Karakaya v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 282

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Karakaya v Commissioner of Police, NSW Police Force [2023] NSWCATAD 282

Hearing dates:

5 October 2023

Date of orders:

27 October 2023

Decision date:

27 October 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

1. The decision of the respondent is set aside in part.

2. The respondent is to release the information identified in paragraph [50] of these reasons.

3. The decision of the respondent is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – whether there is an overriding public interest consideration against disclosure - balancing the public interest

Legislation Cited:

Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009

Police Regulation 2015

Privacy and Personal Information Protection Act 1998

Cases Cited:

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

Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185

Bright v Eurobodalla Shire Council [2018] NSWCATAD 287

Commissioner of Police v Barrett [2015] NSWCATAP 68

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

Collins v Department of Finance, Services and Innovation [2018] NSWCATAD 60

Donnellan v Ku-ring-gai Council [2013] NSWADT 115

EHW v Secretary, Department of Education [2022] NSWCATAD 140

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

Leydon v Commissioner of Police [2019] NSWCATAD 267

Macquarie University v Howell (No 2) [2009] NSWADTAP 19

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

Raven v University of Sydney [2015] NSWCATAD 104

Simring v Commissioner of Police (NSW) [2009] NSWSC 270

South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Orhan Karakaya (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00209757

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. Pursuant to ss 64(1)(b) and 64(1)(c) the publication or reporting of those portions of the public hearing of the application which disclosed any of the redacted information, including the identity of persons other than the applicant and police officers, is prohibited. That material is not to be released to either the applicant or to the public.

REASONS FOR DECISION

1. Mr Orhan Karakaya made an application to the Commissioner for Police, NSW Police Force (the Commissioner) seeking access to information under the Government Information (Public Access) Act 2009 (GIPA Act). In a decision dated 5 May 2023 the Commissioner released some information and refused access to other information on the basis that it is subject to an overriding public interest consideration against disclosure. The information sought by Mr Karakaya is a full copy of Event Report E 61XXXX12 relating to an incident on 30 July 2016. On that day police attended Mr Karakaya’s home to conduct a welfare check following a report that had been made to police on 29 July 2016.

2. The Event Report is in two parts. The first concerns a report made to police at a police station on 29 July 2016 by a person described as “VIC”, meaning victim. The person is referred to as “the complainant” in these reasons. The identity of the complainant and another person have been redacted as has the substance of the complaint, although the subject matter of the Event Report (which has been released to Mr Karakaya) is “Harassing phone calls”. The second part of the Event Report gives an account of a “welfare check” conducted by an officer from Inner West Police Area Command on Mr Karakaya at his home on 30 July 2016. That section has been released to Mr Karakaya with the exception of the identity of the complainant.

3. Mr Karakaya sought review of the Commissioner’s decision by the Tribunal.

Role of the Tribunal

4. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

5. Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. Section 9 of the GIPA Act gives a person who makes an access application for government information a legally enforceable right to be provided with access to the information, unless there is an overriding public interest against disclosure of the information. There is no dispute that the information sought by Mr Karakaya is government information.

6. A person aggrieved by a “reviewable decision” may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision to refuse to provide access to information in response to an access application is a reviewable decision for the purposes of the GIPA Act: s 80 (d).

7. The Tribunal’s function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.

8. The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the Commissioner: s 105(1) of the GIPA Act.

The evidence

9. Mr Karakaya relied upon a document dated 10 September 2023 which was emailed to the Tribunal Registry on 19 September 2023. Unfortunately, this document was not on the Tribunal file but the Commissioner provided a copy to me at the beginning of the hearing. The document is part evidence, part submission.

10. The Commissioner provided a statement of Detective A/Inspector Benjamin Scipione, Acting Crime Manager of the Leichardt Police Area Command, dated 18 August 2023. On 27 September 2023 the Commissioner provided a statement dated that day by Detective A/Inspector Haithem Jouni, Acting Crime Manager at Inner West Police Area Command. Detective A/Inspector Jouni stated that he had been asked to make a statement as Detective A/Inspector Scipione was no longer available to give evidence at the hearing scheduled for 5 October 2023. In his statement he agreed with matters raised in Detective A/Inspector Scipione’s statement, a copy of which was attached to his statement.

11. The Commissioner called Detective A/Inspector Jouni to give evidence at the Tribunal hearing as Detective A/Inspector Scipione had been redeployed and was not available. Detective A/Inspector Jouni is acting in the position formerly occupied by Detective A/Inspector Scipione. Mr Karakaya did not object to Detective A/Inspector Jouni giving evidence but objected to the statement of Detective A/Inspector Scipione being admitted into evidence as he wanted to question him about his statement.

12. Noting that it is the Commissioner who bears the onus of establishing that the decision is justified, I allowed the statement of Detective A/Inspector Scipione as attached to the statement of Detective A/Inspector Jouni into evidence on the basis that Detective A/Inspector Jouni had, in essence, adopted its contents and could be questioned on the statement. Neither Detective A/Inspector Scipione nor Detective A/Inspector Jouni were involved in the events of 29 or 30 July 2016 and have no personal direct knowledge of them. Their evidence is directed towards police functions, investigative techniques and methodologies.

13. Mr Karakaya was advised that he could make submissions about any weight to be given to Detective A/Inspector Scipione’s statement in light of that fact that he was not present to be cross-examined.

14. The Commissioner also provided, on a confidential basis, an unredacted copy of the Event Report.

Is there an overriding public interest against disclosure?

15. The Event Report sought by Mr Karakaya was released to him with redactions. Before dealing with the redactions, it is worth setting out the approach to be applied in considering whether there is an overriding public interest against disclosure of government information.

16. As noted above, under the GIPA Act there is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”: s 5 of the GIPA Act. There are two situations in which there will be an overriding public interest against disclosure. The first concerns government information described in Schedule 1 to the GIPA Act and is not relevant to these proceedings.

17. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a table in s 14 of the GIPA Act.

18. In the second situation, the decision-maker’s task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.

19. In this application, the Commissioner refers to public interest considerations set out in the table in s 14 and submits that those considerations outweigh the considerations in favour of disclosure.

Public interest considerations in favour of disclosure

20. In addition to the general presumption in favour of disclosure of government information set out in s 12 of the GIPA Act, the Commissioner identifies the following as considerations in favour of disclosure:

• disclosure could reasonably be expected to inform the public about the operations of agencies; and

• DBR_1. some of the information is personal information of Mr Karakaya.

21. It is clear that the redacted information contains personal information of Mr Karakaya in that it is information (or an opinion) about him. In this context Mr Karakaya refers to his right under privacy legislation to know why his personal information is being collected, how it will be used and who it will be disclosed to and also his right to access his personal information. I also accept that release of the information may well assist him to understand the events of 30 July 2016 and the circumstances of the welfare check conducted by police at his home. These matters must be accorded weight.

22. I also accept that disclosure of the information contained in the Event Report could be expected to inform the public about the operations of the NSW Police Force, particularly how it responds to information provided by a member of the public. This is also a matter which carries significant weight in my consideration.

23. Mr Karakaya states that there is also a public interest consideration in favour of disclosure as it is in the public interest to reveal misconduct on the part of police officers who conducted a welfare check on him on 30 July 2016. The Commissioner’s position is that there is no basis for finding that the redacted 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 (using the language of note (e) to s 12(2) of the GIPA Act). Mr Karakaya also seeks disclosure on the basis that the information would assist him in a civil case he is preparing against the police related to this and another incident or other incidents.

24. In addition, Mr Karakaya suggested that there was also misconduct on the part of the person who made the report to police. Mr Karakaya refers to the Public Interest Disclosure Act in this context, seemingly the Commonwealth Public Interest Disclosure Act 2013. He refers to the definition of “disclosable conduct” in that Act.

25. There is no doubt that there is a strong public interest in disclosure of information which could reveal misconduct on the part of an agency or its officers. However, for this to be a matter relevant to my consideration there must be some reasonable basis in the material before me for drawing an imputation that the redacted information could reasonably be expected to reveal misconduct: see Commissioner of Police v Barrett [2015] NSWCATAP 68 at [136]. During the hearing and in his written submissions Mr Karakaya makes allegations of misconduct against the person who made the originating complaint to police and the police themselves. Mr Karakaya has not provided any evidence to support those allegations and there is nothing in the redacted information itself which would support the allegations made by him. I therefore give this public interest consideration minimal weight.

Public interest considerations against disclosure

26. The public interest considerations against disclosure identified by the Commissioner are that it could reasonably be expected disclosure would:

• prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (s 14 Table, cl 1(d));

• DBR_2. prejudice the effective exercise by the agency of the agency’s functions (s 14 Table, cl 1(f));

• result in the disclosure of information provided to an agency in confidence (s 14 Table, cl 1(g));

• DBR_3. reveal an individual’s personal information (s 14 Table cl 3(a)); and

• contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (s 14 Table cl 3(b)).

27. Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect. The words “could reasonably be expected to” are to be given their ordinary meaning: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words:

... require 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, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.

28. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term “could reasonably be expected to” and stated at [25]:

“[25]   … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.”

29. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

30. The public interest consideration in cl 1 (f) requires that there be some relevant “prejudice” to the agency. The term “prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 at [47]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to various authorities, the Appeal Panel said at [59]:

Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

Personal factors of the application

31. Section 55(1) of the GIPA Act provides that, in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account the following “personal factors of the application”:

1. the applicant’s identity and relationship with any other person,

2. the applicant’s motives for making the access application,

3. any other factors particular to the applicant.

32. Relevantly, the personal factors of the application may not be taken into account as considerations against disclosure in respect of matters in clause 1 of the Table in s 14. Section 55(2) of the GIPA Act provides that 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.

33. As noted above, part of the motivation behind the access application by Mr Karakaya is that release of the information could assist him in preparing a civil case against the NSW Police Force in relation to their actions taken against him.

Clause 1 (d) - prejudice the supply of confidential information that facilitates the effective exercise of the agency’s functions

34. The Commissioner submits that disclosure of the information redacted from the Event Report could reasonably be expected to prejudice the supply to the NSW Police Force of confidential information that facilitates the effective exercise of that agency’s functions: s 14 Table cl 1(d). This public interest consideration against disclosure also raises issues in relation to the public interest considerations against disclosure set out in cll 1(f) and (g).

35. The question whether the consideration in cl 1(d) is established involves a relatively abstract analysis looking to the future: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28]-[29]. As was noted by the Tribunal in Collins v Department of Finance, Services and Innovation [2018] NSWCATAD 60 at [61], it must be established that:

1. the information was obtained in confidence;

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

1. the information facilitates the effective exercise of the agency's functions.

36. For information to come within clause 1(d), it must therefore have been obtained in confidence. In Camilleri the Appeal Panel stated that the question as to whether information is “confidential information” is to “be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts the service within which the information was received”. The inquiry “should focus on the point of receipt, and the administrative standards and community understandings which surround it”: at [34]. In Bright v Eurobodalla Shire Council [2018] NSWCATAD 287 at [44] the Tribunal stated that:

1. The confidential quality of communications is a question of fact;

2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality;

3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed;

4. The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.

37. In Raven v University of Sydney [2015] NSWCATAD 104 at [62], the Tribunal held that the words "confidential information" do "not connote information which may not be disclosed in any circumstances”. The term captures information which is not to be disclosed in ordinary circumstances. This could be the case for example, where the information has been supplied under an express or implied pledge of confidentiality.

38. Mr Karakaya argues that the Commissioner has failed to satisfactorily show that the report made to the police as set out in the Event Report was provided with an expectation of confidentiality. He refers to the statement included by a person included at the beginning of a statement made to police – the “jurat” which is to the following effect:

"This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true."

39. Mr Karakaya submits that, because of the jurat, a person making a statement is aware the statement may be used in court as they may have to testify as a witness and therefore the person must be aware that the statement is not confidential or the information given in confidence.

40. Detective A/Inspector Jouni agrees with the evidence of Detective A/Inspector Scipione who states that members of the public have an expectation that their interactions with police officers will, so far as possible, be managed confidentially. Detective A/Inspector Scipione states that people have an expectation that their personal details and information will not be freely divulged or shared by police. He states that where a matter progresses to the stage that a complainant makes a formal witness statement, the witness statement includes an express acknowledgement that it contains evidence that the witness is willing to give in legal proceedings. Unless they are served as part of a brief of evidence, however, the confidentiality of witness statements is maintained by the police. Furthermore, unless the statement is required for legal proceedings, it will not be released into the public domain.

41. In response to questions by Mr Karakaya about the effect of the jurat, Detective A/Inspector Jouni said just because a person provides a statement to police, it doesn't necessarily mean that is going to lead to a prosecution or that it will be served on the other party or the defendant. He said that in those circumstances the statement remains confidential and is kept by the police. In his statement Detective A/Inspector Jouni states that in his experience information supplied to the police by individuals making a report, or participating in an investigation, will only be disclosed to the extent that it is necessary for the purpose of an investigation or where required by law.

42. In relation to the confidentiality of information supplied to police, the Commissioner also refers to the obligation of police officers set out in cl 76(1) of the Police Regulation 2015 that a member of the NSW Police Force “must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone”.

43. The Courts and the Tribunal have confirmed in several decisions that confidentiality attaches to information provided to the police by members of the public. For example, in Simring v Commissioner of Police(NSW) [2009] NSWSC 270 the Supreme Court found that when a person speaks with police in relation to a criminal offence and reveals sensitive matters, that person expects that statements made will only be used for the purpose of Court proceedings and not otherwise. I am satisfied that the views expressed in Simring and in many other cases apply in this matter. I am satisfied that the information contained in the Event Report which was supplied to police by a member of the public was supplied with an expectation of confidentiality, unless it was required for legal proceedings.

44. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said with respect to the requirement that disclosure could reasonably be expected to prejudice the future supply of information to an agency:

In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.

45. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52]. As was stated in Leydon v Commissioner of Police [2019] NSWCATAD 267, the Tribunal should not just look at the issue in isolation, but rather examine the issue to determine whether the agency’s ability to obtain confidential information in future would be impaired.

46. Detective A/Inspector Scipione’s evidence, supported by Detective A/Inspector Jouni, is that the NSW Police Force is heavily reliant on members of the public providing information about potential offences and risks to persons or property. Detective A/Inspector Scipione states that there are usually compelling reasons for maintaining the confidentiality of information that has been supplied to the police. He states that handling information confidentially may be necessary in order to maintain lines of investigation, to protect the identity of informants, to protect witnesses from reprisals, to maintain the integrity of evidence and to avoid the escalation of disputes. In his opinion, if police could not assure individuals that the information they supply will be kept confidential, many complainants would be reluctant to speak with police. This would negatively impact the ability of police to exercise their investigative and law enforcement functions.

47. Detective A/Inspector Scipione also states that release of such information under the GIPA Act where there are no restrictions on further disclosure of the information would be perceived as a significant breach of trust having repercussions for the individuals involved and for the level of trust the public has generally in the NSW Police Force. He points to particular concerns about the release of information supplied in connection with interpersonal and domestic disputes as complainants and witnesses may be reluctant to speak with police because of fear of reprisals or further breakdown of relationships. Detective A/Inspector Jouni also stated that disclosing information could lead to conflict between parties and to a lack of confidence in the police and their ability to conduct their day to day functions.

48. Both Detective A/Inspector Scipione and Detective A/Inspector Jouni refer to their concerns that release of information provided by the public, particularly if there are concerns about a person’s behaviour, could result in such concerns not being passed to police who would then not be in a position to conduct a welfare check. This could compromise the safety of an at risk individual or the community more broadly.

49. On the basis of the evidence provided, I am satisfied that in performing its functions the police force relies significantly upon information gathered from a number of sources which includes complaints or reports made to police by members of the public. I am also satisfied that if people were aware that the information they supplied could be released to the public, they would be far less likely to provide that information to the police. This in turn would impede the ability of the police to exercise their investigative and law enforcement functions.

50. As a result, I am satisfied that the disclosure of the redacted information (with one exception) could reasonably be expected to prejudice the supply to the NSW Police Force of confidential information that facilitates the effective exercise of the agency’s functions. I am also satisfied that this public interest consideration against disclosure should be given significant weight. The exception relates to material contained in paragraph 2 on page 3 of the Event Report. With the exception of the first sentence, the remainder of that paragraph is to be released to Mr Karakaya. I note that the Commissioner agreed that this information should be released following discussion in that part of the hearing held privately.

Clause 1(f) - prejudice the effective exercise by an agency of the agency’s functions

51. Unlike clause 1(d), clause 1(f) of the Table does not require that the information in issue was supplied in confidence. There is, however, a requirement that disclosure of the information could reasonably be expected to prejudice the exercise of the agency’s functions.

52. Largely for the reasons set out above, I am satisfied that release of the withheld information (with the exception set out at [50] above) could reasonably be expected to prejudice the exercise of the NSW Police Force’s investigative and law enforcement functions.

Clause 1 (g) – disclosure of information provided in confidence

53. Clause 1 (g) provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. For the reasons outlined above in relation to clause 1 (d), I am satisfied that disclosure of the redacted information in the Event Report (with the exception set out at [50] above) would result in the disclosure of information provided to an agency in confidence.

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

Clause 3(b) – contravene an information protection privacy principle

54. These two clauses concern the release of personal information. The definitions of “personal information” in the GIPA Act and in the Privacy and Personal Information Protection Act 1998 (PPIP Act) are similar. Both relevantly provide that personal information means information about an individual whose identity is apparent or can reasonably be ascertained from the information: GIPA Act Sch 4 cl 4; PPIP Act s 4. The GIPA Act provides that to “reveal” information means to “disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)”.

55. There is no doubt that the Event Report contains information about other individuals whose identity is apparent or can reasonably be ascertained.

56. Mr Karakaya agrees that disclosure of some of the information in the Event Report could reasonably be expected to reveal another person’s personal information. He states, however, that he would be happy to have sensitive personal information such as date of birth or address redacted from the information, although objected to removal of the name of the complainant.

57. An issue which arises in these proceedings is that Mr Karakaya is aware of the identity of the complainant and another individual referred to in the Event Report. The fact that the information may be known to Mr Karakaya does not affect whether release of the information under the GIPA Act would reveal an individual’s personal information, particularly with reference to cl 3(a). The Tribunal has accepted that the words "publicly disclosed" in the context of “reveal information” requires there to have been a prior disclosure of information to the general public: EHW v Secretary, Department of Education [2022] NSWCATAD 140 at [132]-[135]; Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 at [99].

58. It is therefore not significant that Mr Karakaya is aware of some or most of the personal information of other individuals in the redacted parts of the Event Report. That personal information has not been publicly disclosed within the meaning of cl 3(a) of the Table to s 14. I am satisfied that none of the personal information redacted in the Event Report has been revealed in the sense of having been “publicly disclosed”.

59. In relation to cl 3(b) and whether disclosure could reasonably be expected to breach and information protection principle, the NSW Police Force is a public sector agency as defined in the PPIP Act and is required to comply with the information protection principles set out in that Act.

60. Section 18 of the PPIP Act sets out limits on the disclosure of personal information. That section provides that a public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) unless:

1. the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

2. the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

3. the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

61. Disclosure under the GIPA Act of the personal information which was supplied to the police for the purpose of investigation and possible prosecution would not be disclosure for any of the permitted purposes in s 18 of the PIPP Act.

62. I am therefore satisfied that the public interest considerations in cll 3(a) and (b) with respect to personal information are applicable to my consideration of whether the information should be released. The public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. This is particularly the case as the information relates to the domestic and personal affairs of individuals and release under the GIPA Act of such information means that the information would be released unconditionally.

Balancing the public interest

63. I have found that each of the public interest considerations against disclosure relied upon by the Commissioner in relation to the Event Report is present in this case, with the exception noted above in relation to one portion of the report. These are to be balanced against the public interest considerations in favour of disclosure as set out above.

64. Balancing the competing public interest considerations is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation”: Hurst v Wagga City Council [2011] NSWADT 307 at [70].

65. There is no doubt that the fact that the information sought concerns Mr Karakaya’s personal information carries some weight, as is the fact that disclosure may assist him to understand the events of 30 July 2016 when police came to his home. In that respect, however, I note that the section of the report dealing with the visit by police has been released to Mr Karakaya.

66. As stated above the public interest consideration in favour of disclosure that disclosure could be expected to inform the public about the operations of the NSW Police carries significant weight. The redacted information, however, contains little which would reveal information about police operations – although that portion of the report now to be released in accordance with these reasons may assist in revealing such information.

67. While s 55 provides that motives are relevant to the issue of determining where on balance the public interest lies, as was stated in Donnellan v Ku-ring-gai Council [2013] NSWADT 115 at [60], that motive must be established on reliable evidence and not by mere assertion. In that regard, Mr Karakaya has not put forward any evidence to support his claims that the information would assist in any civil action he may take against the NSW Police Force based on misconduct or some other misfeasance. I also note that, were Mr Karakaya to pursue civil action, he would most likely be able to seek production of the Event Report by way of a subpoena. In any event, personal factors are not relevant when considering whether disclosure of the information could reasonably be expected to have the effect referred to in cl 1 of the Table to s 14.

68. In relation to the personal information redacted from the Event Report, I am satisfied that in this matter the public interest considerations against disclosure outweigh the public interest in favour of the disclosure of the personal information that has been redacted. There are clearly personal and operational reasons why that is so.

69. So far as the redactions on the basis of cll 1 (d), (f) and (g) are concerned, I am satisfied, particularly in light of the evidence provided by Detective A/Inspectors Scipione and Jouni that, even though the information sought is personal to Mr Karakaya, the public interest considerations against disclosure far outweigh those in favour of disclosure. This is so having regard to the circumstances in which the information was provided to police, community expectations that such information will remain confidential unless disclosure is required by law and the broader impact upon police operations if information of this nature was disclosed.

70. The correct and preferable decision, therefore, other than in relation to the information in paragraph 2 on page 3 of the Event Report, is to affirm the decision under review. I note that orders were made at the hearing preventing disclosure of the identity of the complainant and associated individuals. Those orders remain in force.

Orders

71. (1)  The decision of the respondent is set aside in part.

72. (2)  The respondent is to release the information identified in paragraph [50] of these reasons.

73. (3)  The decision of the respondent is otherwise 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: 27 October 2023