Johnson v Commissioner of Police, NSW Police Force

[2017] NSWCATAD 59

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59
Hearing dates:	30 September 2016
Date of orders:	27 February 2017
Decision date:	27 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the respondent is affirmed.
Catchwords:	GOVERNMENT INFORMATION (PUBLIC ACCESS) – access application – substantially refused on various statutory grounds – review by Tribunal– decisions to refuse to confirm or deny existence of documents (s 58(1)(f)) - whether agency obliged to give reasons for such a refusal – approach to review of such decisions –review of refusal decisions (s 58(1)(d)) GIPA Act –– Refusal of Access.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 Government Information (Public Access) Act 2009 Law Enforcement (Controlled Operations) Act 1997 Right to Information Act 2009 (Qld)
Cases Cited:	Mannix v Department of Education and Communities [2014] NSWCATAD 35 Commissioner of Police NSW Police Force v Barrett [2015] NSWCATAP 68 Beale v Government Insurance Office of NSW (1997) 48 NSWLR Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 Keith v Gal [2013] NSWCA 339
Category:	Principal judgment
Parties:	Luke Johnson (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: Mr Neary (as Agent s-45 (1) (b) (i) Civil and Administrative Tribunal Act 2013 ) (Applicant) C Zoppo (Respondent)
File Number(s):	1610001
Publication restriction:	Section 64 (1) (d) of the Civil and Administrative Tribunal Act applies to those paragraphs of these reasons identified as paragraphs 39 -57 inclusive ‘not for publication’. Those paragraphs are not to be released to either the Applicant or the public.

Reasons for decision

Background

1. In December 2015 the applicant filed an application for administrative review with the Tribunal. The matter was subsequently registered on 4 January 2016. That application concerned how the respondent had dealt with an application for access to documents, which were of personal interest to the applicant. These documents were held by the respondent agency.

2. The applicant had in previous years had dealings with the respondent agency in respect of law enforcement matters. It is apparent that the applicant held concerns about information related to the applicant which was apparently held and possibly relied upon by the respondent.

3. An initial application was made to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) on or about 9 October 2015. It is unclear from the material before the Tribunal as to how the respondent (after acknowledging the application in writing) dealt with that application. In any event in the absence of any advice on the matter, or a decision forthcoming, the applicant acted on the relevant provisions of the GIPA Act which infer a ‘deemed refusal’ if no decision is made or communicated within a specified time.

4. The applicant exercised his right of internal review under the GIPA Act on 19 November 2015. Whilst the review was accepted or acknowledged by the respondent it appears that again no relevant decision was either made or communicated to the applicant. In making this observation the Tribunal notes that the respondent was dealing with a suite of GIPA requests from the applicant and his associate whereby as various amounts of information were provided through subsequent applications, this had the effect of identifying further information which became subject to further GIPA Act requests.

5. Ultimately the application for external review was lodged on the basis that the respondent had made a deemed refusal as no decision was forthcoming within the relevant period specified under the GIPA Act.

6. In the application the scope of the request was characterised in submissions by the applicant in the following manner:

“Six pieces of information relating to a single case… : (summarised below)

1. Correspondence between Detective ‘BG’ and the ODPP between 17 February 2011 and 23 June 2011 regarding the case against the applicant;

2. Full and complete copy of surveillance report of 13 / 1/ 2011 concerning operation ‘Linder’.

3. Full and complete copy of record of interview / negotiation / correspondence between NSW Police and ‘XX’.

4. A full copy of any evidence by detectives ‘H’ or ‘K’ concerning the applicant’s alleged involvement in the supply of prohibited drugs or firearms.

5. A copy of the application for Controlled Operation CO1122.

6. A complete copy of the application for a search warrant 08/2011 and a full copy of the application for the related covert search warrant.

7. At a Case Conference in the pre-hearing process the Tribunal was advised that the respondent had decided the matter and their decision was received by the applicant in mid-June 2016. The issues in dispute were thus somewhat narrowed and were characterised by the parties as follows:

• The decision of the respondent to neither confirm nor deny the existence of certain information (within scope).

• The withheld data in respect of the search warrant application: (being the basis for the application - data redacted at the head of the warrant).

• The ‘DNA Notification Link’ in respect of a Winchester 12 Gauge shotgun.

8. In refusing access to some of the information, the respondent relied on two separate provisions of the GIPA Act. One suite of information (concerning the search warrant) was withheld on the basis that in the respondents view there was a conclusive presumption of an overriding public interest consideration against disclosure, and the remainder was withheld on the basis that the evidence attaching to the public interest considerations against disclosure was of sufficient weight so as to override the general presumption in favour of disclosure.

Jurisdiction

9. There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction. In addition there is no dispute that the application was filed within time, as the matter was lodged within the period provided for by the GIPA Act in respect of a Tribunal review following a deemed refusal. The respondent confirmed receipt of the initial application on 9 October 2015. The review application was confirmed as being received on 19 November 2015 with a response due on 10 December 2015. Even though section 101 of the GIPA Act does not make explicit reference to internal reviews in calculating time, the term ‘within 40 working days after notice of the decision to which the review relates is given to the applicant’, provides a period (at the very least) of 40 working days from when the decision was due under the GIPA Act – 10 December 2015. However, as set out above, there was no dispute between the parties on this issue.

The Legislative Provisions

10. The objects of the GIPA Act are as follows:

3 Object of Act

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

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

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

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

(2) It is the intention of Parliament:

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

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

11. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 the following outline of the provisions is provided:

5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.

8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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".

10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

12. In respect of the application before the Tribunal, it seems evident that the respondent did not exercise any substantive functions under the GIPA Act in respect of the application, until such time as the matter was before the Tribunal. (Acknowledgements only were provided in respect of the application and Internal Review).

13. Whether this absence of any timely discharging of the respondents functions under GIPA was bound up in the context of the grounds ultimately relied upon in refusing to release some of the information was not addressed.

14. There are two aspects or elements of the GIPA Act which the respondent relied upon in withholding information from the applicant, as referred to at paragraph 8 (above). The conclusive presumptions as listed in Schedule 1 of the GIPA Act which is titled: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure, and the Table to section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied.

15. One suite of material which it was submitted met the criteria as set out in Schedule 1 of the GIPA Act (identified as material created by the State Crime Command) and therefore falling within Clause 7 (1) (c ) of the Schedule.

16. The relevant provisions of the GIPA Act relied upon by the respondent in respect of the conclusive presumption against disclosure are:

Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure

7 Documents affecting law enforcement and public safety

It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents:

(a) …..

(b) …..

(c) a document created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence,

(d) ……

(e) ……

(Emphasis added).

17. In addition there was reliance on public interest considerations against disclosure for some of the remaining withheld material.

18. Relevantly section 14 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.

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

19. The Table to section 14 provides the various criteria or considerations referred to in section 14 (2). The Table lists seven areas whereby relevant public interest considerations against disclosure are set out. Relevant to this application, the Agency relied on the provisions relating to: revealing personal information. The section provides:

1 Responsible and effective government

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

(a) …..

(b) ….

(c) ….

(d) ….

(e) ….

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

…..

2 Law enforcement and security

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

(a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,

…..

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) ……

(b) ……

(c) ……

(d) ……

(e) …….

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

(Emphasis added).

Hearing of matter before the Tribunal

20. The matter was heard on 30 September 2016. Earlier in the proceedings the Tribunal had given leave to Mr C Neary to act as agent for the applicant pursuant to section 45 (1) (b) (i) of the Civil and Administrative Tribunal Act 2013 which provides:

45 Representation of parties

(1) A party to proceedings in the Tribunal:

(a) has the carriage of the party’s own case and is not entitled to be represented by any person, and

(b) may be represented by another person only if the Tribunal grants leave:

(i) for that person to represent the party, or

(ii) in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party.

21. Mr Neary was appointed (on application) as the applicant was unable to deal sufficiently with the volume of written material, and he had a sufficient understanding (in the Tribunal’s view) of the case. The respondent was represented by Mr Zoppo Solicitor.

Applicant’s Evidence

22. The applicant filed four affidavits in the proceedings in addition to material attached to his application for review by the Tribunal.

• Application for Review dated 14 December 2015. (Exhibit A - 1)

• Affidavit of T Johnson sworn 3 June 2016. (Exhibit A - 2) less paragraphs 6 – 20 inclusive.

• Affidavit of D Johnson sworn 6 June 2016. (Exhibit A – 3) less paragraphs 6-10 inclusive, and all of page 4.

• Affidavit of C Neary sworn 30 July 2016. (Exhibit A – 4) less paragraphs Part of 9, 10-17 inclusive.

• Affidavit of L Johnson sworn 26 July 2016. (Exhibit A – 5) less paragraph 6 page 2, last sentence paragraph 5 page 3, all of pages 4 – 10 inclusive.

23. The applicant also filed three sets of written submissions which included material attached to those submissions. That material comprises copies of material obtained under the GIPA Act, and or / material provided by the respondent in the course of these proceedings.

24. The applicant gave evidence at the hearing. In cross examination he was asked about the person who was a witness ‘R’ and why they believed ‘R’ was a police informant or agent. The applicant advised that he held that view because ‘‘R’ has not been seen since’ (the incident subject of the application). In addition when the applicant was charged with firearms offences his evidence was that he saw reference to ‘R’ in the brief of evidence.

25. When asked about drug matters the applicant gave evidence that he did not tell police that the drugs belonged to someone else because he was scared of ‘R’. The applicant’s evidence was that ‘R’ had an associate who he was led to believe had previously killed.

Mr C Neary’s Evidence

26. Mr Neary gave evidence on the applicant’s behalf. He gave evidence that he assisted the applicant with his statement. In cross examination Mr Neary was questioned about why the applicant’s statement did not mention or make reference to a ‘pen gun’, which was referred to or pertinent in other proceedings. The witness advised that he typed statements up from various individuals following receipt of large amounts of information written down on various pieces of paper.

27. Other questions and answers were asked of and given by the witness and the applicant, however in my view they do not go to matters relating to section 55 of the GIPA Act and as a result I find that they are not relevant to my decision on the application and therefore do not form part of the reasons.

Respondent’s Open Evidence

28. The respondent filed three items of open evidence in the proceedings, as well as open written submissions.

• The GIPA Review Decision (undated). (Exhibit R – 1).

• Open statement of D S ‘M.K.’ (Exhibit R – 2).

• Statement of DS ‘S.B.’ (Exhibit R – 3).

29. The respondent sought a confidential hearing in accordance with section 107 of the GIPA Act.

30. The section provides that:

107 Procedure for dealing with public interest considerations

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

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

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

(a) the public and the applicant, and

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

31. In my view it is necessary to incorporate what transpired in the confidential session by way of confidential reasons. The applicant and his agent were aware of the existent of both a confidential session and potential confidential material, however they were not present when confidential submissions and evidence was dealt with by the Tribunal.

Evidence of witness D. S. ‘M.K.’

32. The respondent’s witness adopted their open statement which was Exhibit R – 2.

33. In cross examination the witness was taken to the statement which dealt with Strike Force ‘Linder’, and asked whether they were the commander of the operation. The witness answered in the negative. Various questions were asked of the witness concerning disclosure certificates, and objections were upheld on the basis that the data was concurrently being sought in other proceedings.

34. The witness referred to their role in Strike Force ‘Linder’ as being ‘one of the investigating officers’. In their statement they referred to the background to the arrest and Court proceedings involving the applicant and an associate.

35. The witness in their statement gave evidence concerning the general concerns police hold for the welfare and safety of police informants. In particular the statement refers to the view that disclosure to the person subject of a police investigation of an informant’s details poses a significant risk. It was also submitted in the statement that any consequential harm would result in a disinclination of persons to assist police and as a result this would adversely affect the ability of the NSW Police to carry out investigations of serious crime including covert operations.

36. The witness in their statement addresses matters from the applicant’s statement involving an associate. The witness refutes what the applicant was told by the associate because it is contrary to the witness’s direct knowledge of such matters.

Evidence of witness D.S. ‘S.B.’

37. The witness states that in their opinion the information contained within the search warrant is a document created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence.

38. In addition the witness states that the material (if released) would have the effect of prejudicing the effective exercise of (the) agency’s functions (as set out in Clause (1) (f) of Table 1 to section 14.

confidential paragraphs – not for release to applciant or public

39. NOT FOR PUBLICATION

40. NOT FOR PUBLICATION

41. NOT FOR PUBLICATION

42. NOT FOR PUBLICATION

43. NOT FOR PUBLICATION

44. NOT FOR PUBLICATION

45. NOT FOR PUBLICATION

46. NOT FOR PUBLICATION

47. NOT FOR PUBLICATION

48. NOT FOR PUBLICATION

49. NOT FOR PUBLICATION

50. NOT FOR PUBLICATION NOT FOR PUBLICATION - Confidential Evidence of Witness at Hearing

51. NOT FOR PUBLICATION

52. NOT FOR PUBLICATION

53. NOT FOR PUBLICATION NOT FOR PUBLICATION - Consideration of confidential material

54. NOT FOR PUBLICATION

55. NOT FOR PUBLICATION

56. NOT FOR PUBLICATION- Confidential Findings

57. NOT FOR PUBLICATION

END OF CONFIDENTIAL PARAGRAPHS

Consideration

58. Having now concluded the confidential reasons, it remains to determine what open consideration of the evidence and submissions I may refer to so as to provide the applicant with a sufficiency of reasons, and also not disclose or in any other manner impact on the nature of the confidential evidence (including the evidence itself).

59. In this regard I am mindful of the principles as set out in Beale v Government Insurance Office of NSW (1997) 48 NSWLR. However there is a statutory duty under both the GIPA Act, and the Law Enforcement (Controlled Operations) Act 1997 which in my view provides a greater impost on the nature of these reasons, so much so that the sufficiency requirement and ensuing general lack of fairness that necessarily ensues from such a situation is largely outweighed.

60. The following passages of Commissioner of Police NSW Police Force v Barrett [2015] NSWCATAP 68 ‘Barrett’ set out matters which arise from a deemed insufficiency of open reasons in a GIPA proceedings which has substantially addressed matters within confidential reasons. From paragraph 77 to 99 the Appeal Panel addressed this issue. In part the Appeal Panel observed the following:

7A. Failing to provide adequate reasons for determining that there was not an overriding public interest against disclosure of the information confirming or denying that information is held by the agency.

77.Before turning to these grounds, and as the matter does not appear to have been the subject of any detailed consideration in previous decisions of the Tribunal under the FOI Act or under the present Act, we will deal with the question of the general approach to be adopted in reviewing decisions based on s 58(1)(f).

….

79.Freedom of information laws such as the GIPA Act have as a fundamental feature that agencies should ordinarily tell the applicant whether they hold information falling within the scope a request, and reveal its existence at least to the extent of giving basic descriptor information in relation to the information held. The response ‘refuse to confirm or deny’ or ‘neither confirm nor deny’ negates entirely the commitment to transparency that informs freedom of information and right to know legislation.

80.As we see it, there would need to be special features unique to the particular case or, for example, an area of operation of the agency in which affected records might be held that justify reliance on this ground. We agree with the observations to this effect seen in open para [19] of the Tribunal’s reasons.

81.The key question, as we see it, is what is about the case that justifies the exceptional response of choosing to refuse to confirm or deny that documents of the kind sought by the application exist or do not exist.

82.Even if the Tribunal considers that the information sought could properly have been refused by balancing the considerations that favour disclosure against those that do not favour disclosure, it does not follow that the existence or otherwise of records responsive to the request should be concealed.

83.The Queensland law (Right to Information Act 2009) allows an agency to neither confirm nor deny the existence of a requested document if, assuming its existence, the document would contain prescribed information. ‘Prescribed information” refers to certain categories of exempt information and certain personal information. As the Queensland Information Commissioner explained in EST and Department of Family Services and Aboriginal and Islander Affairs [1995] QICmr 20; (1995) 2 QAR 645 at [11] :

In a review of an ordinary refusal of access decision, the applicant for access is necessarily disadvantaged, in the extent to which meaningful submissions can be made about the exempt status of matter in issue, by a lack of precise knowledge as to the nature of the matter in issue. That disadvantage is exacerbated in a review of a decision to invoke a s.35 "neither confirm or deny" response. The review must largely proceed in private between the Information Commissioner and the respondent ...

84.While the NSW law is less constrained than the Queensland law, in that it does not restrict the right to refuse to confirm or deny to a particular classes of information, the basic logic of the Queensland approach seems to us to be applicable.

85.Where the statutory considerations upon which the agency relies are seen as sufficient to justify refusal of any documents that are in existence, the separate question must then be addressed as to whether the agency’s non-revelation of the mere existence of the documents is justified, having regard to the onus it bears under s 105(1). The Tribunal might well reach the conclusion that even though there is a strong case for refusal, the further case for non-revelation of the existence of any documents is not made out, having regard to the onus the agency carries.

86.If the agency has no records relevant to the request, but does not want to reveal that fact, normally the agency would need to satisfy the Tribunal, by reference to the evidence relating to adequacy of search, that reasonable searches were undertaken. Again the Tribunal might reach the conclusion that while a no documents held case has been made out, the further case for non-revelation of that fact is not made out, having regard to the onus the agency carries.

87.As noted in the Queensland case-law the agency then needs to show that a refusal specifying grounds for refusal (such as no information held or refusal to disclose documents held) would reveal information the agency is ‘trying to protect’ or would ‘cause harm the agency is trying to prevent’: see Australian Broadcasting Corporation and Psychologists Board of Australia (unreported, QICmr 3 Jan 2012) at [14] cited in 3FG6LI and Queensland Police Service [2014] QICmr 32 (29 July 2014). (We acknowledge that there may also be cases where the content of the access application read in conjunction with evidence from the agency (such as confidential intelligence evidence) may be enough to demonstrate that the information sought is of such sensitivity that a refusal to confirm or deny response is justified, without the agency having to engage in any search.)

……

89.The agency dealt more fully with the issue of whether it was justified in refusing to confirm or deny in the further submissions filed 11 December 2013. It referred in addition to the Table cl 2 (b) – ‘prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law’; Table, cl 1 (d) – ‘prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions’; and Table, cl 1(f) ‘prejudice the effective exercise by an agency of the agency’s functions’.

90.The agency submitted that ‘[to] confirm or deny whether intelligence reports or police checks are held would jeopardise the integrity of police investigative methodologies’, and this would have a ‘substantial adverse effect on the ability of the police to perform its primary task of detecting offenders and protecting public safety (cl 2(b))’ and ‘reveal the identity of police informants’ (cl 2(a)).

91.It referred to all of these considerations as ones that in the particular circumstances justified a neither confirm nor deny response to requests for intelligence records (item 6) or for documents such as police notebooks (item 7).

92.It highlighted the problem of the ‘mosaic effect’. This is the phenomenon whereby access applicants build up a picture of the whole, through completing parts of the mosaic, by means such as access applications, other forms of research and inquiry, and pre-existing personal knowledge of the circumstances of interest. They might thereby be able obtain an understanding of, for example, the extent to which the applicant’s activities are being monitored and the types of information being compiled. The following explanation was given in Saleam v Commissioner of Police, New South Wales Police Service [2002] NSWADT 40 by Robinson JM at [26]:

The argument is, in brief, that, as a factual matter, the applicant or a person or persons on his behalf is undertaking a systematic approach to the making of numerous FOI Special Branch applications for the purpose of and with the ultimate aim of him putting the pieces together and discovering significantly more than he is otherwise entitled to. Such information sought to be impermissibly discovered by the applicant through his implementation of this process includes the name or names of informants of the respondent or information from which those names might be likely identified and other operational information that would not normally be made available to the applicant.

…..

94.The submissions then stated at [15]:

[The agency] submits that, for specific categories of information such as police intelligence and operational information, it is necessary for policing agencies to refuse to confirm or deny whether information is held.

95.The submissions refer to examples given in a publication of the UK Office of Information Commissioner. The submissions continued at [16]:

‘[The agency] submits that the same principle should apply even if the information requested is about a person not under surveillance. If the police force only upheld its duty to confirm or deny where it was not conducting surveillance on a person, an applicant could reasonably assume that, where the police force refused to confirm or deny, the person named in the request was under surveillance and that would not be in the public interest.’

96.In our view, this is an unduly sweeping view. We have accepted that systemic considerations will often be relevant to the statutory ground that an agency choses to rely upon, when its decision is to refuse to disclose the information sought by an access application. However, it does not follow that simply because an access applicant is currently under surveillance they should be met with a refuse to confirm or deny decision. It remains necessary to consider why in the particular circumstances, mindful of the systemic concerns of the agency, disclosure is not justified, or alternatively a response that admits the existence of a record is preferable, and exposes the reasons at least in general terms as to why access is to be refused. We accept that there may be cases where it is contrary to the public interest for a law enforcement agency to respond in a way that admits the existence of a record or informs the applicant that no record exists. In our view, there would be many cases where the public interest would not be put at risk to the degree required by the GIPA in cases where the access applicant is not under surveillance. Each case must ultimately be determined by reference to its particular characteristics.

97.Adequacy of Reasons. It is well accepted that reasons for decision need not be highly detailed. For a recent account of the relevant principles see: Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 at [41]- [45]; and Keith v Gal [2013] NSWCA 339 esp per Gleeson JA.

98.In the context of the present appeal, we draw attention to the following observations by Gleeson JA at 116 [B]ald conclusionary statements should be eschewed. As stated by Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28]:

‘It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates.’

117 Thus, it is essential to expose the reasoning on a point critical to the contest between the parties. This proposition reflects one of the three fundamental elements to a statement of reasons identified by Meagher JA in Beale v GIO [Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430] at 443-444:

"Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well."

99.In our view the Tribunal in a case of the present kind must be seen to respond in its reasons directly to the case put by the agency in justification of the agency’s decision. In the event that the Tribunal disagrees with the weighting given to the agency of the competing considerations it must explain clearly why that is so.

61. In my view there are present in the current matter the type of ‘special features unique to the particular case or, for example, an area of operation of the agency in which affected records might be held that justify reliance on this ground’ as referred to by the Appeal Panel in paragraph 80 of Barrett.

62. I also am satisfied that whilst noting the Appeal Panel’s guidance at paragraph 96 of Barrett, that Each case must ultimately be determined by reference to its particular characteristics, the current case is of a more complex, compelling and serious nature than the evident facts in Barrett.

63. Having regards to the above observations and findings by the Appeal Panel, I find that each of the grounds set out by the respondent are made out as valid criteria In making this finding I have had significant regard to the evidence provided in confidential session, which on my assessment gave significant weight to the arguments put forth by the respondent. Those arguments are provided in the respondents open submissions, and opinions given by the respondent’s witnesses in their open evidence.

Further consideration

64. I have had regard to the applicant’s detailed written submissions. Unlike the statements of evidence, those submissions have been received in their entirety. However, I observe similar to the matters touched upon at paragraph 27 (above), much of the content of the submissions do not assist in the Tribunal’s task. That is the task of determining (having regard to the evidence and the GIPA Act), whether the basis relied upon by the respondent for withholding material, is correct, or whether that basis should be set aside by the Tribunal, as it is not sound (having regard to the evidence and the law).

65. For understandable reasons, the history of the applicant’s dealings with the respondent, including the applicant’s own contemporary participation in the relevant events, both the applicant and his Agent have strong views and opinions concerning what transpired.

66. Various matters are put forth in submission as facts, and these issues were in part explored during the hearing. However this type of fact finding task (on both sides during the hearing) was in my view of limited value to the central task before the Tribunal. Whilst the respondent’s initial handling of the application was open to question in respect of timeliness and meeting their statutory obligations under the GIPA Act, those matters were essentially overcome by the provision of information and the narrowing of the information in dispute once the parties began to comply with Tribunal orders and directions.

67. I infer that many of the grounds and basis put forth by the applicant in these written submissions constitute the section 55 considerations, which the Tribunal is also entitled to regard and take into account.

55 Consideration of personal factors of application

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

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

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

(c) any other factors particular to the applicant.

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

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

(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity.

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

68. The GIPA Act however does not concern a review of conduct but rather a review of a decision (at least in the first instance – notwithstanding what may arise from time to time under section 112), predominantly being a decision to withhold information. For this reason many of the applicant’s grievances, if desired, would best be served by being ventilated through some other avenue or forum.

69. Having had regard to that material, for the reasons outlined above, and the basis of the decision that I make on the substantive issue concerning release, and noting that some of these matters were tested in evidence at hearing with no clear determinative result, I place minimal weight on the matters raised in that material.

70. The withheld information (from the entire application involving 360 folios which have been significantly released), is of such a nature that the basis of withholding (as applied to the GIPA Act), provides the general (open) reasons.

71. In addition, having regard to the claimed public interest considerations against disclosure, the provisions of Clause 6 (c) of Schedule 1, and section 58 (1) (f), the decision is sound, and the grounds for withholding (as made out on my finding), provide the necessary descriptor and reasoning for basis such as to meet the decision makers obligations to a party.

72. In this regard I am satisfied that there has been a satisfactory discharge of the duty of the respondent under section 105 (1) of the GIPA Act, namely:

105 Onus on agency to justify decisions

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

73. In respect of the sufficiency of reasons in respect of my findings, I am satisfied that the territory as referred to in Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 at [41-45] and also referred to in Keith v Gal [2013] NSWCA 339 is sufficiently and appropriately traversed.

41.(3) Adequacy of Reasons. We agree with Mr Assadourian's submissions that the Tribunal's reasoning process as found in the final part of its reasons, headed 'Discussion' is relatively sparse. For a recent review of the principles relating to adequacy of reasons, see Keith v Gal [2013] NSWCA 339 esp per Gleeson JA.

42.As Meagher JA noted in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441, there is no need to refer to relevant evidence in detail provided it is clear that it has been considered. There is no need to refer to all aspects of the evidence in the way that the grounds of appeal suggest. The Tribunal's reasons gave a comprehensive account of the evidence. Nor is this a case where the conclusion reached by the Tribunal was 'devoid of reason', 'clearly unjust' or arbitrary. See further the recent discussion of this ground of objection in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 per Beazley P, esp at [77] ff. See also Basten JA in Lo at [13] ff.

43.Further, 'the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error' - is applicable to the grounds of appeal in this case. The observation was made in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287 by the Full Court of the Federal Court (Neaves, French and Cooper JJ) and endorsed by the High Court in Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.

44.A higher standard applies to the analysis of 'critical' evidence and critical issues. The reasons should clearly refer to the critical matters, and dispose of them. See also D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [106] ff per Beazley P. Gleeson JA in Keith v Gal notes:

110 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. As stated by Basten JA (Beazley JA (as her Honour then was) and Macfarlan JA agreeing) in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]:

"It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality."

111 A similar reticence when scrutinising judicial reasons was expressed by Allsop P in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 where his Honour (at [2]) stated that when dealing with large bodies of evidence, a judge may be:

"forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression .... That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved. "

45.In this instance, we accept that the reasons do not refer directly to a number of matters set out in the agreed statement of facts. In our view, on a fair reading the Tribunal is clearly alluding to this material when it proffers the general conclusions that appear in the extract set out at [25] above. However, it will be seen in the analysis which follows that we do think the Tribunal fell into error in not separating more clearly than it did the case against Mr Assadourian in relation to the operator licence from the case against him in relation to the driver's certificate.

Conclusion

74. Having examined all of both the open and confidential material filed with the Tribunal by the respondent, and having noted all of the evidence and submissions in the proceedings (both written and oral proceedings), in my view the correct and preferable decision is to uphold the decision of the respondent.

Orders

1. The decision of the respondent is affirmed.

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: 27 February 2017