Sawyer v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sawyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 61

Hearing dates:

28 February 2018

Date of orders:

20 March 2018

Decision date:

20 March 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

1. The decision of the respondent dated 19 May 2017 is varied as follows:

 

(a) Access to the preliminary report of Detective Inspector Baker and associated eagle.i description page is granted with redactions made to the information as set out in Confidential Annexure 1.

 2. The respondent’s decision is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – government information – whether disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions by reducing honesty and candour – critical incident investigation - whether disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention of the law – police methodology

Legislation Cited:

Freedom of Information Act 1989 (NSW)
Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Battin v University of New England [2013] NSWADT 73
Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68
McCausland v State of NSW [2010] NSWSC 1562
McLennan v University of New England [2013] NSWADT 113
Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590
UC v Commissioner of Police, NSW Police [2005] NSWADT 272

Category:

Principal judgment

Parties:

Matthew Sawyer (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
AC Dunstan Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2017/164391

Publication restriction:

Sections of these reasons which contain information subject to a non-disclosure order or would disclose information which is subject to an overriding public interest against disclosure is marked “Not for publication” and may not be disclosed to the public or the applicants.

REASONS FOR DECISION

Background

1. On 27 January 2017 the applicant lodged an application with the respondent, seeking access to information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The information related to events which occurred on 7 October 2016, during which police were involved in a pursuit of the applicant and the applicant fell from a cliff edge at Dee Why and sustained serious injuries.

2. On 19 May 2017 the respondent refused access to the information on the basis of public interest considerations against disclosure under clause 2(b) of the Table to s 14 of the GIPA Act.

3. On 25 May 2017 the applicant sought review of that decision by the Tribunal.

4. The parties engaged in mediation before the Tribunal and as a consequence of that mediation the respondent provided some information informally and also made a supplementary decision under s 58(3) of the GIPA Act refusing access to other information.

5. The information to which access was refused was:

1. a pursuit form and associated eagle.i description page,

2. a pursuit debrief report and associated eagle.i description page, and

3. a preliminary report of Detective Inspector Baker and associated eagle.i description page.

6. The applicant has sought review of this supplementary decision.

The legislative framework

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

8. There is a general public interest in favour of the disclosure of government information (s 12). Other public interest considerations in favour of the disclosure of government information may be taken into account, and they are not limited.

9. The public interest considerations against disclosure which may be taken into account in conducting the determination, are limited to those in Schedule 1 and the Table to s 14 of the Act (s 14(1) and (2)).

10. In determining where the public interest lies, the Tribunal must determine whether there are public interest considerations against disclosure and whether, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13).

11. Section 55(2) provides that the personal factors of the applicant can also be taken into account as factors in favour of providing the applicant with access to the information.

The issues for determination

12. The respondent relies on the following public interest considerations against disclosure contained in the GIPA Act:

1. Clause (1) (f) of s 14 – disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions, and

2. Clause 2(b) of s 14 - disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law.

13. The applicant submits that these considerations do not outweigh the considerations in favour of disclosure, particularly in a case where the applicant seeks information relating to an incident where he was seriously injured.

14. It is relevant to note the following provisions in s 15:

(c) 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.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

15. The role of the Tribunal is to determine what is the correct and preferable decision having regard to the material before it (s 63(1)).

16. The word “Prejudice” in this context should be given its ordinary meaning of “cause detriment or disadvantage” (McLennan v University of New England [2013] NSWADT 113).

17. The words “could reasonably be expected” in s 14 have the meaning that there must be a reasonable expectation (not fanciful, imaginary or contrived) that the disclosure could have the prescribed effect (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590).

18. The onus is on the respondent to demonstrate that the disclosure could reasonably be expected to have the nominated effect.

19. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].

Confidentiality

20. Section 107 of the GIPA Act provides:

107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT 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.

(2) On an NCAT administrative review, NCAT 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 NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a) the public and the applicant, and

(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

21. During consideration of the respondent’s confidential evidence and the information which might be subject to an overriding public interest against disclosure, it became apparent that the respondent relied upon matters relating to a police policy referred to as the Safe Driving Policy. The respondent’s legal representative informed the Tribunal that the existence of the policy was not a secret, however its contents were confidential and not known to the general public.

22. In those circumstances, I was not satisfied that s 107 required that the existence of the policy should be withheld from disclosure or publication. The existence of the policy has been disclosed in at least one other published judgment (McCausland v State of NSW [2010] NSWSC 1562). The applicant was informed that the respondent’s position in relation to clause 2(b) of s 14 was dependent in part on a view that disclosure of the information could reasonably be expected to disclose the policy and related police methodology, and was given the opportunity to make submissions on that point.

23. I made orders ensuring the non-disclosure of additional closed evidence and conducted parts of the proceedings in the absence of the applicant and their legal representative. Sections of these reasons which contain information which is subject to these orders or would disclose information which is subject to an overriding public interest against disclosure is marked “Not for publication” and may not be disclosed to the public or the applicants.

Whether disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions

24. The respondent submits that the public interest consideration against disclosure applies to the preliminary report of Detective Inspector Baker and the pursuit debrief report, together with their associated eagle.i description pages.

25. The basis on which it is said that the disclosure could reasonably be expected to prejudice the effective exercise of the Commissioner’s functions is:

1. With regard to the preliminary report, it could reasonably be expected that disclosure would have an adverse impact on the candour and frankness of opinions contained in such reports by police.

2. With regard to the pursuit debrief report, it could reasonably be expected that disclosure would prejudice future debriefs because police officers may be less likely to be candid and frank during debriefs if they believe that their answers could be made public.

The preliminary report

26. The preliminary report was prepared by Detective Inspector Baker into the incidents leading to Mr Sawyer’s injuries. It was prepared after the incident was classified as a critical incident.

27. Detective Baker gave evidence in the proceedings. He stated that he was contacted by A/Assistant Commissioner Appleton 4 days after the incident and requested to meet with the parents of the applicant and the officers concerned, and establish the facts. He understood his role was to find out the concerns of the applicant’s parents and ascertain the facts of the matter. The report was prepared in a very short timeframe and he did not have access to all the evidence at that stage. The report was for internal purposes only, in order to brief the A/Assistant Commissioner.

28. He said the report was a very succinct summary and contained inferences and opinions. The investigation into the incident continued after his report and ultimately it was determined that no charges would be laid against the applicant.

29. Detective Inspector Baker said that if he knew that his preliminary report would become public it would have limited the inferences and the opinions which he included in his report. He believed it would have a similar effect upon other police officers preparing such internal reports.

30. NOT FOR PUBLICATION

31. NOT FOR PUBLICATION

32. Detective Inspector Baker identified the portions of the report which contained his opinions and inferences.

The pursuit debrief report

33. The pursuit debrief report was prepared by the Duty officer to consider whether the police pursuit was carried out lawfully and appropriately. The respondent submitted that while police officers could be ordered to take part in a debrief, the candour and self-reflection that is required in a debrief process would suffer if the officers knew that their responses could be made public.

34. NOT FOR PUBLICATION

35. The associated eagle.i description pages contain information relating to and summarising the content of the reports.

Consideration

36. I am satisfied that it is a function of the NSW Police to conduct internal investigations for the purpose of briefing senior officers on a critical incident. I am also satisfied that it is a function of the NSW Police to ascertain if their officers have complied with their own policy concerning police pursuits carried out in the execution of their policing functions.

37. Given the nature of the questions and information contained in the debrief report I am satisfied that it is not fanciful or contrived to conclude that disclosure could reasonably be expected to have a detrimental effect upon those functions by affecting the honesty and content of the information provided by individual police to such debriefs in future.

38. In relation to the preliminary report, I am satisfied that there are opinions in the report which, if they were disclosed, in my view could reasonably be expected to affect the police function of investigating and reporting to senior officers in the aftermath of a critical incident, because it could discourage police from putting such opinions in writing in critical incident reports before all the evidence was fully available.

39. The applicant submits that there is a presumption in favour of disclosure and that withholding such documents would protect police who provided dishonest information. He also submits that the public interest against disclosure does not outweigh the public interest in favour of disclosure, because police should be made accountable for their reports, and it is improbable that police would not be candid and frank and withhold important opinions from senior officers, even if they were subject to disclosure, as this would make their reports of no use.

40. I have also considered the personal factors in this case. The applicant was injured following the pursuit in question and this has caused considerable concern to his family. He is not charged with any offence. The information concerns him in a significant way. There is a public interest, in my view, in favour of individuals obtaining such personal information.

41. In my view, however, the public interest in favour of disclosure of the debrief report does not outweigh the public interest against disclosure. This view is based on the nature of the debrief report, the manner in which it is compiled, its contribution to investigating pursuits and the importance of the public interest in safe and lawful pursuits. In my view access to the debrief report should be refused.

42. In relation to the preliminary report, I consider the public interest in favour of disclosure of the information of a personal nature concerning the applicant outweighs the public interest against disclosure of the report, with the exception of the opinions and inferences in the report of a preliminary nature.

43. Therefore, in relation to the preliminary report and eagle.i description page, I determine that access should be granted after redactions have been performed in accordance with clauses (b) to (e) of Confidential Annexure 1 to these reasons.

Whether disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law

44. As stated by Senior Member Montgomery in relation to the similar exemption in cl 4(1)(e) of Schedule 1 to the former Freedom of Information Act 1989 (NSW), this consideration operates:

“… to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods”.

(UC v Commissioner of Police, NSW Police [2005] NSWADT 272).

45. NOT FOR PUBLICATION

46. NOT FOR PUBLICATION

47. NOT FOR PUBLICATION

48. NOT FOR PUBLICATION

49. The respondent submitted that none of the three documents should be disclosed as this would disclose or confirm police methodology in police pursuits which could be reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law.

50. Reference was made to the decision of McCausland v State of NSW [2010] NSWSC 1562. In that case the Commissioner claimed public interest immunity over the Safe Driving Policy, on the basis that it contains confidential police operating procedures and methods of operation at the time of urgent duty driving and police pursuits.

51. The applicant disputed that this public interest against disclosure could be applied as the information did not relate to the prevention, detection or investigation of a contravention of the law. This is true, but an actual contravention is not required for this ground to be applied (UC v Commissioner of Police).

52. Further the applicant submitted that it was not reasonable to expect that disclosure would have that effect.

Consideration

53. Based on the confidential evidence I am satisfied that disclosure of the debrief report and pursuit form would disclose some information relating to methodology used in police pursuits and that it is not fanciful or contrived to expect that such disclosure could prejudice the prevention, detection or investigation of a contravention or possible contravention of the law by disclosing information which could be to the advantage of persons lawfully pursued by police.

54. In my view the public interest against disclosure outweighs the public interest in favour of disclosure and the applicant’s personal interest because of the wider potential implications of police pursuits, and consequently law enforcement functions, being affected by disclosure of police methodology.

55. Accordingly I have determined that access should not be granted to the debrief report, the pursuit form and their associated eagle.i pages.

56. In relation to the preliminary report of Detective Baker and its associated eagle.i page, access to that information should be provided, after the information relating to the Safe Driving Policy has been redacted as set out in clause (a) of Confidential Annexure 1.

Conclusion

57. Accordingly the decision of the respondent should be varied as set out in the Order.

Orders

1. The decision of the respondent dated 19 May 2017 is varied as follows:

1. Access to the preliminary report of Detective Inspector Baker and associated eagle.i description page is granted with redactions made to the information as set out in Confidential Annexure 1.

2. The respondent’s decision is otherwise affirmed.

**********

CONFIDENTIAL ANNEXURE 1

NOT FOR PUBLICATION

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: 20 March 2018