Pollington v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 1

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Pollington v Commissioner of Police, NSW Police Force [2019] NSWCATAD 1
Hearing dates:	2 July 2018
Date of orders:	02 January 2019
Decision date:	02 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1)   The decision under review is varied. The decision is made that the following information is to be released:    (a)   Paragraphs 2 and 4 of the ‘Certificate by       Analyst’ dated 8 May 2014; and    (b)   Assumption 2 of Dr Perl’s report. (2)   The decision under review is otherwise affirmed
Catchwords:	Administrative Law –Government Information – access application – redaction of information concerning testing methodology – personal information - whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997
Cases Cited:	Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Jenkinson v Department of Education and Communities [2013] NSWADT 280 Leech v Sydney Water Corporation [2010] NSWADT 298 Meriton Property Services Pty Ltd v UrbanGrowth NSW [2017] NSWCATAD 71 Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 Spillane v Department of Family and Community Services (NSW) [2014] NSWCATAD 169
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Charlotte Pollington (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: S Peet, Agent (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2018/00006574
Publication restriction:	Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 any confidential evidence filed with the Tribunal pursuant to section 107 of the Government Information (Public Access) Act 2009, is not to be disclosed without further order of the Tribunal. Those paragraphs of these reasons identified as [Not for publication] are not to be released to the Applicant or the public without further order of the Tribunal.

Reasons for Decision

Introduction

1. Ms Pollington (“the Applicant”) applied to the NSW Police Force (“the Respondent”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”) seeking information in relation to a motor vehicle accident that occurred on 4 April 2014.

2. The Applicant was involved in the accident. Mr Barry Kalms was the driver of the other vehicle involved in the accident. Blood and urine analysis was undertaken in relation to the accident. Dr Judith Perl, a Clinical Forensic Pharmacologist with the Police Clinical Forensic Medicine Unit, produced a report setting out the results of the analysis (“Dr Perl’s report”). Mr Kalms also provided a statement in relation to the accident (“Mr Kalms’ statement”).

3. In her access application the Applicant sought:

“Complete file including accident forensics and all information held concerning MVA 4.4.14 inc emergency call to Police notification”.

4. The Respondent decided to provide access to some information with redactions and decided to refuse access to some information because it found an overriding public interest against disclosure. The Respondent provided redacted copies of Mr Kalms’ statement and Dr Perl’s report.

5. The Applicant has applied to the Tribunal for external review of the Commissioner’s determination. She seeks access to information that has been redacted from Mr Kalms’ statement and Dr Perl’s report.

The Issues

6. At the time of the hearing there was agreement between the parties that the issues in dispute were limited to whether the information redacted from Mr Kalms’ statement and Dr Perl’s report should be released.

7. The Applicant subsequently learned that the Respondent held other information that was within the scope of her request but which had not been provided to her. She requested that the matter be reopened to allow that matter to be considered. I agreed to that request and for the additional issue to be determined on the basis of written material to be filed by the parties.

8. The additional information that the Applicant is seeking is a blood and urine ‘Certificate by Analyst’ dated 8 May 2014 (“the Certificate”). The Applicant has been given a redacted copy of the Certificate. She seeks access to information that has been redacted from it.

9. The issue for determination in relation to the Certificate is whether the withheld information should be released.

Applicable legislation

10. The task of the Tribunal is to determine the "correct and preferable decision": section 63 of the Administrative Decisions Review Act 1997.

11. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. For a recent consideration see the discussion by Senior Member Perrignon in Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139.

12. The objects of the Act are set out in section 3(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.

13. The Tribunal is to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. Pursuant to section 5 of the GIPA Act there is a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. In accordance with section 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.

14. The table to section 14 sets out the relevant public interest considerations against disclosure. The only factors that can be taken into account are those referred to in section 14 of the GIPA Act. Section 14 provides that -

(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.

15. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision.

16. Clause 4 of Schedule 4 to the GIPA Act provides:

4 PERSONAL INFORMATION

(1)   In this Act,

"personal information" means 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.

(2)   Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3)   Personal information does not include any of the following:

(a)   information about an individual who has been dead for more than 30 years,

(b)   information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c)   information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

17. The Respondent relies on several clauses of the table to section 14 of the GIPA Act. These include clauses 1 (e), 1(h), 3(a) and 3(b) of the table. Clauses 1 (e) and 1(h) provide:

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):(

…

(e)   reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

…

(h)   prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

18. Clauses 3(a) and 3(b) of the table to section 14 of the GIPA Act provide:

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 ...

Public interest considerations in favour of disclosure

19. The parties identified several considerations in favour of disclosure. Section 12 of the GIPA Act provides that the following are public interest considerations in favour of disclosure:

1. the statutory presumption in favour of the disclosure of government information;

2. the general right of the public to have access to government information held by agencies; and

3. information in the documents includes personal particulars about the driver, which were required to be exchanged pursuant to Rule 287(3) of the Australian Road Rules.

20. The Applicant contends that the information will allow her to identify whether, at the time of the accident, Mr Kalms was under the influence of any substance detected to the extent that his driving ability would have been impaired. The Applicant seeks the information for use in legal proceedings for herself and her family.

21. The Applicant also contends that Mr Kalms provided the medical samples freely and has already indicated quasi-consent to the release of this information.

22. In relation to Dr Perl’s report and the Certificate (jointly “the Certificates”), the Applicant contends that she should have been given full disclosure at the time of the Local Court Proceedings. She should have been allowed to review the documents in their entirety in order to afford her natural justice.

23. She submitted that Dr Perl’s report should be released as the opinion is inconclusive. Dr Perl could not form a firm opinion in regard to whether Mr Kalms was under the influence of any substance detected to the extent that his driving ability would have been impaired. The Applicant seeks access to the document so that she can seek her own expert advice in regard to that issue and to prove or disprove Mr Kalms’ liability.

24. She submits that it is in the public's interest to know if a driver of a heavy vehicle who was involved in a very serious crash was carrying anything in their system which could have, even at a low level affect their driving ability enough to affect the outcome of the accident. She says that there should be no expectation of privacy if a crime has been committed. As the tests indicate the presence of substances of an illicit nature they may indicate that Mr Kalms contributed to the accident by operating a heavy vehicle illegally. She submits that the public interest can be advanced by the disclosure of confidential information that relates to this activity.

25. She further submits that if the testing has not followed proper protocol or best practices or legal guidelines set in place for accurate testing then the results may be inaccurate or invalid. The effectiveness of the tests needs to come under scrutiny to expose problems in regards to how the Respondent conducts these types of tests or their accuracy. It is in the public's interest to expose the processes involved to avoid any cover–up of criminal or negligent conduct.

26. She submits that it is in the public interest that the complete documents be released. That would lead to the public's better understanding of the administration of justice and could lead to detection and prosecution of criminals. It could expose problems in the testing process or alternatively, it could increase public confidence in those processes.

Public interest considerations against disclosure

27. The public interest considerations against disclosure are limited to those set out in the Table to section 14 on which the Respondent relies.

Reveal a deliberation or consultation conducted: clause 1(e)

28. Clause 1(e) to the table into section 14 of the GIPA Act states:

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.

29. The words "could reasonably be expected to" have been considered in numerous cases before this Tribunal and the Administrative Decisions Tribunal and other forums. The words are to be given their ordinary meaning. In Leech v Sydney Water Corporation [2010] NSWADT 298 I referred to a number of cases which had considered the term and stated at paragraph [25]:

The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. 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.”

30. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at paragraph [42].

31. The meaning of the word "prejudice" is to "cause detriment or disadvantage". Or to "impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

32. The Respondent submits that clause 1(e) is relevant to the analysis certificates. It contends that the references contained in Dr Perl’s report relate to publications that she used to support and explain her findings. These show a unique deliberative process that Dr Perl used in her determination regarding the level of impairment.

33. The Respondent contends that the revelation of such texts could facilitate the possible evasion and avoidance of detection of driving whilst impaired by an illicit or prescribed substance. Such avoidance of detection would prejudice future deliberations in this regard.

34. The Respondent points to my decision in Meriton Property Services Pty Ltd v UrbanGrowth NSW [2017] NSWCATAD 71 at paragraph [95] where I accepted that the release of evaluative formulas could allow tender participants to pre-empt the decisions that the agency may make, and tailor applications in future tender processes to address those formulas, methodologies and weighting criteria. It submitted that the revelation of the references that Dr Perl used could reasonably be expected to reveal the methodology utilised and that it is therefore a relevant public interest consideration against disclosure of the information.

Prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review: clause 1(h)

35. Clause 1(h) to the table into section 14 of the GIPA Act states:

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

36. The Respondent submits that clause 1(h) is also relevant to the analysis certificates. It contends that the texts relied upon by Dr Perl contain the methodology used to inform her opinion and that the actual specific methodologies that she relied on in the tests that she conducted could, if revealed, prejudice the conduct of future tests.

37. The Respondent points to my decision in Spillane v Department of Family and Community Services (NSW) [2014] NSWCATAD 169 at paragraphs [44] and [46] where I accepted that the release of the 'Structured Decision Making Risk Assessment Tools' could prejudice child protection assessments by providing a basis for a person to prepare a rehearsed response in relation to a genuine investigation.

38. The Respondent submits that this public interest consideration outweighs the public interest considerations for disclosure of information sought by the Applicant, as it could reasonably be expected to prejudice the conduct, effectiveness or integrity of the forensic test conducted on behalf of the Respondent, by revealing its purpose, conduct or results.

Reveal an individual's personal information: clause 3(a)

39. Clause 3(a) to the table at section 14 of the GIPA Act states:

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.

40. The Respondent submits that clause is relevant to the redacted information from each of the documents in dispute.

41. "Personal information" is defined in Schedule 4 clause 4(1) of to the GIPA Act to mean:

"information or an opinion (including information or an opinion forming part of a database 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."

42. "reveal" is defined in Schedule 4 clause 1 of the GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."

43. The Applicant contends that the witness statement is a full explanation of the crash by the other driver and as such the details should be released in full by law. She noted that the Australian Road Rules make it mandatory for a driver to give certain particulars to the other driver and part of that includes an explanation of the circumstances of the crash.

44. The Applicant raised the issue of whether the information contained in the documents has been publicly disclosed. Enquiries made by the Respondent confirm that the information has not been publicly disclosed. Mr Kalms’ statement was never tendered in Court as evidence, and therefore could not be made available through the Local Court.

45. The Respondent maintains that the only remaining redacted witness statement information is 'personal information' and does not relate to mechanical repairs on Mr Kalms’ vehicle.

46. The Respondent contends that the information that has been redacted from the Certificates contains medical and health information of Mr Kalms and the results of tests conducted, dates of birth and signatures. This kind of information meets the GIPA Act definition of personal information. Mr Kalms has not consented to his information being released to the Applicant. The statement of Senior Sergeant Glen Reid confirms that Mr Kalms does not consent to the release of his personal information. Senior Sergeant Reid stated:

On 4 June 2018 I received a phone call from Barry Kalms. I spoke with Mr Kalms in relation to the motor vehicle accident and the request for his statement and the Forensic Expert Certificate. Mr Kalms does not give permission for the redactions to be released from his statement and the Forensic Expert Certificate.

47. The Respondent further contends that disclosure of the information would reveal the personal information of Mr Kalms and its release could be expected to infringe upon his individual rights. It submitted that Mr Kalms' objection to the release of his personal information should be taken into consideration by the Tribunal when determining whether there is an overriding public interest against disclosing the information.

48. The Respondent submits that this public interest consideration should be given significant weight.

Contravene an information protection principle or Health Privacy Principle: clause 3(b)

49. Clause 3(b) to the table at section 14 of the GIPA Act states:

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.

50. The Respondent submits that clause 3(b) is also relevant to part of the analysis certificates. It submitted that section 18 of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”) could reasonably be expected to be breached if the information was released to the Applicant.

51. Section 18 of the PPIP Act 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 (I) 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

52. Clause 4 of Schedule 4 of the GIPA Act adopts the definition of "personal information" in the same terms as section 4(1) of the PPIP Act.

53. Information in relation to a person's health and wellbeing is "personal information" within the meaning of the GIPA Act and PPIP Act. The disclosure of that information could reasonably be expected to contravene section 18 of the PPIP Act: see discussion in Jenkinson v Department of Education and Communities [2013] NSWADT 280 at paragraphs [47] - [51].

54. The Respondent further submits that Mr Kalms’ information was collected for the purpose of investigating the motor vehicle accident. Provision of the information to the Applicant under the GIPA Act is therefore not a disclosure directly related to the purpose for which it was obtained.

55. It contends that this public interest consideration outweighs any public interest considerations in favour of disclosure.

56. The Respondent points to Hurst v Wagga Wagga City Council at paragraph [70] as an outline of the approach to be taken in balancing the competing interests. It is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation. In the present case, it is submitted that there is an overriding public interest against disclosing the information, as the considerations in favour of disclosure are outweighed by those against disclosure.

57. In the circumstances, it is submitted that the information that has been withheld from the documents in dispute should not be disclosed to the Applicant.

58. In contrast, the Applicant contends that considerable weight should be given to the disclosure of information to the Applicant.

Balancing the competing interests

59. As noted, the information that has been redacted comprises a small amount of information from the statement of Mr Kalms and information contained in blood and urine analysis certificates.

60. The Applicant contends that the information withheld from Mr Kalms’ statement would shed light on the maintenance of the vehicle that Mr Kalms was driving at the time of the accident. I have read Mr Kalms’ statement. I am satisfied that the redacted information is “personal information" within the meaning of the GIPA Act and PPIP Act. I am also satisfied that the personal information would not shed any light on the maintenance of the vehicle.

61. I am also satisfied that the release of that information would both disclose Mr Kalms’ personal information and could reasonably be expected to contravene section 18 of the PPIP Act. I agree with the Respondent that considerable weight should be given to those factors against disclosure.

62. In the circumstance of that information, I consider that the public interest considerations in favour of release should be give minimal weight. Accordingly, that part of the determination should be affirmed.

63. I have read Dr Perl’s report. I agree with the Respondent that the report contains information which is relevant to the analysis methodology. I accept that the revelation of the references that Dr Perl has cited could reasonably be expected to reveal the methodology that she utilised. I also accept that the release of the information could prejudice the conduct of future tests. I am satisfied that this consideration should be given significant weight.

64. I agree with the Applicant that there is public interest in the administration of justice and ensuring that testing follows proper protocols, best practices complies with any applicable legal guidelines. I also agree that releasing information in regard to the way that forensic medical analysis is undertaken could assist in an understanding of that aspect of the justice system. In my opinion these consideration should be given reasonable weight.

65. For the reasons argued by the Respondent, it is my view that when the completing considerations are weighed, the public interest considerations against release of the information relating to the methodology that Dr Perl used should be given greater weight than the factors in favour of release. Accordingly, that part of the determination should be also be affirmed.

66. However, it is my view that public interest considerations in favour of the release of some of the redacted information from Dr Perl’s report and the ‘Certificate by Analyst’ dated 8 May 2014 should be given greater weight than those against release.

67. I agree that the information concerning drugs identified in Mr Kalms’ samples is “personal information" within the meaning of the GIPA Act and PPIP Act. I am also satisfied that the release of that information would both disclose Mr Kalms’ personal information and that it could reasonably be expected to contravene section 18 of the PPIP Act. Significant weight should be given to those factors against disclosure.

68. Nevertheless, I am satisfied that other factors warrant greater weight. Section 55(2) of the GIPA Act provides that personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. I am satisfied that the Applicant has a valid reason for seeking that information. This information was never made available in Local Court proceedings and therefore the Applicant has never had the opportunity to seek independent advice in relation to it. The release of the information would allow her to ascertain the nature of the substances that were present in Mr Kalms’ samples. In turn, that would possibly put her mind at rest in regard to whether the presence of those substances may have contributed to the accident. Alternatively, it may allow the Applicant to pursue legal proceedings.

69. In my view, these are significant factors in favour of release of the information and they should be given greater weight than those against the release.

70. In my view, the correct and preferable decision is to release the following information.

1. Paragraphs 2 and 4 of the ‘Certificate by Analyst’ dated 8 May 2014; and

2. Assumption 2 of Dr Perl’s report.

71. Otherwise, the decision under review should be affirmed.

Orders

1. The decision under review is varied. The decision is made that the following information is to be released:

1. Paragraphs 2 and 4 of the ‘Certificate by Analyst’ dated 8 May 2014; and

2. Assumption 2 of Dr Perl’s report.

2. The decision under review is otherwise affirmed

**********

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: 02 January 2019