Saeed Dezfouli v NSW Police Force

[2018] NSWCATAD 264

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Saeed Dezfouli v NSW Police Force [2018] NSWCATAD 264
Hearing dates:	26 March 2018; 7 May 2018; 28 May 2018
Date of orders:	16 November 2018
Decision date:	16 November 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decisions under review are affirmed.
Catchwords:	Administrative Law – Government Information – access application – redaction of names – personal information - whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure –whether risk of harm or serious harassment or serious intimidation if names disclosed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009
Cases Cited:	Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Gee v Department of Education and Communities [2014] NSWCATAD 7 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Leech v Sydney Water Corporation [2010] NSWADT 198 Neary v State Rail Authority [1999] NSWADT 107 Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 Robinson v Commissioner of Police [2014] NSWCATAP 73 Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Saeed Dezfouli (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	S Dezfouli (Applicant in person)   Solicitors: Crown Solicitor's Office (Respondent)
File Number(s):	2017/00287820; 2017/00364078
Publication restriction:	Nil

Reasons for Decision

Introduction

1. The Applicant, Mr Dezfouli, lodged two separate access applications under the Government Information (Public Access) Act 2009 ("the GIPA Act”) seeking access to information held by the NSW Police Force ("the Respondent”).

2. The parties agreed that the matters be heard together. For convenience these reasons relate to both matters.

The access applications

2017/287820

3. The Applicant's access application in matter No. 2017/287820 was dated 27 June 2017 and sought:

"A copy of my rap sheet."

4. In response to this request the Respondent determined to release in full the Applicant's Criminal History/Bail Report.

5. The Applicant was not satisfied with the determination because he believed that the Respondent held more information than was provided. He sought an external review of the decision by the Information Commissioner under section 89 of the GIPA Act.

6. The Information Commissioner made a recommendation that the Respondent clarify what specific information the Applicant sought and make a new decision.

7. The Respondent accepted the Information Commissioner’s recommendation and undertook an internal review of the determination on the understanding that the Applicant was seeking all information held by the Respondent of reported incidents that related to the Applicant.

8. The Respondent determined to release, in part, twenty Event Reports that related to the Applicant that were contained in its Computerised Operational Policing System ("COPS"). A total of 59 pages of information (“the identified information”) have been released.

9. The Applicant was not satisfied with the determination and challenges the redactions made by the Respondent. He has applied to the Tribunal for external review of the determination under section 100 of the GIPA Act. He does not seek redacted personal information such as dates of birth, addresses, phone numbers, and other similar information. However, he does seek the names of individuals that have been redacted.

10. With limited exceptions, the Respondent contends that the information that was redacted from the Event Reports is subject to an overriding public interest against disclosure. The Respondent no longer asserts that there is an overriding public interest against disclosure of the following information (page references are to the 59 pages of identified information):

1. the redacted Event reference numbers on page 14;

2. the redacted paragraphs on page 17 within Event Ref E 35096835;

3. the redacted paragraphs on pages 21 and 22 within Event Ref E 207610592;

4. the redacted paragraph on page 27 within Event Ref E 34392870, excluding the names within that paragraph;

5. the second redacted paragraph on page 33 within Event Ref E 28272771 which discusses the Applicant posting mail, excluding the names within that paragraph; and

6. the redacted passages and paragraphs contained on pages 56, 57 and 59 within Event Refs E 12811429, E 12646949 and E 12194272.

11. The Respondent also subsequently indicated that it no longer asserts that there is an overriding public interest against disclosure of the redacted information on pages 23, 40 and 50 of the identified information. This information is either publicly known or it is information provided by the Applicant.

12. I agree with that position and accordingly this information should be released.

2017/364078

13. The access application in matter No. 2017/364078 was dated 11 September 2017 and sought:

"All documents that relate to, or form part of any investigation gathering, surveillance or any other function held by the NSW Police Force in which I, Saeed Dezfouli (DOB 04.12.1958) am named."

14. In response to this application the Respondent determined to release the same information that was released in response to the access application in matter No. 2017/287820.

15. The Applicant has also sought external review by the Tribunal of that determination.

16. As the same information has been redacted from the information released in response to the two access applications, the applications were heard together.

17. It is my understanding that the scope of the applications have narrowed significantly and that the Applicant is only pressing the requests to the extent that they concern redacted personal information that would identify the individuals to who that information relates (“the individuals concerned”) and other information about them.

18. The Applicant also contends that the Respondent holds more information that falls within the scope of his access applications than has been provided. In particular, he argues that the Respondent’s Fixated Behaviour Unit holds information responsive to his access applications.

The Issues for Determination

19. The issues for determination are as follows:

1. Whether there is an overriding public interest consideration against disclosure of the information that has been redacted from the released material; and

2. Whether the Respondent holds other information that falls within the scope of the access applications which has not been identified and if so, whether that information should be released.

Applicable legislation

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

21. 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.

22. 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.

23. 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.

24. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) further provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure.

25. Pursuant to section 13 of the GIPA Act, there will only be 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.

26. 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.

27. Section 55 of the GIPA Act provides for consideration of personal factors of the application. It states:

55 CONSIDERATION OF PERSONAL FACTORS OF APPLICATION

(1)   In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the

"personal factors of the application" ) into account as provided by this section:

(a)   the applicant's identity and relationship with any other person,

(b)   the applicant's motives for making the access application,

(c)   any other factors particular to the applicant.

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

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.

…

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

29. 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.

30. The Agency relies on several clauses of the table to section 14 of the GIPA Act. These include clauses 3(a), 3(b) and 3(f) of the table, which 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

...

(f)   expose a person to a risk of harm or of serious harassment or serious intimidation

…

31. The Administrative Decisions Tribunal Appeal Panel considered the approach to be adopted in GIPA Act matters in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19. The Appeal Panel stated, at paragraphs [24] - [26]:

24.   Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. 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.

“Could reasonably be expected…”

32. 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 effects identified in the table to section 14 of the GIPA Act. The words “could reasonably be expected to” have been held to require “something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived”: Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a “real” risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35] - [36] and the cases there cited.

33. The phrase “‘simply calls for an “objective assessment’, on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact”: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].

34. In Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:

In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...

35. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at paragraph [106].

36. The word "prejudice" is given its ordinary or everyday meaning, being "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

37. In Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11 Senior Member Ransome considered the meaning of the terms “harm”, “harassment” and “intimidation” for the purposes of clause 3(f)) of the GIPA Act. She reviewed a number of decisions that had discussed this provision and stated at paragraphs [25] – [29]:

25. Harm, harassment and intimidation are not terms that defined in the GIPA Act and must be given their ordinary meaning. These terms were considered by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 and adopted in CJO v NSW Police Force [[2016] NSWCATAD 262].

26.   The Macquarie Dictionary defines “harm” to mean injury, damage, hurt, moral injury, evil, wrong. The Tribunal in AEZ considered that “harm” in the context of clause 3(f) means "a real and substantial detrimental effect on a person" which may have a detrimental effect on their "physical, psychological or emotional wellbeing".

27.   The Macquarie Dictionary defines “harass” to mean to trouble by repeated attacks, or disturb persistently. “Intimidate” is defined to mean to make timid or inspire with fear. In AEZ the Tribunal stated that a person who is harassed would be offended, humiliated or intimidated by the conduct in the circumstances. Harassment requires a consideration of whether the person alleged to be harassed was offended, worried, tormented, distressed or harassed by the conduct.

28.   Citing PE v MU [2010] NSWDC 2, the Tribunal in AEZ noted that harassment is ongoing behaviour that is found to be threatening or disturbing and intimidation is conduct such as would cause a person to fear for their safety.

29.   The requirement that the intimidation or harassment be serious means that the decision maker must be satisfied that the release of the information could reasonably be expected to expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient" (AEZ at [94]).

38. I agree with those views.

Searches for information

39. The Applicant contends that the Respondent holds more information than it has identified. He says that there are reasonable grounds to believe that there are further documents relevant to the access applications and that the Respondent has not used its best endeavours to locate them. The Respondent maintains that it does not hold other information relevant to the access applications.

40. Where an agency identifies information that it holds and provides or refuses access to that information but does not make an explicit decision that it holds no further information, it can be implied that the agency has in fact made a decision that it holds no further information relevant to the access application: see Robinson v Commissioner of Police [2014] NSWCATAP 73 at paragraph [8].

39. The Tribunal has consistently adopted a two-stage approach to determining whether an agency has conducted an adequate search. This applies the approach adopted by the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464. The approach is to consider:

1. Whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and, if so,

2. Whether the search efforts made by the agency to locate such documents have been reasonable in all of the circumstances of a particular case.

The Material before the Tribunal

42. The Applicant relies on his own evidence as well as written and oral submissions.

43. Senior Sergeant Glen Reid, coordinator with the Respondent’s Information and Access Unit, gave evidence in relation to the searches that were undertaken to locate information falling within the scope of the requests. Mr McGowan, solicitor for the Respondent, provided written submissions.

44. The Respondent has lodged an unredacted copy of the information that was identified as falling within the scope of the access applications.

The Respondent’s Case

45. The Respondent accepts that there is a statutory presumption in favour of the disclosure of government information and a general right of the public to have access to government information held by agencies. The Respondent also accepts that some of the redacted information is the Applicant’s personal information, insofar as it relates to him.

46. However, the Respondent submits that this should be given minimal weight as a consideration favouring disclosure given the nature of the information and the circumstances in which it was generated. It contends that the public interest in favour of the disclosure of the redacted information is minimal. In the Respondent's view, the release of the redacted information, including any withheld names, would not benefit the public or promote government accountability.

47. The Respondent has described the redacted information as follows:

a.   Pages 6-9: information relating to the investigation of threatening phone calls placed to the Anti-Discrimination Board of NSW in Event Ref E 43344573.

b.   Page 49: information relating to the statement of a witness in Event Ref E13389372.

c.   Pages 53-54: personal information about a victim in Event Ref E 13389372.

d.   The names of individuals redacted from pages 4-11, 23-30, 32-34, 36, 39-47, 49, 50, 53, and 54.

48. The Respondent submits that there is an overriding public interest against disclosure of this information, as disclosure could reasonably be expected to:

1. reveal an individual's personal information (clause 3(a) of the table to section 14 of the GIPA Act);

2. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act”) (clause 3(b) of the table to section 14 of the GIPA Act); and

3. expose a person to a risk of harm or of serious harassment or serious intimidation (clause 3(f) of the table to section 14 of the GIPA Act).

49. It is apparent from the unredacted copies of the documents provided that some of the withheld information had been redacted because the Respondent considered that there were overriding public interest considerations against disclosure that were not under clause 3 of the table to section 14 of the GIPA Act. For example, some redactions identified clauses 1(e), 1(f) or 2(b) of the table to section 14 of the GIPA Act. That is, disclosure could reasonably be expected to:

1. 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 (clause 1(e));

2. prejudice the effective exercise by an agency of the agency's functions(clause 1(f)); or

3. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (clause 2(b)).

50. I understand that the access applications are not pressed in regard to those redactions.

Reveal an individual’s personal information (clause 3(a)) and contravene an information protection principle (clause 3(b))

51. The Respondent submits that the names redacted throughout the COPS Event Reports are personal information of the individuals concerned. They are information about an individual and the disclosure of the names would have the result of the identity of the individuals becoming apparent. Accordingly, disclosing the names could reasonably be expected to disclose an individual's personal information.

52. The Respondent also submits that the redacted passages in Event Ref E 43344573, on pages 6-9 of the identified information also constitute personal information. The redacted portions of this event relate to the investigation of a person of interest in relation to alleged threatening phone calls made to the Anti-Discrimination Board of NSW. The redacted information records personal details about the person of interest and other people connected to the person of interest. The Respondent also submits that the identity of the person of interest could be reasonably ascertained from the details and descriptions given by the police officers.

53. The Respondent submits that the redacted passages in Event Ref E 13389372, on page 49 of the identified information are also personal information recorded by a police officer. The information discloses the witness's name, describes the witness's personal circumstances, and records the witness's personal recollection of events. The Respondent submits that a person's account of events constitutes personal information about that person: see Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at paragraph [40].

54. The Respondent submits that the redacted passages in Event Ref E 13389372, on pages 53 and 54 of the identified information, constitute the personal information of victims. The information includes details relating to the identities of the victims, the medical status of victims, and the families of the victims.

55. The Respondent submits that there is a public interest against the disclosure of this information, as it could reasonably be expect to reveal the personal information of the individuals concerned. It further submits that the information is highly personal and sensitive to each individual, and was gathered by police officers in the exercise of their investigative functions. It is submitted that the personal and sensitive nature of this information means that the public interest against disclosure should be given significant weight, and should outweigh any public interest in favour of disclosure.

56. The Respondent acknowledges that some of the information is also the personal information of the Applicant. However, it contends that where the personal information of an applicant becomes entangled with highly personal and sensitive information of others, the interest against disclosing others' personal information outweighs the public interest in the applicant's personal information being released. In support of this submission it relies on views expressed by Judicial Member Molony in Gee v Department of Education and Communities [2014] NSWCATAD 7 at paragraphs [90] and [98].

57. The Respondent further submits that the nature of the information means it would be difficult to consult with the individuals concerned as to whether they would permit their personal information to be released. Further, the context and circumstances surrounding the COPS Event Reports may be a confronting and uncomfortable experience for those individuals.

58. In addition, it is submitted that the disclosure of the redacted personal information would contravene section 18 of the PPIP Act, as none of the conditions for permitted disclosure under 18(1) of the PPIP Act would apply.

Expose a person to a risk of harm or of serious harassment or serious intimidation (clause 3(f))

59. The Respondent submits that the Tribunal is entitled to take into account the Applicant's identity, motives and other factors particular to the Applicant: section 55 of the GIPA Act. The identities of the individuals whose information has been redacted have a personal and material connection to the Applicant that should be taken into account when considering both the application of clause 3(f) of the Table to section 14 and the weight this public interest consideration against disclosure should be given.

60. The Respondent contends that the Applicant may be motivated to send threatening and harassing letters to persons who have a personal connection to him. It submits that the Tribunal is able to make a finding that individuals could reasonably be expected to be exposed to a risk of harm or of serious harassment or serious intimidation by the Applicant based on the documentary evidence before the Tribunal, and previous findings.

61. It is not in dispute that the identified information includes information regarding investigations into threatening, harassing or intimidating letters sent to various persons, including politicians, government employees and former co-workers. The Applicant is recorded as the sender of each letter. The reports that have been released include quotes from the letters and include insults, threats, and generally graphic, disturbing and intimidating language.

62. The Respondent submits that the nature of these letters would cause a recipient to feel offended, humiliated, intimidated, worried, tormented, distressed or harassed.

63. Mr McGowan noted that Event References E 28272771 and E 94566795 report that the Applicant sent threatening and harassing letters to former colleagues at the Community Relations Commission. He submits that significant weight should be accorded to this public interest against disclosure due to a material risk that individuals will be seriously harassed or intimidated by the Applicant.

64. Mr McGowan referred to the decision by Senior Member Ransome in Dezfouli v Justice Health & Forensic Mental Health Network. In that matter the Senior Member dealt with the same issue that has been raised in this matter. That is, whether it could reasonably be expected that the release of information of this type would expose individuals identified in the information to a risk of serious harassment or serious intimidation, by the Applicant sending them threatening and harassing letters. In that decision, Senior Member Ransome found that the Applicant's previous behaviour meant that he posed a risk of serious harassment or intimidation to individuals, if their names were to be released. She stated at paragraphs [30] – [33]:

30   The evidence before me is that Mr Dezfouli has a history of fixated behaviour in which he sends often offensive correspondence to office holders. He clearly has strong views about the police and justice systems and sees himself as being victimised by those systems. It was apparent at the hearing that his reason for wishing to obtain the names of the officers who either prepared the Information Report or were involved in the email exchanges between the AFP and Justice Health is so he can pursue action against what he describes as AFP’s sinister motives in making reports about him.

31   When looked at objectively, the evidence shows that here are sound reasons for believing that Mr Dezfouli’s fixated behaviour will continue. Were he to be provided with the names of the officer who wrote the Information Report or those officers who were involved in email exchanges about the Report, it is highly likely Mr Dezfouli would seek to communicate directly with those officers and/or name them in his correspondence with others and on his website. It is also highly likely he would make offensive comments about them and issue threats of violence towards them.

32   Mr Dezfouli’s past behaviour strongly indicates that he is likely to engage in harassing and intimidatory behaviour towards the officers named in the Information Report and emails if their identities were known to him. In my view that harassment or intimidation is likely to be at such a level that it amounts to serious harassment or serious intimidation.

33 I am therefore of the view that disclosure of the names of the officers could reasonably be expected to expose those persons to a risk of serious harassment or serious intimidation and that, on balance, there is an overriding public interest against the disclosure of that information pursuant to clause (3)(f) of the table to s 14 of the GIPA Act.

65. The Respondent submits that the Tribunal may take notice of these previous findings, and consider them when assessing whether there is a public interest against disclosure in the terms of clause 3(f) of the Table to section 14, and the weight that this should be given. The Respondent submits that these findings assist the Tribunal to conclude that there is a public interest against disclosure, and that it should be given considerable weight.

The Respondent’s searches

66. The Respondent relies on the evidence of Senior Sergeant Glen Reid who undertook searches for information captured by the scope of the access applications. His evidence was that all the information that was identified was released, subject to the redactions referred to above or where there is another legislative basis for withholding the information.

67. In response to the Applicant's contention, the Respondent conducted a further search for information that may not have been identified in response to the access applications. The Respondent located a brief of evidence, which was prepared for the prosecution against the Applicant. The Respondent declined to provide this information to the Applicant as the information is already available to him, having been previously served: section 59(1)(b) of the GIPA Act. The Applicant has not challenged this position.

68. Further, Senior Sergeant Reid made enquiries with the Fixated Behaviours Unit which confirmed that the unit does not hold any information relating to the Applicant. His evidence was that the unit does not consider the Applicant to be a person of interest and therefore does not hold information related to him.

69. In the Respondent's submission, there is no other evidence before the Tribunal capable of supporting a finding that it holds further information responsive to the access applications.

The Respondent’s conclusion

70. The Respondent contends that in these circumstances, the Tribunal should find that the public interest considerations in favour of disclosure are minimal, and should therefore be given little weight. Further, by balancing the public interest considerations in favour of disclosure, against the public interest considerations against disclosure, the Tribunal should find that there is an overriding public interest against disclosure.

The Applicant’s Case

71. The Applicant provided written submissions and annexed material which he submits supports his contention that the Respondent holds further information that relates to him and which falls within the scope of the access applications.

72. His case with respect to the redacted information is that the information is his personal information in that it concerns him. He says that it comprises information that was given to police by members of the public and that he should be able to know the details of who those individuals are and what they have said about him. He contends that this is essential so that he may receive a “fair go’.

73. The Applicant provided a number of documents in support of his contention that the Respondent should hold additional information that falls within the scope of his access applications. He noted that several of the Respondent’s records listed him as a person of interest months before he committed his “index offence". This categorisation as a person of interest was due to threatening letters received by politicians and other public office holders that had apparently been sent by the Applicant. The Applicant contends that these records support an inference that the Respondent holds further information.

74. The Applicant provided a number of documents created by the Australian Federal Police (“the AFP”) which suggest that he is a person of interest to the AFP and the Australian National Security Hotline. The Applicant contends that he would also be a person of interest to the NSW Police Force and, therefore, that the Respondent’s Fixated Behaviour Unit would hold more files, records and documents that are responsive to his access applications.

75. The Applicant’s documents appear to include file notes and reports created by the AFP, and correspondence between the AFP and Corrective Services NSW. These documents have not been created by the NSW Police Force.

76. The Applicant also provided a document that appears to be excerpts of a witness statement by a John William Edwards in the matter of: “Police v Saeed Sayaf Dezfouli Murder". The excerpts describe a number of letters sent to various politicians and public office holders. These letters appear to be the letters referred to in the identified information.

77. The Applicant contends that there are reasonable grounds to believe that the Respondent holds further information, responsive to the access applications, which relates to the additional material that he has provided.

Discussion

78. I have considered the unredacted material that the Respondent has provided. I am satisfied that the Respondent has accurately described the redacted information that is in issue and that the redacted information is personal information of the individuals concerned. The names of the individuals falls into this category. Similarly, where the identity of a person can be reasonably ascertained from the details and descriptions given, the redacted information is personal information of the individuals concerned.

79. I am satisfied that disclosure of the redacted information could reasonably be expected to reveal the individuals' personal information.

80. This is a public interest consideration against release.

81. In the circumstances, it is my view that significant weight should be given to this consideration. As noted, the information includes details relating to the identities of witnesses, victims, the families of the victims and the medical status of victims, of the Applicant’s conduct. I am satisfied that the information was gathered by police officers in the exercise of their investigative functions and because of the circumstances in which it was gathered, it is highly personal and sensitive to each individual.

82. It is necessary to balance the public interest considerations in favour of release against this consideration. There is a general public interest in favour of the disclosure of government information. The fact that the information is relevant to the Applicant to the extent that the individuals concerned provided evidence about the Applicant is also a consideration in favour of release of the information. However, I note that he Applicant has been given the majority of the information held by the Respondent. He is therefore aware of most of the information that was provided by the individuals concerned. I am not satisfied that significant weight should be given to these considerations in favour of release of the information.

83. I am also satisfied that disclosure of the information could reasonably be expected to contravene an information protection principle. The disclosure of the redacted personal information would contravene section 18 of the PPIP Act, as none of the conditions for permitted disclosure under 18(1) of the PPIP Act would apply.

84. I agree with the Respondent's argument that the release of the redacted information would not benefit the public or promote government accountability. In my view, the public interest considerations against release of the redacted information outweigh those in favour of its release.

85. In regard to question of whether there is a public interest against disclosure in the terms of clause 3(f) of the Table to section 14, I have formed the same view as that formed by Senior Member Ransome in Dezfouli v Justice Health & Forensic Mental Health Network.

78. I am satisfied that the Applicant's previous behaviour means that there is a risk of serious harassment or intimidation to individuals, if their names or other identifying information were to be released. It is highly likely that the Applicant would seek to communicate directly with those individuals concerned. It is also highly likely he would make offensive comments about them and issue threats of violence towards them. In my view the Applicant's past behaviour strongly indicates that it is likely that he would engage in serious harassment or serious intimidation if the identities were known to him. There is a material risk that the individuals concerned would be seriously harassed or intimidated by the Applicant.

79. In my view the disclosure of the names or other identifying information of the individuals concerned could reasonably be expected to expose those persons to a risk of serious harassment or serious intimidation and that, on balance, there is an overriding public interest against the disclosure of that information pursuant to clause (3)(f) of the table to s 14 of the GIPA Act.

80. I accept the evidence of Senior Sergeant Reid of the searches that he conducted of the Respondent’s data bases. I am satisfied that the searches were reasonable and that if the Respondent held other information falling within the scope of the access applications it would have been identified by the searches.

81. I am not satisfied that the additional material that the Applicant has provided establishes reasonable grounds to believe that the Respondent holds further documents relevant to the access applications. As noted, the additional documents were not created by the Respondent and they make no reference to information held by the Respondent.

82. I accept that it may be reasonable for the Applicant to believe that as a person of interest to the AFP he would also be a person of interest to the NSW Police Force. However, it is also reasonable to believe that with the passage of time the level of interest would decrease. Even if the Respondent previously held further information, the evidence suggests that it is no longer the case. The more likely explanation is that the Respondent did not ever hold further information. In any event. on the evidence before me, there is no reason to believe that further information responsive to the access applications is held by the Respondent.

83. In the circumstances I am satisfied that the Respondent has identified the information that it holds that is responsive to the access applications. The majority of that information has been released. The public interest considerations against release of the information that has not been released outweigh those in favour of release. It follows, in my view, that the decisions under review should be affirmed.

Orders

1. The decisions under review are affirmed.

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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: 16 November 2018