Selby v Commissioner of Police (NSW)
[2013] NSWADT 61
•18 March 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Selby v Commissioner of Police, NSW Police Force [2013] NSWADT 61 Hearing dates: 22 November 2012 Decision date: 18 March 2013 Jurisdiction: General Division Before: Naida Isenberg, Judicial member Decision: The decision under review is affirmed
Catchwords: Government rewards - partial disclosure of information sought - confidentiality of informers/rewardees Legislation Cited: Government Information (Public Access) Act 2009
Freedom of Information Act 1989
Privacy and Personal Information Protection Act 1998Cases Cited: Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services[2012] NSWADT 195
Commissioner of Police v Camilleri [2012] NSWADTAP 19Category: Principal judgment Parties: Hugh Selby (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: H Selby (Applicant in person)
Sparke Helmore Lawyers (Respondent)
File Number(s): 123171
reasons for decision
BACKGROUND
Hugh Selby, the applicant, requested the respondent to provide access to information, pursuant to the Government Information (Public Access) Act 2009 ('GIPA Act'), as follows:
RE: Information about any payment made to a person pursuant to a claim for a 'reward leading to information about or the conviction of any person for the murder of the late John Newman MLA'.
A late 2011 newspaper report claimed that a reward had been paid to an unidentified person with respect to the 1994 murder of the late John Newman MLA.
I would like to know:
- If a reward was paid to any one or more persons in the investigation of this murder and subsequent successful prosecution of Phuong Ngo;
- If so, when was such reward or rewards paid;
- In what amount or amounts;
- Who was/were the recipients of such payment/s; and
- The nature of the information provided to justify the payment/s.
The respondent refused access to the information sought, on the basis that there was an overriding public interest against the disclosure of the information. The applicant seeks review of that decision.
After the application for review was filed, on 23 January 2012 the respondent released some information in relation to "NSW Government Reward Payments from 2006 to 2011 and currently recommended reward payments". The information released at that time included information relating to a reward paid in connection with murder of Mr Newman - that the total reward payment was $250,000 and that it was paid in June 2010.To some extent some of the respondent's submissions were overtaken by this prior disclosure.
The applicant observed that a press report of 20 August 2012 was issued about a reward paid in connection with Newman murder, which he interpreted as indicating that the reward was paid to one person. The respondent noted that it had not supplied the name of any person(s) paid the reward, the number of rewards that were paid; or the type or nature of the information provided by a reward claimant that justified the payment of a reward.
If information in a record has already been disclosed, it cannot then be "revealed", as defined in cl.1 of Schedule 4 GIPA Act, by giving access under the GIPA Act: Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [174].
The parties agreed that, as the information referred to above had been released, the outstanding information from the applicant's request was as to the recipients of such payment(s) and the nature of the information provided to justify the payment(s).
At the hearing the applicant also sought information as to when an application was made for payment and who had recommended the payment. The respondent correctly, in my view, observed that this information had not been the subject of the request, the response to which is the subject of this review.
It is helpful to recall that the definitions of 'government information', 'personal information', and 'reveal' in the GIPA Act operate with respect to information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. Further, the issue for consideration is not whether the document has been publicly disclosed, but whether the information contained therein has been publicly disclosed: see Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98.
Documents containing the information in relation to the identity of the recipient(s) of the reward and the nature of the information provided were not provided to the Tribunal, but, in the end result, the production of the documents was not necessary for me to reach my decision.
Relevant Legislation
The objects of the GIPA Act are set out in s 3, which provides:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
authorising and encouraging the proactive public release of government information by agencies, and
giving members of the public an enforceable right to access government information, and
providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
that this Act be interpreted and applied so as to further the object of this Act, and
that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
It was not disputed that the information the subject of this application, is government information and is held by an agency: s.4(1) of the GIPA Act.
Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.'
Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure
The public interest considerations against disclosure are set out in a Table in s.14 of the GIPA Act ('the Table').
Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
Agencies must exercise their functions so as to promote the object of this Act.
Agencies must have regard to any 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.
The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
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.
Section 54 of the GIPA Act contains a requirement that an agency is to take reasonably practicable steps to consult with specified persons before providing access to information. That requirement only applies to information, which is of a kind that requires consultation under s.54(2) which includes personal information about a person: see s.54(2)(a) of the GIPA Act.
On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s.105(1).
ISSUE BEFORE THE TRIBUNAL
Is there an overriding public interest against disclosure of the information sought by the applicant in terms of s.13 of the GIPA Act?
Consideration
In deciding whether to release information, the Tribunal must apply the public interest test and decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s 13 of the GIPA Act requires the Tribunal to undertake the following steps:
- identify the relevant public interest considerations in favour of disclosure
- identify the relevant public interest considerations against disclosure.
- determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.
Public interest considerations in favour of disclosure
Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure.
When asked about his interest in the information the applicant referred to his reputation being tarnished in the course of a review into Ngo's conviction. Other than that it was difficult to see what public interest in favour of disclosure that the applicant was asserting.
The respondent submitted, and I agree, that the following public interest considerations in favour of disclosure of the information are relevant to the information sought by the applicant:
a) the general public interest in favour of the disclosure of government information;
b) disclosure of the information could reasonably be expected to promote open discussion of public affairs; and
c) disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
Public interest considerations against disclosure
The general public interest considerations against disclosure are limited to those set out in the Table.
In Commissioner of Police v Camilleri [2012] NSWADTAP 19 ('Camilleri') the Appeal Panel considered (at [26]) that s. 14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government".
To raise these as relevant considerations in the application of the public interest test the respondent must establish that the disclosure of the information "... could reasonably be expected to have .... the effect" outlined in the Table.
The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police [2011] NSWADT 286 (at [40] - [41]),('Flack'), adopting the approach taken in Leech v Sydney Water Corporation [2010] NSWADT 298:
25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.
Because the respondent bears the onus of justifying its decision to refuse the applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.
In support of its contentions the respondent relied on the evidence of Sergeant Jessica Currie, the Co-ordinator of its Rewards Evaluation Advisory Committee, Source Management Unit ('SMU'). Sergeant Currie provided an open statement and also a confidential statement. She gave evidence in both open and closed sessions. In broad terms, her open evidence was that the nature of the remaining information was the most sensitive of the information the applicant had sought and that the respondent had grave concerns about its disclosure. She had not spoken to the rewardees herself and neither was she involved in the investigation of the Newman murder nor was she involved in the process of payment of the reward.
The applicant objected to Sergeant Currie's closed statement and submitted that the Tribunal should give it little weight because Sergeant Currie had only worked in the SMU after the reward was paid. He submitted that she did not understand making police statements. As it transpires, I was able to reach a view in relation to the information sought without reliance upon Sergeant Currie's confidentialstatement or her confidential evidence.
The respondent submitted that the following public interest considerations against disclosure are relevant:
a) disclosure of the information could reasonably be expected to 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;
b) disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence: cl 1(g) of the Table;
c) disclosure of the information could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant; cl 2(a) of the Table;
d) disclosure of the information could reasonably be expected to endanger, or prejudice any system or procedure for protecting the life, health or safety of any person: cl 2(d) of the Table;
e) disclosure of the information could reasonably be expected to reveal an individual's personal information: cl 3(a) of the Table;
f) disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998: cl 3(b) of theTable); and
g) disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or intimidation: cl 3(f) of the Table.
Each is discussed below. There is some overlap in the relevant considerations.
disclosure of the information could reasonably be expected to 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
The respondent submitted that disclosure of the identity of the rewardees and the information provided could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the respondent's functions as a law enforcement agency. The respondent referred to the three elements of cl.1(d) of the Table:
the information facilitates the effective exercise of the respondent's functions
The respondent referred to its core function of providing police services for the State, which includes the prevention and detection of crime: Police Act 1990 (NSW) s.6(2) and (3)(a). The respondent referred to Sergeant Currie's open statement at [6] wherein she wrote that government rewards are offered as an appeal to members of the public for information and are generally offered in cases of the most serious crime and as a last resort when all other avenues of investigation have been exhausted.
I accept that the respondent offers rewards in serious crimes where other avenues of investigation have been exhausted.
the information is confidential
The respondent submitted that there is an expectation that information reported to the Police will be kept confidential and will only be used and disclosed by the Police in the conduct of law enforcement activities.
The respondent again referred to Camilleri where, after citing with approval the approach in Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13 the Appeal Panel considered confidentiality in the context of cl.1(d) and cl.1(f) of the Table. The Appeal Panel said:
[33] In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service. ....
[34] .... The enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.
Sergeant Currie wrote in her open statement at [7] that rewards are subject to published terms. A general condition of the reward is that the information provided must lead to, or contribute to, the arrest and convictions of the person(s) responsible for the relevant crime. Rewards are also offered on the condition that any information will be treated confidentially. The respondent referred in its submissions to the gazette notice detailing the government reward in this case which read, "any information, which will be treated as confidential, may be given at any time of the day or night".
The applicant submitted that the reward notice is in plain terms and says nothing about protecting a person's identity from disclosure. I do not agree; it expressly refers to the information, which, in my view, must necessarily include the claimant's identity, being treated as confidential.The applicant speculated that it was possible that a Police officer made promises to the rewardee about 'non disclosure' that went beyond the plain words of the reward notice, but there was no evidence to this effect.
From the terms of the reward notice, at the time of receipt of the information the Police held out that the information would be treated confidentially: per Camilleri.
The applicant sought to draw a distinction between the evidence of a person in a criminal trial in the course of which the person's identity may become known and the fact that the person received a reward for providing information to the Police. The applicant submitted that the Police can only offer confidentiality during the investigative phase. The applicant submitted that if the rewardee was a witness at any of Ngo's three trials then the respondent cannot now claim that either the content of the information or his or her identity should remain confidential. However a claimant's identity or the nature of their information may never become known through the trial process, and there may be circumstances where the information provided by a claimant may nonetheless still lead to a conviction.
The applicant conceded that there were cases where people who provide information to the Police on the assumption that their names will not be released. He submitted that rewards are in a different category because rewards are offered when normal investigative avenues have failed. I do not accept the distinction drawn by the applicant.
The applicant submitted that implicit in the promise of 'confidential treatment' is that the information is given in the belief that it is accurate. The applicant sought to draw an analogy with the absence of client legal privilege when a client advises their lawyer of a plan to break the law, but that analogy was not clear to me. While it may be, as the applicant submitted, that when information is received in confidence that 'promise of confidentiality' is not a bar to the prosecution of the informer for wilfully misleading police or for giving perjured evidence, it is not clear to me how this is relevant. Presumably, the reliability of the information is thoroughly evaluated before a reward is paid.
The OIC submitted that cl.1(d) relates to information which requires consultation under s.54 of the GIPA Act, particularly in circumstances where the respondent infers the confidentiality of the information in the circumstances. The mutual understanding required to establish the confidential quality of communications is evidence that rests in part with the provider of the information. In this matter I do not consider consultation to have been necessary because there was, on the evidence, an express undertaking as to confidentiality in the terms of the reward notice. Further, I accept the respondent's submission that the obligation to "take steps as are reasonably practicable to consult with persons" in s.54 is only relevant if an agency decides that it may decide to provide access to information relating to the person. In this case, the respondent determined not to provide access to information relating to reward claimants in response to the applicant's access application. As such, the respondent was not required to consult with persons to whom the information requested relates.
Even if the reward notice could not be said to provide an express undertaking as to confidentiality, I note that the Appeal Panel in Camilleri which referred at [40] to a long history of cases which "recognise the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies". I agree that that approach is consistent with the Tribunal's finding in Fisher v NSW Police [2002] NSWADT 267 (Fisher) where the applicant sought access to a number of documents, including the "000" call of an informant. JM Britton said (at [34]):
It seems to me a matter of commonsense, as well as consistent with the weight of authority, that unless there is clear evidence to the contrary, information given by informers to Police must be presumed to be given on a confidential basis. Evidence that might tend to contradict that presumption would be, for example, where a witness statement has been given to the Police along with an undertaking to give evidence. In other words, where an informer is willing to identify him or herself publicly as the accuser of another or is willing to give some evidence which would inevitability be given in a public trial or hearing without a claim of confidentiality. Otherwise, however, it seems to me that it is reasonable to presume that communications between Police and informers are confidential.
The expectation of confidentiality when providing information to the Police was also discussed in Simring v Commissioner of Police [2009] NSWSC 270 ('Simring'), at [69] per Smart JA:
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. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the Police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the Police....
Further, the respondent submitted, that it is well established in case law dealing with freedom of information legislation that the confidentiality of information communicated can be inferred from all of the circumstances and referred, by way of example, to Maher and Attorney General's Department (1985) 7ALD731 at 737.As I have said, I do not think it is necessary to have to consider if there is an inference because I have found the reward notice to have included an express undertaking as to confidentiality.
The applicant submitted that the reward notice does not state who in the Police will have access to the information and suggested it was obvious that it could be accessed by a large range of police officers and hence confidentiality could not be maintained. Sergeant Currie wrote in her open statement at [16] - [19] to the effect that documents which reveal the identity of the reward claimants and the process surrounding when and how rewards are to be paid is kept confidential by the SMU and, in accordance with the "Guide to Labelling Sensitive Information", are labelled as 'highly protected'. Access is limited to senior persons within the Police on a need-to know basis. In view of Sergeant Currie's evidence I reject the applicant's contention and find that not only is information received by the Police from reward claimants with an undertaking as to confidentiality, the information continues to be treated as being subject to confidentiality.
The applicant submitted that it had been open to the legislature to have information in relation to reward payments the subject of a conclusive presumption of an overriding public interest disclosure, but had not done so. I acknowledge that this is the case. In my view, this perceived omission does not lead to any inference other than that disclosure of this information remains to be considered in the balancing of public interests as set out in the Act.
The applicant referred to McGuinness v Attorney-General (Vic)(1940) 63 CLR 73, a case in which the High Court rejected a claim by a journalist for privilege regarding his informant, but I did not see the relevance of that case to the matter at hand.
disclosure of the information could reasonably be expected to prejudice future supply
The respondent submitted that disclosure of the nature of any information given for a reward could reasonably be expected to prejudice the supply of confidential information to the Police, as disclosure could reasonably be expected to impede the willingness of members of the community to volunteer information to assist investigations for fear of reprisal.
As to whether disclosure could "prejudice" supply, the respondent submitted the approach by the Tribunal in McMahon v Director General, Department of Fair Training [2003] NSWADT 164 is correct. In particular, at paragraph [25]:
In respect of determining whether disclosure of the information would "prejudice" the future supply of such information to the agency, it is well established that the test is not whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in the future (see Ryder v Booth [1985] VR 870 at 872 and Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341).
In Mullett, the Appeal Panel held at [58] (albeit in respect to the exemption in cl.13(b)(ii) of Schedule 1 of the FOI Act) that:
In our view, clause 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must 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 future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary...
As later observed in Martin v Commissioner of Police, NSW Police [2005] NSWADT 23(which also was in relation to the FOI Act) at [45]:
In determining whether disclosure of information obtained in confidence could "reasonably be expected to prejudice future supply of such information", the question is not whether the confider of the information in question would in future refuse to supply such information to the agency. It is [a] question as to whether disclosure of the information could reasonably prejudice future supply of this type of information from those sources that are available or likely to be available to the agency (see Re B (1994) 1QAR 279 at 341).
The respondent submitted the same approach applies in respect to the public interest consideration against disclosure set out in cl.(1)(d) of the Table. The respondent submitted, and I agree, that the test is not whether a particular reward claimant whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether the agency will be able to obtain such information in future. If the Police are obliged to disclose information about reward payments, the confidentiality relied on by reward claimants will be jeopardised and there will be reduced incentives for providing information. As I have observed above, rewards are offered when Police investigations are at an impasse.
disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence: cl 1(g) of the Table
As discussed above, I have found that information regarding the identity of claimants and the nature of the information supplied by the claimants was obtained by the Police on a confidential basis.
The respondent submitted, and I have accepted, that the release of the information regarding the identity of the claimants and the nature of the information supplied by the claimants, to the applicant in the present circumstances, could reasonably be expected to result in the disclosure of information provided to the Police in confidence.
disclosure of the information could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant; cl 2(a) of the Table
The respondent submitted that disclosure of the information sought could reasonably be expected to reveal or tend to reveal the identity of an informant and prejudice the future supply of information from an informant. In fact, it was the identity of the rewardee which was precisely one aspect of the information sought.
While "informant" is not defined in the GIPA Act, the respondent submitted that it should be taken to convey the meaning usually associated with the common law meaning of "informer" and that cl.2 (a) of the Table should be used to protect the identity of informers who may be subject to reprisals and ensure that they continue to supply evidence to the Police: Williams v Department of Industry and Investment [2012] NSWADT 192 (Williams)at [63]-[66] and [92].
I was referred to my finding as to the purpose of cl.2(a) of the Table in Tziolas v New South Wales Department of Education and Communities [2012] NSWADT 69 at [42]:
The function of Table 2(a) is to preserve and protect the identity of the informant and the information provided to an agency. The provider of information should be protected from any harm or detriment that would occur if certain information were disclosed, in circumstances where there is an express or implied obligation of confidence on the agency entrusted with the information.
The applicant speculated that the reward recipient(s) was not a 'double-agent', although some of the reward claimants were said by the respondent to have been registered sources who repeatedly supplied information to assist investigations by the Police, and as such, may have a legitimate expectation that their identities will be protected. I accept that they should not be deterred from continuing to supply information to the Police. That they may have been registered sources amplifies the respondent's ongoing reliance on such sources.
The other remaining aspect of the information sought in the application was as to the information provided. The respondent submitted that release of this information also could be reasonably expected to reveal the identity of the informant. The respondent referred to the relatively small community in which Newman and Ngo were involved. I accept that disclosure of the nature of the information provided, especiallyif that information was known only to a limited number of people, could reasonably be expected, even on its own, to reveal the identity of the informant. Release of information is not limited to an applicant, so, while he may not be able to identify the rewardee(s) from the information, others may.
The respondent noted that the Tribunal may consider the identity and motive of the applicant as factors against providing access, if those factors are relevant to cl. 2(a) of the Table, under s. 55(1) of the GIPA Act.
The applicant has specifically sought the names of the claimants. In relation to the information which was provided to the Police, the respondent submitted that, given the applicant's depth of knowledge of the investigation and the trial and appeal proceedings leading to Ngo's conviction, that it is possible that the applicant is undertaking a systematic approach to requesting information from the Police with the purpose of discovering the identity of the claimants. The Tribunal has described this as the "mosaic effect" in Saleam v NSW Police [2002] NSWADT 40. In that case, the applicant and several of his associates attempted to obtain knowledge about Police methodology and the identity of informants by making numerous requests for documents under FOI legislation. JM Robinson denied access to all of the disputed documents, at [30] on the basis that the documents would be used by the applicant to confirm his suspicions of the identity of informants and applied cl.4(1)(b) and cl.4(3)(b) of Schedule 1 of the FOI Act. The respondent noted that cl.4(1)(b) of Schedule 1 of the FOI Act is very similar in terms cl 2(a) of the Table except that it included a requirement that the information provided related to the enforcement or administration of the law.
Information has been released that reward payments were made in this case, but I accept that the nature of the information provided to justify the reward could reasonably be expected to reveal or tend to reveal the identity of the claimants even though that information is not apparent on the face of the documents.
disclosure of the information could reasonably be expected to endanger, or prejudice any system or procedure for protecting the life, health or safety of any person: cl 2(d) of the Table
The respondent submitted that disclosure of who received rewards and the content of the information which justified any reward, could reasonably be expected to endanger or prejudice the government rewards system which seeks to protect claimants. Sergeant Currie's evidence was to the effect that the government's rewards system is set up to effectively protect and pass on any information received from claimants to aid the investigation and to assess, in confidence, the suitability of any amount of reward to be given to claimants. The system aims to protect the safety of claimants who give information on the basis that their identities will be kept secret during this process. Based on Sergeant Currie's open statement, the respondent submitted that details regarding the information supplied in response to a reward notice is treated as sensitive information by the Operational Information Agency.
The respondent submitted that cl 2(d) of the Table is similar in terms to cl.4(1)(f) of Schedule 1 of the FOI Act, despite the current section's broader ambit for protecting the life and safety of any person. Under the equivalent FOI legislation in Queensland, the Queensland Information Commissioner found in Re Byrne and Gold Coast City Council (1994) 1 QAR477that procedures that are "covert or relatively secret" are more likely to be prejudiced by disclosure.
disclosure of the information could reasonably be expected to reveal an individual's personal information: cl 3(a) of the Table
Clause 3 of the Table provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to "reveal an individual's personal information".
The term "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.
It is clear that the names of any reward claimants would constitute personal information for the purposes of the GIPA Act: per Martin.
Further, I accept that if the nature of the information provided to justify any reward payments made was disclosed, details within the information may allow an individual's identity to be ascertained, as discussed above in relation to the 'mosaic effect'.
disclosure of the information 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 theTable
The respondent submitted that disclosure of any reward claimants' names and the nature of the information supplied in exchange for the reward would contravene the information protection principle under s.18 PPIP Act.
Section 18 of the PPIP Act provides:
(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 or imminent threat to the life or health of the individual concerned or another person.
Personal information has the same meaning under the PPIP Act in the GIPA Act.
The information privacy principle contained in s.18(1) of the PPIP Act is concerned with an agency giving an individual's personal information to a person or body outside the agency: NZ v Department of Housing [2005] NSWADT 58.The information is the reward claimants' personal information, as it discloses their names and the information they supplied, which, as discussed above, may enable their identities to be ascertained.
Further, as the respondent submitted, the exceptions provided for in s.18(1) of the PPIP Act are not applicable to the circumstances in this case. Section 18(1)(a) and (b) of the PPIP Act provide that personal information may be disclosed if it relates to the purpose for which it is collected and the agency has no reason to believe that the individuals concerned would object to the disclosure. Information was provided by the reward claimants to assist a Police investigation and to claim the reward offered. There is no direct relationship between the purpose for which the information was provided and purpose of the applicant's access application. Further, there is no reasonable likelihood that the reward claimants were aware that details about their claims and payments would be provided to applicants under the GIPA Act.
As previously discussed information was provided with the expectation that the Police would treat the information confidentially and use it exclusively for the purposes of investigation.
I accept that releasing the names of reward claimants and the nature of the information supplied to receive a reward could breach the information privacy principle in s.18 of the PPIP Act.
disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or intimidation: cl 3(f) of the Table
The respondent submitted that disclosure of the identity of recipients of government rewards and the nature of the information supplied could reasonably be expected to expose persons to a risk of harm. Harm may include harassment and intimidation but also injury, damage or hurt obtained physically or psychologically: Williams at [69] and [70].
The respondent submitted that disclosure of the names of reward claimants or the information that they provided would subject them to a real possibility of physical or psychological harm, and referred to the comments of JM Britton in Fisher at [28]:
Much of the intelligence obtained by Police from informers is handed over by persons involved in the criminal milieu who would be likely to suffer grievous consequences if it became known that they were supplying information to Police. Vengeance could often be swift and deadly for uncovered (sic) informers.
The respondent submitted that these comments are directly relevant in this case. Given Sergeant Currie's evidence regarding the nature of the community from which information was gathered in this case, I accept that it could reasonably be expected that any disclosure of key details about the claimants and the information they supplied could expose them to a risk of harm.
Personal factors
The respondent noted the Tribunal may have regard to the personal factors set out in s. 55(1) of the GIPA Act for the purposes of considering the public interest considerations against disclosure set out in cl. 2(a), 3(a) and 3(f) of the Table.
Section 55 of the GIPA Act states, relevantly:
(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.
The applicant has had a key role of the applicant in agitating the judiciary to review Ngo's conviction of Ngo for Newman's murder. He drafted the detailed application which was submitted to the then Chief Justice of the Supreme Court in May 2008 requesting an inquiry into Ngo's conviction and, as a result, a judicial inquiry was conducted. The respondent provided a copy of the application for an inquiry into a conviction.
I accept that the applicant has never met nor spoken to Ngo and that his contact with Ngo has been only by post. I also accept that he has never met, spoken to, or communicated with any person he knows to have been a Crown witness at the Ngo trials. The applicant seeks the information, he said because claims his reputation has been tarnished.
As discussed above, given the applicant's detailed knowledge of proceedings in relation to the Newman murder, the disclosure of any information related to reward payments to the applicant may allow the applicant to deduce the identities of the any reward claimants and informants.
Balancing the public interest considerations
The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the Act, paying due regard to the principles in s. 16 of the GIPA Act. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s. 5 GIPA Act.
The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council: at [70].
I agree with the submission of the OIC that the general consideration in favour in s.12 should be accorded significant weight, consistent with the object of the GIPA Act.
The applicant submitted that it is relevant whether the Witness Protection Act 1995 (NSW) applied to the reward claimants. The fact that a witness is not protected under that Act or was compelled to give evidence at a trial is not determinative of the public interest in favour of disclosure of the information.
The OIC submitted that the weight to be attributed to cl.(1)(d) and 1(g) will vary according to the degree of "prejudice" that will flow, in a particular case or generally, from revealing the information. The submissions of the OIC suggests that in light of the fact that the respondent had publicly released some of the information which it had declined to release to the applicant, that either cl.1(d) of the Table would not apply or that minimal weight should be attributed to it. While this may be relevant in respect of the information already released the same cannot be said, in my view, in respect of the outstanding information.
The OIC further submitted, and I agree, that cl.(2)(a) is an inherently weighty consideration, and that disclosure which could reveal personal information (cl.3(a) of the Table) should be given significant weight.
I have found that the disclosure of the outstanding information could be reasonably expected to result in the disclosure of information provided in confidence to the respondent; that the disclosure is one that could be reasonably expected to reveal the identity of an informant; and that the disclosure is one that could be reasonably expected to reveal an individual's personal information and/or contravene an information protection principle under the PIPP Act. I have attached significant weight to each of these matters
I have also given significant weight to the reasonable likelihood of prejudice the supply to the Police of confidential information that facilitates the effective exercise of Police functions and that in providing access to the information the identity of an informant may be revealed. I have given less weight to the possible exposure of a rewardee to a risk of harm or of serious harassment or intimidation in the event their identity becomes known, because, perhaps unsurprisingly, there was no direct evidence from which I could conclude that there was actually such a risk. If such evidence had been to hand, this consideration would, in my view, have been critical.
The respondent submitted, and I agree, that ensuring public safety and enforcing the law are such important tasks that the greater public interest requires, in circumstances such as this, that the continued ability of the Police to gather confidential information outweighs any public interest in favour of releasing the further details of rewards that have been paid.
I find that the respondent has discharged its onus and I find that, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure.
DECISION
The decision under review is affirmed.
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Decision last updated: 18 March 2013
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