Pigott v Commissioner of Police, New South Wales Police

[2014] NSWCATAD 114

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pigott v Commissioner of Police, New South Wales Police [2014] NSWCATAD 114

Hearing dates:

19 May 2014

Decision date:

19 May 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Principal Member

Decision:

(1) Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the decision of the respondent in regard to Information Report No 51262958 and 12285040 is remitted for reconsideration by the respondent.

(2) On or before 25 August 2014 [as varied in these reasons for decision] the respondent to file and serve its decision on reconsideration together with detailed reasons for decision.

(3) On or before 3 September 2014 [as varied in these reasons for decision] the applicant to file and serve any material in reply.

(4) Matter set down for further directions on 11 September 2014 at 9.30 am [as varied in these reasons for decision].

Catchwords:

Administrative review - access to government information - external review of respondent's decision to refuse access

Administrative review - procedure - remittal of decision for reconsideration by the respondent agency

Legislation Cited:

Administrative Decisions Review Act 1997
Freedom of Information Act 1989 (repealed)
Government Information (Public Access) Act 2009

Cases Cited:

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

Category:

Interlocutory applications

Parties:

Victor Herbert Pigott (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

V Pigott (Applicant in person)
Sparke Helmore Lawyers (Respondent)

File Number(s):

1410035

reasons for decision

1. The applicant, Mr Pigott, seeks review of a decision of the respondent, the Commissioner of Police, NSW Police Force, in regard to a request he made for access to specified documents. That request was made, on 15 October 2013, under the Government Information (Public Access) Act 2009 (GIPA Act).

1. On 19 May 2014, I made the following orders:

(1) Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the decision of the respondent in regard to Information Report No 51262958 and 12285040 is remitted for reconsideration by the respondent.

(2)   On or before 20 June 2014 the respondent to file and serve its decision on reconsideration together with detailed reasons for decision.

(3)   On or before 11 July 2014 the applicant to file and serve any material in reply.

(4)   Matter set down for further hearing on 24 July 2014.

1. The respondent has sought reasons for decision in regard to order 1. These are my reasons for decision.

Background

1. The terms of the applicant's request was as follows:

1. the following amended COPS document as per agreement provided by Mr. Frank Gaha, Senior Legal officer, Employment Law Unit, Office of the General Counsel in his letter to me dated 5 March 2013 and peter Crooks, Coordinator , Employment Law Unit, Office of the General Counsel in his undated letter to me (enclosed):

a) Event Ref No: E6099...

b) Event Ref No: E4581...

c) Ref No 2181....

d) Ref E218...

2. Any current WARNINGS about me placed on COPS:

3. Any COPS documents relating to an encounter I had with NSWPF at approx.. ...

4. Any information provided by members of the public about me to NSWPF and records on COPS either provided anonymously or by a named individual in the period 2010 to the present. ...

1. The respondent determined the applicant's application on 14 November 2013: see section 58 of the GIPA Act. Several documents, including Information Report No 51262958 and No 12285040 were identified as falling within the applicant's request. Access to the information in these documents was refused on the grounds that there was an overriding public interest against the disclosure of these documents. In regard to the other documents identified by the respondent falling within the applicant's request, the respondent determined to release some in full or in part.

1. The applicant sought internal review of the respondent's decision, which he was entitled to do: see sections 80 and 82 of the GIPA Act.

1. When the respondent failed to determine the internal review within the time prescribed in the GIPA Act, the applicant made this application for external review to the Tribunal: see section 100 of the GIPA Act.

Proceedings before the Tribunal

1. The matter came before me at a planning meeting, on 4 March 2014, where a number of issues were raised in regard to the respondent's decision. Included in this was the respondent's failure to provide the applicant with a copy of the documents for which it had determined access should be granted. By consent, I made orders for the progress of the matter and set it down for hearing.

1. At the commencement of the hearing, on 19 May 2014, the parties advised that the only matter in issue was the respondent's decision to refuse the applicant access to the entirety of the information in two documents - Information Report No 51262958 and No 12285040. A copy of these documents was provided to the Tribunal in confidence under subs 107(3) of the GIPA Act.

1. In support of its decision the respondent relied on a statement, dated 17 March 2014, of Christopher Beatson, Director PoliceLink Command of the respondent.

1. Mr Beatson also gave oral evidence at the hearing and was cross-examined by the applicant.

1. At the conclusion of the hearing I made an order, under s 65(1) of the Administrative Decisions Review Act 1997, remitting the decision of the respondent in regard to the information in Information Report No 51262958 and No 12285040 for reconsideration by the respondent.

Legislation and decision

1. Section 65 of the Administrative Decisions Review Act 1997 is in the following terms:

65 Power to remit matters to administrator for further consideration

(1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the administrator varies the decision:

(a) the application is taken to be an application for review of the decision as varied, and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied, or

(ii) withdraw the application.

(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision, and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision, or

(ii) withdraw the application.

1. The GIPA Act, unlike the repealed Freedom of Information Act 1989, focuses on 'government information' and not documents. The objects of the GIPA Act are set out in s 3 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.

(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.

1. The term 'government information' is defined in s 4(1) of the GIPA Act to mean 'information contained in a record held by an agency.' The term 'record' is widely defined in cl 10 of Schedule 4 of the GIPA Act. However, the focus of the GIPA Act remains on the information within the document.

1. The test to be applied in determining whether there is an 'overriding public interest against disclosure' is set out in s 13. That test is in the following terms:

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. As pointed out by the Appeal Panel of the former Administrative Decisions Tribunal (ADT) in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25], the GIPA Act has a structured approach to the decision-making task about access to government information (i.e. the decision as to whether to grant access or refuse access under s 58 of the GIPA Act). The Appeal Panel described it as a three step process:

(a) identifying the public interest considerations in favour of disclosure (which are not closed as per s 12 of the GIPA Act),

(b) identifying the public interest considerations against disclosure (which are closed as per s 14 of the GIPA Act), and

(c) determining where the balance lies, having regard to sections 3 and 15 of the GIPA Act.

1. Section 74 of the GIPA Act provides that an agency can 'delete information from a copy of a record to which access is to be provided in response to an access application' so as to provide access to information within the record sought for which there is no overriding public interest against disclosure.

1. During the course of the hearing, on 19 May 2014, having regard to the information before the Tribunal, I formed the view that prior to making a determination on the applicant's application that the respondent should be given an opportunity to reconsider its decision about the information contained in Information Report No 51262958 and No 12285040, including whether s 74 of the GIPA Act might be applicable to any of the information in these reports.

Variation of orders made

1. In light of these reasons for decision being published subsequent to the dates set out in order 2, 3 and 4 of the orders made on 19 May 2014, it is necessary to vary those dates. In my view, it is also appropriate to vary order 4 and return the matter at a directions hearing to determine whether a further hearing is needed. Accordingly, orders 2, 3, and 4 are varied as follows:

(2) On or before 25 August 2014 the respondent to file and serve its decision on reconsideration together with detailed reasons for decision.

(3) On or before 3 September 2014 the applicant to file and serve any material in reply.

(4) Matter set down for directions on 11 September 2014 at 9:30 am.

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

Registrar

Decision last updated: 11 August 2014