HCT v Commissioner of Police, New South Wales Police Force

[2025] NSWCATAD 150

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

HCT v Commissioner of Police, New South Wales Police Force [2025] NSWCATAD 150

Hearing dates:

7 February and 2 April 2025, last submissions 2 May 2025

Date of orders:

25 June 2025

Decision date:

25 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member

Decision:

(1) Affirms the implied decision made on 1 July 2024 that the respondent does not hold additional CCTV footage video files other than the two video files identified in the decision of 1 July 2024.

(2) Varies the decision dated 1 July 2024 to provide view only access to those parts of the CCTV footage requested that depicts the applicant (in accordance with paragraph [121] of these reasons) and otherwise to refuse access to the balance of the CCTV footage.

(3) Orders that pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), disclosure of the applicant’s name in connection with these proceedings is prohibited.

Catchwords:

ADMINISTRATIVE LAW — Access to government information — CCTV of Police Station — whether personal information — whether disclosing copy of CCTV could reasonably be expected to have the effect to endanger or prejudice any system or procedure for protecting safety and security— personal factors and motivation of applicant — implied decision that agency does not hold information — balancing exercise — view only access.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Amos v Central Coast Council [2018] NSWCATAD 101

Attorney-General’s Department v Cockcroft (1986) 10 FCR 18

Commissioner of Police NSW v Camilleri [2012] NSWCATAP 19

Cousins v Ambulance Service of NSW [2014] NSWCATAD 48

Klaris v Commissioner of Police [2020] NSWCATAP 153

Leech v Sydney Water Corporation [2010] NSWADT 298

Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 257

Robinson v Commissioner of Police [2014] NSWCATAP 73

Transport for NSW v Searle [2018] NSWCATAP 93

Wojciechowska v Commissioner of Police (NSW) [202] NSWCATAP 173

Texts Cited:

Nil

Category:

Principal judgment

Parties:

HCT (Applicant)
Commissioner of Police (Respondent)

Representation:

Applicant (self-represented)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00164406

Publication restriction:

(1) Pursuant to section 64(1)(a) and/or (d) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) any confidential evidence filed with the Tribunal or given in a confidential hearing pursuant to section 107 of the Government Information (Public Access) Act 2009, is not to be disclosed without further order of the Tribunal.
(2) Those paragraphs or parts of the paragraphs of these reasons identified as [Not for publication] are not to be disclosed to the Applicant or the public without further order of the Tribunal.
(3) Pursuant to s 64(1)(a) of the NCAT Act, disclosure of the applicant’s name in connection with these proceedings is prohibited.

REASONS FOR DECISION

Introduction

1. The applicant, HCT, seeks administrative review of the decision of the Commissioner (the respondent) in relation to an application for access which was lodged by him with the respondent on 29 February 2024. The application seeks access to closed-circuit television footage (CCTV) of the entry and reception area of the Campsie Police Station for a two-hour period on 22 February 2024. The decision under review is the reconsidered decision made on 1 July 2024 on remittal from the Tribunal. There is no dispute that the applicant now only seeks access to copies of CCTV footage depicting him. The application was made pursuant to the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).

2. Confidentiality orders were made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to preserve the confidentiality of evidence provided by one of the respondent’s witnesses. Confidentiality orders were also made in relation to the disputed CCTV footage. Accordingly, confidential evidence has not been published in these reasons but has been included in the confidential reasons provided to the respondent.

3. Additional CCTV footage that would have responded to the applicant’s request was overwritten in error, without first being saved or copied, pending the applicant’s application. As such, this footage was not held by the respondent at the time of the reconsidered decision on 1 July 2024 or at the time of the hearing. I accept that this CCTV footage is no longer held by the respondent for the reasons later outlined, however, note that this issue raises concern about the procedures adopted by the respondent in this case in identifying and processing the access applications for CCTV footage at a police station. I have considered this aspect later in these reasons.

4. The remaining CCTV footage is available but the respondent objects to providing the applicant with a copy of the CCTV footage in the form requested, namely by email, CD or USB, on the grounds that there is an overriding public interest against disclosure. The respondent relies on law enforcement and security grounds and submits that if access is provided, the applicant should be provided with view only access. The applicant submits that he wants a copy of the CCTV footage to provide to lawyers so he can obtain advice on proceedings he is considering against New South Wales Police and/the State of New South Wales.

5. I have decided to affirm the implied decision that the additional CCTV footage is not held, vary the decision to provide view only access to part of the CCTV footage that responds to the access request and otherwise refusal to provide access to the balance of the CCTV footage that does not depict the applicant. I have also decided to make an order that the applicant’s name should not be disclosed. My reasons follow.

Background

6. By application made on 29 February 2024, HCT requested access to the following:

Copy of all closed-circuit television footage CCTV of the entry and reception area of Campsie Police Station (58 Campsie St Campsie NSW)

All footage for 22 February 2024 between 2:30am and 4:30am.

Showing inside the Police Station reception and outside entry to the reception area.

7. By notice of decision dated 27 March 2024, the respondent refused access to the footage on the grounds that there was an overriding public interest against disclosure. The reasons given were that the information would reveal the location of surveillance cameras outside police stations, which could enable criminals to identify black spots where cameras are not located which would permit them to succeed in committing offences against police staff and property. Disclosure would jeopardise the safety of staff working in, and security at, those stations, particularly in the current climate in which there is a high threat of probable terrorist attacks against law enforcement agencies. It was further noted that disclosure would contravene NSW Police Force objectives of the duty to enforce the law and protect its employees and property. Disclosure of the information would also reveal the personal information of individuals, being images of members of the public who were captured by the CCTV cameras attending the Campsie Police Station and who could be identified.

8. On 3 May 2024, the applicant applied for administrative review of this decision. After a case conference on 3 June 2024, the applicant confirmed that he was specifically seeking access to footage that depicted him attending the Campsie Police Station on 22 February 2024. The respondent advised the Tribunal and the applicant, through her legal representative, that consideration would be given to providing the applicant with view access of the footage which depicted him. The Tribunal made in order remitting the matter back to the respondent for reconsideration by 1 July 2024.

9. In the remitted decision of 1 July 2024, the respondent again refused access to a copy of the CCTV footage requested. The delegate, Mr Steptoe, identified the material that responded to the request is being two video files - CCTV footage dated 22 February 2024 between 2:30am and 4:30am. The application for access was refused on similar grounds as previously determined, noting that, if the respondent was able to identify whether the applicant was in the CCTV footage, the respondent could provide “view access” to the footage that depicted the applicant. It was noted that this information had not been forthcoming at the time of the decision, and it had therefore not been possible to identify what parts of the footage depicted the applicant.

10. The applicant provided additional information as to the times of his attendance which assisted the respondent in identifying what part of the footage related to him.

11. The applicant was invited to view the relevant CCTV footage that depicted him and attended the Campsie Police Station on 23 December 2024 for this purpose. He was not provided with viewing access to the balance of the footage recorded between 2:30am and 4:30am nor was he provided with a copy of that part of the relevant CCTV footage depicting him.

12. This did not resolve the issue, and the matter was listed for hearing before me on 7 February 2025 at 2:00pm. However, because of administrative error, the parties were advised the hearing was listed at 10 am. Prior to the hearing, the Tribunal received correspondence from the applicant indicating he was unable to appear at 2:00pm and he was unwell and could not attend in any event. He requested an adjournment of the hearing.

13. I considered the request for an adjournment at the hearing on 7 February 2025. The applicant did not attend the hearing by video, nor could he be contacted by telephone at the time of the hearing. I granted the request for the adjournment, taking into account the administrative error of the listing and the applicant’s stated illness, even though he did not provide a medical certificate to support his request. Having reviewed the material, I also noted that there was an issue about whether all of the CCTV footage that would have responded to the request at the time the application was made was still available. I directed the respondent to give to the Tribunal and the other parties any further evidence and submissions in relation to the CCTV footage alleged to be no longer available and outlined the reasons for the adjournment and the directions made in notations to the directions which was sent to the applicant after the scheduled hearing on 7 February 2025

14. The proceedings were subsequently listed for hearing on 2 April 2025.

15. The applicant attended the hearing in person. He gave evidence and presented his arguments. The applicant cross examined the respondent’s witnesses, namely, Detective Inspector Craig Brooks, who gave evidence both in confidential and open session, and Mr Ian Steptoe, Senior Advisory Officer within the NSW Police Force. Mr Steptoe made the remitted decision of 1 July 2024. He gave evidence, in general terms, about the searches undertaken at the time the applicant made his application and about the material available at the time he made his decision.

16. The applicant was not present when Detective Inspector Craig Brooks gave evidence in relation to information which was the subject of confidentiality orders.

17. I also reviewed the disputed CCTV footage in closed session.

18. The applicant requested further time to provide written submissions. He was directed to provide his further submissions by 16 April 2025. His submissions were delayed and were received by the Tribunal on 2 May 2025. They have been considered.

Statutory framework and relevant law

19. The GIPA Act was introduced in 2009 to facilitate public access to government information.

20. Section 3 provides that the object and intent of the GIPA Act is as follows:

(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.

21. Relevantly, s 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

22. Section 9 provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. Section 11 provides that the GIPA Act overrides secrecy provisions in other legislation, other than a provision of the law listed in Schedule 1 as an overriding secrecy law.

23. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Examples of public interest considerations in favour of disclosure are set out in the Note to s 12 as follows:

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.

24. Section 13 sets out how the public interest test must be assessed and provides:

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.

25. Section 14 of the GIPA Act sets out the public interest considerations against disclosure and provides:

(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.

26. Section 14(1) provides that there is certain information where it is “conclusively presumed” that there is an overriding public interest against disclosure. The respondent does not rely on this ground.

27. The Table to s 14(2) enumerates seven different grounds for public interest considerations that may be taken into account as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information. The seven grounds are: responsible and effective government (clause 1); law enforcement and security (clause 2); individual rights, judicial process and natural justice (clause 3); business interests of agencies and other persons (clause 4); environment, culture, economy and general matters (clause 5); secrecy provisions (clause 6) and exempt documents under Interstate Freedom of Information legislation (clause 7).

28. Each of these considerations, with the exception of the exempt documents, require determination of whether disclosure of the information “could reasonably be expected” to have one or more of the effects (or in the case of the secrecy ground, contraventions) outlined within each of the grounds. To establish any one of the six considerations described in the Table it is therefore necessary to identify the listed effects (or contraventions) and make an assessment about whether disclosure of the requested information could reasonably be expected to have that effect or constitute a contravention.

29. In the decision under review, the respondent relied on the public interest considerations referred to in clauses 2(d), 2(e) and 3(a) of the Table to s 14(2). Clauses 2(d) and 2(e) relate to considerations concerning law enforcement and security. Clause 3(a) relates to considerations concerning individual rights, judicial process and natural justice. The relevant effects relied by the respondent are as follows:

2(d)   endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person,

2(e)    endanger, or prejudice any system or procedure for protecting, any place, property or vehicle,

……..

3(a)    reveal an individual’s personal information,

30. Section 15 of the GIPA Act sets out the principles that apply to agencies and, relevantly, to the Tribunal, when making a determination as to whether there is an overriding public interest against disclosure of government information. Decision-makers must make public interest determinations in accordance with the following principles:

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

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

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

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

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

31. Section 53 of the GIPA Act sets out the obligations of an agency and the searches it must undertake once a request for information is received. The obligation to provide access to government information is limited to the information held by the agency when the application is made.

32. Under s 55, an agency is entitled to take into account the personal factors of the application in determining whether there is an overriding public interest against or in favour of disclosure of government information: ss 55(1) and (2) of the GIPA Act. 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: s 55(4) of the GIPA Act. The personal factors of the application that may be taken into account are:

(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.

33. This provision is relevant because the applicant submits that the CCTV footage relates to him, and he has good reason for seeking access to this information in relation to claims he may have against the respondent. The respondent also claims this provision is relevant and relies on the confidential evidence of Detective Inspector Brooks, which is outlined later in these reasons.

34. Section 58(1) provides that applications for review are to be decided by the agency: deciding to provide access to the government information sought (subs (a)); deciding that the information is not held by the agency (subs (b)); deciding that the information is already available to the applicant (subs (c)); deciding to refuse the application because there is an overriding public interest against disclosure (subs (d)); deciding to refuse to deal with the application (subs (e)) and 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 (subs (f)).

35. The decision made by the respondent was made under s 58(1)(d) of the GIPA Act. However, as the respondent now contends that NSW Police do not hold any further CCTV footage on 22 February 2024 depicting the applicant and that view access is appropriate in relation to the CCTV footage held, ss 58(1)(a) and (b) of the GIPA Act are also central to the issues in dispute.

36. Also relevant is s 72, which provides

Forms of access

(1) Access to government information in response to an access application may be provided in any of the following ways--

(a) by providing a reasonable opportunity to inspect a record containing the information,

(b) by providing a copy of a record containing the information,

(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2) The agency must provide access in the way requested by the applicant unless--

(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

(b) to do so would be detrimental to the proper preservation of the record, or

(c) to do so would involve an infringement of copyright, or

(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Note : Decisions about how to provide access are reviewable under Part 5.

37. Section 73 relevantly provides:

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.

(2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.

38. Under s 74:

Deletion of information from copy of record to be accessed

An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.

39. Section 80 of the GIPA Act sets out the decisions of an agency which are “reviewable decisions” for the purposes of Part 5 of the GIPA Act. Relevantly, s 80 (d), being a decision to provide access or refuse to provide access to information in response to an access application, and s 80(e), being a decision that government information is not held by the agency, are reviewable decisions. Compliance of an agency with search obligations imposed by s 53 is not prescribed as a reviewable decision and the Tribunal therefore does not have the power to review the sufficiency of an agency search (Klaris v Commissioner of Police [2020] NSWCATAP 153). However, whether reasonable searches for information have been undertaken will be relevant to the Tribunal’s review of a decision that an agency does not hold certain government information responsive to an application: Wojciechowska v Commissioner of Police (NSW) [202] NSWCATAP 173.

40. Section 100 provides that a person who is aggrieved by a reviewable decision may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 105 provides that the onus is on the agency to justify decisions made in respect of access under the GIPA Act. Section 107 sets out the procedure for dealing with public interest considerations when the Tribunal undertakes administrative review. Section 107 provides that, in determining an application, the Tribunal 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. The Tribunal must receive evidence and hear arguments in the absence of the public, the review applicant and the applicant's representative if, in the opinion of the Tribunal, it is necessary to do so to prevent the disclosure of information for which there is a public overriding public interest against disclosure.

41. Section 63 of the ADR Act provides that the Tribunal must make the “correct and preferable” decision based on the material before it at the time of the decision. In determining the application for review, the Tribunal may decide to affirm or vary the decision or set aside the decision and make a decision in substitution or set aside the decision and remit the matter for reconsideration by the administrator, in this case the respondent, in accordance with any directions or recommendations of the Tribunal.

Material before the Tribunal

42. Detective Inspector Brooks provided three statements to the Tribunal, two open statements and one confidential statement.

43. In his open evidence, Detective Inspector Brooks outlined his concerns in relation to the release of the CCTV footage requested by the applicant.

44. Detective Inspector Brooks is the crime manager at the Campsie Police Area Command (PAC). In his role, he is responsible for the development and management of all criminal investigations led by the criminal investigations unit, crime reduction strategies, management of the crime prevention unit and the proactive crime team and technical/quality aspects of all investigations within the command. He has been a serving officer since 31 August 2001. He was designated as a detective in October 2017 and in January 2015 he was promoted to the rank of Sergeant and performed supervisory duties. On 13 August 2023 he was promoted to the rank of Detective Inspector as the crime manager at the Campsie PAC.

45. Detective Inspector Brooks states that he was not involved in determining the access application but reviewed the relevant CCTV footage for the purposes of preparing his statement. He notes that there are two records of responsive footage, being a recording from outside the entry into the Campsie Police Station and a recording from the reception area of the Campsie Police Station. These recordings are stored in the NSW Police Infolink database. He notes that both recordings depict a number of individuals attending the Campsie Police Station for the two-hour period of the videos. The individuals appear to be members of the public and police officers. Detective Inspector Brooks states that he is able to identify those parts of the footage depicting the applicant’s attendance at the Campsie Police Station. The applicant is recorded in the footage at the outside entry the front of the building at around 43:45 to 45:35 of the two-hour footage and enters the building and then leaving at 1:06:55 to 1:07:10. The applicant is also recorded in the reception area from approximately 45:32 to 1:07:30. The references to the footage are references to the time during the two-hour period in question.

46. Detective Inspector Brooks states that the footage does not record any incidents involving the applicant, nor does the footage appear to record the applicant having any interactions with police officers, other than potentially speaking to an officer out of view over the counter. He has reviewed the computerised operational policing system (COPS) and confirms that there are no incidents involving the applicant on 22 February 2024 and no other records of any interactions between NSW Police and the applicant on that date.

47. Detective Inspector Brooks further states that security cameras are used in police stations throughout NSW. They are an important security measure in NSW police stations and serve as a means of protecting the safety, security and rights of both members of the public and NSW police officers. He states that the use of cameras enhances the security of police stations and surrounding areas, records footage that may be used for the purposes of investigating incidents and as evidence in proceedings, serves to deter individuals from engaging in unlawful conduct and allows police to identify persons acting suspiciously on police grounds.

48. He notes that it is not possible to install cameras that cover the entirety of a police station and surrounding areas, and it is therefore necessary to make decisions as to the placement and angle of the cameras. He further notes that, as a general rule, cameras will be strategically placed to monitor high traffic areas, such as custody areas, holding cells, interview rooms and areas where the public interact with officers, such as reception areas. It is his experience that NSW Police will not disclose CCTV footage from police stations, except as required by law or for the purposes of an investigation. Where it is necessary to allow for viewing footage, this is usually undertaken through facilitating supervised “view only access” at police stations rather than providing a copy to the applicant. He states that this is the case even where CCTV is produced subject to subpoena or forms part of a brief of evidence in criminal proceedings. Where it is necessary to produce CCTV as part of a brief of evidence, this will usually be through arrangements being put in place or an undertaking is sought that the footage be held only by legal representatives and be returned to NSW Police immediately at the conclusion of the proceedings.

49. Detective Inspector Brooks explains why this procedure is adopted. In his view, the unconditional disclosure of copies of CCTV footage would allow the footage to be published or used in any way by the applicant or any other person. His concerned about the release of the footage is that this would enable a person to ascertain the camera angles of security cameras both inside and within the Campsie Police Station and, in particular, identify the blind spots or areas that are not covered by security cameras.

50. Detective Inspector Brooks raises concerns that the unconditional disclosure of the footage is a matter of concern because it would allow members of the public to identify the coverage of security cameras in the Campsie Police Station precinct. He further states that if individuals were aware of the extent of coverage of security cameras, they could use this knowledge to undermine the security of police stations and evade detection for unlawful conduct. By way of example, he notes that an individual could use footage from outside the Campsie Police Station to identify areas where they could stand and observe other individuals entering and leaving the station without being recorded by security cameras. An individual could use footage from the reception area to identify the camera blind spots and this information could be used to identify parts of the station where attacks or acts of violence could be undertaken without conduct being recorded.

51. He contends that this could have the effect of depriving police of prior warning of the presence of an offender. According to Detective Inspector Brooks, the security of NSW police stations is a matter of pressing and ongoing concern and he notes that the Australian National Security Agency has assessed Australia’s general terrorism threat level as “probable”, meaning that there is greater than 50% chance of an onshore attack or planning in the next 12 months. He is concerned that police stations are a possible attack for such targets.

52. Detective Inspector Brooks refers to specific incidents of concern where police stations have been identified as places of aggression and violence.

53. On at about 10:00 pm on 14 March 2023 a male offender entered the Campsie Police Station with a meat cleaver concealed behind his back and approached these station counter. An officer approached the counter to speak with the offender without any warning or signs of aggression and the attacker attempted to strike the police officer by swinging the meat cleaver through the perspex screen. The attacker was detained. Detective Inspector Brooks also refers to the well-known case of a NSW Police Force civilian employee, Mr Curtis Cheng, who was murdered outside the NSW police headquarters on 2 October 2015 when he was shot by a young male offender as he left the building. There was an incident on 12 July 2018 in relation to a male offender who approached police from behind as they made their way up the stairs to the entrance of the Eastwood Police Station. The offender attempted to stab the police officer in the back. There was a further incident on 27 July 2020 when a male offender entered the Liverpool Police Station armed with a knife and two further incidents in 2023 when a male offender walked into the Tenterfield Police Station armed with a firearm and pointed it towards police and an incident where a male offender attended the Auburn police station armed with a knife and attempted to attack two police officers.

54. Detective Inspector Brooks also raises concerns about the release of the footage which depicts other individuals over the two-hour period. He raises concern about a significant invasion of privacy in relation to those individuals who have attended in the attended the Campsie Police Station or are in the vicinity of the Campsie Police Station in the early hours of 24 February 2024. He states that people attending the Campsie Police Station would expect and trust that their personal information will be dealt with confidentiality, including if they attended the police station for law enforcement reasons. Attending a police station can be quite sensitive and personal to those attending.

55. In a second statement dated 9 December 2024, Detective Inspector Brooks notes that he has been provided with a document entitled “Annexure B” which shows photographs of both the outside and interior of the Campsie Police Station. The photographs identify three CCTV cameras outside the station and two cameras inside the station. He notes that two of the photographs, labelled CCTV 1 and CCTV 2, have been taken from inside the reception area of the Campsie Police Station. CCTV 1 is located in the northwest corner of the foyer next to the sliding doors entrance and is directed towards the centre of the foyer area and shows the public seating located in the middle, three internal doors and to the right, the reception area. CCTV 2 is located on the southern wall in between the eastern wall and an internal door. It is directed towards the centre of the foyer and shows the public seating located in the middle, black spots on the eastern wall that are not captured on CCTV 1 and a portion of the reception counter and an adjacent internal door.

56. Detective Inspector Brooks states that he has reviewed the CCTV footage that has been included in the Infolink records in determining the applicant’s access application. He states that he can tell from the camera angle of the internal footage recorded by the camera that the footage saved in the Infolink file is the footage depicted in CCTV 1.

57. He also notes the final photograph depicts three CCTV cameras that are at the entrance to the Campsie Police Station. There is a camera on the right-hand side of the photograph located on the western side of the main entrance. This camera is on a 45° angle and shows the tiles outside the main entrance, along with the footpath and Campsie Rd and a small portion of the vehicle entrance into the rear compound on the eastern side of the police station. There is a further camera which is shown on the left-hand side of the photograph on the eastern side of the main entrance which is directed towards the main entrance from a 45° angle and shows the tiled area that is divided by the yellow wall and leads to the vehicle entrance into the rear compound on the eastern side of the police station. This camera captures images of any individual approaching Campsie Police Station entrance from the eastern side of Campsie Street.

58. The camera that is in the middle of the photograph is directed towards the area directly in front of the door of the Campsie Police Station and shows the area immediately in front of the doorway extending past the stairs and out towards the road. This camera captures images of any individual approaching and entering the Campsie Police Station. Detective Inspector Brooks states that he has reviewed the footage considered by included in the Infolink records in determining the applicants access application and he can see that the footage of the entrance to the Campsie Police Station is taken from the middle camera that is depicted in the photograph labelled “3 CCTV at entrance of station”.

59. Detective Inspector Brooks states that the use of CCTV cameras in police stations and the retention of footage is governed by the NSW Police Force Master Specifications. According to the Master Specifications, the retention period for footage is 31 days before overwriting for any non-custodial area cameras. The retention period for all custodial areas and other nominated cameras is six months. He states that there are no nominated cameras at the Campsie PAC. If there is a specific request for footage, or the footage is required for investigative purposes or legal proceedings, it must be retained within the retention period. Otherwise, it is overwritten. In viewing the CCTV system on 9 December 2024, Detective Inspector Brooks noted that there was no longer any footage held from the second camera in the foyer and the two side cameras from the station entrance for 22 February 2024.

60. Detective Inspector Brooks was cross examined by the applicant at the hearing. He was asked whether the CCTV cameras would stop someone from attacking a police station if they wanted to. Detective Inspector Brooks said that he believed the CCTV camera would act as a deterrent. He was asked whether he had investigated a case where the CCTV did not assist and, for instance, if it would stop a perpetrator wearing a balaclava. Detective Inspector Brooks stated that there was a number of reasons why he was concerned about disclosing a copy of the CCTV. He stated that he was particularly concerned about the fact that the camera reveals potential blind spots within the reception area.

61. Detective Inspector Brooks was also asked about how the various incidents referred to in his affidavit would have been prevented through the CCTV cameras. He responded to the effect that he believed that CCTV cameras prevented more serious incidents from occurring and the possibility of serious injury. Detective Inspector Brooks was also asked about the circumstances leading to the applicant obtaining viewing access to the CCTV footage in December 2024. He was asked whether it was normal that he was put in a confined room to review the video and that he was patted down by the police officers. This is what reportedly happened to the applicant and was the subject of complaint by him during the hearing. Detective Inspector Brooks stated that it would not be usual for someone who comes into the custody area to be patted down or if there were concerns about someone on site, police officers may take this action to ensure security. The applicant raised concerns about the fact that he felt it was made difficult for him to attend the police premises to view the video.

42. [Not for publication]

43. [Not for publication]

44. [Not for publication]

45. [Not for publication]

46. [Not for publication]

47. Mr Steptoe gave evidence about the circumstances leading to the remitted decision on 1 July 2024. According to Mr Steptoe, the NSW Police Force received an access application from the applicant on 29 February 2024. The application was referred to an information review officer for processing. It was sent to the Campsie PAC by email and the relevant police officer reviewed the request, prepared an objection report and noted that there was “possibly CCTV footage at Campsie police” which the police officer had not viewed. It was further noted that the requested information was placed in a nominated folder. When Mr Steptoe reviewed the metadata, he noted the two video files were saved into the electronic file folder. It is therefore apparent that the relevant officer only identified two videos of CCTV footage which were considered to respond to the request. When Mr Steptoe reviewed the applicant's access application as part of the reconsideration of the access request following remittal, he only reviewed the two files that were available and was not aware that there were additional cameras at the Campsie Police Station which recorded further CCTV footage.

48. Mr Steptoe gave evidence about this at the hearing. He could not explain what searches had been undertaken at the Campsie Police Station or how it was that only two of the video files that responded to the request were saved into the central system. He was asked whether he was surprised that there were only two files at the time when he reviewed the request and said that he was not. He had assumed that all appropriate material had been produced, and, in this regard, he annexed to his affidavit the GIPA instruction sheet that officers were required to follow. The instruction sheet is detailed in that it lists searches that should be undertaken of the COPs system and other electronic searches. The list appears to nominate an extensive list of reports, fact sheets and video material to prompt the person completing the report about the searches that need to be undertaken.

49. When questioned by the Tribunal about how this error occurred, Mr Steptoe stated that the missing footage was not identified because of human error. He said that the information review teams rely on the units at various locations to undertake these searches.

50. I viewed in confidential session the CCTV footage which is the subject of the dispute. There are two videos. One shows footage outside the Campsie Police Station and is about 24 minutes in duration, two minutes at the beginning where the applicant is depicted (43:45-45:35) and about 15 seconds at the end (1:06:55-1:07:10). The second shows footage inside the Campsie Police Station is about 22 minutes in duration (45:30-1:07:30). The content of the footage is not itself disputed. It is the camera angles and the extent to which the cameras reveal blind spots within the reception and entry area of the Campsie Police Station that raise concerns about disclosure.

51. The video shows the applicant walking through the front doors of the Campsie Police Station. There are glass sliding doors that appear to open automatically. The applicant walks to the counter in the reception area and speaks to a person behind the counter, presumably a police officer. This person is not in view. After speaking to the person behind the counter, the applicant walks away for a period, still in the reception area, and walks out of sight for a short period of time. The CCTV does not cover part of the reception that the applicant walks to. The applicant appears to be looking at his mobile phone for much of the time that he is in the reception area. While waiting, the applicant walks over to the notice board but otherwise stands around while he is waiting. The applicant walks back to the counter, he is still using his phone and appears to talk to someone behind the counter. He walks away and back to the counter on a few occasions and appears to look up at the CCTV while he is waiting for the person at the counter. The applicant walks around the reception area and back towards the counter on several occasions, sometimes talking to a person who cannot be seen on the video. This is over a period of about 22 minutes from the time he has entered the Campsie Police Station.

52. At the end of these interactions, the applicant walks away from the counter and walks towards the glass sliding doors at the entrance of the Campsie Police Station. It appears that he is waiting for the doors to open but they do not open immediately. The applicant goes back to the counter talks to someone pointing to the door and at this stage appears a little agitated. A police officer opens the door at the back of the reception or area and has a short discussion with the applicant. He goes back into the area and after this the entry sliding doors open. The applicant leaves the premises. About two minutes elapse from the time the applicant walks towards the door to leave and when the door is opened.

53. The applicant was given a short verbal summary of the video at the hearing. He confirmed that he had viewed this footage on 23 December 2024.

Issues

74. The parties provided submissions relating to the applicant’s request for access to all of the CCTV footage for the period 2.30am to 4.30am. However, by the time of the hearing, the applicant stated that he had confined his request to the CCTV footage that depicted him. The relevant footage commenced from about 43 minutes into the video files and finished just after one hour and 6 minutes into the video files. This CCTV footage did not include any person other than the applicant, with the exception of a short period of about 15 seconds when a police officer can be seen opening the door into the reception area briefly conversing with the applicant.

75. Accordingly, if the applicant does not press for disclosure of the CCTV footage for the whole of the two-hour period initially requested, clause 3(a) to the s 14(2) Table is still relevant but it is no longer contentious because this footage still forms part of the whole footage. The respondent could delete that part of the footage that does not depict him when providing access to the other parts of the footage sought.

76. Having regard to the clarification and narrowing of the scope of the applicant’s request for access, the respondent now submits that the correct and preferable decision is to provide “view only” access to that part of the CCTV footage requested which depicts the applicant and to otherwise refuse access to the balance of the CCTV footage.

77. The applicant seeks full access to the CCTV footage that responds to his amended request, relevantly, he now only seeks access to the footage that depicts him. The applicant otherwise queries whether the respondent has undertaken adequate searches and queries whether the respondent no longer holds the further CCTV footage for the additional cameras he has identified which would fall within his request.

78. The issues in dispute, as apparent from the evidence and submissions, are:

1. Whether there was an implicit decision made by the respondent under s 58(1)(d) of the GIPA Act that further information was not held by the respondent and, related to this, whether the respondent has undertaken adequate searches such that the Tribunal can be satisfied the three additional CCTV footage files identified are no longer held by the respondent?

2. In relation to the two CCTV footage files identified as responding to the applicant’s access application at the time of the original decision and the remitted decision on 1 July 2024, what is the correct and preferable decision? There is no dispute that this material responds to the access application. The respondent refused to provide access to these files in its decision made on 1 July 2024 but now submits that view only access should be provided, rather than a blanket refusal.

79. A further issue that arises given submissions made by the applicant at and after the hearing is whether confidentiality orders should be made regarding his identity.

Consideration

CCTV footage not produced

80. The applicant submits that at least five CCTV cameras would have responded to his access application, yet the respondent has only produced two camera CCTV footage views. Detective Inspector Brooks states that CCTV footage is kept for 31 days and that as his application was made within the 31 days retention, the respondent should have released further footage from the five to seven cameras on site but chose only to provide him with access to two of the CCTV footage files. He submits that the respondent failed to comply with s 53 of the GIPA Act in dealing with his access application and that whoever processed the application from the Campsie Police Station, or their supervisor, must have known that the area had two CCTV cameras in the reception area.

81. The applicant submits the evidence of Mr Steptoe is “fruitless” because he was not the person who dealt with or handled his original GIPA application. He disputes that the respondent has undertaken adequate searches and questions that claim that the respondent does not hold any additional CCTV footage that would be responsive to his request.

82. They respondent submits that following the remitted decision of 1 July 2024, which identified two CCTV recordings as being responsive to the access application, the respondent became aware, through an application made by the applicant for summonses to be issued, that there were three visible CCTV cameras at the entrance of the Campsie Police Station and two visible cameras within the reception area. The respondent therefore accepts that in addition to the two CCTV cameras identified, there were three additional CCTV cameras at the site which may have contained CCTV footage of the applicant entering and inside the Campsie Police Station. The respondent notes that the compliance of an agency with search obligations imposed by s 53 of the GIPA Act is not a reviewable decision but accepts that the question of whether reasonable searches for information have been undertaken will be relevant to the Tribunal’s review of a decision that an agency does not hold government information. It is further accepted by the respondent that there was an implicit decision made on 1 July 2024, when the three additional CCTV footage videos were not produced or referred to, that no further information in response to the access application was held. This is a reviewable decision under s 80(e): Amos v Central Coast Council [2018] NSWCATAD 101 at [32] referring to the Appeal Panel decision in Robinson v Commissioner of Police [2014] NSWCATAP 73.

83. The respondent submits that, having regard to the evidence of Detective Inspector Brooks, the Tribunal should affirm the implicit decision on 1 July 2024 that there is no further information held that is responsive to the access application. This is not a case where further searches may locate other responsive documents.

84. On the question of what constitutes a “reasonable search” for the purpose of s 53 of the GIPA Act, the respondent submits that given the passage of time that is passed between the initial processing of the access application and the issue emerging regarding additional CCTV footage, there have been difficulties in obtaining detailed evidence as to the initial searches undertaken for the footage. Mr Steptoe provided evidence about the process that was undertaken, noting that the video files from two of the CCTV cameras were saved by Infolink into the database. He notes in his affidavit the information review officer does not recall asking Campsie PAC whether any further additional CCTV footage was held and he made his decision on the understanding that the two video files that had been saved to the system were the only records that were responsive. I accept Mr Steptoe’s evidence.

85. The respondent submits that it is “regrettable” additional CCTV footage from the other CCTV cameras was not identified as responsive at the time of making the original decision, having regard to the evidence of Detective Inspector Brooks regarding the procedure for overwriting footage after a period unless it is required to be kept. It is submitted that at the time Mr Steptoe made the remitted decision, there was no additional footage available. The respondent relies on the evidence of Detective Inspector Brooks in this regard. It is contended that the fact that the additional CCTV camera footage was not identified as being responsive does not necessarily support a finding that the respondent failed to comply with the obligations under s 53 or that its searches were inadequate. While it is accepted that there was human error in failing to identify the additional footage, this does not of itself suggest that searches were inadequate.

86. The respondent also notes that this error could not be rectified by the time the issue subsequently became known. This is not a case where the respondent is attempting to hide footage, as alleged by the applicant. It is also submitted this is not a case where the applicant has been placed at some disadvantage. The CCTV footage identified provides a comprehensive and complete record of the applicant’s attendance at Campsie Police Station on the evening of 22 February 2024. It is also submitted that the footage appears to be entirely unremarkable and there is no apparent incident or event that occurred that would necessitate or want the attendance being captured from multiple camera angles.

87. I accept the concerns raised by the applicant as to whether the searches undertaken when his application was received on 29 February 2024 were adequate. His request related to a period seven days earlier, well within the 31 days identified by Detective Inspector Brooks as the period that video footage is retained. If adequate searches had been undertaken, the additional three videos would have been identified. While there is little evidence about what happened and what searches were undertaken, there is no evidence to explain whether there was some reason why this obvious search in relation to five visible CCTV cameras at the Campsie Police Station was not undertaken or, for instance, whether these additional videos were malfunctioning. The inference that I have drawn from this is that the searches made were not sufficiently thorough. It is possible the person who was designated with the task was inexperienced or inadequately trained.

88. Mr Steptoe believes there was human error. I accept that this is the case and there is no evidence, apart from the applicant's unsubstantiated assertion, to suggest the additional videos have been deliberately concealed or withheld. I also accept the respondent’s submission that the videos that have been produced are comprehensive and record the applicant’s attendance at the Campsie Police Station. There is only one part of the video where the applicant walks off camera for a very brief period. This may have been captured by the second CCTV footage, but this footage hardly seems to be significant or material when the footage is viewed as a whole.

89. As observed in Amos at [38]-[39], the burden of establishing that the implicit decision the agency does not hold information is justified lies with the agency. As such, if the Tribunal is persuaded that an agency holds more information than the information it has identified, the correct and preferable decision may not be to affirm the decision but rather to remit the decision for consideration to permit further searches to be undertaken. According to Amos, this may be the case, even if the agency’s searches appear to have been reasonable at the time they were conducted.

90. While I am not satisfied from the evidence provided by the respondent that the searches made were adequate, I am nonetheless satisfied that the additional CCTV footage is no longer held by the respondent because it was overwritten after 31 days from the date it was generated. In this regard, I accept the evidence of Detective Inspector Brooks. I am therefore satisfied that at the time the decision of 1 July 2024 was made, the additional footage had already been overwritten, and this remains the case at the time of my decision. Administrative review is not focused on whether the decision being reviewed was correct or incorrect at the time it was made but rather on forming a view about the correct and preferable decision at the time of the Tribunal decision, having regard to all of the material available at that time.

91. This being the case, I affirm the implicit decision that the respondent does not hold the additional CCTV footage. This is because I am satisfied that this is the case at this at the time of my decision. Despite this, I observe that this is not only regrettable but unsatisfactory. As expressed at the hearing, it may be appropriate for the respondent to review its procedures to ensure human error does not again occur where there is the potential for CCTV footage to be overwritten if it is not identified as relevant material that needs to be retained.

The existing CCTV footage

92. The applicant submits that the relevant parts of the CCTV footage only captures his presence at the Campsie Police Station and not other members of the public. Police officers should not be exempt and therefore, in his view, pixelation is not necessary or required. He does not press for access to the entirety of the footage. The applicant further submits that the CCTV footage includes information that is personal information and there is a public interest consideration in favour of disclosure under s 12 of the GIPA Act. He submits that the disclosure of this information could reasonably be expected to reveal or substantiate that an agency or a member of an agency, relevantly the NSW Police Force, has engaged in misconduct or negligent, improper or unlawful conduct. This is also a public interest consideration in favour of disclosure under s 12. The footage is required to be examined by lawyers and barristers and refusing access to the applicant will serve a great injustice. The applicant wants the footage to be released so it can be provided to his solicitors or barristers for viewing and in preparing a statement of claim against the NSW Police Force and/or the State of NSW. He submits this is a relevant consideration under s 55 of the GIPA Act and relies on various cases, including Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 257 and Transport for NSW v Searle [2018] NSWCATAP 93.

93. The applicant also submits that he has reviewed the disputed CCTV footage and, having reviewed this footage, contends that there is no public interest merit against its disclosure. He submits that the evidence of Detective Inspector Brooks, which was heard in closed session, is not relevant to the dispute because the CCTV footage speaks for itself. He says that there is no evidence that if the CCTV footage is released it may cause an attack on the Campsie Police Station and its officers. The applicant submits that none of the considerations listed in the table to s 14(2) to apply. The CCTV footage is of a single view only and there should be no concern about the security of the Campsie Police Station or the police officers, as submitted by the respondent. There is a small area covered by the disputed CCTV footage. The CCTV footage is of an open public space visited by the public daily and anyone intending to attack the Campsie Police Station will not be deterred by this one CCTV footage angle to carry out their ill intentions. The Campsie Police Station is highly protected and almost every member is armed with weapons from guns, tasers, batons, capsicum spray amongst other things.

94. The applicant contends that the evidence of Detective Inspector Brooks is “fanciful” and that if anybody wanted to attack the Campsie Police Station or a police officer it would be unlikely that they would find this footage released on the Internet to assist. The applicant further submits that it is unlikely that anybody who was wanting to attack a police station would care about being captured on CCTV. There are many shootings in Australia, New Zealand United States and all government buildings are monitored by CCTV, which people know.

92. In summary, the applicant submits that the correct and preferable decision is to allow him copy access via email, CD or USB of the internal and external CCTV footage from the Campsie Police Station for the period that he requests where he is captured in the CCTV footage. The applicant submits that the respondent makes CCTV footage available from time to time to media and news outlets and he should not be treated any differently. He contends that the NSW Police Force cannot be trusted to hold this footage if he requires.

93. The respondent submits that applicant should not be given access to the relevant CCTV footage depicting him in the form requested because of the concerns raised by Detective Inspector Brooks in his evidence.

94. Where public interest considerations against disclosure are identified in the Table to s 14(2), the GIPA Act envisages a two-stage process (Commissioner of Police NSW v Camilleri [2012] NSWCATAP 19). The Tribunals task is to weigh that case against the factors favouring disclosure, mindful of the provisions of ss 12 and 15. The considerations against disclosure in the Table arise when the disclosure of information could reasonably be expected to have the relevant effect. The test to be applied is an objective one, which “requires a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous” (Attorney-General’s Department v Cockcroft (1986) 10 FCR 18). As observed in Leech v Sydney Water Corporation [2010] NSWADT 298,

Something which could reasonably be expected is something which is more than a mere possibility, risk or chance. It must be based on real and substantial grounds, it must not be purely speculative, fanciful, imaginary or contrived.

98. It is also submitted that “prejudice” should be given its ordinary or everyday meaning, to cause detriment or disadvantage or to impede or derogate from.

99. The respondent submits that the evidence of Detective Inspector Brooks supports the contention that disclosure of the CCTV footage to the applicant could reasonably be expected to endanger or prejudice the NSW Police system and procedures for protecting the safety of police and members of the public attending Campsie Police Station and the Police Station itself.

100. Firstly, security cameras are used in police stations throughout NSW and are an important security measure in NSW police stations. Secondly, there are concerns about the unconditional disclosure of the CCTV requested in this matter because, having reviewed the footage, Detective Inspector Brooks believes that the footage would enable a person to ascertain the camera angles of security cameras both inside and within the Campsie Police Station. His particular concern is the unconditional disclosure of footage will allow members of the public to identify the coverage of the security cameras and possibly evade detection for unlawful conduct. He gives examples that footage could be used to identify the areas where a person could stand to observe other individuals entering and leaving the station without being recorded by camera or to identify camera blind sports in order to identify parts of the station where an attack or act of violence could be undertaken without that conduct being recorded.

101. [Not for publication]

102. The respondent accepts that there is a general public interest in favour of disclosure. It is further accepted that the CCTV footage depicts the applicant, which is his personal information, and this weighs in favour of disclosure. Against this, the respondent contends that the evidence from Detective Inspector Brooks about his concerns in relation to disclosure of CCTV footage weighs strongly against disclosure.

103. The respondent notes that under s 72 of the GIPA Act, access to government information may be provided by a number of different means, including by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to. The respondent submits that given this option, the correct and preferable decision is for the Tribunal to provide access to that part of the CCTV footage that depicts the applicant by allowing him the opportunity to attend and view the footage at a NSW police station (Cousins v Ambulance Service of NSW [2014] NSWCATAD 48).

104. The applicant does not press for access to CCTV footage for the whole of the two-hour period between 2:30am to 4:30am on 22 February 2024 but only in relation to that footage that depicts him. The two-hour footage records members of the public entering and leaving the Campsie Police Station. I accept that this footage contains personal information of those members of the public that have attended the Campise Police Station, and this personal information may be sensitive. This is a public interest consideration against disclosure pursuant to cl 3(a) of the Table. I find that there are compelling public interest considerations against disclosure of this video footage but also note that the applicant does not press this part of his request and does not seek this information. I therefore affirm that part of the respondent’s decision refusing access to this information.

105. In relation to the remaining information disclosed in the relevant CCTV footage, none of the footage includes other members of the public. Insofar as the footage depicts the applicant, I accept that this is personal information. I also accept that the applicant has an interest in obtaining access to this information because he believes that there was some wrongdoing which he believes is evidenced by the footage. It is not clear what wrongdoing is alleged, and the applicant was not prepared to elaborate, other than to indicate he wanted to seek advice in relation to this matter by providing a copy of the relevant footage to legal advisors. The respondent submits that the footage does not reveal anything remarkable and, while I agree that there was nothing obvious that could be seen in the video, it is unnecessary for me to form a view about the nature of or strength of any possible claim against NSW Police and/or the State of NSW. As observed by Principal Member Thornton in Cousins at [71]:

It is not for the Tribunal to assess the information in issue and determine whether it does or does not reveal or substantiate such conduct. The inquiry is more abstract in that it is the nature of the information which is to be considered.

106. Prior to the hearing, the applicant had not disclosed his reasons for seeking the CCTV footage. He has now done so, both in his oral and written submissions. Accordingly, he has provided his motivations for seeking access to the video footage and this is relevant for the purposes of s 55(1)(b) of the GIPA Act.

107. I therefore find that the general public interest considerations and personal factors of the application, including the fact that the particular footage requested depicts the applicant in its entirety, weigh in favour of disclosure of the information to the applicant.

108. The respondent also accepts these matters weigh in favour of disclosure, but it is submitted that the form of access should be limited to view only access as this would address the public interest considerations against disclosure as expressed by Detective Inspector Brooks in his evidence.

109. The applicant makes a number of submissions in relation to this. First, he submits that the disclosure of the CCTV footage from one of the cameras does not necessarily disclose the blind sports because the other CCTV camera may have adequately covered these areas. Secondly, the applicant disputes the evidence of Detective Inspector Brooks and does not accept that the CCTV cameras play such an important role in security at police stations common or that they would deter offenders or provide evidence of a violent attack. He further submits that there is no reason why there should be concerns about him having access because he is not the subject of police interest. This is in response the potential argument about personal factors that may be raised against him under s 55.

110. I reject these submissions.

111. I have had regard to the evidence of Detective Inspector Brooks, both in his open and confidential statements and in his evidence at the hearing. I accept his evidence, which is both cogent and compelling. In viewing the CCTV footage, I observed that there were occasions where the applicant was not monitored by the CCTV camera in the reception area. This is because there are, as Detective Inspector Brooks states, blind spots in the coverage of the camera. I also accept his evidence where he gave several reasons as to why providing a copy of the CCTV footage to the applicant could endanger or prejudice security at police station. His evidence is not fanciful or speculative. On the contrary, his evidence is probative, rational and well-reasoned.

112. [Not for publication]

113. [Not for publication]

114. However, this is not the determinative issue because disclosure of the information ultimately results in the release of the information to the public more generally. Relevantly, it is not possible to impose conditions on the release of a copy of the CCTV footage, either by email CD or USB.

115. I therefore find that there are compelling public considerations that weigh strongly against the unconditional disclosure of this information by disclosing a copy, either by email, CD or USB, to the applicant.

116. Given this finding, it is relevant to consider whether there are alternative means of providing access, such as those proposed by the respondent, would make the objectives of disclosure of government information but protect against the possible negative impact of disclosure, as contended by the respondent.

117. As already noted, section 72 of the GIPA Act provides for forms of access. Section 72(2) provides that the agency must provide access in the way requested by the applicant unless there is an overriding public interest against disclosure of the information in the way requested by the applicant.

118. The respondent submits that access should be view only and the applicant submits that he wants to have a copy of the CCTV footage so that he can provide it to his lawyers for advice. He further submits that there would be an injustice if the footage is not disclosed.

119. The application of s 72(2)(d) of the GIPA Act was considered in Cousins, where Principal Member Thornton found:

62. Hence, I remain of the view that the circumstances set out in para 72(2)(d) of the GIPA Act are only applicable after an agency has identified any public interest consideration against the disclosure of the information in the form sought and where a public interest consideration against disclosure is identified, weighing that public interest consideration against the public interest consideration in favour of disclosure in the form sought (i.e. the s 13 test). In weighing the competing public interests the agency can take into account any relevant factor falling within s 55 and the inability to grant conditional access (see 73(1)).

63.   If the s 13 test is not satisfied, then subs 9(1) provides that the access applicant has a legally enforceable right to be provided with the information in the form sought.

64. On the other hand, if the s 13 test is satisfied and there is an overriding public interest against disclosure of the information in the form sought, in my view, para 72(2)(d) makes provision for the agency to consider whether disclosure of the information sought, in a form, other than that requested by the access applicant, would alter the balance between the competing public interests so that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure if access is granted in an alternative form. This approach, in my view, is also consistent with the structured approach to decision making, under the GIPA Act, as noted by the Appeal Panel, in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25].

120. I agree with and adopt this approach. In other words, I am satisfied that there is an overriding public interest against disclosure of the information in the form sought, however, I accept that there is provision to consider whether disclosure of the information in a form other than that requested by the access applicant would alter the balance between the competing public interests. In my view, access in accordance with ss 72(1)(a) and/or (c) provides such an opportunity.

121. Having regard to the competing arguments, I find that the correct and preferable decision is that access should be provided to the relevant CCTV footage but that it should be view only access at the Campsie Police Station, or some other location and at a time nominated by the respondent which is suitable to the applicant. View access should also be provided to the applicant’s legal representatives to give the applicant the opportunity to obtain legal advice about any possible cause of action he believes he may have. The view access should be made available for a period of three months from today, which should provide the applicant with sufficient opportunity to arrange for his legal representatives to view the video and for him to make a complaint or commence proceedings, in which case the relevant CCTV footage will be retained and made available through another legal process.

Should confidentiality orders be made in relation to the applicant?

122. Near the close of the hearing, the applicant requested that the Tribunal make confidentiality orders in relation to his identity pursuant to s 64 of the NCAT Act. As this was not an issue previously raised and because the request was made at a late stage, the applicant was given leave to provide submissions in support of this application, together with any other issues he wished to raise in support of his claims, by 16 April 2025. The respondent neither opposed nor supported this foreshadowed application at the hearing.

123. As noted, the applicant provided these submissions on 2 May 2025 addressing the substantive issues in dispute but also made a request for confidentiality orders. He requests non-publication of the decision on the caselaw website but if the Tribunal does not agree to this, the applicant requests that his name not be used and he be given a pseudonym. The grounds raised were that the publication of the applicant’s personal information on the internet causes him great anxiety and depression and agitates existing health conditions. The applicant also made these submissions during the hearing. I accept, having regard to the applicant’s presentation at the hearing and the force of his oral submissions about this issue, that he is genuinely anxious about these issues and the publication of his name, despite the fact that he did not provide medical reports to substantiate his claim.

124. Section 49 of the NCAT Act provides that hearings are to be open to the public, which recognises the importance of open justice. Section 64(1)(a) of the NCAT Act provides that if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal). As such, the Tribunal has a broad discretion to make an order under s 64(1)(a) if it is desirable to do so but this must be balanced against transparency and the importance of open justice.

125. In this case, I accept that the applicant has anxiety and mental health issues and this was apparent during the hearing. I also accept his submission, although there was no independent evidence to this effect, that publication of his name may exacerbate his anxiety and claimed illness. The anonymisation of the applicant’s name does not impact on the readability and understanding of the reasons. I therefore make an order prohibiting the publication of the applicant’s name.

Conclusion and orders

126. For the reasons outlined above, the Tribunal:

1. Affirms the implied decision made on 1 July 2024 that the respondent does not hold additional CCTV footage video files other than the two video files identified in the decision of 1 July 2024.

2. Varies the decision dated 1 July 2024 to provide view only access to those parts of the CCTV footage requested that depicts the applicant (in accordance with paragraph [121] of these reasons) and otherwise to refuse access to the balance of the CCTV footage.

3. Orders that pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), disclosure of the applicant’s name in connection with these proceedings 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: 25 June 2025