed to the complainant at the complainant’s request is not likely in my view to discourage future complaints from being made.

However that does not mean that the clause 1(d) and 1(f) factors are not relevant or of significant weight in this case. It is important to the investigation of academic misconduct that any persons communicating with the investigators can be assured, if appropriate, that their communications will be treated confidentially. The disclosure of the report will disclose confidential communications from persons other than the applicant himself.”

50. I accept Chief Inspector Holgate’s evidence that if confidential information of the kind in the Complaints Summary was publicly disclosed, people would be deterred from making complaints or providing evidence that as a likely result would seriously impede the respondent’s ability to capture information about misconduct and risks compromising the integrity of the respondent more generally.

51. In EIF v Legal Aid NSW [2020] NSWCATAD 113 at [86] and [87], I found in a similar factual context:

[86]   …The absence of the various sources of confidential information obtained by the respondent to investigate complaints would, in my view, compromise its ability to continue to conduct investigations in a fair and effective manner in the future..

[87]   … The prejudice which flows from such disclosure, in my view, would significantly negate the effective exercise of its function. In these circumstances, disclosure of this information would reasonably be expected to prejudice the effective exercise of the respondent’s functions…

52. I find that consideration against disclosure in cl 1(d) of the table to s 14 of the GIPA Act should be given significant weight when balancing the public interest. Disclosure of this information would reasonably be expected to prejudice the effective exercise of the respondent’s functions and in so finding clauses 1(d) and 1(f) applies.

(g)   found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

53. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

54. I refer to my reasons in [42] above. I am satisfied that the information in the Complaints Summary that describes the substance of complaints was clearly supplied to the respondent in confidence.

55. This weighs heavily against disclosure.

Clause 3(a) - reveal an individual’s personal information

56. ‘Personal information’ is defined in s 4 of the GIPA Act to mean information or opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. ‘reveal’ is defined to mean - to disclose information that has not already been lawfully publicly disclosed .

57. Having examined the Command List and the Complaints Summary I am satisfied they contain personal information and otherwise personal information or opinion of a person other than the Applicant.

58. Accordingly, I am satisfied that the respondent has established this ground of public interest consideration against disclosure. Moderate weight is given to this factor against disclosure.

Clause 3(e) reveal false or unsubstantiated allegations about a person that are defamatory

59. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.

60. This consideration involves a two-limb test. The first is the allegation must be false or unsubstantiated. The second is that it must be defamatory.

61. [NOT FOR PUBLICATION]

62. I accept Chief Inspector’s evidence that there are significant concerns that the release of unsubstantiated allegations about the New South Wales Police Force could lead to the person subject of the allegations to be disparaged, causing others to shun them or hatred (see Hurst [83]-[84]).

63. This is a consideration against disclosure which give moderate weight.

Clause 3(f) – expose a person to risk of harm, serious harassment or intimidation

64. In AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 the Tribunal at [85] said:

…the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing.

65. I am not required to find that harm actually has occurred, not do I have to assess the gravity of harm. I only need to be satisfied that disclosure of the information could reasonably be expected to expose a person to “risk of harm”.

66. In AEZ the Tribunal said:

89 All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment.

90 The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related.

91   Intimidation is defined by The Macquarie Dictionary online as -

verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow.

2.   to force into or deter from some action by inducing fear: to intimidate a voter.

[Medieval Latin intimidātus, past participle, made afraid. See TIMID]

92   Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus -

(1)   For the purposes of this Act, intimidation of a person means:

(a)   conduct amounting to harassment or molestation of the person, or

(b)   an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c)   any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

92   In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said -

15   ...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety.

16   Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ...

67. I have reviewed the Command List and the Complaint Summary. The information contained in those documents includes complaints raised against Sergeant Collins and details in which he has worked. Disclosure of this has the reasonable possibility of exposing him to risk of harm, serious harassment or intimidation. This is because his employment history could be used in combination with other information to locate him, and expose him to risk.

68. I find that this is a consideration against disclosure which I give moderate to significant weight.

69. I have set out above at [22]-[24] the factors I have considered weigh in favour of disclosure and the weight I attach to each. I have also set out above the factors I consider are against disclosure and the weight I attribute and the applicants’ personal motivations. When undertaking a balancing exercise, I find that the factors against disclosure (clauses 3(a), 3(f), 3(e)) and more importantly clauses 1(d) and 1(f) and 1(g) outweigh the public interest in favour of disclosure. The information which has not been provided in the confidential bundle, should be withheld as it is subject to the stated overriding public interests against disclosure.

70. The decision under review is affirmed.

ORDERS

1. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of the confidential material provided by the Commissioner of Police, NSW Police is prohibited.

2. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the confidential material provided by the Commissioner of Police, NSW Police is prohibited.

3. 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: 21 November 2022