Medlyn v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 89

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Medlyn v Commissioner Of Police, NSW Police Force [2019] NSWCATAD 89
Hearing dates:	17 April 2019
Date of orders:	17 April 2019
Decision date:	17 May 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1)   The decision under review is set aside (2)   The matter is remitted for reconsideration by the Respondent. The reconsideration is to be completed and the Applicant is to be advised of the outcome of the reconsideration by 15 May 2019.
Catchwords:	ADMINISTRATIVE REVIEW - Administrative Law – Government Information – overriding public interest against disclosure - personal information - information provided to the agency in confidence - prejudice supply of information - disclosure not in the best interests of a child - access to the information previously provided – matter remitted for reconsideration.
Legislation Cited:	Government Information (Public Access) Act 2009 Administrative Decisions Review Act 1997 Privacy and Personal Information Protection Act 1998
Cases Cited:	Collins v Department of Finance, Services & Innovation [2018] NSWCATAD 60 Commissioner of Police (NSW) v Field [2016] NSWCATAP 59 Commissioner of Police v Danis [2017] NSWCATAP 7 Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 (1979) 46 FLR 409
Texts Cited:	Nil
Category:	Principal judgment
Parties:	David Medlyn (Applicant) Commissioner Of Police, NSW Police Force (Respondent) Office of the Information Commissioner
Representation:	Solicitors: D Medlyn (Self Represented)(Applicant) Sparke Helmore Lawyers (Respondent) C Emery (Office of the Information Commissioner)
File Number(s):	2018/00374170
Publication restriction:	Nil

Reasons for Decision

Introduction

1. This is an application for review of a decision of the Respondent in relation to an access application under the Government Information (Public Access) Act 2009 (“the GIPA Act”). The Applicant sought access to information relating to a police investigation into offences for which he has been convicted. He sought statements of victims and witnesses provided as part of the police investigation.

2. The Respondent determined to release some of the information that was found to be within the scope of the access application, but withheld other information on the basis that it was subject to an overriding public interest against disclosure. The Respondent refused access to the victim and witness statements in full.

3. The Applicant also applied for external review by the Information Commissioner and the Information Commissioner issued a report dated 16 November 2018.

4. The Information Commissioner has appeared in these proceedings and Ms Emery has provided written submissions.

5. The matter came before me for hearing on 17 April 2019. On that occasion I made orders remitting the application for redetermination taking account of the Applicant’s indication that the scope of the application had significantly narrowed and his statement that a significant amount of information had been published in the media.

6. The Respondent has requested written reasons for that decision. These reasons are provided in response to that request.

Relevant Legislation and Principles

7. Ms Tipene appeared for the Respondent. She provided detailed written and oral submissions in support of the Respondent’s case. I generally agree with her summary of the applicable law.

8. The GIPA Act has an objects provision at section 3 which includes a reference at section 3(2)(a) that the legislation be applied so as to further those objects. section 3(1)(a) of the GIPA Act provides as follows:

3 Object of Act

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

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

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

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

9. 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 or the Respondent is otherwise entitled to refuse to deal with the access application. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5.

10. Reviewable decisions may be reviewed by the Tribunal. 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 Review Act 1997 (“the ADR Act”). The Respondent bears the onus of establishing that the decision was justified: section 105(1) of the GIPA Act.

11. In considering an application for review the Tribunal may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 (1979) 46 FLR 409.

12. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides:

(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.

13. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information 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. The only public interest considerations against disclosure that may be taken into account are those listed in the Table to section 14 of the GIPA Act.

14. In applying the public interest test under section 13 of the GIPA Act it is necessary to identify the public interest in favour of disclosure, identify the public interest against disclosure and determine where the balance lies: see discussion in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19.

15. The Table to section 14 of the GIPA Act sets out a number of circumstances in which public interest considerations against disclosure of government information may apply and need to be weighed against the general public interest in favour of disclosure. In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by section 15.

16. Section 55 of the GIPA Act permits a decision maker to take into account the following personal factors of the application in determining whether there is an overriding public interest against disclosure of information in response to an access application:

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

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

3. any other factors particular to the applicant.

The Respondent’s Submissions

17. Ms Tipene identified a number of considerations against disclosure of the information that the Applicant has requested. I note that these submissions were made prior to the hearing and prior to the Applicant indicating the extent to which the access application was reduced.

Clause 1(d) of the table to section 14 of the GIPA Act

18. Clause 1(d) provides that there is a public interest consideration against disclosure of information if 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.

19. The Respondent submits that the public interest consideration against disclosure in clause 1(d) applies to all of the information in the victim and witness statements. It is not in dispute that the collection and storage of information from members of the public, who are victims of or witnesses to crime, forms an integral part the policing toolkit and the exercise of its functions. The Respondent submits that there is an expectation that victim and witness statements will be kept confidential and will only disclosed if required by a court or with the consent of the individual. It is further submitted that this is particularly true in respect of information which relates to crimes committed against vulnerable persons. Ms Tipene referred to a long history of cases which recognise the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies. She submitted that the default assumption is that information given to police is presumed to be confidential. Unless there is clear evidence to the contrary, information given by informers to police must be presumed to be given on a confidential basis.

20. The Respondent acknowledges that the withheld information was provided to the Applicant's solicitors as part of the criminal proceedings. However, it contends that the disclosure was subject to limitations and restrictions on the use of the information. This includes the implied undertaking that the documents would only be used for the purposes for which they were disclosed. This contrasts with the disclosure in response to an access application which in effect is disclosure to the world at large.

21. The Respondent accepts that the position as to whether the implied undertaking applies in criminal proceedings is not settled in Australia.

22. The Respondent submits that disclosure of any confidential information of the kind contained in the withheld documents could reasonably be expected to prejudice the supply of confidential information, as members of the public may be apprehensive about sharing information with the Respondent if they fear that the world at large will gain access to the information. The Respondent relies on the evidence of Senior Sergeant Reid in this regard.

Clause 1(g) of the table to section 14 of the GIPA Act

23. Clause 1(g) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

24. The Respondent submits that the public interest consideration against disclosure in clause 1(g) applies to all of the information in the victim and witness statements. It submits that the information was provided on a confidential basis and that there is an expectation that victim and witness statements will be kept confidential.

Clause 3(a) of the table to section 14 of the GIPA Act

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

26. The Respondent submits that the public interest consideration against disclosure in clause 3(a) applies to all of the information in the victim and witness statements. Schedule 4 of the GIPA Act defines "personal information" as:

information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

27. The term “reveal" is defined as:

information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

28. The Respondent concedes that some of the information in the victim and witness statements may be considered to be personal information of the Applicant, as it is opinion about the Applicant. However it contends that the information overwhelmingly relates to the victims and witnesses. The Respondent submits that the personal information that was disclosed to the Applicant as part of the criminal proceedings was not public disclosure and therefore the information has not been 'revealed’ for the purposes of the GIPA Act.

29. The Respondent relies on views expressed in the Appeal Panel decision of Commissioner of Police (NSW) v Field [2016] NSWCATAP 59 at paragraphs [63], [64] and [69] in support of its submission that for personal information to have been ‘revealed’ it must be publicly disclosed. It is not sufficient for it to have been disclosed to the Applicant.

30. Ms Tipene submitted that there is no evidence before the Tribunal that the personal information contained in the withheld documents has been publicly disclosed.

Clause 3(b) of the table to section 14 of the GIPA Act

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

32. The Respondent submits that the public interest consideration against disclosure in clause 3(b) applies to all of the information in the victim and witness statements.

33. The information protection principle contained in section 18 of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”) concerns the disclosure of personal information. It provides:

18 LIMITS ON DISCLOSURE OF PERSONAL INFORMATION

(1)   A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

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

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

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

(2)   If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

34. The Respondent submits that none of the exceptions to section 18 of the PPIP Act apply to the present circumstances and therefore disclosure would contravene that information protection principle.

Clause 3(g) of the table to section 14 of the GIPA Act

35. Clause 3(g) provides that there is a public interest consideration against disclosure of information about a child if it could reasonably be expected that it would not be in the best interests of the child to have the information disclosed.

36. The Respondent submits that the public interest consideration against disclosure in clause 3(g) applies to all of the information in the victim and witness statements.

37. The victim and witness statements contain sensitive information about indecent assaults on persons who were under 16 years of age at the time of the incident. The Respondent submits there is a strong public interest against the disclosure of the information; the disclosure would serve no benefit to the victims and that it would not be in the best interests of the victims for this type of information to be disclosed to the world at large. The Respondent submits that it is not a relevant consideration that the young persons may now be adults. It submits that it is open to the Tribunal to find that this public interest consideration against disclosure may apply, even in circumstances where the child is an adult at the time of the Tribunal's decision.

Section 60(1)(d) of the GIPA Act

38. Section 60(1)(d) of the GIPA Act provides:

60 Decision to refuse to deal with application

(1)   An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

…

(d)   the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order,

...

39. It is common ground that the victims and witnesses statements were disclosed to the Applicant during the course of his criminal proceedings. The Respondent submits that in the circumstances it is open to the Respondent to refuse to further deal with the access application under section 60(1)(d) of the GIPA Act. In support of this submission it relies on the Appeal panel decision in Commissioner of Police v Danis [2017] NSWCATAP 7. The Appeal Panel observed at paragraphs [43] - [44]:

43. Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)).

44. Provisions like this work to the benefit of access applicants who only have a GIPA Act application as their means of getting access to government information of interest to them. They tend also work to the benefit of first-time or new applicants over repeat applicants.

40. In Collins v Department of Finance, Services & Innovation [2018] NSWCATAD 60 I stated at paragraph [31]:

The relevant question for consideration in regards to section 60 is whether or not the Applicant has previously been provided with access to the information. It is apparent from the material before me that this is the case. I am satisfied that the information that is the subject of this aspect of the determination has already been provided to the Applicant. This has either been provided directly by the Respondent in response to a GIPA access application or through litigation. The Respondent therefore has discretion in regard to whether it will deal with the further request. It has refused to deal with the request on this basis. Given the volume of the material that falls within this category, this was a reasonable decision. In my view that determination should be affirmed as the correct and preferable decision.

41. The Respondent submits the correct and preferable decision in this case is to refuse to further deal with the access application under section 60(1)(d) of the GIPA Act.

The Applicant’s Submissions

42. The Applicant does not dispute that he was charged and convicted of offences or that the victims and witnesses statements were disclosed to him during the course of his criminal proceedings. However, he stated that the statements were lost in a fire. The statements are therefore not available to him now. He wishes to obtain a copy of some of the information that is contained in the statements because he wishes to try to have the matter reopened.

43. The Applicant indicated that he does not seek the complete statements. He said that he is already aware of the details of the witnesses and does not require any identifying information. He narrowed the scope of his request to the extent that he only seeks the observations made by the witnesses. He consented to the redaction of any information that would identify the witnesses in any way and any information that would identify the location or the time on which the event occurred.

44. The Applicant also indicated that there was significant media coverage following his conviction. He implied that the Respondent may have provided information to the media and that the information that he is seeking may have already been revealed if it was publicly disclosed to the media.

Discussion

45. The Applicant has significantly narrowed the scope of the request. As such it is unlikely that the information that he is requesting will include personal information of the witnesses. If it is possible to redact the statements in the way that the Applicant has indicated, the identity of the witnesses would not be apparent from the remaining information, nor could the identities be ascertained from the information. Further, there would be no contravention of section 18 of the PPIP Act if personal information of the witnesses was redacted.

46. Similarly, any weight that would be given to clause 3(g) of the table to section 14 of the GIPA Act would be minimal if no child could be identified from the redacted information.

47. I agree that issues of confidentiality and any prejudice the supply to the agency may remain for consideration. I also agree that consideration may need to be given to section 60(1)(d) of the GIPA Act. As noted above, section 60(1)(d) allows the Respondent to refuse to deal with an access application if the information was provided during the course of his criminal proceedings “and is available to the applicant as a result of having been produced”. It is not in dispute that the information was provided to the Applicant. However, he stated that it is no longer available to him.

48. The Applicant referred to the media coverage of the offence and conviction. Only the Respondent is in a position to ascertain what information was released to the media. If the information that would be captured be the narrowed access application was released to the media, then it could not be revealed by the release pursuant to the Applicant’s access application.

49. Section 63 of the Administrative Decisions Review Act1997 provides:

63 DETERMINATION OF ADMINISTRATIVE REVIEW BY TRIBUNAL

...

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

…

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

50. In my view, the appropriate outcome of these proceedings is to allow the Respondent the opportunity to reconsider its position in light of the narrowed scope of the Applicant’s access application, the Applicant’s assertion that he no longer has access to the copy of the information that he received because it was destroyed in a fire and the Applicant’s assertion that the information was the subject of media coverage. An order should be made pursuant to Section 63(3)(d) of the Administrative Decisions Review Act1997 to allow this to take place.

Order

1. The decision under review is set aside

2. The matter is remitted for reconsideration by the Respondent. The reconsideration is to be completed and the Applicant is to be advised of the outcome of the reconsideration by 15 May 2019.

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

Registrar

Decision last updated: 17 May 2019