McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force

[2013] NSWADT 53

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53
Hearing dates:	On the papers
Decision date:	06 March 2013
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decisions under review are affirmed
Catchwords:	Disclosure of information provided to an agency in confidence - could reasonably be expected
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Police Act 1990 Police Regulation 2008
Cases Cited:	Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Director General, Department of Education and Training v Mullett (GD) [2002] NSWADTAP 13 Flack v Commissioner of Police [2011] NSWADT 286 IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79 Leech v Sydney Water Corporation [2010] NSWADT 298
Category:	Principal judgment
Parties:	Ovava McMillan (Applicant in matter 123016) Ken Brady (Applicant in matter 123017) Commissioner of Police, NSW Police Force (Respondent)
Representation:	C Zoppo, Sparke Helmore Lawyers
File Number(s):	123016; 123017

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Each of these matters relates to the same information and therefore I will deal with them together.

1. The Applicant in matter No. 123016, Ms Ovava McMillan, applied to the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking access to information held by the Respondent. She requested:

All letters, reports, diary notes, duty books, notebooks written material/notes whether created electronically or otherwise and on mainframe or standalone systems in relation to a compliant by Ovava McMillan to Inspector Gordon Dunlop about LSC Craig Hewitt on 20 January 2011.

1. The Applicant in matter No. 123017, Mr Ken Brady, lodged a separate request with the Respondent under the GIPA Act seeking access to information held by the Respondent. He requested:

All documents, letters, reports and written material whether created electronically or otherwise, diary notes, duty books, and on mainframe or standalone systems in relation to LMI 100312 created at Griffith LAC.

1. The Coordinator of the Respondent's information Access Unit, Senior Sergeant Brand, identified 23 documents as falling within the scope of Ms McMillan's request. Those documents were identified in a schedule provided to Ms McMillan with a summary of the documents which were released in part and the documents which were refused in full:

IAU Ref Page #	Name of Document	Decision T = Section 14 Table
1 to 4	Mandatory Resolution Outcome Report	Released in part T1(e) T1(f)
5 to 6	Review of LM1 1100312	Refused in full T1(e) T1 (f)
7	Email	Refused in full T1(e) T1(f)
8 to 9	Email of Constable Gullotta	Released in part T1(e) T1(f)
10 to 23	Police Internal Reports	Released in part T1(e) T1(f)

1. In matter No. 123016 the determination was made to provide Ms McMillan with access to some of the information to which access was sought, but the Respondent refused to provide her with access to the balance of the information on the basis that there was an overriding public interest against the disclosure of that information. In the reasons for the determination it was stated:

Section 9(1) of the Act provides a legally enforceable right to information unless there is an overriding public interest against disclosure. I have applied the public interest test under Section 13 of the Act and determined that in view of the circumstances as set out below, that there is no overriding public interest against disclosure of the information sought.

Responsible and effective government - Section 14, Table 1(e) and (f)

The information disclosed was communicated or received under an express of inferred understanding of confidentiality.

The findings and recommendations are fundamental to the integrity of the process and to inhibit candid opinions or comments has potential to undermine or compromise the conclusions that are reached. It is my view that disclosure of the documents would be prejudicial to the proper working of this agency in regard to the internal investigation process and the release of such documents would have a substantial adverse effect.

I believe that it is inherent that members of the New South Wales Police Force discharge the responsibilities of their office effectively. In this regard, I am of the view that the effective discharge of these duties could be prejudiced if every document formulated in the course of deliberations in the decision making process was liable to be made public.

Taking into account the nature of the material, the information contained therein, the impact on the effective discharge of public duties, and the purpose of which the information would have been created, in accordance with the Act, I have balanced the test as to whether or not it is in the public interest to disclose the information and it is my view, when having given consideration to all factors that there is an overriding public interest against disclosure.

Schedule 1

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

1 Overriding secrecy laws

It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence:

The release of such information would contravene the provisions of Section 169A of the Police Service Act 1990 which states

Identity of complainant not to be disclosed

A member of NSW Police must not disclose to any person the identity of a complainant unless the disclosure is made:

(a) in accordance with guidelines established by the Commissioner, or

(b) with the consent of the complainant, or

(c) in accordance with a requirement of or made under this or any other Act, or

(d)for the purposes of any legal proceedings before a court or tribunal.

1. The Respondent subsequently decided to release some additional information to that provided to Ms McMillan with the Determination.

1. In matter No. 123017 the determination was made to provide Mr Brady with access to some information (as noted in the schedule below), but the Respondent refused to provide him with access to the balance of the information on the basis that there was an overriding public interest against the disclosure of that information.

1. The Coordinator of the Respondent's information Access Unit, Senior Sergeant Brand, identified 23 documents as falling within the scope of Ms McMillan's request. Those documents were identified in a schedule provided to Ms McMillan with a summary of the documents which were released in part and the documents which were refused in full:

IAU Ref Page #	Name of Document	Decision T = Section 14 Table
1 to 4	Mandatory Resolution Outcome Report	Released in part T1(e) T1(f)
5 to 6	Review of LM1 1100312	Released in part T1(e) T1 (f)
7 to 10	Emails of A/Commander Smith	Refused in full T1(e) T1(f)
11 to 13	Reply to Directive Memorandum by applicant	Released in full
14 to 23	Directive memorandums	Refused in full T1(e) T1(f)

1. As was the case with Ms McMillan's request, the Respondent subsequently decided to release some additional information to that provided to Mr Brady with the Determination.

1. The reasons for the determination reflected those given to Ms McMillan as set out above. The Respondent also indicated that it considered Mr Brady's involvement in the incidents recorded in the documentation and the fact that the documents include amongst other information, Mr Brady's personal information.

Applicable Legislation

1. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

1. Pursuant to section 9(1) of the GIPA Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act, unless there is an overriding public interest against disclosure.

1. Section 12 of the GIPA Act provides:

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.

1. Section 13 of the GIPA Act provides:

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.

1. Section 14 of the GIPA Act provides:

14 Public interest considerations against disclosure

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

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

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

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

1. The relevant provisions in the Table to section 14 are discussed below.

1. Section 15 of the GIPA Act 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.

1. Section 58(1)(d) of the GIPA Act provides that an agency may decide an access application by refusing to provide access because there is an overriding public interest against disclosure.

1. Section 80(d) provides that the Tribunal may review such a decision. In a Tribunal review, the agency bears the onus of establishing that the decision was justified: section 105(1) of the GIPA Act.

1. In making its decision, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision: section 63(2) of the Administrative Decisions Tribunal Act 1997.

1. Part 8A of the Police Act 1990 deals with complaints about conduct of police officers. Sections 169A and 170, which are found within Part 8A of the Police Act, provide:

169A Identity of complainant not to be disclosed

A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made:

(a) in accordance with guidelines established by the Commissioner, or

(b) with the consent of the complainant, or

(c) in accordance with a requirement of or made under this or any other Act, or

(d) for the purposes of any legal proceedings before a court or tribunal.

170 Certain documents privileged

(1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings:

(a) that concern the conduct of police officers, and

(b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.

(2) Subsection (1) does not apply to or in respect of:

(a) a document comprising a complaint, or

(b) a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or

(c) a document that a witness is willing to produce.

(3) Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.

Balancing the competing public interest

1. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286, at paragraph [19], the Tribunal confirmed that in all cases other than those falling under Schedule 1 of the GIPA Act, agencies are to apply the public interest test under section 13 of the GIPA Act as follows:

(a) identifying the public interest in favour of disclosure;

(b) identifying the public interest against disclosure (with reference to the Table to section 14 of the GIPA Act), and

(c) determining where the balance lies.

1. In Hurst v Wagga Wagga City Council [2011] NSWADT 307, at paragraph [94], the Tribunal went on to note that when weighing the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation".

1. Thus, an agency must simply balance the competing public interest factors for and against disclosure in each specific case, rather than apply some other test for determining whether there is an overriding public interest against disclosure of the information.

Ms McMillan's case

1. Ms McMillan has applied to the Tribunal for external review of the Respondent's determination. She has provided a document in which she sets out the background to her request and an affidavit in which she set out evidence of what she contends supports her view that the withheld material should be released.

1. Ms McMillan contends that the information she is seeking relates to a complaint that she made via a telephone call to Inspector Gordon Dunlop on 20th January 2011. She says that Inspector Dunlop told her that he would follow up on her complaint and then get back to her. However, Inspector Dunlop has never contacted her in regard to her complaint nor has she been contacted by anyone else from Griffith Local Area Command in regard to her complaint.

1. Ms McMillan referred to other events that occurred following her complaint that have lead her to believe that the complaint was not dealt with properly. She referred a COPS event E43465138 that she says she obtained as part of that subpoena process in Local Court proceedings. She notes that at Page 2 of E43465138 reference is made

showing Hewitt discussed the matter with Inspector Dunlop, who I made the complaint to, Inspector Tony Reneker, who I know from another matter involving S/Cst Brady, and who is the Professional Standards Duty Officer, and, Inspector Smith, who I know from another matter involving S/Cst Brady.

1. She further stated:

As per the Notice of Determination - Late Decision, dated 16th November 2011, some information was provided and I refer to page 4, I believe, regarding Complainant satisfaction, which states "The Complainant is satisfied with the investigation."

I have never heard back from Inspector Dunlop or anyone else from Griffith LAC, so I don't know how I could be satisfied with the investigation. This is not true and is signed by Inspector Dunlop dated 22nd March 2011 ...

From the background information and the alleged Complainant satisfaction as above I believe that the GIPA Act 2009 S12 2 (e) clearly defines that disclosure could reasonably expect to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

I have no doubt in my mind that Inspector Dunlop orchestrated a number of events based on the above and also the conversation that took place between Hewitt and another officer at Narrandera police station in which Hewitt stated he had been directed by Dunlop to take certain action.

As such I ask that my application for disclosure is granted.

1. Ms McMillan submits that, as she is the person who made the complaint, there is no requirement to keep her information confidential from her.

1. She submits that the considerations for disclosure outweigh those against and asks for her application to be approved in full.

Mr Brady's case

1. Mr Brady has also applied to the Tribunal for external review of the Respondent's determination. He clarified that his request concerned documents in regard to a complaint made by LSC Hewitt against him for Interfering in an Investigation, the making of which was by direction from Inspector Dunlop. He noted that the documents he sought included all letters, reports, diary notes, duty books written material/notes whether created electronically or otherwise and on mainframe or standalone systems in relation to a complaint made by LSC Hewitt to Inspector Gordon Dunlop about Mr Brady's alleged improper interference in an Investigation and any documents arising from that complaint.

1. Mr Brady has adopted the same background material provided by Ms McMillan regarding events that arose from the incident that occurred on 20 January 2011.

1. Mr Brady has also provided an affidavit in which he set out evidence of his knowledge of the incident that occurred on 20 January 2011 and the making of the complaint by Ms McMillan.

1. He noted that on 14 March 2011 he was given a directive memorandum requiring him to reply to an investigation by Inspector Dunlop into his alleged "improper interference in an investigation". He also provided other evidence that he contends supports his view that the withheld material should be released.

1. Mr Brady submitted:

As I know the person who made the complaint, Hewitt and the officer who prepared the report into this allegation, Inspector Dunlop, there is no requirement to keep this information confidential from me.

...

From the preceding Section 15 (a)(c)(d) these principles would apply for disclosure in this matter.

I believe that the considerations for disclosure outweigh those against and ask for my application for, "Any document that relates to a complaint made by LSC Hewitt, or the report by Inspector Dunlop, or any documents arising from these documents in regard to Interfering in an Investigation" [is granted.]

Under the heading Mandatory Resolution Outcome Report at page 2 under Comment, Outcome and Findings in the first paragraph makes reference to the outlining of the incident as per Inspector Dunlop's report. This report was made after either discussion or receiving a written complaint from Hewitt, as we know from another police officer stationed at Narrandera that Hewitt was directed to make a complaint, this could be in the form of a report, by telephone with notes taken, by email or some other electronic device. However there was a complaint made and Inspector Dunlop prepared a report following on from that complaint. I was questioned by Inspector Dunlop and the reply to the directive memorandum is attached to previous papers.

I believe that the document/s should be released as the authors are known to me, with Narrandera being a very small town, and the information could on the balance of probabilities contain information that satisfies

Section 12 2 (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency for a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

I have no doubt in my mind, that Inspector DUNLOP orchestrated a number of events based on the above, and, the conversation that took place between HEWITT and another officer at Narrandera police station in which HEWITT stated he had been directed by DUNLOP to take certain action, confirms this.

It was only after finding out this piece of information did all the events that took place make any sense.

As such I ask that my application for disclosure is granted.

The Respondent's case

1. The Respondent has provided a preliminary outline of its case in regard to Ms McMillan's application as follows:

Public Interest Consideration against Disclosure - prejudice future supply

The information received by the police in the investigation of the complaints made against the police are communicated and received under an express or inferred understanding of confidentiality.

The information received, the findings and recommendations are fundamental to the integrity of the process of internal investigations and to inhibit candid opinions or comments by disclosing such information to the public has the potential to undermine or compromise the flow of information and the conclusions that are reached.

The disclosure of the information for which access has been refused would be prejudicial to the proper working of the agency in regards to the internal investigation process and the release of such documents would have a substantial adverse effect.

The effective discharge of the duties will be prejudiced if documents recording deliberations in the decision making process are disclosed.

1. The Respondent has provided a preliminary outline of its case in regard to Mr Brady's application as follows:

The Respondent in its determination dated 16 November sets out its reasons for not disclosing information sought in that application. The Respondent relies on the reasons set out in that determination.

Following the refining of the application by the Applicant at the first planning meeting, a further examination of information held by the Respondent was undertaken.

The information sought by the Applicant in its amended application ... is not held by the Respondent.

1. The Respondent has provided an unredacted copy of the documents that are in issue. In each matter the Respondent relies on the statement of Acting Detective Superintendent Anthony Yanz, Acting Commander of the Respondent's Investigation Unit, Professional Standards Command. He outlined his current duties in the following terms:

4 In my current position as Acting Commander of the Investigation Unit, Professional Standards Command, I quality review all investigation reports prior to them being forwarded to the Complaints Management Team (CMT). I am part of the Professional Standards CMT. The CMT oversees and manages the conduct of investigations, reviews the final reports and determines the final outcomes of those investigations. The CMT also decides after triage of complaints by the Professional Standards Manager, which matters are deemed appropriate to be investigated by the Professional Standards Investigation Unit.

5 As the Commander of the Investigation Unit, I am generally aware of correspondence from the NSW Ombudsman to the Professional Standards Command. Correspondence between the agencies generally relates to the manner in which a complaint of police misconduct has been, or is being, investigated. The NSW Ombudsman and the NSW Police Integrity Commission oversee investigations conducted by the NSW Police Force into allegations of Police misconduct, pursuant to Part 8A of the Police Act. ...

1. In relation to the Respondent's approach for dealing with complaints under Part 8A of the Police Act Acting Detective Superintendent Yanz stated (paragraph numbering deleted):

Part 8A complaints

Any person may make a complaint about the conduct of a police officer pursuant to Part 8A of the Police Act. Upon receipt of a complaint, the Commissioner (or his delegate) will decide whether or not to investigate the complaint. If a decision is made to investigate the complaint, a police officer will be appointed to carry out the investigation.

Investigations under Part 8A of the Police Act are particularly sensitive. The identity of the complainant and witnesses and the information provided in the investigation process is protected under legislation and policies.

For example, under section 169A of the Police Act, a member of the NSW Police Force must not disclose the identity of a complainant (unless a permitted circumstance applies).

Section 170 of the Police Act provides that documents brought into existence for the purposes of Part 8A are not admissible in evidence in any proceedings, other than related proceedings.

The NSW Police Force Complaint Handling Guidelines (dated March 2012) state (at page 15):

Complaint information must be managed so that its physical security is protected at all times. This includes officer treating all information which comes to them in an official capacity as strictly confidential.

Legislative requirements govern the disclosure of the identity of a complainant (section 169A Police Act and Commissioners guidelines). This is supported by an additional legal requirement that officers treat all information which comes to them in an official capacity as strictly confidential and not divulge it to anyone without proper authority (clause 75 of the Police Regulation 2008).

Complaints by both members of the public and internal sources are made on the expectation that they will be confidential.

It is standard procedure for a complainant's identity to be protected from disclosure to the subject officer, no matter how obvious it may be as to where the complaint may have originated.

The identity of any witnesses is also protected from disclosure to the subject officer. All persons involved in an investigation process are told at the commencement of the process that the investigation will be conducted on a confidential basis and evidence is provided on the expectation that it will be kept confidential.

As part of the investigation process, the officer who is the subject of the complaint is usually interviewed and the substance of the allegation is put to the police officer involved. Nevertheless, confidentiality is maintained over the evidence and the identity of the complainant and witnesses.

Access to a Part 8A investigation complaint file is not provided to any officer other than those involved in the investigation and the management of the complaint.

I believe that, even after Part 8A investigations are concluded, it is important to maintain confidentiality over the identity of complainants and witnesses and the information provided.

If such information was disclosed (except as required by law), I believe that complainants and witnesses would be reluctant to come forward with information and/or the quality of the information would be adversely affected.

Whilst clause 49 of the Police Regulation 2008 (NSW) (Police Regulation) states that police officers are required to report police misconduct to a senior officer, it is understood that police often do not come forward because of fear of ostracism or retribution by colleagues if it became known amongst colleagues that the officer made such a complaint.

Directions under clause 8 of the Police Regulation can be used to require a police officer to provide information. However, I believe information given under a directive should be given the same degree of protection and confidentiality as is given to information provided voluntarily. Even if an internal witness or complainant gives information under a directive, maintaining confidentiality is as equally as important as when a person gives information voluntarily.

While police offers are aware of their obligation under clause 49 of the Police Regulation to report misconduct, they are equally aware of purported protections of their identity and of the confidentiality of information referred to above. Any departure from the strictest adherence to those protections is likely to have the consequence that police officers will be reluctant to make full and frank disclosures. Such a failure to comply with clause 49 of the Regulation would, in a police officer's view, be reasonable on the basis of their belief that they, or the information they provided, would not be adequately protected from disclosure.

I believe that if the same protection was not given to information provided under a directive, there would not be full and frank disclosure of all relevant evidence, as complainants and witnesses would fear reprisal and payback from the police officer they have given evidence about.

This would undermine the confidence that members of the public and internal sources have in coming forward with information about police misconduct and prejudice the future supply of such information.

In turn, this would undermine the whole system of investigations under Part 8A and the management of the Police Force.

1. The Respondent submits that the relevant public interest considerations in favour of disclosure are:

(a) the general public interest in favour of disclosure; and

(b) some of the information is personal information of the person to whom it is to be disclosed.

1. The Respondent submits that the relevant public interest considerations against disclosure, under the table to section 14 of the GIPA Act, are:

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):

...

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions;

...

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence;

6 Secrecy provisions

(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure if information, whether or not the prohibition is subject to specified qualifications or exceptions.

(2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibitions against disclosure.

Paragraph 1(d) - prejudice the supply of confidential information

1. This consideration against disclosure is made up of the following elements:

(a) the information facilitates the effective exercise of the Respondent's functions;

(b) the information is confidential; and

(c) disclosure of the information could reasonably be expected to prejudice future supply of confidential information to the Respondent.

1. In respect of the first element, the Respondent argues that the information was obtained and created for the purposes of an investigation that was carried out by the Respondent, pursuant to his function under Part 8A of the Police Act. The Respondent submits that the information is clearly information that facilitates the effective exercise of the Respondent's function under Part 8A of the Police Act.

1. In respect of the second element, the Respondent submits that the information is confidential.

1. In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 ("Camilleri") (in regard to information received in the course of the 000 service) the Appeal Panel said at paragraph [33] that the question as to whether information is 'confidential information' is to be examined, primarily at least, by reference to the agency's evidence and the conditions under which it conducts the service (i.e. function) in which the information in issue was obtained. At [34], the Appeal Panel said that, the enquiry under this clause 'should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.'

1. The Respondent refers to Mr Yanz's statement in support of the submission that Part 8A investigations are particularly sensitive and are handled in a confidential manner. All persons involved in a Part 8A investigation are told at the commencement of the process that any information they provide will be treated as confidential information.

1. The Respondent also relies on sections 169A and 170 of the Police Act in support of the submission that those provisions protect the confidentiality of the investigation process. In particular, with limited exceptions a member of the NSW Police Force must not disclose the identity of a complainant. Therefore, the Respondent submits that the information is expressly confidential information.

1. Further, the Respondent submits that in addition to the express confidentiality in the information, there is also an implied requirement that all information in relation to investigation processes be given in confidence and treated confidentially. It is submitted that this can be implied from the circumstances in which the information was obtained or given.

1. In respect of the third element, the Respondent submits that disclosure of information of this nature could reasonably be expected to prejudice the future supply of such information to the Respondent. The Respondent also relies on the decision in Director General, Department of Education and Training v Mullett (GD) [2002] NSWADTAP 13 in which the Appeal Panel said in respect of clause 13(b)(ii) of Schedule 1 of the Freedom of Information Act 1989:

'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. ...'

59 His Honour went on to observe at 872 that the question is a question of fact.'

1. The Appeal Panel in Camilleri, at paragraph [29], has endorsed this approach in relation to paragraph 1(d) of the table in section 14 of the GIPA Act.

1. The Respondent concedes that a police officer can be directed to assist in the investigation of a complaint pursuant to clause 7 of the Police Regulation 2008 (NSW)). However, the Respondent contends that the Respondent's power to direct police officers to assist is no more than one consideration to be taken into account. In support of that contention it relies on the view expressed in by the Appeal Panel in IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79 at paragraph [72]:

72 In our view, the existence of powers of compulsion is no more than a consideration to be taken into account in assessing the future effect on an agency's operations of it disclosing commercial information supplied in confidence to a commercial rival. It is, we think, a familiar aspect of the operation of regulatory bodies that they seek to obtain relevant information by non-coercive means. In our view, a practical distinction can be drawn between 'voluntary' obtaining of information and 'compulsory' obtaining of information. It is, we think, tenable to suggest, as IPART did here, that the work of a regulatory agency is made easier by not having to invoke powers of compulsion, and that it is desirable to have a co-operative relationship with regulated parties. The existence of the coercive power is a fail-safe.

1. The Respondent contends that if the confidentiality of the information was not guaranteed, police officers may not give full and frank disclosure, as they would fear reprisal and pay back. This would undermine the whole system of investigations under Part 8A of the Police Act.

1. Further, the Respondent contends that police officers may be deterred from reporting misconduct in the first place, if the confidentiality of the complaint cannot be guaranteed.

1. In addition to this, the Respondent also has concerns about the participation of persons who are not police officers in an investigation process, if confidentiality cannot be guaranteed.

1. The Respondent contends that investigations under Part 8A of the Police Act involve the collection of information from a wide range of sources, including persons who are not employed by the Respondent. These persons cannot be compelled to participate and the Respondent contends that the disclosure of information obtained as part of an investigation process would damage the Respondent's ability to obtain information from these persons in future.

Paragraph 1(g) - information provided in confidence

1. The Respondent submits that the information was provided in confidence.

1. The Respondent relies on the evidence that all persons involved in a Part 8A investigation are told at the commencement of the process that any information they provide will be treated as confidential information.

1. Ms McMillan has contended that she is the person who made the complaint and therefore there is no need to keep the information confidential from her. However, the Respondent contends that Ms McMillan is not "the complainant" who is referred to in the documents that have been released (in part) in response to Ms McMillan's request.

1. It is not in dispute that Ms McMillan made a complaint about the actions of Leading Senior Constable Hewitt and former Probationary Constable Hutchison, arising out of the events that occurred on 20 January 2011. However, the Respondent asserts that it declined to investigate these matters, because:

(a) the matters involving Leading Senior Constable Hewitt had already been enquired into on 18 November 2011; and

(b) former probationary Constable Hutchison has resigned from the NSWPF and as such there was no utility in pursuing the complaint against him.

1. The Respondent further asserts that Ms McMillan was advised of this decision, by letter dated 24 July 2011.

1. The documents that have been identified as falling within the scope of Ms McMillan's request relate to an investigation arising from the same incident, on 20 January 2011. The Respondent asserts that Ms McMillan is not "the complainant" referred to in those documents. The Respondent further asserts that the documents contain information that was provided by other persons, in confidence.

Discussion

1. The Respondent bears the onus of justifying its decision to refuse access to the information and so it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

1. As noted above, it is necessary to balance the competing public interest factors for and against disclosure in each specific case.

1. The relevant public interest considerations against disclosure in Clauses 1(d) and 1(g) of the table to section 14 of the GIPA Act involve a finding that the disclosure "could reasonably be expected to" have the stated effect. The proper construction of the phrase "could reasonably be expected to" in the GIPA Act is to give the words "their ordinary meaning.

1. The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police at paragraphs [40] - [41]), adopting the approach that I took in Leech v Sydney Water Corporation [2010] NSWADT 298 where I stated at paragraph [25]:

25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority [[1999] NSWADT 107]. 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 [(1992) 108 ALR 163].

1. Whether the disclosure of information could reasonably be expected to have one of the effects outlined in the Table to section 14 of the GIPA Act is ultimately a question of fact.

1. The Respondent has provided copies of the documents in issue to the Tribunal on a confidential basis. I have read those documents and I am satisfied that they are as described by the Respondent.

1. Ms McMillan is not "the complainant" referred to in these documents.

1. I accept the evidence given on behalf of the Respondent. I agree with the summary of the authorities provided by Mr Zoppo on behalf of the Respondent.

1. I agree with the Respondent that the information that has been redacted from the documents was provided in confidence.

1. I also agree with the Respondent that disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. I accept, and find as a fact, that it could reasonably be expected that complainants and witnesses would be reluctant to come forward with information and/or the quality of the information would be adversely affected.

1. In my view, when the competing public interest considerations are balanced, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

1. It follows, in my view, that the withheld information should not be released. Accordingly the decision to refuse to release the information should be affirmed.

Order

The decisions under review are affirmed.

Decision last updated: 06 March 2013