Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice

[2020] NSWCATAD 317

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317

Hearing dates:

19 December 2019; last submissions received 7 July 2020

Date of orders:

17 December 2020

Decision date:

17 December 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Goodman SC, Senior Member

Decision:

The Tribunal makes the following orders:

(1) In matter 2019/00218808 the Respondent’s name is amended to “Department of Communities and Justice”.

(2) The decision made by the Commissioner of Police, NSW Police on 30 September 2019 is varied as follows:

(a) The applicant is granted access to the information redacted from:

(i) The second half of page 10 of the Triage Complaint Form (InfoLink page 10);

(ii) The Incident Report of First Class Correctional Officer Gaven (InfoLink page 49);

(iii) The Incident Report of Assistant Superintendent Naati (InfoLink page 50);

(iv) The Corrective Services Reporting Form dated 27 October 2016 (InfoLink page 51);

(v) The COPS enquiry (InfoLink page 83);

(vi) The emails from Francine Couch to Sergeant Donnellan and Senior Constable Gallagher dated 7 March 2017 (InfoLink pages 205-206);

(vii) The email from Inspector Laird to Francene Couch dated 22 August 2018, other than the second and third lines of that email (InfoLink page 211);

(viii) The email from Inspector Laird to Francene Couch dated 13 November 2018 (InfoLink pages 230-231);

(b) Such access is to be provided within 28 days;

(3) The decision made by the Commissioner of Police, NSW Police on 30 September 2019 is otherwise affirmed;

(4) The decision of the Commissioner of Police, NSW Police, dated 23 October 2019 is affirmed;

(5) The decision of the Department of Communities and Justice dated 4 September 2019 is affirmed.

Catchwords:

ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure – whether to refuse to deal with application on the basis of a previous application for the information concerned – whether information held by agency

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Administration of Sentences) Regulation 2014

Government Information (Public Access) Act 2009

Police Act 1990

Police Regulation 2015

Cases Cited:

Applicants v Commissioner of Police [2015] NSWCATAD 22

Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211

Commissioner of Police v Danis [2017] NSWCATAP 7

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

Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68

Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113

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

Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118

Macquarie University v Howell (No 2) [2009] NSWADTAP 19

Martin v Commissioner of Police, NSW Police [2005] NSWADT 23

McMahon v Director General, Department of Fair Training [2003] NSWADT 164

McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53

Meacham v Commissioner of Police [2020] NSWCATAP 107

Miskelly v Transport for NSW [2017] NSWCATAD 207

Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Page v Commissioner of Police [2020] NSWCATAD 163

Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588

Seremetis v Department of Communities and Justice [2019] NSWCATAP 262

Seremetis v NSW Department of Justice [2019] NSWCATAD 118

Taylor v Office of Destination NSW [2018] NSWCATAD 195

Transport for NSW v Searle [2018] NSWCATAP 93

University of New South Wales v McGuirk [2006] NSWSC 1362

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:

Nil

Category:

Principal judgment

Parties:

In 2019/00188752 and 2019/00255268:
Nick Seremetis (Applicant)
Commissioner of Police (Respondent)

In 2019/00218808:
Nick Seremetis (Applicant)
Department of Communities and Justice (Respondent)

Representation:

In 2019/00188752 and 2019/00255268:
Solicitors:
Applicant (Self Represented)
Sparke Helmore (Respondent)

In 2019/00218808
Solicitors:
Applicant (Self Represented)
Department of Communities and Justice (Self Represented)

File Number(s):

2019/00188752; 2019/00255268; 2019/00218808

Publication restriction:

Pursuant to s 64(1)(b) and (d) of the Civil and Administrative Tribunal Act 2013, the publication or disclosure to the applicant of the paragraphs of these reasons marked “NOT FOR PUBLICATION” is prohibited.

REASONS FOR DECISION

Introduction

1. These reasons deal with three proceedings for the administrative review of decisions made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. Mr Seremetis is the applicant in each proceeding. The Commissioner of Police NSW Police (NSW Police) is the respondent in two of the proceedings (2019/00188752 and 2019/00255268). The Department of Communities and Justice (Department) is the respondent in the other proceeding (2019/00218808).

3. The applicant has made various access applications under the GIPA Act, which have led to decisions by NSW Police and the Department.

4. One such application was an access application to NSW Police on 8 August 2018, which was allocated number 2018/3908. Access application 2018/3908 sought access to a range of information relating to COPS Event E62082115 and Case Number 63221249.

5. On 29 October 2018, NSW Police decided access application 2018/3908 and in doing so released some documents, but not others, to the applicant. The applicant then applied for an external review of that decision but subsequently withdrew his application.

6. The three proceedings before the Tribunal relate to the following three decisions concerning subsequent access applications numbered 2018/5553 and 2019/2852 made by the applicant:

1. a decision of the NSW Police dated 30 September 2019 (First NSW Police Decision);

2. a decision of the NSW Police dated 23 October 2019 (Second NSW Police Decision); and

3. a decision of the Department made on 4 September 2019 (Department Decision).

7. The First NSW Police Decision was a decision in which NSW Police decided that it did not hold some of the information requested by the applicant and that of the information requested by the applicant which NSW Police did hold:

1. the applicant would be given access to parts of it, but other parts would not be made available to him because the considerations against disclosure outweighed those in favour of disclosure;

2. for certain of the requested information, NSW Police refused to deal with the applicant’s request because it has previously decided a previous request for that information as part of access application 2018/3908.

8. The Second NSW Police Decision concerned CCTV footage recorded at MRRC on 27 October 2016. NSW Police decided to allow the applicant to view that footage, but not to have a copy of it.

9. The only issue raised by the Department Decision is whether the applicant should have access to a report prepared by Detective Sergeant Coorey (Coorey Report). The Coorey Report is also one of the documents to which NSW Police refused access as part of the First NSW Police Decision.

Jurisdiction

10. These three decisions are reviewable by the Tribunal: s 80 GIPA Act.

11. The Tribunal’s jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

The Tribunal’s task

12. The Tribunal’s task, briefly stated, is to decide what the correct and preferable decision on whether access to the requested information should be given is, having regard to the material before it, including relevant factual material and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].

13. In so doing, the Tribunal is to ensure that it does not disclose any information for which there is an overriding public interest against disclosure; or in respect of information which the agency has claimed there is such an overriding interest but for which the Tribunal finds there is not: s 107 GIPA Act; University of New South Wales v McGuirk [2006] NSWSC 1362 at [91]. To that end, some parts of these reasons have been marked “NOT FOR PUBLICATION” and are not to be published or otherwise disclosed to the applicant.

14. The material before the Tribunal includes:

1. a statement of Detective Sergeant Coorey dated 30 October 2019;

2. the cross-examination of Detective Sergeant Coorey by the applicant;

3. documents tendered by the applicant;

4. written and oral submissions on behalf of all parties;

5. documents attached to the submissions filed by all parties; and

6. unredacted versions of the documents and recordings the subject of each of the decisions.

Findings of Fact

15. The findings of fact set out below are taken from the evidence before the Tribunal, including the unredacted parts of the documents provided by NSW Police to the applicant. Each of the police officers named below is a member of the NSW Police.

16. In late October 2016, the applicant was in custody at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater.

17. The applicant claims that during that period of custody and on 27 October 2016 he was assaulted by a Correctional Services Officer. That claim is the subject of NSW Police Computerised Operational Policy System (COPS) Event E62082115 and Case Number 63221249. There is CCTV footage of certain events which occurred on that day at MRRC.

18. Also on 27 October 2016, Correctional Services Officer Assistant Superintendent Naati and First Class Correctional Officer Gavin each prepared Incident Reports. On the same day, Assistant Superintendent Naati also prepared a document titled ‘NSW Department of Corrective Services Use of Force’.

19. An investigation into the alleged assault was undertaken, led by Detective Sergeant Coorey. At the time of that investigation Detective Sergeant Coorey was on a full-time secondment to the Corrective Services Investigations Unit (CSIU) within the Department. The CSIU is an internal division of the Department which investigates, amongst other things, allegations of criminal activity occurring in correctional facilities in New South Wales. The CSIU is staffed by NSW Police Force officers who are seconded to it.

20. On 28 October 2016, the applicant met with Sergeant Donnellan and Senior Constable Gallagher.

21. On 2 November 2016, the applicant signed a written statement dealing with the events of 27 October 2016.

22. On 11 November 2016, Mr Paul Hollingsworth signed a witness statement, witnessed by Detective Sergeant Coorey.

23. On 19 December 2016, Ms Patricia Donohue signed a witness statement, also witnessed by Detective Sergeant Coorey.

24. On 20 January 2017, the applicant made a written complaint to Detective Superintendent Rogerson concerning Sergeant Donnellan and Senior Constable Gallagher and in particular complained that those officers had failed to take appropriate action with respect to the investigation of the alleged assault.

25. On 23 January 2017, a Triage Form and a CARA Part B – Disclosure of Conflict of Interest of Investigator-Form were completed in connection with the applicant’s complaint.

26. On 27 January 2017, Detective Superintendent Rogerson wrote to the applicant in response to the applicant’s 20 January 2017 letter of complaint and informed the applicant that the allegations he had made had been referred to Inspector Miller for investigation.

27. Inspector Miller conducted an investigation. As part of that investigation, Inspector Miller issued Directive Memoranda to Sergeant Donnellan, Senior Constable Gallagher and Constable Sharif requiring each of them to provide information. Each did so, by written memorandum.

28. On 3 March 2017, Detective Sergeant Coorey completed a report of his investigation into the alleged assault (i.e., the Coorey Report).

29. On 7 March 2017, Ms Crouch of NSW Police sent emails to Sergeant Donnellan and Senior Constable Gallagher; and a letter was sent by NSW Police to the applicant advising him that his complaint was not upheld.

Applicable Law

30. The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act 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:

   (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.

2. It is the intention of Parliament:

   (a)    that this Act be interpreted and applied so as to further the object of this Act, and

   (b)   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.

   31. Section 9 (1) of the GIPA Act provides:

9   Access applications

1. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

   32. Section 53 of the GIPA Act provides:

53 Searches for information held by agency

1. The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

2. An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

3. The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

4. An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

5. An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

   33. Section 58 of the GIPA Act deals with how access applications are decided by agencies (including NSW Police and the Department). Section 58 provides in so far as is presently relevant:

58   How applications are decided

1. An agency decides an access application for government information by:

   (a)   deciding to provide access to the information, or

   (b)   deciding that the information is not held by the agency, or

   …

   (d)   deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

   (e)   deciding to refuse to deal with the application (see section 60)

   …

2. More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

   34. Section 60(1)(b) of the GIPA Act provides insofar as it is presently relevant:

Decision to refuse to deal with application

1. An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

   …

   (b)   the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application …

   35. Section 72 of the GIPA Act provides:

72 Forms of access

1. Access to government information in response to an access application may be provided in any of the following ways:

   (a)   by providing a reasonable opportunity to inspect a record containing the information,

   (b)   by providing a copy of a record containing the information,

   (c)   by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

   (d)   by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

2. The agency must provide access in the way requested by the applicant unless:

   (a)   to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

   (b)   to do so would be detrimental to the proper preservation of the record, or

   (c)   to do so would involve an infringement of copyright, or

   (d)   there is an overriding public interest against disclosure of the information in the way requested by the applicant.

   36. The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means the agency must, first, identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].

FIRST NSW POLICE DECISION

37. The First NSW Police Decision was made in response to directions made by the Tribunal in proceedings 2019/00188752 and 2019/00255268 that NSW Police reconsider each of the underlying access applications.

38. The underlying access applications were:

1. access application numbered 2018/5553 which, after consultation between the applicant and an officer of NSW Police, had been refined to an application for access to the following information:

1.   All notes, reports etc related to E62082115.

2.   All reports compiled by Phillip Rogerson in relation to E62082115.

3.   All reports, investigation notes, file notes held by Craig Miller & Christopher Laird in relation to E62082115.

4.   A copy of the Professional Standards Protocols in Investigation.

5.   You agree to get this [i.e. a copy of the NSW Police Act] by online means.

6.   A copy of the sign on book for Maroubra station – only while being interviewed by Joseph Coorey in relation to E62082115.

7.   A copy of the interview and recordings – only while being interviewed by Joseph Coorey & his female partner in relation to E62082115.

8.   A copy of the interview and recordings - on 28/10/2018 at MWRC in relation to E62082115.

9.   A copy of all proof and elements in relation to E62082115.

10.   Emails from – Craig Miller, Christopher Laird, Michael Gallagher and Sgt Brendan Donellan – to Joseph Coorey & Nick Covey in relation to E62082115.

11.   All emails forwarded by Nick Seremetis to the Commander at Auburn PAC in relation to E62082115.

12.   All notes in relation to AVOs & charges held by Sgt Jago from Auburn for October 2016, all of 2017 and 2018.

2. parts of access application 2019/2852. Those parts sought access to the following information:

1.   All notes, statements, CCTV, contemporaneous notes held by Joseph Coorey E: 62082115.

2.   Statement recording made at Maroubra Police undertaken by Joseph Coorey and his partner from Justice NSW Officers name Female (Palmer) E: 62082115.

3.   All recordings electronic/manual recordings made on the 1^st February 2017 whilst being interviewed at Maroubra Police by Coorey & Palmer employed by Justice NSW.

4.   All notes, reports, files etc held by Joseph Coorey in relation to the assault of 27/10/2016.

5.   All notes, reports files etc held by Joseph Coorey in relation to my assault.

6.   All notes, reports, files of Joseph Coorey and NSW Police officers, LAC Auburn Commander Officers Michael Gallagher and Bremar Donellan.

39. On 30 September 2019, NSW Police made, and notified the applicant of, the First NSW Police Decision and in particular that NSW Police had decided:

1. that certain information requested was not held by NSW Police (s 58(1)(b) GIPA Act);

2. NSW Police had identified:

1. 58 documents comprising 254 pages containing information sought in the access applications. Of these:

1. 29 documents (154 pages) were to be released in full to the applicant (s 58(1)(a) GIPA Act);

2. 26 documents (77 pages) were to be released with partial redactions on the basis of an overriding public interest against disclosure of the redacted information (ss 58(1)(d) and 74 GIPA Act);

3. 2 documents (13 pages), in respect of which NSW Police refused to deal with the access application because it had already decided a previous application for the information concerned (or information substantially similar to that information) made by the applicant and there were no reasonable grounds for believing that NSW Police would make a different decision on the current application (ss 58(1)(e) and 60(b) GIPA Act); and

4. the remaining document, being the Coorey Report of 10 pages, was not to be released (in full or in part) on the basis of an overriding public interest against disclosure of that report (s 58 (1)(d) GIPA Act);

3. NSW Police had also identified sound recordings of two interviews containing information sought in the access applications. Of those:

1. one, being the recording of an interview of the applicant, was to be released in full to him (s 58(1)(a) GIPA Act);

2. the other, being an interview with Assistant Superintendent Naati, was not to be released to the applicant on the basis of an overriding public interest against disclosure of that recording (s 58(1)(d) GIPA Act).

40. As noted above, the First NSW Police Decision records decisions made under sub-ss 58(1)(b), (d) and (e) and 60(b) of the GIPA Act. These are considered in turn below.

S 58(1)(b) - information not held

41. The First NSW Police Decision records a decision under s 58(1)(b) of the GIPA Act that no information responsive to the underlying access applications, other than that included in the Schedule of Documents attached to the First NSW Police Decision, is held by NSW Police.

42. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [31] – [44], an Appeal Panel extensively reviewed the authorities relating to s 53 of the GIPA Act and at [44] provided the following summary:

In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

(1) identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

(2)   determine whether the agency has proved any relevant factual issues on the balance of probabilities;

(3)   consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

(4)   applying those findings, decide what the correct or preferable decision is;

(5) affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

(see also Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 at [19]).

43. The First NSW Police Decision includes the following explanation as to the information which NSW Police says is not held:

By way of further explanation, in relation to GIPA 2018-5553, I advise the following:

-   Item 4 – Professional Standard Protocols in Investigations:

PSC were consulted as to whether a document, or documents matching this description, were held. InfoLink was informed that no such document is held by PSC. A copy of the entire complaints file in relation to your matter was forwarded and reviewed.

-   Item 6 – Copy of the sign on book while being interviewed by Joseph Coorey:

A request was sent to Maroubra Police Station to locate the required entry. Their searches did not locate the requested entry. There is no dispute by the agency that you were interviewed by Detective Coorey at Maroubra Station and an audio copy of that interview was located and is released with this Decision.

-   Item 8 – Copy of the interview at the MRRC on 28/10/18:

No transcript or recording of the interview which took place between yourself and Officers Gallagher and Donnellan was located. However, there is no dispute that you were interviewed by those two Officers at MRRC.

-   A copy of all proofs and elements in relation to E 62082115:

It is unclear precisely what document is being sought in relation to this request. I note that prior to the refinement of your access application, you requested copies of proofs and elements in relation to the charge of attempted murder. This is information which is publicly available in the applicable Section of the Crimes Act.

In relation to GIPA 2019-2852, I advise that, with the exception of the information which is refused under section 60(1)(b) of the GIPA (see pages 17-29 in the Schedule of Documents), no further information is held by the agency.

44. There is an issue as to whether reasonable searches have been undertaken. Detective Sergeant Coorey gave evidence of the searches undertaken for documents responsive to the access applications. That evidence includes:

1. he is and was at the time of the alleged assault of the applicant on secondment to CSIU;

2. he was the officer in charge of the investigation into the alleged assault of the applicant;

3. although the investigations are conducted by the CSIU, the practice of CSIU officers when investigating an allegation of criminal activity is to record the details of the incident in the NSW Police Force COPS database and to otherwise use NSW Police Force equipment and facilities;

4. he had undertaken a number of searches to locate documents responsive to the access applications 2018/5553 and 2019/2852 and had reviewed the NSW Police InfoLink records in respect of searches undertaken by NSW Police

5. as to the documents sought which relate to Event 62082115, all notes and reports relating to that event were released (with redactions) as part of the First NSW Police Decision;

6. for item 4 of access application 2018/5553 – “A copy of the Professional Standard Protocols in Investigation” – the NSW Police Force Professional Standards Committee (PSC) did not conduct an investigation into this matter; that he was not familiar with a written proposal being used by PSC for investigations; that inquiries have been made of PSC in relation to professional standard protocols; and that PSC has advised that it does not hold any such document;

7. for item 6 of access application 2018/5553 - “a copy of the sign on book for Maroubra Station – only while being interviewed by Joseph Coorey in relation to batch E62082115” – the practice of using sign on books varies from station to station; they are usually used by visiting police officers when they access police station facilities; his recollection is that the interview with the applicant occurred in a meeting room accessible via the public waiting room (hence there being no need to sign on as the restricted part of the police station was not accessed); he did not recall signing in using a sign on book; a request was made of Maroubra Police Station to locate such an entry; and Maroubra Police Station indicated that they had been unable to find such an entry;

8. for item 8 of access application 2018/5553 – “Copy of the interview … at the MRRC on 28/10/19 in relation to E62082115” – searches have been undertaken to locate a transcript or recording or other document relating to this interview (which took place between the applicant and officers Gallagher and Donellan); none could be located and the interview took place; and

9. the interview of the applicant by Detective Sergeant Coorey on 8 November 2016 was recorded using a handheld recording device and the audio recording had been released to the applicant. Further, he had searched Event E62082115 and Case Number C 63221249 and the records of searches undertaken by Infolink and did not consider there to be any additional documents relevant to the interview he conducted.

45. The evidence of Detective Sergeant Coorey is, in my view, credible evidence that reasonable searches have been conducted. His evidence was not undermined in cross-examination by the applicant and there is no other evidence which suggests that the requested information is or may be held by the agency. Taking this into account, together with the information that has been produced by NSW Police to the applicant, I am satisfied that reasonable searches have been undertaken by NSW Police with respect to the information sought by the applicant.

46. The correct and preferable decision is that no information responsive to the underlying access applications, other than that included in the Schedule of Documents attached to the First NSW Police Decision, is held by NSW Police.

S 58(1)(d) – overriding public interest against disclosure

47. As noted above, NSW Police refused access to parts of documents (and in the case of the Coorey Report, to the whole of that document), pursuant to s 58(1)(d) of the GIPA Act, on the basis that there is an overriding public interest against disclosure of the information to which access has been refused.

48. In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane.

5 Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

…

12 Public interest considerations in favour of disclosure

1. There is a general public interest in favour of the disclosure of government information.

2. Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note: The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   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.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

1. The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

…

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 interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

…

14 Public interest considerations against disclosure

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.

…

Table

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

…

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

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

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

…

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

…

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 Act1998

...

6 Secrecy provisions

1. There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

2. The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.

…

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:

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(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.

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.

4. An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

5. An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

6. An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

   49. Schedule 1 to the GIPA provides in so far as is presently relevant:

1   Overriding secrecy laws

1. It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence—

…

Police Act 1990—section 169A (Identity of complainant not to be disclosed)

50. Thus it may be seen that the GIPA creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 GIPA Act), and the applicant has a legally enforceable right to the government information he seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 GIPA Act).

51. There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour for disclosure (s 13 GIPA Act). The presence of particular considerations against disclosure, being those set out in Sch 1 of the GIPA Act, is sufficient to compel the conclusion that there is an overriding public interest against disclosure such that the information is not to be disclosed (s 14(1) GIPA Act).

52. However, absent a Sch 1 consideration against disclosure the Tribunal’s task is to consider and weigh in the balance:

1. the public interest considerations in favour of disclosure, which are unlimited and include:

1. the general public interest in favour of disclosure (s 12(1) GIPA Act);

2. the examples listed in the note to s 12(2) of the GIPA Act; and

2. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act.

53. In undertaking this task the Tribunal is entitled to take into account the “personal factors of the application” as factors in favour of disclosure (s 55 GIPA Act). The personal factors of the application are described in s 55 as:

1. the applicant’s identity and relationship with any other person;

2. the applicant’s motives for making the access application; and

3. any other factors particular to the applicant.

54. The Tribunal is also entitled to take into account personal factors of the application as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act.

55. In the present case, NSW Police does not rely upon any of cll 2, 4 or 5 of the table in s 14 of the GIPA Act, but does rely upon cl 3. It follows that the personal factors of the application may be taken into account as factors against disclosure of the information sought by the applicant only when considering whether disclosure of the information could reasonably be expected to have the effect described in a relevant sub clause of cl 3. Whilst NSW Police relies upon clause 3(a), it has not submitted that there are any personal factors of the application to be taken into account as favours against disclosure, and I do not take any such factors into account.

56. The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].

Provisions relied upon by NSW Police

57. I turn now to consider the provisions relied upon by NSW Police as providing a public interest consideration against disclosure.

Clause 1(1) of Schedule 1 to the GIPA Act and s 169A of the Police Act

58. As noted above, cl 1 of Sch 1 to the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information where the disclosure of that information is prohibited by nominated laws, including s169A of the Police Act 1990 (Police Act), regardless of any qualifications or exceptions within the nominated laws.

59. Section 169 of the Police Act provides:

A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made-

(a)   in accordance with guidelines established by the Commissioner, or

(b)   with the consent of the complainant, or

(c)   in accordance with a requirement of or made under this or any other Act, or

(d)   for the purposes of any legal proceedings before a court or tribunal.

60. Section 121 of the Police Act contains the following definitions of “complainant” and “complaint”:

complainant means a person by whom, or on whose behalf, a complaint is made.

complaint means an allegation that any conduct of-

(a)   an administrative employee (whether or not named or identified) is (or could be) conduct that falls within the description of administrative employee misconduct or officer maladministration, or

(b)   a police officer (whether or not named or identified) is (or could be) conduct that falls within the description of police misconduct or officer maladministration, or

(c)   the NSW Police Force is (or could be) conduct that falls within the description of agency maladministration.

61. Clause 1(1) of Sch 1 of the GIPA Act and s 169A of the Police Act, in conjunction with s 14(1) of the GIPA Act and the definitions of “complainant” and “complaint” in s 121 of the Police Act, operate to create a conclusive presumption that there is an overriding public interest against the disclosure of the identity of a person by whom or on whose behalf an allegation is made of, amongst other things, conduct of a police officer that is or could be police misconduct or officer maladministration.

Section 14(2) of the GIPA Act and the table

62. As noted above, s 14(2) provides that the public interest considerations listed in the table to that section are the only considerations that may be taken into account under the GIPA Act as public interest considerations against disclosure, other than considerations listed in Sch 1 to the GIPA.

63. The clauses in the table to s 14 upon which NSW Police relies are identified in the Schedule of Documents attached to the First NSW Police Decision as cll 1(d), (e), (f) and (h) and 3(a).

Could reasonably be expected

64. Each of the clauses containing these public interest considerations against disclosure includes the phrase “… could reasonably be expected to have one or more of the following effects …”.

65. The principles to be applied in considering whether disclosure of information “could reasonably be expected” to have a particular effect were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows:

1. There was no dispute between the parties that:

   …

   (2)   The words “could reasonably be expected” are to be given their ordinary meaning. 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 disclosure would have the relevant effect: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] –

   ... when their Honours said, as they did, that the words required 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 certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act."

   (3)   In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22].

   (4)   It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].

   (5)   “Prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

   (6)   The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26].

   66. Whether disclosure of particular information “could reasonably be expected to” have a particular effect is, as NSW Police submitted, a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].

   67. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]:

2. Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

1. Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].

   68. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]:

Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1)   a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2)   there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3)   prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

Clause 1(d)

69. Clause 1(d) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions.

70. In Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 the Appeal Panel stated at [33] that the question as to whether information is “confidential information” is to “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 inquiry “should focus on the point of receipt, and the administrative standards and community understandings which surround it” (at [34]).

71. In the same case, the Appeal Panel held at [40]:

In its written submissions to the Tribunal below, reiterated on appeal, the agency submitted that there is an expectation, if not an express undertaking, that information reported to Police will be kept confidential and will only be used and disclosed by the Police in the conduct of law enforcement activities. In support of this view, the submissions drew on the observations of Smart AJ in Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270, and also similar observations in a number of Tribunal decisions, for example, Fisher v Commissioner of Police [2002] NSWADT 267, DZ v NSW Police [2002] NSWADT 274 and FA v NSW Police [2003] NSWADT 196. There has been a long history of cases in the Tribunal that have recognised the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies: see, for example, the early cases of Taylor - v- Chief Inspector, RSPCA [1999] NSWADT 23; Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35; as well as the cases already mentioned. While the cases involved exemptions in the previous legislation cast in different terms, they reflect a recognition of the basic point made by the agency in this case. (emphasis added)

72. Thus, in the usual case, information supplied to NSW Police will be treated as confidential.

73. Such confidential information may be information that facilitates the effective exercise of the functions of NSW Police. Function is defined in cl 1 of Sch 4 of the GIPA Act as including “power, authority and duty”. The functions of NSW Police include those set out in s 6 of the Police Act which provides in so far as is presently relevant:

6 Mission and functions of NSW Police Force

1. The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

2. The NSW Police Force has the following functions—

   (a)   to provide police services for New South Wales,

   (b)   to exercise any other function conferred on it by or under this or any other Act,

   (c)   to do anything necessary for, or incidental to, the exercise of its functions.

3. In this section—

"police services" includes—

(a)   services by way of prevention and detection of crime, and

(b)   the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c)   the provision of essential services in emergencies, and

(d)   any other service prescribed by the regulations.

…

74. The functions of NSW Police also include the investigation of alleged police misconduct under Part 8A of the Police Act. As Senior Member Lucy stated in Applicants v Commissioner of Police [2015] NSWCATAD 22 at [70]:

The Commissioner’s functions under Part 8A of the Police Act 1990 include receiving a complaint (s 130(1)), deciding whether to investigate a complaint (s 139), investigating a complaint or causing a complaint to be investigated (s 144) and providing the complainant with advice as to action taken as a result of the complaint (s 150(b)).

75. As to whether disclosure could "prejudice" the supply of confidential information:

1. “prejudice” bears its ordinary meaning, that is, “to cause detriment or disadvantage “or “to impede or derogate from”: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60];

2. 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, rather it is whether the agency (NSW Police) will be able to obtain such information in the future from those sources that are available or likely to be available to the agency: McMahon v Director General, Department of Fair Training [2003] NSWADT 164 at [25]; Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 at [45];

3. in Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said:

In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.

76. Also relevant to a determination of whether disclosure could reasonably be expected to have the effect of prejudicing the supply to NSW Police of confidential information that facilitates the effective exercise of its functions where that confidential information is provided by police officers as part of an investigation under Part 8A of the Police Act are the obligations imposed upon police officers under ss 7 and 201 of the Police Act and regulation 8 of the Police Regulation 2015 (NSW).

77. Those provisions provide:

7 Statement of values of members of NSW Police Force

Each member of the NSW Police Force is to act in a manner which—

(a)   places integrity above all,

(b)   upholds the rule of law,

(c)   preserves the rights and freedoms of individuals,

(d)   seeks to improve the quality of life by community involvement in policing,

(e)   strives for citizen and police personal satisfaction,

(f)   capitalises on the wealth of human resources,

(g)   makes efficient and economical use of public resources, and

(h)   ensures that authority is exercised responsibly.

201 Neglect of duty etc

A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence.

8 Performance of duties by police officers

1. Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them.

2. In particular, a police officer is required:

   (a)   to serve wherever the officer is duly directed, and

   (b)   to perform such police duty as may be duly directed, whether or not during the officer's rostered hours of duty.

   78. These obligations are sufficiently broad to include an obligation on officers the subject of the investigation to provide information to those investigating.

   79. In Applicants v Commissioner of Police, Senior Member Lucy said:

at [85]:

…under s 201 of the Police Act 1990, a police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence. It is also relevant that the Police Act 1990 provides in s 7(a) to (c) that each member of the NSW Police Force is to act in a manner which places integrity above all, upholds the rule of law and preserves the rights and freedoms of individuals. The duty to act in such a manner would require police officers to answer an investigator’s questions honestly and not to conceal relevant information.

and at [99]:

A police officer against whom a complaint of improper or unlawful conduct has been made answers questions knowing that the answers could lead to disciplinary action or criminal proceedings. Such an officer is expected (and required) to answer questions about his or her conduct fully and honestly. In these circumstances, and given the ethical and legal obligations of police officers, it is not reasonable to expect that the prospect of the interview being disclosed under the GIPA Act would restrain the officer’s responses about his or her own conduct.

80. As I noted in Page v Commissioner of Police [2020] NSWCATAD 163 at [71], the obligations on police officers to provide information in this context are not absolute and are subject to the operation of the privilege against self-incrimination: see Baff v New South Wales Commissioner of Police (2013) 234 A Crim R 346; [2013] NSWSC 1205.

81. In considering the operation of cl 1(d) (and 1(f) where information has been provided by Correctional Services Officers, it is relevant to consider cl 133 of the Crimes (Administration of Sentences) Regulation 2014, which as at 27 October 2016 provided:

133   Report on use of force

1. Any correctional officer who uses force on an inmate must immediately give a report about the use of force to the general manager.

2. The report must:

   (a)   be in writing, and

   (b)   specify the name or names of the inmate or inmates and the name or names of the correctional officer or correctional officers involved in the use of force, and

   (c)   specify the location where the force was used, and

   (d)   describe the nature of the force used and the circumstances requiring its use, and

   (e)   be signed by each correctional officer involved in the use of force.

   Clause 1(e)

82. Clause 1(e) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of revealing 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.

83. NSW Police must establish that the withheld information, if disclosed, could “reasonably be expected” to “reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given” in such a way as to “prejudice a deliberative process” of NSW Police.

82. The concept of “reasonably be expected” is discussed above.

83. The word “reveal” is defined in Sch 4 to the GIPA Act as follows:

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

86. The word “disclose” is defined in Sch 4 to the GIPA Act as follows:

disclose information includes make information available and release or provide access to information.

87. As noted in Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 at [172]:

In R v Ritson; R v Stacey (2010) NSWDC 160 at [51] - [58] the Court adopted the meaning of "disclosure" for the purposes of the Privacy and Person Information Protection Act 1998 stated by Latham CJ of the High Court in Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at 614-615:

... it is not possible, according to the ordinary use of language, to 'disclose' to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware.

88. The words “in such a way as to” in cl 1(e) require that there be a connection between the revelation of the deliberation, consultation, opinion, advice or recommendation and the “prejudice” to a “deliberative process” of NSW Police: Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 at [57]; Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 at [103].

89. As noted above, the word “prejudice” bears its ordinary meaning.

90. The expression “deliberative process” involves “the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action... It by no means follows, therefore, that every document on a departmental file will fall into this category...documents disclosing deliberative processes must… be distinguishable from documents dealing with the purely procedural or administrative processes involved in the functions of an agency”: Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58]-[59], Fire Brigade Employees' Union v Fire and Rescue (NSW) at [58] and Luxford v Department of Education and Communities (NSW) at [104].

91. In Miskelly v Transport for NSW [2017] NSWCATAD 207 at [72], the Tribunal noted:

The ‘deliberative process’ of an agency has been described as its 'thinking processes ... including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its ’internal thinking’: Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133.

Clause 1(f)

92. Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the effective exercise by an agency of the agency’s functions.

93. Clause 1(f) is in similar terms to parts of cl 1(d). The analysis set out above concerning the nature of the functions of NSW Police and the potential for prejudice to those functions is apposite to the application of cl 1 (f).

Clause 1(h)

94. Clause 1(h) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

Clause 3(a)

95. Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of revealing an individual’s personal information.

96. As noted above, “reveal” is defined as meaning to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

97. “Personal information” is defined in cl 4 of Sch 4 to GIPA Act in the following way:

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, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

   (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.

Submissions – NSW Police

98. NSW Police submitted that the information redacted in reliance upon cl 1 of Sch 1 to the GIPA Act and s169A of the Police Act was information within the terms of those provisions and there was thus a conclusive presumption against disclosure of that information.

Clause 1(d)

99. NSW Police made the following submissions with respect to cl 1(d).

100. First, the redacted information is information that facilitates the effective exercise of the functions of NSW Police and in particular:

1. these functions include those set out in s 6 of the Police Act (including the prevention and detection of crime and the protection of persons from injury and death and property from damage);

2. those functions are facilitated by the collection and storage of information from persons who are victims of or witnesses to crime or hold information about other police investigations.

101. Secondly, that information is to be treated as confidential because:

1. there is an expectation that information of the kind that has been redacted will be kept confidential and only used or disclosed by NSW Police in the conduct of law enforcement activities, particularly in respect of investigations of police misconduct and information relating to allegations of crime. NSW Police relied upon paragraphs [24] to [27] of Detective Sergeant Coorey’s statement:

A number of the documents disclosed to the Applicant have been redacted on that basis that disclosure could reasonably be expected to prejudice the supply of confidential information and ability to investigate allegations of misconduct by the NSWPF.

Members of the public, who are victims of or witnesses to crime or who hold information about other police investigations, provide information to Police and that information is essential to NSWPF’s law enforcement functions. It is standard procedure for a complainant or witnesses’ identity to be protected from disclosure as it is evidence provided in the course of an investigation.

Some of the information redacted details the NSWPF’s investigative methodology or other information the NSWPF hold which is relevant to their investigation. There is a strong public interest against the disclosure of this information. The disclosure of this information could alert offenders and potential offenders to what the NSWPF already knows, which could in turn enable them to avoid detection and subvert police action. It is imperative that those charged with investigations of complaints are able to have frank deliberations about alleged misconduct.

Finally, some of the redacted information is personal information of other persons and should not be revealed, particular when the NSWPF collected that personal information in the course of investigating allegations of criminal activity.

2. a series of cases, including Commissioner of Police, NSW Police Force v Camilleri (GD [2012] NSWADTAP 19, Fisher v NSW Police [2002] NSWADT 267 and Simring v Commissioner of Police [2009] NSWSC 270 at [69], has recognised that information provided to police is presumed to be confidential.

102. Thirdly, if the redacted information were to be disclosed, it could reasonably be expected to prejudice future supply of confidential information because if there were to be a general perception that information provided to NSW Police is not to be treated confidentially, then those holding such information will be apprehensive about providing it to NSW Police.

Clause 1(e)

103. NSW Police submitted that disclosure of the information which has been redacted in reliance upon cl 1(e) is information, which if disclosed:

1. would reveal deliberations, opinions, advice and recommendations given for the purposes of an investigation into alleged police misconduct;

2. would reasonably be expected to prejudice a deliberative process (that is NSW Police’s thinking processes including those by which it seeks internal input and discussions as to different causes of action, evaluates their wisdom and their relative benefits and detriments) because it would inhibit the readiness of participants to exchange frank views as part of that deliberative process.

Clause 1(f)

104. NSW Police submitted that the information redacted in reliance upon clause 1(f) was information which if released:

1. would prejudice the effective exercise of the functions of NSW Police for the reasons submitted with respect to cl 1(d);

2. could alert offenders and potential offenders to what NSW Police already know, thus enabling them to avoid detection and subvert police action.

Clause 1(h)

105. NSW Police submitted that the information redacted in reliance upon cl 1(h) is information:

1. which relates to investigations into alleged police misconduct and particular to the investigative process and confidential information obtained from witnesses;

2. which, if released would:

1. reveal the purpose and the manner of the investigation;

2. thereby prejudice the effectiveness and integrity of investigations by revealing to the word at large how such investigations are conducted.

Clause 3(a)

106. NSW Police submitted that the information which has been redacted in reliance upon cl 3(a):

1. is personal information (within the definition of that term in Sch 4, cl 4 of the GIPA) of a number of individuals other than the applicant, including in one case a victim;

2. if disclosed could reasonably be expected to reveal that personal information, particularly as there is no evidence that it has been publicly disclosed.

107. Whether any of these considerations against disclosure are applicable is considered later in these Reasons when the redacted information is considered.

Submissions - applicant

108. The applicant did not address the specific grounds relied upon by NSW Police. He did however make a general submission that NSW Police was prohibited from withholding any information where a serious indictable offence had been committed. The applicant was unable to identify the legal basis for this submission and there does not appear to be such a prohibition within the GIPA Act. In any event the applicant’s submission assumes proof that a serious indictable offence has been committed. I am not satisfied that this is the case on the evidence before the Tribunal.

Considerations in favour of disclosure

109. I take into account the following considerations which weigh in favour of disclosure.

110. First, the general public interest in favour of disclosure of government information (s 12(1)).

111. Secondly, to the extent that the withheld information is personal information of the applicant, this is a consideration in favour of disclosure.

112. Thirdly, the applicant wishes to have the information sought to use as part of his investigation of his alleged assault. This is a personal factor of the application which may be taken into account under s 55 of the GIPA Act.

113. Fourthly, that disclosure of the withheld information (in so far is it relate to the investigation under Part 8A of the Police Act of the applicant’s complaint) would enhance transparency of the Part 8A complaints process: see Applicants v Commissioner of Police at [116].

114. A further potential consideration in favour of the disclosure of information is where such disclosure could reasonably be expected to reveal or substantiate that an agency or a member of an agency has engaged in misconduct or negligent, improper or unlawful conduct.

115. The applicant has made various assertions of wrongful conduct. However, a finding that such a public interest consideration exists does not arise simply through assertion. As noted above, there must be an evidentiary basis for it. Further, in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68, the Appeal Panel held at [136]-[137]:

It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that ‘disclosure … could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.’ As expressed, this consideration carries an imputation in relation to the agency’s conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal’s reasons to indicate that it had any material that ‘could reasonably be expected to reveal’ the types of improper conduct to which the above formulation refers.

116. I have considered all of the materials placed before the Tribunal. Having done so, I am not satisfied that there is evidence sufficient to support a conclusion that disclosure could reasonably be expected to reveal or substantiate misconduct or negligent, improper or unlawful conduct. Accordingly, I do not take this public interest consideration into account.

The redacted information

117. I turn now to consider each of the items of information redacted by NSW Police and whether there is an overriding public interest against disclosure of that information. In so doing, I take into account all of the material before the Tribunal. The sub-headings are taken from the Schedule of Documents provided by NSW Police and the descriptions of the documents are taken from the parts of the documents disclosed to the applicant.

Triage Form Complaint from Flemington LAC (pages 10-13)

118. The Triage Form has been redacted in reliance upon:

1. cl 1 of Sch 1 and s169A of the Police Act;

2. cl 1(f) and (h).

119. I am satisfied that the information redacted in reliance upon cl 1 of Sch 1 is information to which cl 1(1) of Sch 1 of the GIPA Act and s 169A of the Police Act apply. It follows that there is a conclusive presumption that there is an overriding public interest against disclosure of this information, and it should not be released to the applicant.

120. Part of the Triage Form has been redacted in reliance upon cll 1(f) and (h).

121. With one exception I am satisfied from my consideration of the redacted information that the redacted information could reasonably be expected to have the effect generally of prejudicing the effective exercise of the functions of the NSW Police and in particular its methods of investigating internal complaints, and thus that cl 1(f) applies.

122. I am also satisfied that the redacted information could reasonably be expected to have the effect of prejudicing the conduct of investigations into complaints against NSW Police officers by revealing the purpose or conduct of such investigations, and thus that cl 1(h) applies.

123. I take into account the considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure of this information

124. The exception is the information redacted from the second half of page 10. I am not satisfied that the release of this information to the applicant could reasonably be expected to have the effects described in cll 1(f) or (h). That information should be released to the applicant.

Resolution Instruction Form (pages 14-16)

125. The Resolution Instruction Form is dated 23 January 2017 and signed by Inspector Miller. It has been redacted in several places in reliance upon cll 1(f) and (h).

126. I am satisfied from my consideration of the redacted information that the redacted information could reasonably be expected to have the effect generally of prejudicing the effective exercise of the functions of the NSW Police and in particular its methods of investigating internal complaints, and thus that cl 1(f) applies.

127. I am also satisfied that the redacted information could reasonably be expected to have the effect of prejudicing the conduct of investigations into complaints against NSW Police officers by revealing the purpose or conduct of such investigations, and thus that cl 1(h) applies.

128. I take into account the considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure of this information. The redacted information should not be released to the applicant.

Cara Part B – Disclosure of Conflict of Interest of Investigator Form (page 30)

129. This document is dated 23 January 2017. It has been redacted in reliance upon cll 1(f) and (h).

130. I am satisfied from my consideration of the redacted information that the redacted information could reasonably be expected to have the effect both particularly and generally of prejudicing the effective exercise of the functions of NSW Police and in particular its methods of investigating internal complaints, and thus that clause 1(f) applies.

131. However, I am not satisfied that the deleted information could reasonably be expected to have the effect of prejudicing the conduct of investigations into complaints against NSW Police officers by revealing the purpose or conduct of such investigation. Thus I am not satisfied that cl 1(h) applies.

132. I take into account the considerations in favour of disclosure described above. On balance, the considerations against disclosure outweigh the considerations in favour of disclosure of this information. The redacted information should not be released to the applicant.

Statement of Cassandra Gavin dated 27 October 2016 (page 49), Statement of Kaveinga Naati (page 50) and Corrective Services Reporting Form dated 27 October 2016 (page 51)

133. It is convenient to deal with these documents together as they raise similar issues.

134. As noted above, on 27 October 2016, Assistant Superintendent Naati and First Class Correctional Officer Gavin each prepared Incident Reports and Assistant Superintendent Naati prepared a document titled ‘NSW Department of Corrective Services Use of Force’. Large parts of these documents have been redacted, in reliance upon cll 1(d) and (f).

135. I infer from these documents that they were prepared for internal use by the Department. There is no evidence before the Tribunal which suggests that they were prepared for the NSW Police (for Detective Sergeant Coorey or otherwise). As such I am not satisfied that disclosure of the redacted information could reasonably be expected to have the effects in cll 1(d) or (f) with respect to the NSW Police.

136. Nor is there evidence before the Tribunal capable of establishing the operation of cll 1(d) or (f) with respect to the Department. Further, cl 133 of the Crimes (Administration of Sentences) Regulation 2014 required Correctional Services Officers to provide a report where force had been used. Given that requirement (and notwithstanding the potential operation of the privilege against self-incrimination) it cannot be concluded that disclosure of the redacted information could reasonably be expected to stymie the flow of such information in the future.

133. Thus, I am not satisfied, on the evidence before the Tribunal, that disclosure of the redacted information could reasonably be expected to have the effect of prejudicing the effective exercise of the functions of the Department or NSW Police. Consequently, I am not satisfied that either of cll 1(d) or (f) is engaged and the redacted information should be released to the applicant.

Statement of Patricia Donohue dated 19 December 2016 (pages 52-53)

138. This document is a witness statement of Patricia Donohue dated 19 December 2016 which has been witnessed by Detective Sergeant Coorey, I infer during the course of his investigation. Most of the statement has been redacted in reliance upon cll 1(d) and (f).

139. I am satisfied that the redacted information is information that has been provided to NSW Police on a confidential basis and which facilitates the functions of NSW Police and that its release could reasonably be expected to prejudice the supply of similar information in the future and to prejudice the effective exercise of the functions of the NSW Police in investigating allegations of criminal activity. Thus, cll 1 (d) and (f) are engaged.

140. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Screen Shot – COPS enquiry (page 83) and COPS summary printout (pages 84-96)

141. These documents are a printout from the COPS database concerning the applicant. There is a series of redactions.

142. The first is at page 83 where material has been redacted in reliance upon cll 1(d) and 1(h).

143. [NOT FOR PUBLICATION]

144. I am not satisfied, on the evidence before the Tribunal, that the release of this information could reasonably be expected to have the effects described in cll 1(d) or (h).

145. This information should be released to the applicant.

146. The second and third redactions are on page 84 where information has been redacted in reliance upon cll 1(f) and 1(h).

147. [NOT FOR PUBLICATION]

148. I am satisfied from my consideration of the redacted information that disclosure of the redacted information could reasonably be expected to have the effect generally of prejudicing the effective exercise of the functions of the NSW Police, and thus that cl 1(f) applies.

149. I am also satisfied that such disclosure could reasonably be expected to have the effect of prejudicing the conduct and effectiveness of an investigation conducted by NSW Police by revealing its purpose, conduct and results. Thus, I am satisfied that cl 1(h) is engaged.

150. I also take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

151. The fourth redaction is on page 85 where information has been redacted in reliance upon cll 1(d) and (f).

152. [NOT FOR PUBLICATION]

153. Again I am satisfied from my consideration of the redacted information that disclosure of the redacted information could reasonably be expected to have the effect generally of prejudicing the effective exercise of the functions of the NSW Police, and thus that cl 1(f) applies. I am also satisfied that such disclosure could reasonably be expected to have the effect of prejudicing the conduct and effectiveness of an investigation conducted by NSW Police by revealing its purpose, conduct and results. Thus, I am satisfied that cl 1(h) is engaged.

154. I take into account the first three considerations in favour of disclosure described above.

155. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

156. The fifth to twelfth redactions are on pages 87 and 88 where information has been redacted in reliance upon cll 1(e), (f) and (h).

157. [NOT FOR PUBLICATION]

158. As such, I am satisfied that cl (1)(e) applies. I am also satisfied that cll 1(f) and (h) apply.

159. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

160. The thirteenth to sixteenth redactions are on pages 89 to 91, where information has been redacted in reliance upon cll 1(e) and (f).

161. [NOT FOR PUBLICATION]

162. As such I am satisfied that each of cll 1(e) and (f) applies.

163. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

164. The seventeenth redaction is on page 92, where information has been redacted in reliance on cll 1(d) and (f).

165. [NOT FOR PUBLICATION]

166. I am satisfied from my consideration of the redacted information that the redacted information that each of cll 1(d) and (f) applies. In my view, cl 3(a) also applies to this information.

167. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

168. The nineteenth redaction is also on p 92 and is made in reliance upon cl 3(a). I am satisfied that cl 3(a) applies to this information.

169. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

170. The twentieth to twenty-third redactions are on pages 94 and 95, where information has been redacted in reliance upon cll 1(e), (f) and (h).

171. [NOT FOR PUBLICATION]

172. I am satisfied that each cll 1(e), (f) and (h) applies to this information.

173. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Email to Inspector Miller dated 25 February 2017 (pages 97-99)

174. This document is an email from Mr Langton, Acting Senior Superintendent at MRCC, to Inspector Miller dated 25 February 2017. That email has been almost entirely redacted, in reliance upon cll 1(d), (e) and (f).

175. [NOT FOR PUBLICATION]

176. I am not satisfied that the redacted information is information provided to NSW Police on a confidential basis. However, I am satisfied that it contains opinions and deliberations and if released could reasonably be expected to prejudice future investigations, within the meaning of cl 1(e). I am also satisfied that the redacted information facilitates the effective exercise of the functions of NSW Police and in particular its investigations of complaints against NSW Police Force officers and its release could reasonably be expected to prejudice the effective exercise of those functions within the meaning of cl 1(f).

177. As a result, I am satisfied that each of cll 1(e) and (f) applies.

178. I take into account all of the considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

179. Mr Langton’s email responds to an email from Inspector Miller dated 22 February 2017. Inspector Miller’s email to Mr Langton has also been redacted almost in its entirety, in reliance upon cll 1(d), (e) and (f).

180. [NOT FOR PUBLICATION]

181. I am satisfied that the redacted information contains information provided to NSW Police on a confidential basis.

182. I am also satisfied that this information facilitates the effective exercise of the functions of NSW Police and in particular its investigations of complaints against NSW Police Force officers. I am also satisfied that the disclosure of this information could reasonably be expected to prejudice the supply to NSW Police in the future of similar information. As such I am satisfied that cll 1(d) and (f) are engaged.

183. I am also satisfied that the redacted information contains deliberations, opinion, advices and/or recommendations made as part of an ongoing deliberative process of NSW Police, namely its investigation into the applicant’s complaint, and that it could reasonably be expected that the revealing of such information would prejudice a deliberative process of NSW Police. It follows that I am satisfied that cl 1(e) is satisfied.

184. I take into account the considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Report by Inspector Craig Miller (pages 100-102)

185. This document is a report by Sergeant Donnellan dated 31 January 2017 (the description in the Schedule of Documents that it is a report by Inspector Miller is incorrect). That report has been heavily redacted, in reliance upon cll 1(d), (e) and (f).

186. [NOT FOR PUBLICATION]

187. I am satisfied that the memorandum contains information provided to NSW Police on a confidential basis.

188. I am also satisfied that this information facilitates the effective exercise of the functions of NSW Police and in particular its investigations of complaints against NSW Police officers.

189. However, I am not satisfied that the disclosure of this information could reasonably be expected to prejudice the supply to NSW Police in the future of similar information in circumstances where, as discussed above, officers are required to comply with directions concerning internal investigations.

190. I am also not satisfied that cl 1(e) is engaged. In particular, I am not satisfied that disclosure of the information could reasonably be expected to prejudice any deliberative process of NSW Police.

191. I am however satisfied that cl 1(h) is satisfied as disclosure of this information could reasonably be expected to reveal the purpose, conduct and results of the internal investigation and thus prejudice the effectiveness of future investigations. Whilst NSW Police did not rely upon cl 1(h), the Tribunal is entitled to do so, as it re-makes the decision.

192. I take into account cl 1(h) and all of the considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Memorandum by Inspector Craig Miller (pages 103-105)

193. This is the Directive Memorandum from Inspector Miller to Sergeant Donnellan. It has been heavily redacted, in reliance upon cll 1(d), (e) and (f).

194. [NOT FOR PUBLICATION]

195. I am not satisfied that the redacted information has been provided on a confidential basis and thus I am not satisfied that cl 1(d) is engaged.

196. I am satisfied that this information facilitates the effective exercise of the functions of NSW Police and in particular its investigations of complaints against NSW Police Force officers and that its disclosure could reasonably be expected to prejudice the effective exercise of those functions, within the meaning of cl 1(f).

197. Further I am satisfied that cl 1(h) is engaged as it could reasonably be expected that disclosure of the redacted information would reveal the conduct of an internal investigation and prejudice the conduct and effectiveness of future investigations.

198. I take into account all of the considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Response to memorandum – M Gallagher (pages 108-110)

199. This document is a response by Senior Constable Gallagher to Inspector Miller’s Directive Memorandum. It has been heavily redacted in reliance upon cll 1(e), (f) and (h).

200. For the reasons set out above with respect to Sergeant Donnellan’s response to Inspector Miller (pages 100-102), I am satisfied that the considerations against disclosure significantly outweigh the considerations in favour of disclosure of the information. The redacted information should not be released to the applicant.

Memorandum by Inspector Craig Miller to M Gallagher (pages 111-113)

201. This is the Directive Memorandum from Inspector Miller to Senior Constable Gallagher. It has been heavily redacted, in reliance upon cll 1(e), (f) and (h).

202. For the reasons set out above with respect to the Directive Memorandum from Inspector Miller to Sergeant Donnellan (pages 103-105), I am satisfied that the considerations against disclosure significantly outweigh the considerations in favour of disclosure of the information. The redacted information should not be released to the applicant.

Report of Constable Omar Sharif dated 20 February 2017 (pages 114-115)

203. This document is a response of Constable Sharif to a Directive Memorandum. It has been redacted in reliance upon cll 1(e), (f) and (h).

204. For the reasons set out above with respect to the reports from Sergeant Donnellan and Senior Constable Gallagher to Inspector Miller, I am satisfied that the considerations against disclosure significantly outweigh the considerations in favour of disclosure of the information redacted from this document. The redacted information should not be released to the applicant.

Memorandum by Inspector Craig Miller to Constable Omar Sharif (pages 116-118)

205. This is the Directive Memorandum from Inspector Miller to Constable Sharif. It has been redacted in reliance upon cll 1(e), (f) and (h).

206. For the reasons set out above with respect to the Directive Memorandum from Inspector Miller to Sergeant Donnellan (pages 103-105), I am satisfied that the considerations against disclosure significantly outweigh the considerations in favour of disclosure of the information. The redacted information should not be released to the applicant.

Handwritten notes of Inspector Miller (page 119)

207. This document contains handwritten notes of Inspector Miller of a conversation with a representative of Justice Health, Ms Graven, concerning the applicant. It has been redacted in three places, in reliance upon cll 1(e), (f) and (h).

208. [NOT FOR PUBLICATION]

209. I am satisfied that the redacted information contains deliberations, opinion, advices and or recommendations made as part of an ongoing deliberative process of NSW Police, namely its investigation into the applicant’s complaint. I am also satisfied that it could reasonably be expected that the revealing of such information would prejudice a deliberative process of NSW Police. It follows that I am satisfied that cl 1(e) is satisfied.

210. I am also satisfied from my consideration of the redacted information that the release of redacted information could reasonably be expected to have the effect generally of prejudicing the effective exercise of the functions of the NSW Police and in particular its methods of investigating internal complaints, and thus that cl 1(f) applies.

211. I am also satisfied that the redacted information could reasonably be expected to have the effect of prejudicing the conduct of investigations into complaints against NSW Police officers by revealing the purpose or conduct of such investigations, and thus that cl 1(h) applies.

212. I take into account the considerations in favour of disclosure described above. On balance, the considerations against disclosure outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Report of Inspector Miller dated 6 March 2017 (pages 188-203)

213. This document, titled “Resolution Outcome Report”, is a report dated 6 March 2017 by Inspector Miller of his investigation into the complaint against Sergeant Donnellan and Senior Constable Gallagher. It has been redacted almost in its entirety, in reliance upon cll 1(e), (f) and (h).

214. [NOT FOR PUBLICATION]

215. I am satisfied that the redacted information contains deliberations, opinion, advices and or recommendations made as part of an ongoing deliberative process of NSW Police, namely its investigation into the applicant’s complaint. I am also satisfied that it could reasonably be expected that the revealing of such information would prejudice a deliberative process of NSW Police. It follows that I am satisfied that cl 1(e) is satisfied.

216. I am satisfied that the information could reasonably be expected to have the effect of prejudicing the effective exercise of the functions of the NSW Police and in particular its methods of investigating complaints against NSW Police officers, and thus that cl 1(f) applies.

217. I am also satisfied that the deleted information could reasonably be expected to have the effect of prejudicing the conduct of future investigations into complaints against NSW Police officers by revealing the manner in which such investigations are conducted, and thus that cl 1(h) applies.

218. I take into account the considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Flemington LAC File Note (page 204)

219. The Schedule of Documents recorded that this document was to be released in full to the applicant. However, the copy of the document apparently released to the applicant contains a redaction made in reliance upon cl 1 of Sch 1 of the GIPA and s 169A of the Police Act.

220. I am satisfied that the redacted information is caught by s 169A. As the effect of cl 1 of Sch 1 is to provide a conclusive presumption of an overriding public interest, the redacted information should not be released to the applicant.

Emails from Francine Couch to Sgt Donnellan and Senior Constable Gallagher dated 7 March 2017 (pages 205-206)

221. This document contains emails from Executive Officer Couch of NSW Police addressed to Sergeant Donnellan and Senior Constable Gallagher.

222. The email from Executive Officer Couch to Sergeant Donnellan has the subject line “Complaint – LMI700248 – NOT SUSTAINED”. The body of the email has been redacted in reliance upon cll 1(e), (f) and (h). The email from Executive Officer Couch to Senior Constable Gallagher has been redacted in two places, both in reliance upon cll 1(e), (f) and (h).

223. [NOT FOR PUBLICATION]

224. This information should be released to the applicant.

Memorandum of Inspector E Hatfield dated 22 March 2017 (page 208)

225. This document is a memorandum of Inspector Hatfield dated 22 March 2017. It is also signed by Detective Superintendent Rogerson. The body of the memorandum has been redacted entirely, in reliance upon cll 1(e) and (f).

226. [NOT FOR PUBLICATION]

227. I am satisfied that it could reasonably be expected that the disclosure of the redacted information would have the effect of revealing a deliberation or consultation conducted or an opinion, advice or recommendation given. I am also satisfied that such a revelation would prejudice a deliberative process of NSW Police. It follows that I am satisfied that cl 1(e) is satisfied.

228. I am also satisfied that the redacted information could reasonably be expected to have the effect of prejudicing the effective exercise of the functions of the NSW Police and thus that cl 1(f) applies.

229. I take into account the considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

File note of Francene Couch dated 20 October 2017 (Page 210)

230. This document is a file note made by Executive Officer Couch dated 20 October 2017 in which she records that the investigation undertaken by Detective Sergeant Coorey was finalised on 31 August 2017. The Schedule of Documents annexed to the Supplementary Decision recorded that this document was to be released in full to the applicant. However, the copy of the document apparently released to the applicant contains a redaction made in reliance upon cl 1 of Sch 1 of the GIPA Act and s 169A of the Police Act.

231. I am satisfied that the redacted information is caught by s 169A. As the effect of cl 1 of Sch 1 is to provide a conclusive presumption of an overriding public interest, the redacted information should not be released to the applicant.

Email from Inspector Laird to Francene Couch dated 22 August 2018 (page 211)

232. This email from Inspector Hyde to Ms Couch dated 22 August 2018, has been redacted almost entirely in reliance upon cll 1(e) and (f).

233. The first part of the email, which comprises the details of the sender and recipient of the email, the date and time it was sent, and its subject matter should be released. There is no public interest consideration against the release of this information and the Schedule of Documents provided to the applicant includes a description - Email from Inspector Laird (sic) to Francene Couch dated 22 August 2018 – which discloses some of the information redacted.

234. As to the remainder of that email, I am satisfied that it could reasonably be expected that the disclosure of the second and third lines of the email could reasonably be expected to have the effect of revealing a deliberation or consultation conducted or an opinion, advice or recommendation given. I am also satisfied that such a revelation could reasonably be expected to prejudice a deliberative process of NSW Police and that cl 1(e) is satisfied.

235. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure of the second and third lines of the email and those lines should not be released to the applicant. However, the remainder of the email should be released.

Email from Christopher Laird to Francene Couch dated 2 November 2018 (pages 230-231)

236. This document contains an email from Acting Superintendent Laird to Executive Officer Couch dated 13 November 2018 (not 2 November 2018 as suggested in the Schedule of Documents). The body of the email has been redacted in reliance upon cll 1(e) and (f).

237. I am not satisfied, on the evidence before the Tribunal, that either of these clauses applies. The redacted information should be released to the applicant.

Craig Miller Duty Book dated 14 November 2018 (page 238)

238. This document is an extract from Inspector Miller’s Day Book dated 14 November 2018. A part of it has been redacted in reliance upon cl 3(a).

239. I am satisfied that the redacted information, is personal information of a person within the definition of that term.

240. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Email from Christopher Laird to Francene Couch dated 18 November 2018 (page 239)

241. This email, from Inspector Laird to Executive Officer Couch dated 18 November 2018, has been redacted in part in reliance upon cll 1(e) and (f).

242. [NOT FOR PUBLICATION]

243. I am satisfied that it could reasonably be expected that the disclosure of the redacted information would have the effect of revealing a deliberation or consultation conducted or an opinion, advice or recommendation given. I am also satisfied that such a revelation would prejudice a deliberative process of NSW Police. It follows that I am satisfied that cl 1(e) is satisfied.

244. I am also satisfied that the release of the redacted information could reasonably be expected to have the effect of prejudicing the effective exercise of the functions of the NSW Police and thus that cl 1(f) applies.

245. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Notebook statement of Leading Senior Constable Jago (pages 240-241)

246. This document is an extract from Leading Senior Constable Jago’s notebook dated 18 October 2018. It has been redacted in part in reliance upon cl 3(a).

247. The redacted information is Acting Superintendent Naati’s date of birth, address and telephone number.

248. I am satisfied that the redacted information is personal information of Acting Superintendent Naati within the definition of that term, and thus that clause 3(a) is satisfied.

249. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Statement of Paul Hollingsworth dated 11 November 2016 (pages 242-244)

250. This document is a statement of Paul Hollingsworth dated 11 November 2016 and witnessed by Detective Sergeant Coorey. It has been almost completely redacted, in reliance upon cll 1(d) and (f).

251. For the reasons set out above with respect to the statement of Patricia Donoghue, I am satisfied that each of cll 1(d) and (f) applies and that the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Coorey Report (pages 245-254)

252. As noted above, the Coorey Report is the report prepared by Detective Sergeant Coorey following his investigation into the alleged assault of the applicant. It has been redacted almost in its entirety, in reliance upon cll 1(e) and (f) and (h).

253. [NOT FOR PUBLICATION]

254. I am satisfied that it could reasonably be expected that the disclosure of the redacted information would have the effect of revealing a deliberation of consultation conducted or an opinion, advice or recommendation given. I am also satisfied that such a revelation would prejudice a deliberative process of NSW Police, namely investigations of alleged criminal acts. It follows that I am satisfied that cl 1(e) is satisfied.

255. I am also satisfied that the release of the redacted information could reasonably be expected to have the effect of prejudicing the effective exercise of the functions of the NSW Police and in particular investigations of alleged criminal acts thus that cl 1(f) applies.

256. I am also satisfied that the deleted information could reasonably be expected to have the effect of prejudicing the conduct of future investigations by NSW Police by revealing the manner in which such investigations are conducted, and thus that cl 1(h) applies.

257. I take into account the first three considerations in favour of disclosure described above. On balance, the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

Interview with Kaveinga Naati – audio

258. This information is an audio file of an interview with Acting Superintendent Naati. NSW Police has declined to provide access to any part of it, in reliance upon cll 1(d) and (f).

259. For the reasons set out above with respect to the witness statements of evidence of Ms Donohue and Mr Hollingsworth, I am satisfied that each of cll 1(d) and (f) applies and that the considerations against disclosure significantly outweigh the considerations in favour of disclosure. The redacted information should not be released to the applicant.

S 58(1)(e) and s 60(1)(b) - Refusal to deal with the application

260. Section 58(1)(e) of the GIPA Act allows an agency to decide to refuse to deal with an application. It does so by reference to s 60 of the GIPA Act. Section 60(1)(b) allows an agency to refuse to deal with an access application (in whole or in part) if the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision.

261. NSW Police has refused to deal with the application to the extent it relates to pages 17-22 and 23-29. Those pages are printouts of a computer record of E62082115 and C63221249.

262. As noted above, access application 2018/3908 sought a range of information relating to COPS Event E62082115 and Case Number 63221249 and some but not all of the information sought by the applicant was released to him.

263. The documents provided to the applicant in answer to access application 2018/3908 included printouts of a computer record of COPS Event E62082115 and Case Number 63221249, which printouts have been redacted on the basis of the application of various paragraphs of the table in s 14 of the GIPA Act.

264. Thus NSW Police has decided a previous application for the information in these printouts (and released them to the applicant subject to redaction as noted above).

265. There is no reasonable ground for believing that NSW Police would make a different decision with respect to these printouts in answer to the extant access applications. The applicant did not suggest any such ground.

266. In these circumstances, I am satisfied that the correct and preferable decision is to refuse to deal with access application 2018/5553 to the extent that it requires the production of these printouts.

Second NSW Police Decision

267. The First NSW Police Decision indicated that CCTV footage recorded on 27 October 2016 at the MRRC and falling within the scope of the access applications had been located and that NSW Police would consult with Corrective Services NSW to determine whether there was an overriding public interest against disclosure of the CCTV footage.

268. On 23 October 2019, NSW Police made the Second NSW Police Decision. That decision identified one item, namely the CCTV footage. The Second NSW Police Decision recorded the decisions of NSW Police:

1. under s 58(1)(d) of the GIPA Act, to refuse access to a copy of the CCTV footage because of an overriding public interest against disclosure of the information contained in the CCTV footage; and

2. under s 72(1)(c) of the GIPA Act, to nevertheless provide Mr Seremetis with access to view the CCTV footage.

269. Section 72 of the GIPA Act requires that access be given to the applicant in the way requested by the applicant unless one or more of s 72(2)(a)-(d) is satisfied. NSW Police relies upon s 72(2)(d) which allows an agency to provide access in a manner other than as requested by the applicant where there is an overriding public interest against disclosure of the information in the way requested by the applicant. In the present case, the applicant sought a copy of the CCTV footage and the NSW Police decided to grant access by allowing the applicant to view the CCTV footage, but not to provide a copy.

270. The Second NSW Police Decision records that the CCTV footage is “substantially similar” to the CCTV footage the subject of the Tribunal’s decision in Seremetis v NSW Department of Justice [2019] NSWCATAD 118 (Seremetis No. 1). In that decision Senior Member Ludlow affirmed the decision of the Department to provide to the applicant an opportunity to view CCTV footage and to refuse to provide him a copy. That decision was upheld on appeal: Seremetis v Department of Communities and Justice [2019] NSWCATAP 262 (Seremetis No. 2).

271. The evidence establishes the following differences between the CCTV footage held by the Department (and the subject of Seremetis No. 1 and Seremetis No. 2) and the CCTV footage held by NSW Police:

1. the CCTV footage held by the Department is of footage from camera channels 601, 602, 606, 607 and 656, whereas the CCTV footage held by NSW Police is of footage from those channels, together with an additional channel (657);

2. some of the run times are different for the channels recorded.

272. Thus there is substantial overlap between the two sets of footage, and the footage before the Tribunal presently includes the footage before the Tribunal in Seremetis (No. 1) and the Appeal Panel in Seremetis (No. 2).

273. I see no reason to come to a different conclusion with respect to the same (i.e. overlapping) footage. Further, the reasoning in Seremetis (No.1) and Seremetis (No. 2) applies with equal force to the additional footage.

274. In these circumstances the correct and preferable decision is to affirm the decision of NSW Police to allow viewing access only.

Department Decision

275. The only issue before the Tribunal concerning this decision was whether the Coorey Report ought to have been released to the applicant.

276. For the reasons set out above with respect to the copy of the Coorey Report in the possession of NSW Police, I am satisfied that the correct and preferable decision is that the Coorey Report is not released to the applicant.

ORDERS

277. The Tribunal makes the following orders:

1. In matter 2019/00218808 the Respondent’s name is amended to “Department of Communities and Justice”.

2. The decision made by the Commissioner of Police, NSW Police on 30 September 2019 is varied as follows:

1. The applicant is granted access to the information redacted from:

1. The second half of page 10 of the Triage Complaint Form (InfoLink page 10);

2. The Incident Report of First Class Correctional Officer Gaven (InfoLink page 49);

3. The Incident Report of Assistant Superintendent Naati (InfoLink page 50);

4. The Corrective Services Reporting Form dated 27 October 2016 (InfoLink page 51);

5. The COPS enquiry (InfoLink page 83);

6. The emails from Francine Couch to Sergeant Donnellan and Senior Constable Gallagher dated 7 March 2017 (InfoLink pages 205-206);

7. The email from Inspector Laird to Francene Couch dated 22 August 2018, other than the second and third lines of that email (InfoLink page 211);

8. The email from Inspector Laird to Francene Couch dated 13 November 2018 (InfoLink pages 230-231);

2. Such access is to be provided within 28 days;

3. The decision made by the Commissioner of Police, NSW Police on 30 September 2019 is otherwise affirmed;

4. The decision of the Commissioner of Police, NSW Police, dated 23 October 2019 is affirmed;

5. The decision of the Department of Communities and Justice dated 4 September 2019 is 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: 17 December 2020