Leydon v Commissioner of Police

[2019] NSWCATAD 267

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Leydon v Commissioner of Police [2019] NSWCATAD 267

Hearing dates:

24 June 2019 (Submissions closed 22 July 2019)

Date of orders:

24 December 2019

Decision date:

24 December 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1)   The decision of the respondent is set aside in part.
(2)   In addition to the orders made by the Tribunal on 7 June 2019 the following orders are made:
(a)   The respondent is to release the information agreed in his correspondence / further submissions filed 4 July 2019 concerning the Central Names Index (CNI’s) and Document 9.
(b)   The respondent is to release the information in accordance with the findings in column 3 of the Table that appears at paragraph [67] of these reasons for decision.
(3) The decision is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – Government Information (Public Access) Act – GIPA – sufficiency of evidence to establish factors against disclosure – weight to apply significantly to factors against disclosure – personal factors of application – weight to apply to those factors – currency of investigation

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Freedom of Information Act 1989 (NSW)
Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231
DRF v Commissioner of Police, NSW Police Force [2019] NSWCATAD 5
Mannix v Department of Education and Communities [2014] NSWCATAD 35
Transport for NSW v Searle [2018] NSWCATAP 93

Category:

Principal judgment

Parties:

Sally Leydon (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
R Jedrzejczyk (Applicant)

 

Solicitors:
Crown Solicitor (Respondent)

  Agent:
A Sandy (Applicant)

File Number(s):

2019/00048117

Publication restriction:

Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) applies to the date of birth of the applicant’s mother, referred to in paragraph 5 of these reasons for decision.

REASONS FOR decision

1. This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

2. The applicant (Ms Leydon) is a member of the public whose mother (Ms Marion Barter) was reported missing by her family in 1997. Ms Barter’s whereabouts remain unknown as at the date of the hearing of this application.

3. Ms Leydon is seeking information from various sources to gain some understanding of Ms Barter’s circumstances; specifically whether she is still alive, and/or her whereabouts in the period after the family lost contact with her in the mid to late 1990’s. The personal factors of an applicant under the GIPA Act are relevant matters for consideration which can be taken into account when deciding whether to release some of the information in this application to the applicant (s 55(2)).

4. Following Ms Barter being reported missing, a number of official inquiries and investigations occurred. These include investigations and inquiries by the NSW Police Force on behalf of the Commissioner of Police, who is the respondent in these proceedings. During the course of these investigations and inquiries, the NSW Police Force have received and generated large amounts of information over a period in excess of 20 years. It is predominantly this information that has been sought under the GIPA application, which has been identified by the Commissioner of Police in his Schedule of Documents comprising 99 items. Some of these 99 items have been fully released, some have been partially released and some have been refused in full. Ms Leydon’s application to gain access to all or some of the remaining documents (withheld by the Commissioner of Police under the GIPA process) is the basis of the administrative review to the Tribunal.

The GIPA Act application process

5. In December 2017 Ms Leydon sought information from the respondent under the GIPA Act relating to their holding on Ms Marion Barter. Specifically the applicant sought the following information:

‘I am applying for all information NSW police hold regarding the case of my missing mother - Marion Barter DOB (s 64 redaction X.XX.XXXX).’

6. On 17 October 2018 the Commissioner of Police made a decision on the application under which some information was released to Ms Leydon and some was withheld on the basis of a claimed overriding public interest against disclosure.

7. On 31 October 2018 Ms Leydon sought a review of the Commissioner of Police’s decision by the NSW Information Commissioner. The Information Commissioner provided a review report on 29 January 2019 recommending that the Commissioner of Police make a new decision in respect of some of the withheld information. The Information Commissioner concluded that the Commissioner of Police’s decision in respect of withholding information on privacy grounds (that it contained personal information and / or release would contravene a Privacy Principle), was not justified on the basis of the reasoning and information in the decision.

8. The decision referred to the personal information of others, and the Information Commissioner stated that the notice of decision had not gone on to discuss how these other individuals’ personal information would be revealed by the disclosure of Ms Barter’s personal information. Bearing in mind that the application only sought Ms Barter’s information, this issue appeared to raise a different consideration by considering other information.

9. On 31 January 2019 the Commissioner of Police advised Ms Leydon that he was not adopting the Information Commissioner’s recommendations. On 13 February Ms Leydon applied for administrative review to the Tribunal.

Relevant Legislation and Principles

10. The basis of the refusal to release government information concerns the application of specified grounds to withhold information after weighing up the competing interests to either release or withhold government information in certain circumstances having regard to specific principles under the GIPA Act.

11. The application of these principles arises in Part 2 Division 2 of the GIPA Act. That Division sets out how the application of the relevant principles and the weighing process is to occur.

12. Section 12 (1) provides:

12 Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

13. Section 13 and 14 go on to set out the limited instances whereby the general public interest in favour of disclosure of government information is not achieved.

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

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.

14. These matters concern the circumstances whereby public interest considerations against disclosure of government information may be applied so as to override the general public interest in favour of disclosure.

15. These provisions are set out in the Table to s 14 of the GIPA Act, and the relevant matters relied upon by the Commissioner of Police at the commencement of the hearing were:

Table 1

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)

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

(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)

…,

(b)

prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,

….

3 Individual rights, judicial processes and natural justice

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

(a)

reveal an individual's personal information,

(b)

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,

…,

16. The principles are conveniently summarised in the case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 which provides at [7] - [10]

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.

17. The GIPA Act has an objects provision, s 3, which includes a reference, at s 3(2)(a), that the legislation is to be applied so as to further those objects:

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.

What the respondent decided

18. The respondent stated in its Notice of Decision dated 17 October 2018 that release would disclose information given in confidence. It further stated that release could reasonably be expected to prejudice the voluntary supply of similar information in the future. Concerning information provided to the NSW Police Force during Ms Barter’s investigation, the decision stated, in respect of the cl 1(d) provision, that:

I believe that preserving the confidentiality of such information is integral to the NSWPF maintaining the community’s trust in police matters. If that trust is breached, the flow of information to police officers could be jeopardised, which would severely impact this agency’s investigative functions.

19. In respect of the cl 1(f) provision concerning the disclosure of information prejudicing the effectiveness of the agency’s functions, the decision states:

The documents in the Schedule of Documents, refused / redacted under clause 1 (f) covers documents or information relating to police internal reports, information obtained in accordance with power available to police undertaking their official investigation and information obtained from other government agencies that are restricted in legislation on circumstances in which information can be obtained and provided to. The disclose (sic) of these material could reasonably be expected to prejudice the effective exercise of the NSWPF’s investigation and information gathering functions.

The effectiveness of the NSWPF, and indeed any law enforcement agency, depends heavily on these techniques and information collected, and the information must remain independent and confidential to ensure its continuing value for law enforcement purposes.

20. In respect of the cl 3(a) provisions concerning revealing an individual’s personal information and cl 3(b) provisions concerning contravening an information protection principle under the Privacy and Personal Information Protection Act 1998 the decision states the following:

The documents listed in the Schedule of Documents, that were redacted / refused under Clause 3 (a) and 3 (b), is personal information about other individual (sic) including Ms Marion Barter. While I considered the relationship between yourself and Ms Marion Barter, your concerns for the safety of your mother, under the Principle 18 Privacy Act, as I cannot confirm there is no objection to the disclosure of her information to you from Ms Marion Barter, I have no choice but to refuse your access to information that concerns her privacy.

One thing to bear in mind is that our agency cannot control the distribution of the information once it is released. Therefore disclosure would breach the rights of people concerned to have their information protected.

21. The Commissioner of Police initially withheld information by relying on four grounds: cl 1(d) and (f) and cl 3(a) and (b) to the Table to s 14. When the matter initially came before the Tribunal the matter was remitted to the Commissioner of Police for a fresh decision under s 65 of the Administrative Decisions Review Act 1997. A supplementary decision was made on 9 April 2019. Only minor concessions to release further material (some of which included Ms Leydon as author of the information) were made in that decision. In the initial decision the public interest considerations against disclosure grounds applied to either the full or partial withholding of 70 of the 99 items identified as being within scope.

22. However, by the time of the hearing, Ms Leydon no longer pressed access to some of the documents and the Commissioner of Police now relied on the clauses set out at [15] above. Those documents, which were referred to as the ‘Commonwealth documents’, comprised material received from Commonwealth Agencies in response to police requests concerning Marion Barter. These are summarised as information from Medicare, the Pharmaceuticals Benefits Scheme (PBS).

23. As a result of these concessions by Ms Leydon, the following documents remained to be decided:

• Documents: 2, 29, 30, 45-52, 61-62, 70 and 75 from interstate and Commonwealth agencies, and documents 13, 14, 58, (64-69 and 71 same document);

• Documents: 2, 77, 78, 83, 85, 88, 89 and 98 being third party information supplied by external private organisations;

• Document 2 containing information provided by members of the public;

• Documents: 1, 2, and 99 containing information revealing the investigative steps and the outcomes of inquiries made in the course of the investigation.

From the supplementary decision of April 2019 to the time of hearing, the 70 disputed documents had been reduced to 35 documents. These reasons will therefore only concern the documents identified in the dot points above.

Further information conceded after hearing

24. During the confidential session, the Tribunal put to the respondent that it should seek instructions on whether some further information could be released to Ms Leydon.

25. On 4 July 2019, the Commissioner of Police informed the Tribunal that he had agreed with the matters raised in the confidential hearing to release all the pertinent information in document 9 (other than a third party identification number) and the CNI’s relating to Ms Barter previously withheld from documents 1, 3, 16, 40, 41 and 99. As a result of these concessions the remaining disputes concerning documents 3, 16, 40, and 41 fall away.

26. The Tribunal needs to decide whether the remaining information withheld from release by the respondent should be released. In deciding this issue the Tribunal could conclude that none of the remaining information should be released, some of the remaining information should be released, or all of the remaining information should be released.

27. After considering all of the evidence and submissions of the parties, and considering the specific information in dispute, I have decided to release some of the information in dispute. As a result, the decision of the Commissioner of Police will be set aside in part and the remainder of the decision will be affirmed.

Jurisdiction

28. The decision under review is a reviewable decision in accordance with s 80(d) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act.

Proceedings before the Tribunal

29. At the hearing on 24 June 2019 the Tribunal considered both open and confidential matters. There was open evidence tendered and open submissions made involving both parties. A confidential session occurred in accordance with s 107 of the GIPA Act whereby only the representatives of the Commissioner of Police were present. The section provides:

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.

30. After the confidential session there was an open session where both parties made oral submissions. The Tribunal made orders for the Commissioner of Police to file and serve (open and confidential submissions) concerning matters identified by the Tribunal during the confidential session.

31. In these proceedings the onus rests with the respondent to establish that the decision under review was the correct and preferable decision.

The Commissioner of Police case

32. The Commissioner of Police’s main public interest considerations against disclosure argument is similar to the process of analysis as set out by the Appeal Panel of the former Administrative Decisions Tribunal (ADT) in the case of Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri).

[25] ... The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

[26] We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.

[27] The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'.

[28] In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:

58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

[29] This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words:

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:.

[30] The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.

[31] In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, if not seen as 'confidential information', would nonetheless prejudice the effective exercise by an agency of the agency's functions (cl 1(f)). As to the different spheres of operation of cl 9(d) and cl 1(f) and their connection to the provisions of the previous legislation, see generally, Robinson, New South Wales Administrative Law (NSWAL service) [50.6890] and [50.6930].

[32] The agency asserted that it ran the triple zero service as a confidential service. As we see it, the Tribunal approached the question - whether the information was confidential information for the purpose of cl 1(d) - primarily by drawing distinctions between various classes of communicator, and having regard to the particulars of the instant case. The danger of this approach is the subject of the observations of Young CJ in the early Victorian case, Ryder v Booth, referred to in Mullett.

[33] In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service. In our view, the Tribunal did not adequately explain why it rejected the agency's case on this point.

[34] We also agree with the agency that the Tribunal should not have introduced factors relating to the later history of the information or document. The enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.

33. The above line of reasoning illustrates that even if the issue at play in a particular matter could be characterised as compelling, the Tribunal should not just look at the issue in isolation, but rather examine the issue to determine whether the agency’s ability in future would be impaired. Referencing Young CJ in Ryder (above) the issue is whether disclosure of this information would ‘impair’ the ability of the NSW Police Force to obtain this confidential information, that is information provided on a confidential basis, in future.

34. In deciding that matter the Tribunal must ask itself whether the disclosure of the information would have the relevant effect. The statutory phrase being: ‘could reasonably be expected to’ have the relevant effect (s 14). The Commissioner of Police referred to the case of Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 where Bowen CJ and Beaumont J held that the equivalent phrase meant:

‘it would 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 understandable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation in terms of probabilities or possibilities or the like.’

Respondent’s Evidence

35. The Commissioner of Police provided evidence to give weight to the public interest considerations against disclosure. Two affidavits were affirmed by Chief Inspector White (C.I. White), an acting Commander. In his first affidavit of 29 May 2019, C.I. White describes the documents in dispute as Event Reports and Case File on the COPS System, and a hard copy of the Missing Person File for Ms Barter.

36. C.I. White gave evidence that, broadly, the disclosure of information within the COPS system and Missing Person’s Files would be prejudicial to the effective exercise of the NSW Police Force’s investigative functions, particularly missing persons investigations. C.I. White deposed that the effectiveness of these investigations (by their processes and procedures being effective) is dependent on such matters remaining confidential. C.I. White held particular concerns about police methodology being exposed through release of the various checklists, identification forms, requests for certain records etc in a missing person inquiry.

37. C.I. White also gave evidence that many missing persons investigations involve foul play and exposure of the contents of a missing person file would prejudice the investigation by alerting potential offenders to the matter. Whilst the investigation had been suspended in 2011, C.I. White maintained that release would prejudice any ‘re-opened’ future active investigation of Ms Barter’s disappearance.

38. In respect of the information provided by government agencies, C.I. White deposed that this information is often particularly important in missing persons investigations to facilitate the location of that missing person. C. I. White stated that this information is requested with the following certification:

‘I certify that the disclosure of this information is necessary for the purpose of criminal investigation by the N.S.W. Police, and information provided by your organisation will be secured against any unauthorised disclosure and will only be used for law enforcement purposes.’

39. C.I. White gave the following evidence on this issue:

‘In my experience, this certification reflects the limited basis on which external agencies are willing to provide information in response to police requests. … While it may be consistent with law enforcement purposes for police to convey the outcome of enquiries to a family member in the context of a missing persons investigation, it is not considered appropriate for there to be public disclosure of this information.’

40. The witness then addressed the personal information issue. C.I. White confirmed that some of the withheld material constituted the personal information of Ms Barter. NSW Police hold a view that a missing person has the same right to privacy as any other individual.

41. In the second affidavit of 21 June 2019, C.I. White addressed some technical issues arising from the information in the first affidavit. This affidavit clarified that missing persons investigations are conducted by the local area by the relevant police command where the person was reported as missing. This was because the Missing Person Unit does not have investigative resourcing.

42. C.I. White also gave evidence that in preparing the GIPA evidence, he reviewed the holdings. He confirmed that Ms Barter’s investigation is ‘current and ongoing’ with the investigative officer in charge taking further investigative steps when his work priorities permit him to do so. C. I. White stated that, in respect of missing persons investigations, the quality of the information and the sensitivity attaching to such information is not diminished by the passage of time. In respect of Ms Barter’s matter he believed that all of the withheld information had a valid ongoing basis for being kept confidential, irrespective of the fact that much of that information was over two decades old.

43. The Commissioner of Police accepted various public interest considerations in favour of disclosure as being relevant to the decision. He submitted that many of the s 55 matters (Personal factors of the application) had been met by the substantial release of information following the initial and revised decision.

55 Consideration of personal factors of application

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

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

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

(c)   any other factors particular to the applicant.

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

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

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

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

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

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

Ms Leydon’s case

44. Ms Leydon submitted that the following matters gave weight to the release of the information concerning the investigation of her mother’s disappearance:

• The applicant is the daughter of the missing person;

• The investigation commenced over 20 years ago;

• The investigation has been suspended since 2011 and remains so;

• No charges have been laid and there is no evidence that the NSW Police Force intend to commence any prosecution.

45. Ms Leydon submitted that the Commissioner of Police had failed to establish an overriding public interest consideration against disclosure applying to any of the information currently withheld. She submitted that there were various public interest considerations in favour of disclosure which applied to the release of the information. Ms Leydon submitted that the personal factors (s 55) were significant. The close ‘mother daughter’ relationship between the applicant and Ms Barter, and the ‘tragic’ circumstances of Ms Leydon trying unsuccessfully for over 20 years to establish her whereabouts are strong grounds for the Commissioner of Police applying s 55(2) as a factor in deciding whether to release the information (notwithstanding public interest considerations against disclosure).

46. Ms Leydon relied on the matters listed in s 12 of the GIPA Act in favour of disclosure of the information to her.

12 Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

(3)   The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

47. Whilst the GIPA Act states that ‘Notes do not form part of the Act’, these non-determinative examples are regularly relied upon by parties in GIPA proceedings to substantiate their position on the information in dispute. In any event, s 12(2) provides that there is no limit as to what disclosure considerations can be taken into account in determining whether the factors against disclosure are relevant.

48. Ms Leydon relied upon information appearing in Document 15 which referred to observations by a reviewing officer:

‘It appears as though there are parts of this investigation that have not been thoroughly investigated. There are some things that are known by family members but are not supported by any formal police notation. Similarly, there are things that are believed by the family to be true, which do not appear to be supported by any police notation.’

49. Ms Leydon said that in this context, some scrutiny should apply to the NSW Police Force investigation and making it open and transparent (by releasing the documents) would achieve this. Applying scrutiny to police would hold them accountable in accordance with the objects in s 3 of the GIPA Act.

50. There were other considerations (of a similar type) which Ms Leydon relied upon. The NSW Police Force view was that Ms Barter had deliberately estranged herself from her family by changing her name and leaving. This was cited as an example of why the NSW Police Force had removed Ms Barter from having ‘Missing Person status’ on the file and official missing persons list and that there were no fears for her safety. This ground or evidence was a consideration in favour of disclosure because it could inform the public about the approach taken by the NSW Police Force to missing persons investigations in circumstances where the NSW Police Force had formed the view that the person did not wish to be located (despite the objections and requests of family and friends).

51. Ms Leydon was critical of C.I. White’s evidence about the confidential caveat that was applied when the information was collected from third parties. She submitted that his evidence was not of the same standard as that provided in Camilleri or Transport for NSW v Searle [2018] NSWCATAP 93 (Searle) in that there was no factual or relevant evidence connected to the information as there was in the appeal cases of Camilleri and Searle with the Appeal panel being critical of the quality of the Police evidence in Camilleri.

49. Ms Leydon submitted that C.I. White’s evidence did not rise above the most abstract level of generality. She submitted that the respondent had not put sufficient evidence before the Tribunal to enable it to engage in the process that the Appeal Panel referred to in Camilleri. A further submission critical of the Commissioner of Police was that C.I. White’s evidence was too general and not ‘tethered’ to the information in the current case. Ms Leydon submitted that:

‘There is no evidence that to suggest that the information provided by the public concerned the commission of a crime, or that protection from disclosure is necessary to prevent any risk of harm or reprisal against any particular individual(s). In the absence of such information the Tribunal is left to speculate as to the reason(s) why members of the public might be “reluctant” to speak to the Police. The evidentiary basis for the respondent’s submission that disclosure of information provided by members of the public could prejudice the future supply of confidential information that facilitates the effective exercise of the NSWPF’s investigative functions, is at best, highly tenuous.’

53. In addition, whilst the applicant no longer pressed the Commonwealth information, in respect of the information provided by private organisations, Ms Leydon drew a contrast with the Commissioner of Police’s characterisation of the Appeal Panel decision in Searle. Ms Leydon submitted that Searle set out different parameters where confidentiality was implied in the provision of that information. At [70] in Searle the following was observed:

[70] The following findings are readily drawn from those objective and otherwise established facts :

(1)   There was a considered, formal process for identifying the real facts about the status of infrastructure projects, which was approved at a high level within the NSW government. The process included, as a principle of operation, an assurance of confidentiality for information supplied to the review team.

(2)   Such an assurance of confidentiality was a feature of like infrastructure processes in other jurisdictions.

(3)   No experience was pointed to where such a feature had been shown to be unnecessary, including because public servants had a duty of honesty which required frankness in the supply of information to the review team.

(4)   There was no suggestion that such a provision for confidentiality was contrived for purposes other than to facilitate the flow of full and accurate information.

(5)   That the flow of full and accurate information from a range of sources both within and outside the SLRDO was important to the effective exercise of INSW’s function in respect of the early detection of problems and formulation of solutions.

(6)   The likelihood or real prospect that some of the information needed for the function in (5) would require individuals to communicate information that they would be naturally loathe to communicate unless it was to be kept confidential because the information was commercial-in-confidence information or commercially sensitive, or justifiably treated as having that character, or because it required information to be divulged that would damage ongoing working relationships in the carrying out of the project, or was justifiably regarded as likely to have that effect.

(7)   There was no suggestion that it was fanciful or absurd to think that some of the information to be communicated to review teams would be of the nature referred to in (6).

[71] In our opinion, those facts and matters provide a persuasive case for the existence of the public interest consideration against disclosure in cl 1(d).

(Emphasis added)

54. Written submissions also addressed the witness evidence in Searle and highlighted that it was specific to the information in question and the actual circumstances of the collection and use of that information. In the current matter Ms Leydon submitted that the evidence of C.I. White was presented with a high degree of generality and was so divorced from the specific factual basis for the views and concerns expressed by C.I. White in his evidence.

55. Reference was made to the fact that in the information already disclosed to Ms Leydon, NSW Police recorded that there ‘were no fears for the safety of [Ms Barter]’ and this established that there was no reason to suspect that her disappearance was the result of foul play.

56. Ms Leydon also noted that the bulk of the information provided in the supplementary decision discloses that the information in question was obtained from government agencies and private entities many years ago. That submission supported an argument that as the investigation had been suspended in 2011, the information (initially received confidentially) loses some of its character of confidentiality as the investigation develops and stalls.

57. Ms Leydon also submitted that the cl 2(b) prejudice investigation / law enforcement ground was not made out due to the passage of time since Ms Barter was reported missing. Reference was made to the case of Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 at [17], which dealt with the former Freedom of Information Act 1989 which had a similar provision at cl 4(1)(e) of Sch 1 to cl 2(b) to s 14 in the GIPA Act.

17. The exemption contained in Clause 4(1)(e) operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law (see Re Anderson (1986)) [1986] AATA 79; 11 ALD 355 and cf. Re Russo [1992] AATA 228; (1992) 28 ALD 354). Again the basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory etc. methods.

58. This matter arose from observations by the Tribunal in DRF v Commissioner of Police, NSW Police Force [2019] NSWCATAD 5 at [36].

36. As stated by Senior Member Higgins in relation to the similar exemption in cl 4(1)(e) of Schedule 1 to the former Freedom of Information Act 1989 (NSW), this consideration operates:

“... to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods”.

Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 at [17].

An actual contravention of the law is not required to exist in order to establish the ground (UC v Commissioner of Police, NSW Police [2005] NSWADT 272).

37. The applicant submits that the respondent’s evidence on this point is very general and inexact.

59. Ms Leydon submitted that the privacy considerations could easily be overcome by the Commissioner of Police with the redaction of identifying information such as names, bank account numbers and telephone numbers of persons other than Ms Barter. There was no evidence before the Tribunal to suggest that in these circumstances, the identities of other persons could be constructively made out.

Applying the Public Interest Test

60. The role of the Tribunal is to weigh up the competing grounds (in favour of and against release) as set out in s 15 of the GIPA Act. The section provides:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

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

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

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

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

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

61. The Commissioner of Police’s evidence was provided through his witness C. I. White. In my view the evidence of the witness does not establish the relevant factual matters that explain how the impact of the release would achieve the stated outcome ‘reasonably expected to have the – effect’ quoting the statutory language. As Ms Leydon submitted,

‘..A/C White’s evidence does not establish the necessary facts regarding the nature of the information that was supplied, the specific context in which the information was supplied in the course of the investigation into Ms Barter’s disappearance, and the circumstances which gave rise to an expectation or reality of confidentiality. The respondent has not demonstrated with any degree of specificity the likelihood that any meaningful detriment or disadvantage would result from the disclosure of information that is nearly a decade old. Whatever prejudice may have flowed from the contemporaneous disclosure of such information has been ameliorated by the passage of time and has no ongoing significance in the circumstances in which Ms Barter’s disappearance has been suspended for over seven years, no charges have been laid and there are no active or anticipated legal or criminal proceedings.’

62. Having reviewed the sworn oral and written evidence, I broadly agree with this submission.

Where does the balance lie with weighing of the information?

63. In this matter Ms Leydon’s mother’s personal information is broadly known to her. In addition she has identified many aspects of her mother’s reported whereabouts and results of inquiries over the intervening period of over two decades since she was reported missing. These matters and the s 55 matters have been significantly conceded by the Commissioner of Police and have in part informed his continued positive reassessment of the application, which has resulted in the ongoing proactive release of the information to Ms Leydon. I note that some of that information has been released following the Tribunal suggesting in confidential session that instructions be sought on some of the information.

64. On balance I see nothing contrary to the principles set out in s 15 which would prevent the disclosure of the information in the manner set out in the table below, having regard to the weighing exercise of the competing public interest considerations against disclosure, balanced with the public interest in favour of disclosure.

65. In a significant number of instances (on my assessment of the information), the public interest considerations in favour of disclosure clearly outweigh the claimed public interest considerations against disclosure. The arguments for and against are predominantly valid, and the respondent’s enlivening of the provisions in the Table to s 14 is sound. However when weighing that information up, notwithstanding that the release of the information is effectively unconditional and to the whole world, I find that when examining the documents and applying the test, further information should be released to Ms Leydon.

66. The matters set out at s 55(2) of the GIPA Act are also compelling grounds for providing Ms Leydon with access to much of the information. I cannot glean any adverse grounds which would work against providing the information to Ms Leydon, under s 55(1) of the GIPA Act. In my view none of the personal factors add any weight to the claimed public interest considerations against disclosure.

67. Having conducted a fact finding assessment of the documents that remain in dispute below, I make the following findings in column 3 of this Table for the reasons set out above and included next to the assessment of each document in the Table.

1. COPS Event E 616286	This Document is a 3 page COPS Event.	The CNI’s are conceded by the respondent are to be released. The material at the base of Page 2 is to be released consistent with Doc 98 for the same reason stated below. The first block of material at Page 3 is to remain withheld (consistent with the position on the Commonwealth documents). The second and third redactions from page 3 are to be released consistent with the reasoning applying to Documents: 77, 78, 85, 88, 89 and 91 for reasons set out below.
2. COPS Case File Event Report E 6126286	This document is what the NSW Police Force refer to as the ‘Case File’ of the missing person investigation.	My concern is that whilst the release of much of the (still withheld) information would be consistent with the information available under my decision in respect of Document 29, there are significant matters which weigh on the public interest considerations against disclosure. Whether the investigation remains ‘active’ or ‘suspended’ there is no time limit on the investigation. Indictable matters (which might arise from any investigation focusing on foul play concerning a missing person) are not time limited. The investigation remains open to be reactivated and in fact Ms Leydon has apparently made representations along those lines. As this ‘file’ is a montage of COPS entries and Event updates which build on one another, I believe that it should be considered (more so than the other documents remaining in dispute) as a working document. There are significant issues concerning police methodology, investigative strategy and identification of lines of inquiry. In my view the release could reasonably be expected to have the effect claimed under cl 1(c), (d), (f) and 2 (b). In addition the personal information of third parties would be released to the world without their consent and as such, there are significant matters arising under cl 3(a) and (b). However the material on GIPA Pg 13 starting at position 3 identified by ‘C 31087950’ down the page to the next reference to ‘C 31087950’, and GIPA Pg 14 other than the last line of the page, can be released as I believe in balance the s 55 factors and the s 12 factors clearly outweigh the claimed public interest considerations against disclosure. This is in addition to the material already released. Partial release of GIPA Pg 13 and 14.
29. Memo by G Sheehan	This memo is a summary of the findings of the investigation to date. Police have not relied on the personal information grounds. Police have only relied on the law enforcement prejudice grounds cl 2(b) and the prejudice agency’s functions cl 1(f). The record is TRIM dated at 2011 when the investigation was suspended.	Due to the age of the information, the fact that personal information considerations are not pressed, the s 55 considerations of the applicant, and that no evidence has been adduced to indicate that there is any law enforcement issue arising, I believe that the public interest consideration in favour of disclosure on balance outweigh those against. However, the name referred to in Dot Point 3 and 4 on page 1 of the memo should be withheld. In my view the release of this name unconditionally could cause significant issues where persons of that name are approached by third parties. The potential to result in the matters referred to in cl 3(a) and (b) are significant and the public interest considerations against disclosure on balance as a result outweigh those in favour. Partial Release
30. Email with screen shot from Border Force Database	Police rely on the general ground that release would disclose police actions / methods, compromise prejudice functions	On balance the redacted information would disclose how police approach and conduct a missing persons investigation. On balance the considerations against disclosure outweigh the considerations in favour of disclosure. Withhold
45. Western Australia Electoral Roll and Western Australia Police databases	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	This information is publically available under the Commonwealth Electoral Act 1918, a search of the roll by the applicant would realise the same information. On balance the considerations in favour of disclosure outweigh those against. However the non electoral roll information should be redacted (consistent with reasons in 51, 52, 61 and 62) Partial Release
46. Electoral Roll search results Tasmania and Tasmanian Police information	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	This information is publically available under the Electoral Act 2004 (Tas) a search of the roll by the applicant would realise the same information. On balance the considerations in favour of disclosure outweigh those against. However the non electoral roll information should be redacted (consistent with reasons in 51, 52, 61 and 62) Partial Release
47. Electoral Roll search results Victoria and Victorian Police information	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	This information is publically available under the Electoral Act 2002 (Vic) a search of the roll by the applicant would realise the same information. On balance the considerations in favour of disclosure outweigh those against. However the non electoral roll information should be redacted (consistent with reasons in 51, 52, 61 and 62) Partial Release
48. AFP search results	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	On balance the redacted information would not be disclosed to the public and could prejudice the informal supply of law enforcement information between jurisdictions. The general approach to such matters, in my view could be reasonably expected to create the result referred to in column 2. On balance the considerations against disclosure outweigh the considerations in favour of disclosure. Withhold
49. AFP report	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	On balance the redacted information would not be disclosed to the public and could prejudice the informal supply of law enforcement information between jurisdictions. The general approach to such matters, in my view could be reasonably expected to create the result referred to in column 2. On balance the considerations against disclosure outweigh the considerations in favour of disclosure. Withhold
50. National Missing Person Request for Information	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	Due to the age of the information, the fact that personal information considerations are not pressed, the s 55 considerations of the applicant, the agency has provided a search record response, and that no evidence has been adduced to indicate that there is any law enforcement issue arising, I believe that the public interest considerations in favour of disclosure on balance outweigh those against. Release
51. Major Crime NT search result	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	On balance the redacted information would not be disclosed to the public and could prejudice the informal supply of law enforcement information between jurisdictions. The general approach to such matters, in my view could be reasonably expected to create the result referred to in column 2. On balance the considerations against disclosure outweigh the considerations in favour of disclosure. Withhold
52. Missing persons inquiry Qld Police	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	On balance the redacted information would not be disclosed to the public and could prejudice the informal supply of law enforcement information between jurisdictions. The general approach to such matters, in my view could be reasonably expected to create the result referred to in column 2. On balance the considerations against disclosure outweigh the considerations in favour of disclosure. Withhold
58. NSW BDM response	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	On balance the redacted information would not be disclosed to the public and could prejudice the informal supply of law enforcement information from government agencies. Whilst I note that no reliance is placed on the personal information considerations, the general approach to such matters, in my view could be reasonably expected to create the result referred to in column 2. On balance the considerations against disclosure outweigh the considerations in favour of disclosure. Withhold
61. Qld Police response	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	On balance the redacted information would not be disclosed to the public and could prejudice the informal supply of law enforcement information between jurisdictions. The general approach to such matters, in my view could be reasonably expected to create the result referred to in column 2. On balance the considerations against disclosure outweigh the considerations in favour of disclosure. Withhold
62. Communication Qld Dept Justice to Qld Police	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	On balance the redacted information would not be disclosed to the public and could prejudice the informal supply of law enforcement information between jurisdictions. The general approach to such matters, in my view could be reasonably expected to create the result referred to in column 2. On balance the considerations against disclosure outweigh the considerations in favour of disclosure. Withhold
64. Electoral Roll inquiry NSW	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	This information is publically available under the NSW Electoral Legislation. A search of the roll (including historical searches available online) by the applicant would realise the same information. On balance the considerations in favour of disclosure outweigh those against. Release
65. A duplication of Doc 64.
70. Department of Immigration and Citizenship to NSW Police	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	On balance the redacted information would not be disclosed to the public and could prejudice the informal supply of law enforcement information between jurisdictions. The general approach to such matters, in my view could be reasonably expected to create the result referred to in column 2. Whilst I note the compelling s 55 considerations and the general public interest considerations in favour of disclosure, on balance, the considerations against disclosure outweigh the considerations in favour of disclosure. Withhold
71. Appears to be a duplicate of document 64 and document 65
75. Photocopy of incoming passenger card	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	Due to the age of the information (1997), the fact that personal information considerations are not pressed, the s 55 considerations of the applicant, the information was not generated in criminal investigation context concerning any active inquiry, and that no evidence has been adduced to indicate that there is any law enforcement issue arising, I believe that the public interest considerations in favour of disclosure on balance outweigh those against. The information in this card establishes some evidence which is of significant public interest having regard to s 12 and the s 3 objects and s 4 interpretation. The information does not reveal or otherwise disclose any methodology and due to its age, the public interest considerations in favour of disclosure (in the absence of a privacy claim) have more weight than those against disclosure. However, in my view the release of the name referred to on the top two entries of page 1 of the copy of the card unconditionally could cause significant issues where persons of that name are approached by third parties. The potential to result in the matters referred to in cl 3(a) and (b) are significant and the public interest considerations against disclosure on balance as a result outweigh those in favour. Partial Release (other than the name of the person completing the card)
77. Westpac Bank return	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	NSW Police attest that the collection of the information is necessary for criminal investigation and will be secured against unauthorised disclosure. Bearing in mind the age of the data (2011) and the fact that the information is sought 8 years after it was provided, and the applicant’s s 55 grounds, on balance the considerations in favour of disclosure outweigh those against. The fact that the information was obtained many years after the disappearance of Ms Barter, and is now sought many years later again, adds to the weight in favour of disclosure. This is because the information has lost any practical currency or value. The information’s actual value and utility to any investigation, and therefore grounds for prejudice to any process, diminish with time. The age of the information and currency are relevant in determining what weight should be applied. I note that no personal information grounds are relied upon. Release
78. Queensland Credit Union response	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	NSW Police attest that the collection of the information is necessary for criminal investigation and will be secured against unauthorised disclosure. Bearing in mind the age of the data (2008) and the fact that the information is sought 11 years after it was provided, and the applicant’s s 55 grounds, on balance the considerations in favour of disclosure outweigh those against. The fact that the information was obtained many years after the disappearance of Ms Barter, and is now sought many years later again, adds to the weight in favour of disclosure. This is because the information has lost any practical currency or value. The information’s actual value and utility to any investigation, and therefore grounds for prejudice to any process, diminish with time. The age of the information and currency are relevant in determining what weight should be applied. I note that no personal information grounds are relied upon. Release
83. Fax Transmission report Qld Teachers Credit Union	Police rely on prejudice the effective exercise of functions grounds.	Appears to be possibly conflated with acceptance of the decision in documents 81, 82 and 84. (Fax Number) On balance Withhold
85. Email from Teachers Credit Union	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	NSW Police attest that the collection of the information is necessary for criminal investigation and will be secured against unauthorised disclosure. Bearing in mind the age of the data (2008) and the fact that the information is sought 11 years after it was provided, and the applicant’s s 55 grounds, on balance the considerations in favour of disclosure outweigh those against. The fact that the information was obtained many years after the disappearance of Ms Barter, and is now sought many years later again, adds to the weight in favour of disclosure. This is because the information has lost any practical currency or value. The information’s actual value and utility to any investigation, and therefore grounds for prejudice to any process, diminish with time. The age of the information and currency are relevant in determining what weight should be applied. I note that no personal information grounds are relied upon. Release
88. St George Bank search response	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	NSW Police attest that the collection of the information is necessary for criminal investigation and will be secured against unauthorised disclosure. Bearing in mind the age of the data (2007) and the fact that the information is sought 12 years after it was provided, and the applicant’s s 55 grounds, on balance the considerations in favour of disclosure outweigh those against. The fact that the information was obtained many years after the disappearance of Ms Barter, and is now sought many years later again, adds to the weight in favour of disclosure. This is because the information has lost any practical currency or value. The information’s actual value and utility to any investigation, and therefore grounds for prejudice to any process, diminish with time. The age of the information and currency are relevant in determining what weight should be applied. I note that no personal information grounds are relied upon. Release
89. Response to customer inquiry / search NAB	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds	NSW Police attest that the collection of the information is necessary for criminal investigation and will be secured against unauthorised disclosure. Bearing in mind the age of the data (2007) and the fact that the information is sought 12 years after it was provided, and the applicant’s s 55 grounds, on balance the considerations in favour of disclosure outweigh those against. The fact that the information was obtained many years after the disappearance of Ms Barter, and is now sought many years later again, adds to the weight in favour of disclosure. This is because the information has lost any practical currency or value. The information’s actual value and utility to any investigation, and therefore grounds for prejudice to any process, diminish with time. The age of the information and currency are relevant in determining what weight should be applied. I note that no personal information grounds are relied upon. Release
98. CBA Search inquiry response	Police rely on prejudice the relations / future supply of information, functions and law enforcement grounds. The Police do not rely on the personal information grounds.	NSW Police attest that the collection of the information is necessary for criminal investigation and will be secured against unauthorised disclosure. Bearing in mind the age of the data (2007) and the fact that the information is sought 12 years after it was provided, and the applicant’s s 55 grounds, on balance the considerations in favour of disclosure outweigh those against. The fact that the information was obtained many years after the disappearance of Ms Barter, and is now sought many years later again, adds to the weight in favour of disclosure. This is because the information has lost any practical currency or value. The information’s actual value and utility to any investigation, and therefore grounds for prejudice to any process, diminish with time. The age of the information and currency are relevant in determining what weight should be applied. Whilst I note that no personal information grounds are relied upon by Police in my view the details of the bank account identifiers and credit card identifiers should be withheld as there is no basis to disclose those matters unconditionally having regard to the sensitive nature of that information, the fact that it could be misused, and the provisions of cl 3(a) and (b) of the Table to s 14. Release (other than credit card number and account number).
99. Cops Event E 616286	This is an updated Event of Document 1.	The same considerations as applied to Document 1 apply to this document. Release for reasons as set out at Document 1. All other information in Event Withhold

Conclusion

68. The correct and preferable decision is that in respect of the documents described at column three of the Table above, where indicated, the decision will be set aside. The remainder of the decision of the respondent will be affirmed.

69. I therefore make the following orders:

Orders

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

2. In addition to the orders made by the Tribunal on 7 June 2019 the following orders are made:

1. The respondent is to release the information agreed in their correspondence / further submissions filed 4 July 2019 concerning the Central Names Index and Document 9.

2. The respondent is to release the information in accordance with the findings in column 3 of the Table that appears at paragraph [67] of these reasons for decision.

3. The decision 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

Amendments

05 February 2020 - Paragraph 67 - Column 1 of the Table will be amended, pursuant to section 63 (3)(a) of the Act and Column (3) in accordance with Section 63(a)(b) of the Act.

Decision last updated: 05 February 2020