Pemberton v Commissioner of Police - [2020] NSWCATAD 135

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Pemberton v Commissioner of Police [2020] NSWCATAD 135
Hearing dates: On the papers
Date of orders: 21 May 2020
Decision date: 21 May 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Ludlow, Senior Member
Decision:
The decision under review is affirmed.

Catchwords: FREEDOM OF INFORMATION – government information – workplace investigation – prejudice to supply of confidential information and to an agency’s functions – deliberative processes - information obtained in confidence – personal information – personal factors of applicant – allegations of misconduct
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2013 (NSW)
Law Enforcement Conduct Commission Act 2016 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Telecommunications (Interception and Access) Act 1979 (Cth)
Cases Cited: Ansoul v City of Sydney [2017] NSWADTAD 65
Battin v University of New England [2013] NSWADT 73
Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80
Commissioner of Police v Barratt [2015] NSWCATAP 68
Hall v Roads and Maritime Services [2012] NSW ADT 239
McKinnon v Blacktown City Council [2012] NSWADT 44
McLennan v University of New England [2013] NSWADT 113
McMahon v Director General Department of Fair Trading [2003] NSWADT 164
MJ v Department of Education and Commerce [2013] NSWADT 213
Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584
Selby v Commissioner of Police (NSW) [2013] NSWADT 61
Singh v Legal Aid Commission (No.2) [2015] NSWCATAD 5
Texts Cited: None cited
Category: Principal judgment
Parties: James Pemberton (Applicant)
Commissioner of Police (Respondent)
Representation:
Counsel:
M Seck (Respondent)
Solicitors:
Applicant (Self Represented)
Norton Rose Fullbright (Respondent)

File Number(s): 2018/00219172
Publication restriction: Pursuant to sections 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013: 1. Sections of these reasons containing information filed by the applicant which is subject to the orders made by the Tribunal on 22 July 2019 are marked “Not for publication (A)” and may not be published or disclosed to the respondent. 2. Sections of these reasons containing confidential evidence, submissions or documents filed with the Tribunal by the respondent are marked “Not for publication (R)” and may not be published or disclosed to the applicant.

REASONS FOR DECISION

These proceedings arise from an application for review of a decision by the respondent on the applicant’s application for access to information under the Government Information (Public Access) Act 2013 (the GIPA Act).
After reducing the scope of his original application, the applicant sought material which was referred to in the footnotes of two investigations referred to as 2014/27A and 2014/27B.
The respondent issued its decision on 28 December 2017 in which it decided to provide access to some information, to refuse to provide access to some information and that some information was not held.
On internal review, the respondent upheld its original decision. The applicant sought review by the Information and Privacy Commission (IPC). On 12 June 2018 the IPC issued its decision which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pemberton v Commissioner of Police

Details

AGLC: Pemberton v Commissioner of Police [2020] NSWCATAD 135
Case: [2020] NSWCATAD 135
Decision Date: 21 May 2020

CaseChat Overview and Summary

The case of Pemberton v Commissioner of Police involved a dispute regarding the release of government information under the Freedom of Information Act. The applicant sought access to documents related to a workplace investigation conducted by the Commissioner of Police. The dispute centred on whether the release of certain information would prejudice the supply of confidential information or interfere with the Commissioner's functions. Specific concerns included the disclosure of deliberative processes, information obtained in confidence, and personal information about the applicant, as well as the potential impact on allegations of misconduct.

The central legal issue before the court was whether the documents in question were exempt from disclosure under the Freedom of Information Act due to the potential for prejudice to confidential information and agency functions. The court had to balance the public interest in transparency and access to information against the need to protect sensitive information and the integrity of the investigative process. The court also needed to consider the personal factors of the applicant and the specific allegations of misconduct involved in the investigation.

The court found that the documents contained information that, if disclosed, would likely prejudice the supply of confidential information and interfere with the Commissioner's functions. The deliberative processes and information obtained in confidence were deemed sensitive and necessary to protect the integrity of the investigation. Furthermore, the disclosure of personal information about the applicant could cause unwarranted privacy intrusions. The court concluded that the potential prejudice to the investigation and the protection of sensitive information outweighed the public interest in disclosure. The decision under review was affirmed, upholding the Commissioner's refusal to release the documents.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Pemberton v Commissioner of Police [2020] NSWCATAD 135
Hearing dates:	On the papers
Date of orders:	21 May 2020
Decision date:	21 May 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	FREEDOM OF INFORMATION – government information – workplace investigation – prejudice to supply of confidential information and to an agency’s functions – deliberative processes - information obtained in confidence – personal information – personal factors of applicant – allegations of misconduct
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2013 (NSW) Law Enforcement Conduct Commission Act 2016 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Telecommunications (Interception and Access) Act 1979 (Cth)
Cases Cited:	Ansoul v City of Sydney [2017] NSWADTAD 65 Battin v University of New England [2013] NSWADT 73 Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 Commissioner of Police v Barratt [2015] NSWCATAP 68 Hall v Roads and Maritime Services [2012] NSW ADT 239 McKinnon v Blacktown City Council [2012] NSWADT 44 McLennan v University of New England [2013] NSWADT 113 McMahon v Director General Department of Fair Trading [2003] NSWADT 164 MJ v Department of Education and Commerce [2013] NSWADT 213 Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 Selby v Commissioner of Police (NSW) [2013] NSWADT 61 Singh v Legal Aid Commission (No.2) [2015] NSWCATAD 5
Texts Cited:	None cited
Category:	Principal judgment
Parties:	James Pemberton (Applicant) Commissioner of Police (Respondent)
Representation:	Counsel: M Seck (Respondent) Solicitors: Applicant (Self Represented) Norton Rose Fullbright (Respondent)
File Number(s):	2018/00219172
Publication restriction:	Pursuant to sections 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013: 1. Sections of these reasons containing information filed by the applicant which is subject to the orders made by the Tribunal on 22 July 2019 are marked “Not for publication (A)” and may not be published or disclosed to the respondent. 2. Sections of these reasons containing confidential evidence, submissions or documents filed with the Tribunal by the respondent are marked “Not for publication (R)” and may not be published or disclosed to the applicant.