Smith v NSW Police Force

[2015] NSWCATAD 32

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Smith v New South Wales Police Force [2015] NSWCATAD 32
Hearing dates:	4 February 2015
Decision date:	06 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	1. Pursuant to section 101 (4) of the GIPA Act, I extend time to filing the application until 5:00pm 21 July 2014 2. The decision of the Agency is affirmed.
Catchwords:	Government Information Public Access Act – Reveal information – personal information – meaning of disclosure – lawfully disclosed – prejudice supply of confidential information
Legislation Cited:	Government Information (Public Access) Act 2009 Administrative Decisions Review Act 1997 Freedom of Information Act 1989
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 Mannix v Department of Education and Communities [2014] NSWCATAD 35 Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 Flack v Commissioner of Police [2011] NSWADT 286
Category:	Principal judgment
Parties:	Theodore Smith (Applicant) Commissioner of Police NSW Police Force (Respondent)
Representation:	Solicitors: T Smith (Applicant in person) Sparke Helmore Lawyers (Respondent)
File Number(s):	1410386
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as ‘[not for publication]’. Those paragraphs are not to be released to the Applicant or the public.

Reasons for decision

1. Mr Smith is a member of the public who made an application to the Commissioner of Police for a copy of material relating to a criminal allegation against him.

2. On 12 February 2014 Mr Smith made an application under the Government Information (Public Access) Act 2009 (the GIPA Act) for the following material (as summarised):

• Copies of complaints regarding allegations against Theodore Smith (and another) in 2009. Please also provide a copy of the investigation report prepared in relation to the alleged incident and all documents used to prepare the report, or referred to in the report.

3. On 28 March 2014 the Respondent issued a Notice of Decision whereby it refused release in full of the material sought by the Applicant. In doing so, the Respondent determined that there was an overriding public interest against disclosure of the information requested by the Applicant, sufficient to outweigh the general overriding public interest in favour of disclosure under the GIPA Act.

4. Following the decision by the Respondent, the Applicant sought an external review of the decision by the New South Wales Information Commissioner. The Information Commissioner was provided with an un-redacted version of the material that was captured within the application. The Information Commissioner wrote to the Applicant following the review. In the Information Commissioners view, the Respondent was justified in refusing access to the material under the GIPA Act. In respect of the grounds relied upon under 3 (a) of the table at section 14 of the GIPA Act, the Information Commissioner stated that:

We are satisfied that the information in dispute contains third party personal information. We have reviewed the information and are satisfied that this is a relevant public interest consideration against disclosure. We make no recommendations regarding this part of the review.

5. Similar findings / statements were made in respect of the other grounds relied upon by the Respondent Agency in refusing access. Relevantly at the conclusion of their review the Information Commissioner stated the following:

We are satisfied that the Agency has identified relevant public interest considerations for disclosure and public interest considerations against disclosure in the provision of this review. We are satisfied also that the Agency has attributed the appropriate weight to these considerations and has applied the public interest test in accordance with the GIPA Act.

In our view the decision by the Agency to refuse access to the information in dispute is justified under the GIPA Act.

6. On 21 July 2014 the Applicant lodged an application for review of the decision of the Commissioner of Police with the New South Wales Civil and Administrative Tribunal (NCAT). That review under Part 5 Division 4 of the GIPA Act, sought a review on the basis that in the Applicant’s view, the grounds relied on by the Respondent Agency were no longer relevant as the information had already been disclosed to him.

7. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

8. The matter was listed for a number of Planning Meetings prior to hearing. The matter first came before me for a Planning Meeting on 29 September 2014. At the outset I raised the issue that the application was lodged outside of the statutory period provided for under section 101 (2) of the GIPA Act (as relevant to this particular matter). The Respondent’s representative / agent advised that they had no objection to the Applicant lodging his application out of time.

9. At further Planning Meetings a timetable was set for the filing and serving of material and the matter was set down for hearing.

Applicable Legislation

10. The objects of the GIPA Act are as follows:

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.

11. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 Senior Member Walker provides the following outline of the provisions:

5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.

7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.

8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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".

10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

12. Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of some of the information. Relevantly section 14 provides (inter alia):

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.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

13. During the course of the hearing a number of matters came to light, both in evidence and by way of submissions following instructions.

14. During the giving of oral testimony, the Applicant gave evidence that the information that he sought (which was referred to as a ‘report’), had been used in evidence in proceedings before a Court. This was cited as a further ground as to why the information should be made available to him.

15. The Respondent advised that it no longer relied upon the Table 1 Clause 3 (f) ground (expose a person to a risk of harm or of serious harassment or serious intimidation). In addition the Respondent provided the Applicant with a COPS event with approximately 50% of the material redacted (and therefore withheld) from release. The Respondent submitted that this document in it’s original un-redacted form comprised all of the material held by the Commission of Police in respect of the specific items within the scope requested by the Applicant.

Respondents Case

16. In refusing access to the information, the Respondent relied upon and applied significant weight to the following ‘public interest considerations’ provisions.

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.

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,

(g) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed.    

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

17. As outlined above at paragraph 15, the final ground or provision (at 3 (f) ) was withdrawn by the Respondent.

18. The Agency has applied the provisions of Clause 1 (d), 3 (a) (e) and (f) of the Table to section 14 of the GIPA Act (as outlined above), as public interest considerations against disclosure which (in their assessment) outweigh the general public interest consideration in favour of disclosure as outlined in section 12 of the GIPA Act. These were the four grounds which were relied upon in relation to their decision to refuse to release the material.

19. The principles that apply to the application of the public interest considerations against disclosure (which can be taken into account when assessing whether to override the presumption in favour of disclosure), are set in section 15 of the GIPA Act. That section provides that:

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.

20. In written submissions the Respondent relied upon a number of cases but primarily a decision of the (former) Administrative Decisions Tribunal (Appeal Panel) which outlined the general approach to the consideration of section 14 public interest considerations against disclosure.

21. In the case of Commissioner of Police v Camilleri [2012] NSWADTAP 19, the Appeal Panel stated, at [23], that:

23.As the case developed at the appeal hearing, it became clear that the three questions of law had as their common theme a submission that the Tribunal had misunderstood the relationship between sections 12, 13 and 14 when analysing an agency case for non-disclosure. Each of the matters raised in the questions of law challenge particular steps in the reasoning that are illustrative of the broader criticism.

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

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

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

27. The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'.

28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:

58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth[1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words:

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:.

30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.

22. I will turn to this examination in my consideration of the submissions.

22. In respect of the Applicant’s submission that the material had previously been revealed to him, the Respondent submitted that the principles in the case of Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [169]:

169. The term "Disclose" is defined in schedule 4 of the GIPA Act:

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

170. The term "Reveal" is defined in clause 1 of Schedule 4 of the GIPA Act:

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

171.,There is some overlap between these definitions, in that the definition of "reveal" uses the word "disclose", which itself is not exhaustively defined.

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] HCA 18; (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.

173. In Richards v Commissioner, Department of Community Services(2011) NSWADT 98 [40] the Tribunal decided that the issue to be considered regarding whether release of information is likely to 'reveal' information, is whether the 'information' had been publicly disclosed.

174. I agree with the view that if the information contained in a record has been disclosed, it cannot be "revealed" by giving access under the GIPA Act.

24. The Respondent submitted that information is obtained in confidence if it is communicated and received under an expressed or inferred understanding that it would be kept confidential. Further the assessment of what effect disclosure “could reasonably be expected to have in the future require the agency or on review the Tribunal, to undertake an objective assessment as to whether the relevant effects could be expected to arise. (citing Camilleri and Flack v Commissioner of Police [2011] NSWADT 286).

25. The main thrust of the Respondent’s submissions was that merely because circumstances may dictate or necessitate the disclosure of otherwise confidential information, that is not a sound basis for concluding that the information is not initially conveyed on a confidential basis. Nor is it a basis for concluding that giving access to such information could not be expected to prejudice the supply of confidential information to police in the future.

26. The personal information grounds were not ventilated to any great extent in submissions, however, I note that the Applicant no longer seeks personal information relating to an individual’s identity, as he believes that he already knows who the individual’s identity.

Confidential Hearing under section 107 (2) of the GIPA Act

27. In the confidential hearing the Respondent took the Tribunal through the confidential material.

28. [Not for publication]

29. [Not for publication].

30. [Not for publication].

31. [Not for publication].

The Applicant’s Evidence

32. The Applicant gave oral testimony that he had been provided with a copy of the information by a social worker, who had left the documents for him in a yellow envelope.

33. However in cross examination he was unable to describe the document / report in any great detail. Further when provided with a copy of the redacted material, the Applicant was unable to confirm whether the material was in the same or similar form to that which he had previously viewed.

34. The Respondent submitted that disclosure of information under the GIPA Act was unconditional and to the world at large. There was little evidence or information before the Tribunal to indicate how the information was disclosed (either lawfully or otherwise) to the Applicant, as his evidence alleges.

35. The Respondent also submitted that on the Applicant’s own evidence, it was unclear as to whether the information had been previously released to him lawfully.

36. The Applicant submitted that the information has already been revealed to him when it was disclosed to him previously. He submitted that the disclosure was an attempt to use the information in manner adverse to him and his reputation, and as that copy was destroyed, there should be no concerns in providing him with the information again.

37. The Applicant also made compelling general public interest submissions in respect of Aboriginal persons level of representation in the criminal justice system, and how these types of applications could assist such persons in addressing some of those issues.

Consideration

38. In my view, on the evidence before me, the disclosure of this information could reasonably be expected to have the effect referred to in Clause (1) (d) of the Table at section 14 of the GIPA Act.

39. Without going into the detail of the information, it clearly relates to sensitive and serious allegations of the type that if ordinarily disclosed to members of the public, would cause concern for persons providing and reporting that information. Notwithstanding the fact that the information has apparently not been tested (in any criminal proceedings), the public interest in maintaining the flow of information to police to assist the police in the effective exercise of their functions, is in my view compelling.

40. When weighing up the evidence and material, and having regard to the cases raised by the Respondent, in my view, on balancing the competing interests, the public interest considerations against disclosure outweigh those in favour of disclosure.

41. It follows that the correct and preferable decision is to affirm the decision of the Respondent Agency.

Conclusion

42. I extend time for the filing of the application for review to the Tribunal until 5:00pm 21 July 2014 under section 101 (4) of the GIPA Act.

43. I affirm the decision of the Agency.

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: 06 March 2015