Rifai v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 213

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Rifai v Commissioner of Police, NSW Police Force [2025] NSWCATAD 213

Hearing dates:

2 June 2025

Date of orders:

25 August 2025

Decision date:

25 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Falk, Senior Member

Decision:

(1) The decision under review is affirmed in so far as the Tribunal has found that there is an overriding public interest against the disclosure of information as set out in the reasons for this decision.

(2) The decision under review is set aside in so far as the Tribunal has found that there is no public interest against the disclosure of information as set out in the reasons for this decision.

(3) The Respondent is to provide access to the Applicant to the information referred to at [160] within 28 days of the date of this decision.

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information — public interest considerations in favour of disclosure — public interest considerations against disclosure — onus on respondent — failure by respondent to identify specific information — whether on balance the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1988

Cases Cited:

Attorney – General (NSW) v Stuart (1994) 34 NSWLR 667

Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60

Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140

Collins v Department of Finance, Services and Innovation [2018] NSWCATAD 60

Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19

Commonwealth v Northern Land Council (1992) 176 CLR 604

Department of Education and Training v Mullett [2002] NSWADTAP 13

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Hurst v Wagga City Council [2011] NSWADT 307

Hurst v Wagga Wagga City Council [2011] NSWADT 301

Langker v Department of Premier and Cabinet; Langker v Commissioner of Police, NSW Police Force [2024] NSWCATAD 303

Simring v Commissioner of Police [2009] NSWSC 270

Taylor v Office of Destination NSW [2018] NSWCATAD 195

Thomson v Commissioner of Police [2021] NSWCATAD 53

Transport for NSW v Searle [2018] NSWCATAP 93

Woolley v Lismore City Council [2013] NSWADT 10

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Tarek Rifai (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Self-Represented (Applicant)
Holding Redlich (Respondent)

File Number(s):

2024/00478203,
2024/00478212

Publication restriction:

The publication of the matters contained in the confidential documents filed by the Respondent and confidential proceedings of the Tribunal is prohibited under s 64(1)(c) of the Civil and Administrative Tribunal Act.

The disclosure of the content of confidential documents filed by the Respondent is prohibited under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013

REASONS FOR DECISION

1. These proceedings relate to two applications by Mr Rifai (the Applicant) for administrative review of two decisions by the Commissioner of Police, NSW Police Force (the Respondent) to refuse access to information sought under the Government Information (Public Access) Act 2009 (GIPA Act). As the two matters involve the same parties and common issues, they are being decided together.

2. For the reasons which follow the Tribunal’s decision is to affirm the Respondent’s First and Second Decision in part and to set aside the Respondent’s First and Second Decision in part.

Background

The First and Second Access Requests

3. By application received by the Respondent on 14 May 2024 the Applicant requested access to the Respondent’s Computerised Operational Policing System (COPS) event records and documents, which relate to himself and his address. The request spanned the period from five years ago to the time of the application. The Applicant also requested documents regarding a complaint from a member of parliament and documents regarding any complaint from his neighbour (First Access Request).

4. By application received by the Respondent on 19 July 2024 the Applicant requested access to COPS event report E 81646271 and any documents relating to the matter (Second Access Request). The Applicant stated that he wanted to understand the reasons for generating the event.

The First and Second Access Decisions

5. On 10 July 2024 the Respondent made an internal review decision on the First Access Request. The Respondent provided access to some information in 48 pages of documents and refused access to other information (First Access Decision).

6. The Applicant applied for review of the First Access Decision by the Information Commissioner on 12 August 2024. On 5 December 2024 a delegate of the Information Commissioner issued a Review report under the GIPA Act concluding that the Respondent’s decision to refuse access to information is justified. The reviewer made no recommendations to the Respondent.

7. On the 15 August 2024 the Respondent made an internal review decision on the Second Access Request. The Respondent provided access to some information in one document consisting of three pages relating to Event Reference Number E 81646271 and refused access to other information (Second Access Decision).

8. The Applicant applied for review of the Second Access Decision by the Information Commissioner on 12 August 2024. On 6 December 2024 a delegate of the Information Commissioner issued a Review report under the GIPA Act concluding that the Respondent’s decision to refuse access to information is justified. The reviewer made no recommendations to the Respondent.

The Respondent has released further information, and the Applicant has narrowed his request in these proceedings

9. Since the making of the First and Second Decisions, during these proceedings the Respondent released further information to the Applicant. The Respondent prepared a Consolidated Schedule of the First and Second Decisions that identifies the remaining information that was subject to these proceedings as at 23 April 2025, and the applicable public interests that the Respondent says are against disclosure of the information (Consolidated Schedule).

10. The Applicant also narrowed his request for information during these proceedings. The Applicant specified that he does not request any further information regarding events E 311344797, E 84913058, E 95368382 or E 80354871 or “police officers email addresses or their private details.” Accordingly that information is excluded from the Tribunal’s decision. These changes to the scope of the Applicant’s request are not reflected in the Respondent’s Consolidated Schedule which was compiled before the Applicant narrowed his request.

11. The Applicant seeks access to the remaining information that the Respondent has not disclosed in response to his First and Second Access Requests.

12. The Respondent’s position is that there is greater weight in protecting the confidentiality of informants, opinions of officers, functions of the NSW Police Force and personal information of third parties, than in the public interest in favour of disclosure and personal interest of the Applicant.

Material before the Tribunal

Open Material

13. The Applicant relies on written submissions and made oral submissions at the open hearing. The Applicant cross examined Senior Constable (SC) Mitchell from the Respondent.

14. The following documents of the Applicant were before the Tribunal in the open hearing:

1. Administrative Review Application form 2024/00478203 filed 18 December 2024 (Exhibit A1)

2. Administrative Review Application form 2024/00478212 filed 18 December 2024 (Exhibit A2)

3. Submissions of Applicant filed 13 May 2025 (Exhibit A3)

4. Statement of the Applicant 13 May 2025, filed 13 May 2025 (Exhibit A4)

5. Attachment to Applicant statement 13 May 2025, filed 13 May 2025 (Exhibit A5)

6. Headnote of decision of the Supreme Court (Exhibit A6)

7. Extract of Transcript 8 December 2023 in the Supreme Court Matter (Exhibit A7).

15. The Respondent relies on written submissions and made oral submissions in the open hearing.

16. The following documents of the Respondent were before the Tribunal in the open hearing:

1. Witness statement of SC Mitchell 17 April 2025 filed 23 April 2025 (Exhibit R1)

2. Bundle of Documents relevant to the two decisions under review filed 24 April 2025 (Exhibit R2)

3. Submissions of the Respondent filed 24 April 2025 (Exhibit R3)

4. Respondent’s consolidated schedule (Consolidated Schedule) attaching Open Bundle of Documents with redactions (Open Bundle) filed 23 April 2025 (Exhibit R4)

5. Reply witness statement of SC Mitchell 21 May 2025 filed 23 May 2025 (Exhibit R5)

6. Reply submissions of the Respondent filed 23 May 2025 (Exhibit R6)

Confidential material

17. Section 107(1) of the GIPA Act provides that in determining an application for administrative review, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

18. Section 107(2) of the GIPA Act provides that on an administrative review, the Tribunal must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

19. A confidential hearing was held in the absence of the Applicant, where the Tribunal had the opportunity to consider the Confidential Documents in issue (Exhibit R7).

20. On 2 June 2025 the Tribunal made orders under the Civil and Administrative Tribunal Act 2013 (NCAT Act):

1. prohibiting the disclosure of the content of confidential documents filed by the Respondent (s 64(1)(d) NCAT Act) and

2. the publication of the matters contained in the confidential documents and confidential proceedings of the Tribunal (s 64(1)(c) NCAT Act).

Procedural matters

21. These proceedings relate to two applications by the Applicant for administrative review of decisions by the Respondent to refuse information sought under the GIPA Act.

22. As the two matters involve the same parties and common issues, the Tribunal determined that the two matters be heard and decided together.

Role of the Tribunal

Jurisdiction

23. In this case the Applicant sought review by the Information Commissioner. Under s 101 of the GIPA Act an application can be made to the Tribunal at any time up to 20 working days after the Applicant is notified of the completion of the Information Commissioner’s review. The Information Commissioner’s reports regarding the Respondent’s First and Second Decisions are dated 5 and 6 December 2024 respectively. The two applications to the Tribunal were both filed in time on 18 December 2024.

24. While not disputed by the parties, the Tribunal is satisfied that the Respondent’s decisions to refuse access to information in response to the Applicant’s First and Second Access Requests are decisions which are reviewable by the Tribunal pursuant to s 80 of the GIPA Act. The Tribunal has jurisdiction to conduct this review pursuant to s 100 of the GIPA Act, read with ss 28 and 30 of the NCAT Act and s 9 of the Administrative Decisions Review Act 1997 (ADR Act).

Administrative Review

25. The Tribunal’s function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.

26. The burden of establishing that a decision made under the GIPA Act is justified lies on the agency: s 105(1) of the GIPA Act. In this case the Respondent must establish that there is an overriding public interest against disclosure, on one of the bases provided for in the Table in s 14 of the GIPA Act. If it meets the onus of persuading the Tribunal that one of those bases applies, the Respondent must also establish that the public interest factors against disclosure outweigh the public interest factors in favour of disclosure.

Statutory framework

27. Objects of the GIPA Act include giving the public an enforceable right to access government information, restricted only when there is an overriding public interest against disclosure: ss 3(b) and (c). The GIPA Act is to be interpreted and applied to further the object of the Act and discretions are to be exercised as far as possible to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information: s3(2).

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

29. Under s 9 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 that Act, unless there is an overriding public interest against disclosure of the information.

30. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that public interest considerations in favour of disclosure are not limited and sets out some examples of such public interest considerations.

31. Section 13 of the GIPA Actsets out a public interest test which requires a determination of whether ‘on balance’ there are public interest considerations against disclosure which outweigh the public interest considerations in favour of disclosure.

32. Under s 14(2) of the GIPA Act, the public interest considerations listed in the Table to s 14 of the GIPA Act are the only public interest considerations against disclosure that may be taken into account (except where Schedule 1 applies) for the purpose of determining whether there is an overriding public interest against disclosure of government information. Schedule 1 does not apply in this case.

33. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA which provides that agencies must exercise their functions so as to promote the object of the Act and have regard to relevant guidelines issued by the Information Commissioner. 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 as is the fact that disclosure of information might be misinterpreted or misunderstood by any person. It is however relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information: see s 73 of the GIPA Act which generally prevents any conditions being imposed by an agency on the use or disclosure of information provided in response to an access application.

34. “Personal factors of the application” being the applicant’s identity and relationship with any other person, their motives for making the access application, and any other factors particular to the applicant, may also be taken into account when determining whether there is an overriding public interest against disclosure of information: s 55(1) GIPA Act.

35. The personal factors of the application can also be taken into account as factors in favour of providing an applicant with access to information (s 55(2)).

36. However, personal factors of the application may only be taken into account as factors against providing access if relevant to whether the disclosure of the information could reasonably be expected to have any of the effects referred to in cll 2 (Law enforcement and security), 3 (Individual rights, judicial processes and natural justice), 4 or 5 (but not cll 1, 6 or 7) of the Table to s 14 of the GIPA Act.

37. The term ‘personal information’ is relevant to cll 3(a) (could reasonably be expected to reveal an individual’s personal information), 3(b) (relevantly could contravene an information protection principle under the Privacy and Personal Information Protection Act 1988 (PPIP Act)), and 3(g) (the disclosure of personal information about a child would not be in the best interests of the child) of the Table to s 14 of the GIPA Act. The term is defined in cl 4(1) of Sch 4 of the GIPA Act 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.

38. Under cl 4(3)(b) of Sch 4 ‘personal information’ does not include:

(b)   information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,…

39. Section 18 of the PPIP Act limits the circumstances in which a government agency is permitted to disclose personal information it holds as follows:

(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.

40. An agency that discloses personal information it holds of a person contrary to s 18 of the PPIP Act engages in conduct in contravention of that Act: PPIP Act s 52.

41. Relevant to cll 3(a) of the Table to s 14 of the GIPA Act (disclosure could reasonably be expected to reveal an individual’s personal information), under Sch 4 cl 1 of the GIPA Act, “reveal” information means “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)”.

Legal principles

Balancing the competing public interest considerations

42. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286, the task of the Tribunal was described as follows:

“…. in all cases other than those falling under the terms of Schedule 1, the public interest test under the GIPA Act involves the following:

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

(b) identifying the public interest against disclosure; and

(c) determine where the balance lies”.

43. Applying the public interest test in s 13 of the GIPA Act requires a two-step approach to the question of whether information has been properly refused: see Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [24]. The Tribunal stated at [25] and [26]:

25….The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

26 We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.

44. The Tribunal should “engage in a relatively abstract analysis” and “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”: Department of Education and Training v Mullett [2002] NSWADTAP 13 at [58].

45. Balancing the competing public interest considerations is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation”: Hurst v Wagga City Council [2011] NSWADT 307 at [70].

46. The Respondent should identify specific information in each document which it says should be withheld on the basis of its concerns regarding disclosure: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [19].

“Prejudice” to the agency

47. The public interest considerations in cl 1(d), 1(e), 1(f) and 2(b) of the Table in s 14 of the GIPA Act relevant to this case, require that there is “prejudice” to the agency. The word “prejudice” is to be given its ordinary meaning, “to cause detriment or disadvantage,” or to “impede or derogate from”: Hurst v Wagga Wagga City Council [2011] NSWADT 301 at [60] citing Re: Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266 and Sobh v Victoria Police (1994) 1 VR 41.

“Reasonably be expected to”

48. It is necessary that disclosure of the Information “could reasonably be expected to” to have the effect identified. This calls for an objective test to be made from the point of a view of a “reasonable” administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a “mere risk or chance”: Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at [22] citing Flack at [40] - [41] and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

49. The Tribunal does not require evidence that a prejudicial effect of information disclosure has previously occurred or manifested or will manifest: Transport for NSW v Searle [2018] NSWCATAP 93.

50. Courts and Tribunals are prepared to rely on a natural implication that the flow of future information is likely to be adversely affected without direct evidence from the providers of information, see the decisions in Commonwealth v Northern Land Council (1992) 176 CLR 604 at 615; Attorney – General (NSW) v Stuart (1994) 34 NSWLR 667 at 674-675; Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [24] – [25]; Woolley v Lismore City Council [2013] NSWADT 10 at [73] - [74] cited in Searle at [64].

“discloses” or “reveals”

51. Certain clauses in the Table to s 14 require that the information “discloses” or “reveals” certain matters, including personal information. As stated above, under Sch 4 cl 1 of the GIPA Act “reveal” information means “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).”

52. The words “publicly disclosed” require there to have been a prior disclosure of information to the general public. Redacted personal information has not been revealed where the personal information is already known to the Applicant: Thomson v Commissioner of Police [2021] NSWCATAD 53 at [146]-[147].

Clause 1(d) prejudicing the supply of confidential information

53. For the consideration in clause 1(d) of the Table to s 14 to be applied, it must be established that:

1. the information was obtained in confidence

2. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future; and

3. the information facilitates the effective exercise of the agency’s functions: Collins v Department of Finance, Services and Innovation [2018] NSWCATAD 60 at [61].

54. Court and Tribunal decisions have found that informants have an expectation of confidentiality when providing information to the Police: see Langker v Department of Premier and Cabinet; Langker v Commissioner of Police, NSW Police Force [2024] NSWCATAD 303 at [122] and Simring v Commissioner of Police [2009] NSWSC 270 at [69]:

When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise.

Issues to be decided

55. The issues to be addressed in this review are:

1. is there a public interest against disclosure of a kind identified in the Table to s 14 of the GIPA Act that applies to release of information contained in the confidential documents

2. whether ‘on balance’ any public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

Submissions and evidence of the parties

Applicant’s submissions

56. The Applicant has raised several personal factors relevant to his access requests: his identity and relationship with another person, his motives for making the access application and other factors particular to the Applicant (s 55 GIPA Act).

57. The Applicant has been engaged in a long running dispute with a former neighbour. The dispute was the subject of proceedings in the Supreme Court and orders made in the Applicant’s favour (Supreme Court proceedings). The Applicant contends that the neighbour has not complied with the court order and while intending to take further action, he has concerns for the safety of himself and his family. He seeks protection from the police and for the police to apply for a “PAVO” on behalf of the Applicant and his family.

58. The Applicant’s safety concerns arise as he believes that he is a victim of crime and has not been informed of what crime is alleged to have been committed in relation to him. This concern seems to have arisen because the police provided the Applicant with a “Victims of Crime card”. The Applicant’s concern appears to have been reinforced by redacted documents provided to the Applicant by the Respondent as part of its Second Access Decision where Event Report 81646271 refers to the “incident type” as “Actual public mischief”.

59. The Applicant is concerned that no records were made of a police visit to his property by SC Mitchell relating to a Member of Parliament’s correspondence and no job card or event created. He wants this matter to be referred to the Law Enforcement Conduct Commission (LECC) or Independent Commission Against Corruption (ICAC) and for a Member of Parliament, who he considers referred allegations made against him to police, to be investigated for “using her position as influence for conflict of interest.”

60. The Applicant is concerned that allegations have been made against him by his neighbour and he has not been informed of them. The Applicant is very concerned about the nature of allegations that may have been made against him. He considers that his neighbour is making false allegations against him.

Applicant’s evidence

61. The Applicant provided a Statement [Exhibit A4] outlining in detail the dispute between himself and his neighbours. He gives evidence that he was granted a “PAVO” against the neighbour. The Applicant’s evidence is that he considers that the neighbours have made false allegations against him.

62. The Applicant’s evidence is that he had a phone conversation with SC Mitchell who advised him that a member of Parliament had contacted a police inspector on behalf of his neighbour. The Applicant’s evidence is that SC Mitchell advised him of the name of the Member of Parliament and the name of the neighbour. The Applicant considers the information ought to be released as the names have already been revealed to him.

63. The Applicant also states that the Member of Parliament did not take a complaint made by the Applicant about the Council seriously, and contrasts this with the action taken by the Member in this instance. The Applicant states that the Member of Parliament’s husband holds a senior position in the Council.

Respondent’s submissions

64. In response to the Applicant’s First Access Request the Respondent produced 48 pages of documents (Exhibit R2).

65. Pages 1-26 (referred to by the Respondent as “Part 1”) contain COPS Event, Case Reports and summaries of Information Reports relating to the Applicant (event Report, Case Report or Information Report). These documents were released to the Applicant in part with redactions.

66. Pages 27-48 (referred to by the Respondent as “Part 2”) of the documents consists of an email chain between NSW Police Force officers and between NSW Police and the Electorate Officer for a Member of Parliament (Email Chain). The Applicant was refused access to the Email Chain in full.

67. The Electorate Officer for the Member of Parliament was seeking information from the Respondent to respond to a request submitted to the Member by a third party. As far as the Respondent is aware, although the Applicant is aware of the complaint, he is not aware of its details.

68. In response to the Applicant’s Second Access Request, the Respondent produced three pages from Event E 81646271 that were redacted in part.

69. The Respondent submits that the disclosure of the redacted information could reasonably be expected to:

1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (cl 1(d) of the Table in s 14)

2. reveal a deliberation or consultation, or an opinion, advice or recommendation to prejudice a deliberative process (cl 1(e) of the Table in s 14)

3. prejudice the effective exercise by the agency of the agency’s functions (cl1(f) of the Table in s 14)

4. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (cl 2(b) of the Table in s 14)

5. reveal an individual’s personal information (cl 3(a) of the Table in s 14)

6. could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act) (cl 3(b) of the Table in s 14).

70. In summary the Respondent says that they have made redactions to remove information of reports made to police other than by the Applicant, in the interests of protecting the privacy of those people, and also protecting a broader public interest consideration. In particular, protecting the flow of information to police and the confidentiality that members of the public expect when they make reports to the police.

71. While the Applicant may be aware of some of the information contained in the documents, the Respondent contends that the question for the purposes of the GIPA Act is whether it is appropriate to disclose it in the form of written police records in a manner that cannot be restrained. The Respondent’s position is that there is a considerable difference between what a person might know in the course of having contact with a person, or even what they might be verbally told by a police officer making general inquiries, and the type of formal records that are generated by police.

72. The Respondent says their case goes beyond the mere identification of informants and goes to the competing considerations of providing the text of what informants communicate to police. There is no evidence that the Applicant is aware of the verbatim complaints or information provided by other individuals. While the Supreme Court proceedings have some overlap in general subject-matter the evidence did not include the details or accounts of informants to police, nor did it include records generated by police officers in relation to the dispute.

73. Referring to Camilleri the Respondent says that context is important. In this case, given the dispute between the neighbours and the ongoing issues, care should be taken in disclosing information that may inflame the situation or lead to further retaliation between the parties.

74. The Respondent submits that the Applicant’s interest in the information rises no further than a personal interest in understanding what was said about him to the police.

75. The Respondent contends that the other interests that the Applicant says he would like to advance by having access to the information, are not borne out by the material itself. The Respondent says that the Applicant’s interests are not likely to be advanced if the material was disclosed to him.

76. The Respondent also contends that the Applicant is able to complain either to the LECC or ICAC and does not require the information to do so. The Respondent refers to the extensive information gathering powers of both bodies to obtain police records. In addition, the Respondent’s view is that the Applicant largely has the records in relation to how police have responded to him.

Discrepancies between the Respondent’s Consolidated Schedule, Open Bundle and Respondent’s Submissions

77. There are some discrepancies between the Respondent’s Consolidated Schedule, the basis on which redactions have been made to documents in the Open Bundle and the submissions and evidence of the Respondent.

78. The Respondent’s Consolidated Schedule identifies “the applicable public interest(s) against disclosure of information” (emphasis added): Exhibit R3 par 4. The Respondent seeks orders that access to the information is refused “as set out in the Consolidated Schedule” (emphasis added): Exhibit R3 par 5.

79. The Respondent also relies on the Witness Statements of SC Mitchell, Exhibits R1 and R5.

80. The Respondent submits that when an application is made for review of an agency’s decision by the Tribunal, the agency is not limited to defending the matter on the same basis as it made its original decision. The Respondent submits this is because the function of the Tribunal is to conduct a merits review and is to reach a view itself, untrammelled by the view taken by the primary decision-maker, citing Public Service Assn v Premier’s Department [2002] NSWADT 277 at [56] and [59] and Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; 16 AAR 28; 108 ALR 163 at 113.

81. The Respondent states in its submissions that to this end, it “has changed the basis of some redactions, as identified in the Consolidated Schedule” (emphasis added): Exhibit R3 at par 23.

Submissions that cl (1)(e) applies

82. The Tribunal accepts that the Respondent may change the basis upon which it redacts information in proceedings before the Tribunal. In submissions at Exhibit R3 the Respondent has contended that cl (1)(e) of the Table to s 14 of the GIPA Act (reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, to prejudice a deliberative process of an agency) is relevant. However the Respondent’s Consolidated Schedule does not make any reference to cl (1)(e). In addition, the Open Bundle of Documents with redactions attached to the Consolidated Schedule do not apply cl (1)(e) to any of the redactions.

83. The Respondent makes a general submission that cl (1)(e) is relevant to the Email Chain in Part 2 of the Open Bundle of Documents (Exhibit R3 at par 52) stating that cl (1)(e) will be relevant if:

“the relevant communications that contain deliberations or consultations have been made in the expectation that they will not be subject to public scrutiny (Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13), such as the Email Chain that appears in Part 2.”

84. The Respondent also refers to par 21(g) of SC Mitchell’s statement (Exhibit R1) which gives evidence that the information at page 7 paragraph 1 of the Bundle contains an opinion as to credibility.

Submissions that cl 2(b) applies

85. The Respondent also submits that cl 2(b) of the Table to s 14 of the GIPA Act (prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or the enforcement of the law) applies. It is not entirely clear whether the Respondent submits that cl 2(b) applies to the same information that is redacted on the basis of cl 1(f) across documents in Parts 1, 2 and 3 of the Open Bundle, although the submissions at par 62 of Exhibit R3 suggest that approach is intended.

86. However, page 50 of the Bundle is one example where the Tribunal could not readily consider the application of cl (2)(b) to all information where cl 1(f) is contended in submissions to apply, as cl 1(f) is not marked on page 50. Accordingly, the Tribunal is not satisfied that the Respondent’s submissions sufficiently identify where cl 2(b) is claimed to apply.

87. The lack of clarity is compounded by the misalignment between the Respondent’s submissions and its stated position at [78] and [81] that the Consolidated Schedule identifies the basis on which it contends redactions ought to be made. The Consolidated Schedule does not make any reference to cl (2)(b) except in relation to Part 3 documents at pages 50 and 51. The Open Bundle of Documents with redactions attached to the Consolidated Schedule does not apply cl (2)(b) to any of the redactions made except on page 51.

Respondent’s Evidence

88. The Respondent relies on the evidence of Senior Constable (SC) Mitchell, who has been involved in receiving complaints and reports from members of the public and community stakeholders and creating Case, Event and Information reports. CS Mitchell gave evidence that he is aware of and has created records relating to a long-standing dispute between the Applicant and his neighbour.

89. In relation to redactions made to the Part 1 documents at pages 1-26, SC Mitchell gave comments in his Witness Statement [Exhibit R1] to explain the need for each redaction. SC Mitchell identified which redactions where necessary in order to protect the identity of informants other than the Applicant, which redactions contained personal information of third parties, which contained information on investigative steps and methodology and why disclosure could reasonably be expected to have prejudicial effects.

90. SC Mitchell’s Evidence in his Witness Statement [Exhibit R1] in relation to Part 2 documents at pages 27-48, the Email Chain, is predominately more general. All of the information in the Email Chain was refused in full by the Respondent.

91. SC Mitchell’s evidence is that the Email Chain consists of communications “between NSWPF officers and staff, including myself, in order to respond to a Ministerial request made by a third party.” He states at [23]:

Aspects of the correspondence are confidential in nature because it included internal discussions and communications between officers of the NSWPF, relating to an investigation conducted in response to the request made. NSWPF officers when exchanging these types of emails internally do so in the expectation that the communications will not be disclosed externally. As part of the internal communications to develop a response to the Ministerial inquiry, there was a need to provide specifics about the investigation. These communications should remain confidential because they contain information obtained during that investigation. Disclosure of this information may allow people to analyse NSWPF methods and manipulate NSWPF investigations resulting in interference with NSWPF operations and investigations. Disclosure would therefore prejudice NSWPF's functions and the ability to effectively enforce the law.

92. SC Mitchell also states that the emails contain personal information of third parties.

92. For completeness the Tribunal notes that SC Mitchell also gives evidence that redactions contain contact details of NSWPF officers and how wide dissemination of contact information could lead to detriment. As the Applicant no longer seeks access to “police officers email addresses or their private details”, see [10] above, the Tribunal will not consider that evidence.

93. SC Mitchell also gave Evidence in his Witness Statement [Exhibit R1] in relation to Part 3 documents at pages 49-51, COPS Event Report 81646271. These documents were the subject of the Respondent’s Second Decision.

94. The Evidence regarding redactions made at page 50 provides some commentary on the reasons for the redactions, citing personal information of third parties and the identify of an informant and the need to protect NSWPF intelligence and methodology. However, the references to redactions of certain lines and paragraphs do not always align with the Open Bundle. For that reason, the Tribunal treats the evidence as more general in nature.

95. SC Mitchell does provide more specific evidence in relation to the redactions made at page 51 stating that the redactions summarise Information Reports containing NSWPF intelligence. SC Mitchell’s evidence is that disclosure of the reports may allow people to evade an investigation or modify their behaviours to frustrated operations and investigation methods. He also states that the information reports are very recent and disclosure may impede an ongoing investigation. He states that the “intelligence does not relate to the matters the Applicant reported to NSWPF regarding his disputes with his neighbours.”

96. SC Mitchell also made a Reply Witness Statement [Exhibit R5] in response to the Applicant’s Statement [Exhibit A4]. SC Mitchell’s Reply Witness Statement goes to the inquiries made in order to respond to an inquiry from a Member of Parliament and his recollection of conversations with the Applicant. In response to the Applicant’s evidence that SC Mitchell “named the people on the phone” [Exhibit A4 at [80]], SC Mitchell states that there is a difference between giving people information on the phone when making inquiries about an event and documents being provided to a person under the GIPA Act” [Exhibit R5 at [14]]. In oral evidence SC Mitchell stated that he didn’t recall saying the names of the neighbour or Member of Parliament to the Applicant, but that he “could have mentioned the names by way of context.”

97. SC Mitchell’s Reply Witness Statement also clarifies that he “was not requested to investigate any complaint or alleged offending.” He states:

“My involvement in the applicant’s dispute with his neighbour was to prepare a summary of the narrative of events recorded on COPS System pertaining to the alleged dispute, at the request of my supervisor, in order to respond to an inquiry from the office…”

99. As to the reasons why no event report or other COPS record was created for his attendance, SC Mitchell’s evidence is that he had been:

“tasked with making general inquiries”. …There was no investigation by me, no offence was detected or reported to me when speaking with either party. Each party was of the opinion, which I agreed, with, that this was a civil matter. No Police event report or other COPS record was created for my attendance.”

100. SC Mitchell also gave evidence that where a person makes a complaint to police an event report is created and the person making the complaint is noted as the Victim. A Victim of Crime Card is sent to the person making the complaint, or may be used to give to an informant, a witness or a person of interest, primarily to ensure the person has the contact details for an officer.

Consideration

Public Interest Factors against disclosure

Part 1 pages 1-26

101. The Respondent contends that the redacted information contained at Part 1 in Pages 1-26 of the Open Bundle should not be released to the Applicant relying on the following clauses of the Table in s 14 of the GIPA Act: 1(d) (prejudice supply of confidential information that facilitates the effective exercise of the agency’s functions), 1(f) (prejudice the effective exercise by an agency of the agency’s functions), 3(a) (reveal an individual’s personal information), 3(b) (contravene an information protection principle (IPP) under the PPIP Act). The Respondent’s submissions also make reference to cl (1)(e) (reveal a deliberation) and cl 2(b) (prejudice prevention, detection, investigation or enforcement).

102. As the information redacted based on each clause of the Table to s 14 of the GIPA Act is of a similar kind, the Tribunal considers the application of each clause as set out below.

1(d) prejudice supply of confidential information that facilitates the effective exercise of the agency’s functions

103. The information reviewed by the Tribunal in Part 1 redacted at pages 1-26 contain COPS Event, Case Reports and summaries of Information Reports relating to the Applicant. The Tribunal finds that, subject to the exceptions listed below at [108], the information redacted by the Respondent at pages 1-26 based on cl 1(d) of the Table at s 14 of the GIPA Act:

1. is information which was obtained in circumstances which created an expectation of confidence

2. disclosure of the information could reasonably be expected to prejudice the supply of such information to police in the future and

3. the information facilitates the effective exercise of the agency’s functions.

104. Based on SC Mitchell’s detailed evidence on why redactions are necessary at each of the pages in Part 1 and a review of the confidential documents, the Tribunal is satisfied that the information was obtained by the police from third party informants.

105. The Tribunal accepts that police rely on receiving information from informants to carry out their functions. If information of this kind is disclosed, it is reasonable to expect that people could be deterred from providing information to police in the future.

106. This is in line with Court and Tribunal decisions which have found that informants have an expectation of confidentiality when providing information to the Police: see above at [54].

107. Based on the specific circumstances in which the information was produced, that is, as a consequence of reports made to police, the informants can reasonably be assumed to have had an expectation that their information and identity will be kept confidential unless required in the course of a prosecution.

108. However, the Tribunal finds that the information in the Open Bundle redacted at page 9 paragraphs 2, 4 and 7 and the information redacted at page 10 paragraph 1 is personal information provided by the Applicant. This is because the information is about the Applicant, the context of the document is a report of police attendance on the Applicant and the content aligns with information the Applicant has personally provided to the Tribunal at the hearing. Accordingly, the Tribunal is not satisfied that cl 1(d) applies to this information as it is not information provided by a third party.

(1)(e) reveal a deliberation or consultation, opinion, advice or recommendation

109. SC Mitchell gives evidence that the redaction at paragraph 1 of page 7 contains information and inquiries made with a third party and documents the opinion of the investigating officer as to the informant’s credibility and an aspect of the investigation. The Tribunal will consider and give weight to this as the information is sufficiently identified by the Respondent in submissions and evidence, notwithstanding that it is not noted on the Consolidated Schedule or attached Open Bundle of documents.

110. The Tribunal accepts based on a consideration of the information and SC Mitchell’s evidence that the information contains an opinion, and disclosure could reasonably be expected to reveal that opinion to prejudice an ongoing deliberation of the Respondent. Accordingly, cl (1)(e) also applies to that information.

111. However based on the considerations set out at [82] and [83], the Respondent has not discharged its onus under s105(1) of the GIPA Act that there is a public interest against disclosure on the bases of cl (1)(e) in relation to any other information. The Respondent has not identified cl (1)(e) in the Consolidated Schedule or marked the redacted documents to identify the information that it says cl (1)(e) applies to.

1(f) prejudice the effective exercise by an agency of the agency’s functions

112. Subject to the exception at [113] below, for the reasons set out at [103] to [107] above the Tribunal is satisfied that disclosure of the information redacted at pages 1-26 on the basis of cl 1(f) of the Table to s 14 of the GIPA Act, could reasonably be expected to prejudice the effective exercise by the Respondent of the agency’s functions. If information provided by informants were to be disclosed, it could cause detriment or disadvantage, impede or derogate from the Respondent’s effective exercise of functions as informants may be deterred from providing information to police.

113. For the reasons set out at [108] the Tribunal is not satisfied that cl 1(f) of the Table to s 14 of the GIPA Act applies to that redacted information. As the personal information is provided by the Applicant and relates to the Applicant it cannot be reasonably expected to prejudice the effective exercise by the Respondent of the agency’s functions if information of that kind were to be disclosed.

2(b) prejudice the effective exercise by an agency of the agency’s functions

114. Based on the considerations set out at [85] and [87], the Respondent has not discharged its onus under s105(1) of the GIPA Act that there is a public interest against disclosure on the bases of cl (2)(b) the Table in s 14 of the GIPA Act. The Respondent has not identified cl (2)(b) in the Consolidated Schedule of Part 1 documents or marked the redacted Part 1 documents to identify the information that it says cl (2)(b) applies to. To the extent that submissions and evidence of the Respondent address the application of cl (2)(b), it is not specific to the information for the Tribunal to give it weight.

3(a) (reveal an individual’s personal information), 3(b) (contravene an information protection principle (IPP) under the PPIP Act).

115. The information redacted in Part 1 of the Open Bundle pages 1-26 on the basis of cl 3(a) and cl 3(b) of the Table to s 14 of the GIPA Act contains the personal information of a third party, informant and/or a minor. This includes personal information such as name, date of birth, address or contact details.

116. For cl 3(a) to apply the Respondent must satisfy the Tribunal that disclosure of the personal information could reasonably be expected to “reveal” an individual’s personal information.

117. Under Sch 4 cl 1 of the GIPA Act, to “reveal” information means “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).” If the personal information had previously been publicly disclosed, cl 3(a) would not apply. However, even having regard to the Supreme Court proceedings, there is no evidence before the Tribunal that the particular personal information has already been publicly disclosed.

118. In addition, even if some of the personal information of third parties is already known or suspected to be known to the Applicant, applying Thomson referred to above at [52], this would not amount to revealing personal information for the purposes of the GIPA Act. Accordingly, subject to the exceptions at [120] below, cl 3(a) applies.

119. The Tribunal is also satisfied, subject to the exceptions below at [120], that disclosure of the personal information could reasonably be expected to contravene an information protection principle under the PPIP Act (cl 3(b) of the Table in s 14). This is because the exceptions in ss 18(1)(a), (b) and (c) of the PPIP Act which permit disclosure do not apply.

1. The disclosure to the Applicant is not directly related to the intelligence purpose for which the information appears to have been collected by the Respondent, and there is reason to believe (see [104] to [107] above), that the individuals concerned would object to the disclosure. Accordingly s 18(1)(a) of the PPIP Act does not permit the disclosure.

2. Based on the specific circumstances in which the information was produced, see [107] above, the individuals are not likely to have been aware that their personal information would be disclosed to the Applicant. Nor is there any evidence that the individuals were made aware that information of that kind is usually disclosed in these circumstances. Accordingly s 18(1)(b) does not permit the disclosure.

3. Based on a consideration of the confidential documents and the evidence before the Tribunal, there is nothing to suggest that the Respondent believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life of health of the Applicant or another person. Accordingly s 18(1)(c) does not permit the disclosure.

120. The Tribunal is not satisfied that cll 3(a) or (b) apply to the information described at [108] that is the personal information of, and provided by, the Applicant. The Tribunal also considers that while a third party is mentioned, they are not mentioned by name and their identity is not apparent nor can it be reasonably ascertained from the information.

Summary of Part 1 applicable public interest considerations against disclosure

121. In summary the Tribunal finds the following in relation to the information redacted by the Respondent at Part 1 pages 1-26:

1. subject to (2), cll 1(d) and (f), 3(a) and (b) as applied by the Respondent to the Bundle of Documents are public interest considerations against disclosure

2. cll 1(d) and (f), 3(a) and (b) do not apply to the information redacted at page 9 pars 2, 4 and 7 and the information redacted at page 10 par 1

3. cl (1)(e) applies to the information redacted at page 7 par 1 but not otherwise

4. cl (2)(b) does not apply.

Part 2 pages 27-48 Email Chain

122. The information at Pages 27-48 of the Open Bundle consists of the email chain between NSW Police Force officers and between NSW Police and the Electorate Officer for a Member of Parliament. The information was redacted by the Respondent in full.

123. The Respondent contends that the information should not be released to the Applicant and relies on the following clauses of the Table in s 14 of the GIPA Act: 1(d) (prejudice supply of confidential information that facilitates the effective exercise of the agency’s functions), 1(f) (prejudice the effective exercise by an agency of the agency’s functions), 3(a) (reveal an individual’s personal information), 3(b) (contravene an information protection principle (IPP) under the PPIP Act). The Respondent’s submissions also make reference to cl (1)(e) (reveal a deliberation) and cl 2(b) (prejudice prevention, detection, investigation or enforcement).

124. The Respondent has not listed on the Consolidated Schedule Part 2 or marked the documents at Part 2 with either cll (1)(e) or 2(b). Based on the considerations set out at [77] to [87], the Tribunal cannot be satisfied that those clauses apply to the Part 2 documents.

125. The Respondent has not identified on the documents the specific information on each page which it contends is covered by each of the other clauses of the Table in s 14 of the GIPA Act claimed to apply. Rather the Respondent has redacted the entire page and listed the clauses said to apply to all of the information.

126. The evidence of SC Mitchell on the Email Chain was also general in nature. It did not go to each of the emails provided in the Email Chain. In Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [19] the Tribunal was critical where the Respondent did not identify specific information in each document which it says should be withheld based on its concerns regarding disclosure.

127. As the Respondent’s redactions have not identified the specific information in each document, the Tribunal has needed to take a detailed approach to consider whether the four remaining clauses claimed by the Respondent to apply to all of the information in Part 2 in fact apply.

128. Tribunal finds as follows:

1. Page 27 of the Open Bundle first email at the top of the page: This contains information from a third party informant. For the reasons set out at [103], [105] and [106] above, the Tribunal is satisfied that cl 1(d) applies to the information.

2. Page 27 of the Open Bundle second email: This contains information given to police by the Applicant and information about enquiries made by police.

1. Clause 1 (d): Even if the information can be treated as being provided in confidence by the Applicant, the Tribunal is not satisfied that the Respondent has shown that giving access to the Applicant’s own personal information would prejudice the supply of such information to police in the future.

2. Clause 1 (f): The Tribunal is not satisfied that disclosure of the information could reasonably be expected to prejudice the effective exercise by police of their functions: cl 1 (f).

1. While compiling information to respond to a Member of Parliament is a function of any agency, in this case, as clarified by SC Mitchell in his Reply Witness Statement, the Respondent was not exercising an investigative function. The Respondent has not explained how disclosing the Applicant’s information to himself would prejudice the ability of the Respondent to reply to a Member of Parliament.

2. With the exception of the fifth dot point, the information does not reveal methodology and steps taken beyond what would already be generally known. In addition the information in the fifth dot point has been revealed to the Applicant in SC Mitchell’s Reply Witness Statement [Exhibit R5] at [10].

3. Clauses 3(a) 3(b): The Tribunal is satisfied that the disclosure of the name and address of the third party could publicly reveal third party personal information and could be reasonably expected to breach an IPP. None of the exceptions at s 18 of the PPIP Act apply to permit the disclosure.

3. Page 28 first email top of the page: this information is of an administrative nature between police.

1. Clause 1(d): The Respondent has not established that the information was obtained in circumstances which created an expectation of confidence. The Tribunal does not consider that cl 76 of the Police Regulation 2015 relied on by the Respondent in its First Decision and referred to in its submissions, means that all information received or created in the course of official duties is always of a confidential nature. In any event, the Respondent has not established how the disclosure of administrative information is reasonably expected to prejudice the supply of information.

2. Clause 1(f): Nor has the Respondent addressed how the disclosure of administrative information is reasonably expected to prejudice the effective exercise by police of their functions.

3. Clauses 3(a) and 3(b): the disclosure of the name of the third party could publicly reveal third party personal information and could be reasonably expected to breach an IPP. None of the exceptions at s 18 of the PPIP Act apply to permit the disclosure.

4. Page 28 second email:

1. The first and second sentence refers to information contained in the second email at page 27 of the Open Bundle. For the reasons set out at [128(2)(a) and (b)] cl 1(d) and cl 1(f) do not apply to those sentences.

2. The third sentence is administrative in nature. The Respondent has not established how the disclosure of administrative information is reasonably expected to prejudice the supply of information or is reasonably expected to prejudice the effective exercise by police of their functions. Clauses 1(d) and (f) do not apply to sentence three.

3. The disclosure of the names of third parties could publicly reveal third party personal information and could be reasonably expected to breach an IPP. None of the exceptions at s 18 of the PPIP Act apply to permit the disclosure. Clauses 3(a) and (b) apply to that information.

5. Page 28 third email: contains information conveyed to and from the Applicant to police.

1. In relation to information conveyed to the Applicant by police, in this email no third parties are mentioned. The Respondent has not established that clauses 1(d) and (f) apply.

2. In relation to information conveyed by the Applicant to police, for the reasons set out at [128(2)(a) and (b)(i)] the Respondent has not established that clauses 1(d) and (f) apply.

3. The disclosure of the names of third parties could publicly reveal third party personal information and could be reasonably expected to breach an IPP. None of the exceptions at s 18 of the PPIP Act apply to permit the disclosure. Clauses 3(a) and (b) apply to that information.

129. Page 28 fourth email continuing on the top of page 29: the information is either on the public record, provided by the Applicant or has previously been released to the Applicant in response to his GIPA application. The Respondent has not satisfied the Tribunal that cl 1(d) and 1(f) apply. Names and addresses of the third party reveal personal information and cl 3(a) and (b) apply to that information.

130. Page 29 second email: the nature of the information reveals methods and tactics such that disclosure could reasonably be expected to prejudice the effective exercise by the Respondent of its functions. It also refers to information obtained in confidence. The Tribunal is satisfied on the basis of the nature of the information that cll 1 (d) and (f) applies. The email also reveals the name of a third party to which cll 3(a) and (b) apply.

131. Page 29 third email: the nature of the information reveals methods and tactics such that disclosure could reasonably be expected to prejudice the effective exercise by the Respondent of its functions. It also refers to information obtained in confidence. The Tribunal is satisfied on the basis of the nature of the information that cll 1 (d) and (f) applies to the third sentence. The subject line also reveals the name of a third party to which cll 3(a) and (b) apply. The remaining information is administrative in nature and should be released.

132. Page 29 fourth email: is purely administrative in nature. The body of the email does not contain information that attracts any of the clauses claimed by the Respondent to apply. Where the email reveals the name of a third party, cll 3(a) and (b) apply.

133. Fifth email bottom of page 29 and page 30: correspondence from a Member of Parliament’s office to Respondent. The Tribunal is satisfied for reasons set out at [105] and [106] that cl 1(d) and (f) applies to the information with the exception of the identity of the Member of Parliament.

134. The Tribunal is not satisfied that a Member of Parliament has an expectation that their identity will be kept confidential when making inquiries on behalf of another person as a publicly elected official, in order to attract the application of cl 1(d). The Tribunal is also not satisfied that revealing the name of the Member of Parliament could reasonably be expected to prejudice the effective exercise by the Respondent of its functions, in this case, making inquiries and responding to a Member of Parliament. Accordingly cl1 1(d) and (f) do not apply to the Member of Parliament’s name and contact details.

135. In relation to cll 3(a) and (b), the identity of the Member of Parliament has been revealed to the Applicant and the public by the Respondent in its open written submissions and in the open hearing.

136. The Tribunal is not satisfied that cl 3(b) applies as based on the facts it is reasonably likely that the exception at s 18(1)(a) or (b) of the PPIP Act applies to permit the disclosure of the MP’s details.

137. The personal information of third-party informants other than the Member of Parliament appropriately attracts the coverage of cll 3(a) and (b) for reasons previously given.

138. The remaining pages of Part 2 contain duplicates, are blank or contain information of an administrative nature.

139. Pages 30, 31, 32, 33, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 47 and 48 contain duplicate information and must be treated in the same manner as the original documents as set out in the reasons for this decision.

140. Page 34 is blank and should be released.

141. Page 35 contains information of an administrative nature which does not attract any of the clauses claimed by the Respondent to apply, with the exception of cll 3(a) and (b) which applies to the third party name for reasons previously stated. With the exception of third party name the information must be released.

142. Page 44 is largely blank with four sentences of an administrative nature which does not attract any of the clauses claimed by the Respondent to apply and must be released.

Part 3 pages 49-51

143. Page 50: The address information of any person other than the Applicant is personal information which attracts cll 3(a) and (b) for reasons previously set out.

144. Page 50 at par 6: The Tribunal is satisfied that cll 3(a) and (b) applies as the identity of the informant can be reasonably ascertained.

145. Page 50 at par 7: this information has largely been released to the Applicant at page 17 of the Open Bundle. Accordingly the Respondent has not satisfied the Tribunal that cll 3(a) or (b) apply, subject to [143].

146. Page 50 at par 8: this information has largely been released to the Applicant at page 2 of the Open Bundle. Accordingly the Respondent has not satisfied the Tribunal that cll 3(a) or (b) apply, subject to [143].

147. Page 50 par 10 and 11: The Tribunal is not satisfied that all of the information attracts cll 3(a) and (b). However the Tribunal is satisfied that cl 1(f) applies based on considering the information and the evidence of SC Mitchell that it is necessary to protect intelligence and methodology. Accordingly disclosure could reasonably be expected to prejudice the effective exercise of the agency’s functions.

148. Page 51: the Tribunal is satisfied that the redactions at pars 1 and 3 based on cll 2(b) and 1(f) are made out having regard to the evidence of SC Mitchell and a consideration of the information which contains intelligence. The Tribunal is also satisfied that the redactions made on the basis of cll 3(a) and (b) at par 2 are made out. The information contains personal information that has not been revealed and none of the exceptions at s 18 of the PPIP Act permit the disclosure.

Public Interest Factors in favour of disclosure

149. The Tribunal finds that the following factors favour disclosure:

1. The Applicant requests access to personal information about himself.

2. The Applicant’s motives for requesting access to personal information:

1. that he is concerned for his safety as he considers that he has been a victim of an unknown crime. Access to the information may assist the Applicant to further understand whether or not he is a victim of crime

2. that he wishes to know about any allegations that may have been made against him. Access to information may assist the Applicant to know about what, if any, conduct he may be alleged to have engaged in

3. his concern that police may have engaged in inappropriate conduct by not creating a record

4. his concern that a Member of Parliament may have misused their position.

3. Other factors particular to the Applicant:

1. The Applicant maintains that some of the information that he seeks access to has already been verbally revealed to him by police

2. The Applicant suspects who has made complaints to police and the nature of their complaints.

4. Access to the information in issue could reasonably be expected to inform the public about the operations of the Respondent. 

5. The statutory presumption in favour of disclosure in s 12(1) of the GIPA Act, which is emphasised in other parts of the Act see s 3(1); s 3(2); s 5; s 9(1).

Weighing the public interest factors for and against disclosure

150. The Tribunal has found that there are public interest factors against disclosure as set out in these reasons. The Tribunal has also found that there are public interest factors in favour of disclosure at [149]. The Tribunal is required to weigh the public interest factors in favour of disclosure against the public interest factors against disclosure. There is only an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

151. The Tribunal finds on balance that SC Mitchell did reveal in conversations with the Applicant the names of third parties as well as the tenor of the request for information made by the Member of Parliament.

152. SC Mitchell conceded in oral evidence that he could have mentioned the names, and in SC Mitchell’s Reply Witness Statement he refers to a distinction between giving people information on the phone and documents being provided to a person under the GIPA Act. In making this finding the Tribunal has also had regard to the Applicant’s recollection which was specific and consistent.

153. However, the Tribunal considers that any verbal disclosure made to the Applicant does not amount to revealing the information to the world at large and should be given less weight. The Tribunal gives greater weight to the need to protect the personal information of third parties from being more widely revealed, noting that information disclosed under the GIPA Act cannot be restricted. The Tribunal also gives more weight to the need to ensure confidential information is provided to the Respondent in the future.

154. While the Applicant seeks information to understand whether he is a victim of crime, the Tribunal gives less weight to this as the Applicant has been given a full explanation during the course of these proceedings about the circumstances in which a person may be given a Victim of Crime card. The Applicant has also been provided with information restricted only to the extent necessary to protect other important public interests.

155. The Tribunal also accepts, based on SC Mitchell’s evidence, that no COPS event or job card was created in relation to the inquiries made in order to respond to the Member of Parliament. There is no requirement under the GIPA Act to create a record and the GIPA Act is only responsive to records held by an agency. There is no information in the Confidential Bundle that goes to the issue of record creation and so access would not assist the Applicant. Similarly there is nothing in the Confidential Bundle that suggests misuse of position by the Member of Parliament.

156. While the Applicant wishes to understand what, if any, allegations have been made against him, the Tribunal gives greater weight to the public interest in ensuring that police continue to have access to confidential information and are able to effectively exercise their functions.

157. On balance the Tribunal finds that the public interest considerations found to apply against disclosure outweigh the public interest considerations in favour of disclosure.

Conclusion

158. For the reasons set out above the Tribunal finds that the correct and preferable decision is that the information redacted by the Respondent in the Open Bundle where the Tribunal has found a public interest factor against disclosure applies, should not be disclosed to the Applicant. This is because the public interest factors against disclosure outweigh the public interest considerations in favour of disclosure of that information. Those parts of the Respondent’s First and Second Decisions are affirmed.

159. The information redacted by the Respondent in the Open Bundle where the Tribunal has not found any public interest factor against disclosure applies, should be disclosed to the Applicant. Those parts of the Respondent’s First and Second Decisions are set aside.

160. Accordingly, the Respondent is to provide the Applicant with access to the following information with the exception of the third party’s name and address which the Tribunal has found should be redacted throughout:

1. Part 1 documents: page 9 pars 2, 4, 7 and page 10 par 1.

2. Part 2 documents:

1. page 27 second email

2. page 28 first, second, third and fourth emails continuing on top of page 29

3. page 29 third email: the remaining administrative information, that is, the email with the exception of the third sentence; fourth email; the name and contact details of the Member of Parliament contained in the fifth email at the bottom of page 29 and page 30

4. page 34, page 35 and page 44

5. any duplicated information as set out at [139] is to be disclosed consistent with these reasons.

3. Part 3 documents:

1. page 50 par 7 and par 8.

Order

1. The decision under review is affirmed in so far as the Tribunal has found that there is an overriding public interest against the disclosure of information as set out in the reasons for this decision.

2. The decision under review is set aside in so far as the Tribunal has found that there is no public interest against the disclosure of information as set out in the reasons for this decision.

3. The Respondent is to provide access to the Applicant to the information referred to at [160] within 28 days of the date of this decision

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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: 25 August 2025