Jessica Jane Gallagher v Commissioner of Police

[2025] NSWCATAD 137

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jessica Jane Gallagher v Commissioner of Police [2025] NSWCATAD 137

Hearing dates:

26 November 2024

Date of orders:

26 November 2024

Decision date:

13 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – failure to appear at hearing - public interest test – correct and preferable decision – confidential hearing

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

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

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Taylor v Destination NSW [2017] NSWCATAD 272

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Transport for NSW v Searle [2018] NSWCATAP 93

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

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

Texts Cited:

None

Category:

Principal judgment

Parties:

Jessica Jane Gallagher (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self represented)

Solicitors:
Holding Redlich (Respondent)

File Number(s):

2024/00280441

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or disclosure of documentation lodged by the respondent with the Tribunal on a confidential basis and the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (Commissioner of Police, NSW Police Force), are prohibited.

REASONS FOR DECISION

Background

1. In this matter, the Jessica Jane Gallagher (the Applicant) made an application for access to information (the GIPA request) to the Commissioner of Police, NSW Police Force (the Respondent) under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). She sought access to information which included an internal Case Report.

The reviewable decision

2. On 7 June 2024, the respondent made a decision under s 58(1)(d) of the GIPA Act and refused to provide access to some of the information sought in the GIPA request, some of the information in the internal Case Report. That report was released to the applicant in a redacted format, but the other information sought in the GIPA request was released to her.

3. The Respondent made the redactions (the disputed information) pursuant to cll 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act, as it decided that the public interest considerations against disclosure of the disputed information outweighed the public interest considerations in favour of its disclosure, and that there was an overriding public interest against disclosure.

Current proceedings

4. On 31 July 2024, the Applicant filed an application for administrative review of the decision dated 7 June 2024.

5. On 26 August 2024, Senior Member Ziegler conducted a case conference at which the Applicant was self-represented. The Senior Member ordered the Applicant to file and serve any evidence or submissions on or before 21 October 2024. She listed the matter for hearing on 26 November 2024. However, the applicant failed to comply with those orders.

6. The matter came before me for hearing on 26 November 2024. When the matter was called there was no appearance by or on behalf of the Applicant. Ms Sims appeared for the respondent.

7. The Tribunal attempted to contact the Applicant by telephone to ascertain the reason for her failure to appear at the hearing and to provide her with an opportunity to participate in the hearing by phone. However, the Tribunal was unable to reach her and the calls were met with a recorded message stating that the mobile telephone was switched off.

8. As the respondent had complied with the Tribunal’s orders and was ready to proceed, the Tribunal determined that it was appropriate to proceed to determine the application for administrative review in the absence of the Applicant.

Respondent’s case

9. Ms Sims stated that the issue for determination is whether cll 3(a) and 3(b) of s 14(2) to the GIPA Act apply to the disputed information. She stated that the Applicant made very serious criminal allegations against multiple individuals and some of those individuals were witnesses. There was no reason to believe that those individuals would consent to their personal information being disclosed to the public under the GIPA Act.

10. Ms Sims argued that in terms of balancing the public interest, the public interest considerations against disclosure of the disputed information outweighed the general public interest considerations under s 12 of the GIPA Act and the Applicant’s personal factors of the GIPA request. Therefore, the correct and preferable decision is for the Tribunal to affirm the decision under review.

Confidential hearing

11. The Tribunal determined that it was appropriate to conduct a confidential hearing pursuant to s 49(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and s 107 of the GIPA Act.

12. [NOT FOR PUBLICATION]

Resumption of the open hearing

13. Upon the completion of Ms Sims’ confidential submissions, the Tribunal resumed the open hearing and determined that it was satisfied that the redactions were properly made under cl 3(a) and/or 3(b) of the Table to s 14(2) of the GIPA Act, as the information comprised names and/or addresses of individuals (including witnesses). There was also no reasonable basis for a view that those persons would consent to their personal information being disclosed to the world.

Ex Tempore decision

14. The Tribunal delivered an ex-tempore decision in the following terms:

In this matter the applicant filed an application for administrative review seeking review of the decision made by the respondent to refuse access to some of the information sought, under an application that she made for access into information under the Government Information Public Access Act (2009), the GIPA Act. In particular that decision was made under s 58(1)(d) of that Act.

The respondent has disclosed all information requested in the applicant’s GIPA request to the applicant with the exception of information contained in an internal case report. That document has been released to the applicant with redactions that have been made under clauses 3A and 3B of the table to s 14(2) of the GIPA Act.

The respondent decided that the public interest considerations against disclosure outweigh those in favour of disclosure of the redacted information to the applicant.

The applicant’s application was filed on 31 July 2024 and the matter proceeded to a case conference before Senior Member Ziegler on 26 August 2024 at which the applicant appeared in person. The applicant was ordered to file and serve any evidence or submissions on or before 21 October 2024; however, she failed to comply with those directions.

When the matter was called today there was no appearance from the applicant, nor has she contacted the registry to indicate any difficulty in attendance or to request any adjournment of the proceedings on any ground. Accordingly, pursuant to s 38 of the NCAT Act I am satisfied that it is appropriate to determine the matter in the applicant’s absence.

In determining this dispute I am required, by law, to apply the public interest test under s 13 of the GIPA Act. I accept that the public interest considerations against disclosure under clauses 3A and 3B of the table to s 14(2) of the GIPA Act, apply to the redactions in the Case Report which is the only document in dispute, and that these factors should be given significant weight. I find that the public interest considerations in favour of disclosure are those set out in s 12 of the GIPA Act, and I note that much of the information sought relates to the applicant personally and can properly be considered as personal information. That is a personal factor and I have given these matters substantial weight.

However in my view the public interest considerations against disclosure outweigh those in favour of disclosure, and the correct and preferable decision is to affirm the decision of the respondent dated 7 June 2024 as subsequently varied by the respondent on 2 October 2024 as indicated in para 9 of the respondent’s written submissions.

The Tribunal will publish its reasons for this decision within 28 days.

Written reasons

15. Owing to technical issues, I did not receive the Transcript of the ex-tempore decision until very recently and I was therefore unable to prepare and public these reasons. I apologise to the parties for the resulting delay in the publication of these reasons.

Consideration

Legal principles

16. The application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".

17. In determining an application under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it.

18. Section 63 of the ADR Act states:

63. Determination of administrative review by Tribunal

(1) 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.

(2) 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.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) 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.

19. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

20. Under s 5, there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against its disclosure.

21. Under s 9(1), a person who makes an access application has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications), unless there is an overriding public interest against disclosure of the information.

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

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

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

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

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

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

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

26. Section 14 relevantly provides:

14. Public interest considerations against disclosure

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

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

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

Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.

Clause 3(b) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.

27. Section 53 provides for the type and scope of searches for information that come within an access application, and s 53(3) provides that the 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 searches must be conducted using the most efficient means reasonably available to it, including resources that facilitate the retrieval of information stored electronically. However, it is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources (s 53(5)). .

28. Section 55 refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. Section 55(1) provides that in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to consider the following "personal factors of the application": (a) the applicant's identity and relationship with any other person; (b) the applicant's motives for making the access application; and (c) any other factors particular to the applicant. These personal factors can also be taken considered as factors in favour of providing the applicant with access to the information (ss (2)), but they can be considered 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 cll 2-5 (but not cl l1, 6 or 7) of the Table to s 14 (s 55(3)).

29. Section 58(1)(d) provides that an agency decides an access application for government information by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.

30. Section 73 provides that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".

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

32. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104]. Subsections 15(a) - (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act.

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

34. Section 107(1) provides, “In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.”

35. Section 107(2) provides, “On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.”

36. Section 107(3) provides, “On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

The NCAT Act

37. Section 49 provides:

Hearings to be open to public

(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

Determination

38. Based on the evidence and submissions available to the Tribunal at the date of the hearing, the Tribunal was satisfied that cll 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act properly applied to the disputed information.

39. The Tribunal was also satisfied that in making its decision to refuse access to the redacted information under s 58(1)(d) of the GIPA Act, the Respondent properly applied the public interest test under s 13 of the GIPA Act, as it:

1. identified the public interest considerations in favour of disclosure of the disputed information and the Applicant’s personal factors for the GIPA request and determined the weight to be given to them;

2. correctly identified the relevant public interest considerations against disclosure of the disputed information and determined the weight to be given to them;

3. balanced these considerations; and

4. determined that the public interest considerations against disclosure outweighed those in favour of disclosure, such that there was an overriding public interest against disclosure.

40. In applying the public interest test as required by the decision in Flack, the Tribunal:

1. adopts the public interest considerations in favour of disclosure as identified by the Respondent and the Applicant’s personal factors of the application;

2. agrees with and adopts the weight applied to those considerations by the Respondent;

3. adopts the public interest considerations against disclosure identified by the Respondent;

4. agrees with and adopts the weight applied to those considerations by the Respondent; and

5. Is satisfied that there is an overriding public interest against disclosure of the disputed information.

41. Accordingly, the correct and preferable decision is to affirm the decision under review.

Orders

42. The Tribunal orders that the decision under review is affirmed.

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

Registrar

Decision last updated: 13 June 2025