Thomson v Commissioner of Police - [2021] NSWCATAD 53

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Thomson v Commissioner of Police [2021] NSWCATAD 53
Hearing dates: 10 August 2020
Date of orders: 9 March 2021
Decision date: 09 March 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
The decision under review is affirmed.

Catchwords:
Administrative Law – ADMINISTRATIVE LAW – public access to government information – Request for information concerning a complaint alleging police misconduct – personal information – whether prejudice to the effective exercise of an agency’s functions – public interest in transparency and accountability - balancing public interest considerations

Legislation Cited:
Civil and Administrative Tribunal Act 2013
Administrative Decisions Review Act 1997
Government Information (Public Access) Act 2009
Police Act 1900
Police Regulation 2015

Cases Cited:
AEZ v Commissioner of Police [2013] NSWADT 90
Amos v Western NSW Local Health District [2017] NSWCATAD 176
Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22
Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185
Black v Hunter-New England Health District [2011] NSWADT 295
Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13
Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19
Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48
Danis v Commissioner of Police [2021] NSWCATAP 23
DDT v Charles Sturt University [2017] NSWCATAD 329
Director General, Department of Education & Training v Mullett (GD) [2002] NSWADTAP 13
Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118
Head v Commissioner of Police (NSW) [2010] NSWADT 27
Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Jamieson v Department of Justice [2019] NSWCATAD 173
Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23
Klaric v Commissioner of Police [2020] NSWCATAP 153
McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66
McKinnon v Department of Treasury [2006] HCA 45.
Miriani v Transport for NSW [2021] NSWCATAD 16
Miskelly v Transport for NSW [2017] NSWCATAD 207
NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55
Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277
Raven v University of Sydney [2015] NSWCATAD 104
Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279
Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588
Ritson v Commissioner of Police (NSW) [2010] NSWADT 22
Selby v Commissioner of Police (NSW) [2013] NSWADT 61
Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317
Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73
Transport for NSW v Searle [2018] NSWCATAP 93
Tziolas v Department of Education and Communities (NSW) [2012] NSWADT 69
Ugur v Commissioner of Police [2020] NSWCATAD
Vella v Commissioner of Police [2009] NSWADT 68
Williams v Department of Industry and Investment [2012] NSWADT 192
Wojciechowska v Commissioner of Police [2020] NSWCATAP 173
Woolley v Lismore City Council [2013] NSWADT 10

Category: Principal judgment
Parties: David Thomson (Applicant)
Commissioner of Police (Respondent)
Representation:
D Thomson (Applicant in person)
Crown Solicitor (Respondent)

File Number(s): 202000112876

Reasons for Decision

Introduction

Mr David Thomson ("the Applicant") has applied to the Tribunal for review of a decision of the Commissioner of Police, New South Wales Police Force ("the Respondent"). The Respondent’s decision was in relation to the Applicant’s access application under the Government Information (Public Access) Act 2009 (“the GIPA Act”).
The Applicant’s access application, as ultimately narrowed, seeks the following:

The outcome report for the 2012 Alternate Dispute Resolution Process managed by Inspector Paul Callaghan
Minutes of the SMT meeting from December 2012 that reference myself and any outcome reports referencing myself that were presented at that meeting.
A copy of complaint file LM11303165 including the outcome report and a copy of the disk containing the audio recording of the conversation between Inspector Paul Callaghan and the Duty Operations Inspector
Notebook Entries of Constable Nathan Jones and the field arrest form that reference the arrest of a male POI at 13 Munni St Erskineville in July 2013
The table of evidence and outcome report regarding a complaint raised by myself between July and December 2013. All emails between Inspector Dean Lindley and Assistant Commissioner Murdoch sent between December 2013 and April 2014 that reference myself and the aforementioned complaint lodged in late 2013.
All notebook and personal diary entries recorded by Inspector Paul Callaghan for the period January 2012 to December 2013 that reference my performance or conduct.
1. The Respondent undertook searches in response to the access application and located a number of documents containing information that it found to be within the scope of the request. In October 2019 the Respondent determined to release some of that information. It also decided to refuse to provide the applicant with access to some information because there is an overriding public interest against disclosure of that information and found that it did not hold some of the requested information.

Background

The Applicant is a former member of the NSW Police Force (“NSWPF”). In 2012, he encountered workplace issues with another officer. That matter was managed through the alternate dispute resolution process in accordance with section 135 of the Police Act 1900 ("the Police Act”). Section 135 of the Police Act empowers persons conducting investigations to attempt to resolve misconduct matters by means of alternative dispute management procedures.
In 2013, the Applicant attended a job also attended by other NSWPF officers. The job resulted in the Applicant being named as the subject officer in a police complaint made pursuant to Part 8A of the Police Act. The complaint was investigated by Inspector Ian Macey.
In September 2013, the Applicant made a complaint pursuant to Part 8A of the Police Act raising issues of bullying which he said that he had experienced in the workplace. The complaint was investigated by Inspector Dean Lindley.
The Applicant subsequently ceased working for the NSWPF.
The information that he is seeking arose in the course of his employment with the NSWPF. The Respondent decided to refuse to provide the Applicant with access to some information because there is an overriding public interest against disclosure of that information. Access to some documents was refused in part, with certain information redacted. Access to some other documents was refused in full. The Respondent decided that it did not hold other requested information.
The Respondent subsequently determined that it no longer pressed some of the redactions and that some of the redacted information should be released.

Issue to be determined

The issues to be determined in these proceedings is whether the correct and preferable decision is that the Respondent does not hold some of the requested information and that there is an overriding public interest against disclosure of the information that has been withheld (“the withheld information”).

Applicable legislation

The Applicant applied to the Tribunal under section 100 of the GIPA Act. The burden of establishing that there is an overriding public interest against disclosure of information lies on the Respondent: section 105(1) of the GIPA Act.
Pursuant to section 63(3) of the Administrative Decisions Review Act 1997 the Tribunal may decide to:

(a) affirm the reviewable decision,

(b) vary the reviewable decision,

(d) set aside the reviewable decision and remit the matter for consideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 of the GIPA Act provides that 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.
Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.
The Tribunal must determine whether or not the Respondent was justified in determining that there was an overriding public interest against disclosure of the information withheld. The Tribunal can affirm the Respondent’s decision, set aside the decision, or parts of the decision, and order the release of the withheld information, or remit the matter to the Respondent for reconsideration.
Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information 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. In applying the public interest test under section 13 of the GIPA Act it is necessary to identify the public interest in favour of disclosure, identify the public interest against disclosure and determine where the balance lies: see discussion in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19.
The Table to section 14 of the GIPA Act sets out a number of circumstances in which public interest considerations against disclosure of government information may apply and need to be weighed against the general public interest in favour of disclosure. The only public interest considerations against disclosure that may be taken into account are those listed in the Table.
The Respondent identified Schedule 1 of the GIPA Act and asserts that there is a conclusive presumption against release as a consequence of the application of Part 8A of the Police Act. Part 8A is headed Complaints about conduct of police officers, administrative employees and the NSW Police Force.
Schedule 1 of the GIPA Act relevantly provides:

Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure

(Section 14)

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)

Police Regulation 2015—clause 54 (Secrecy as to complaints about conduct)

Section 169A of the Police Act provides:

169A Identity of complainant not to be disclosed

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

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

Clause 54 of the Police Regulation 2015 provides:

54 Secrecy as to complaints about conduct

(1) This clause applies if:

(a) any person (including a police officer) makes an allegation, not being an allegation which constitutes a complaint under Part 8A of the Act, to a police officer (in this clause called the senior officer) concerning the conduct of a police officer, and

(b) the senior officer has reasonable grounds for believing that, if the allegation were true:

(i) the police officer against whom the allegation was made would have committed a criminal offence, or

(ii) section 80 dismissal action could be taken, or a section 173 order or section 181D order could be made, with respect to that officer.

(2) In the circumstances referred to in subclause (1), the senior officer must not disclose to the officer against whom the allegation was made or any other person the identity of the person who made the allegation, except:

(a) to or with the authority of the Commissioner, or

(b) in connection with the institution of or otherwise for the purposes of any proceedings before a Royal Commission, a Special Commission of Inquiry, the Industrial Relations Commission or a court.

(3) In the course of an investigation into the allegation, a police officer must not, without the consent of the Commissioner, disclose to any person (other than the Commissioner) the identity of the person who made the allegation.

(4) The Commissioner must not grant a consent under subclause (3) unless the Commissioner considers that the disclosure of the identity of the person who made the allegation is necessary for the effective conduct of the investigation into the allegation.

As Senior Member Goodman stated at paragraph [61] of Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317:

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.

The Respondent submitted that the information redacted in reliance upon clause 1 of Schedule 1 of the GIPA Act and section 169A of the Police Act was information within the terms of those provisions and there was thus a conclusive presumption against disclosure of that information.
Even if clause 1 of Schedule 1 of the GIPA Act and section 169A of the Police Act do not prohibit disclosure of the information, the Tribunal nevertheless has discretion to prohibit disclosure of information if there are public interest considerations against disclosure of the information which outweigh the public interest considerations in favour of release.
The Respondent also relies on clauses 1(d), 1(e), 1(f), 1(g), 1(h), 2(a) and 3(a) of the table to section 14 of the GIPA Act as relevant considerations.
Clause 1 of the Table to section 14 of the GIPA Act provides:

1 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,

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

(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).

…

Clause 2 of the Table to section 14 of the GIPA Act provides:

2 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) —

(a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,

…

Clause 3 of the Table to section 14 of the GIPA Act provides:

3 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,

…

In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by section 15. 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.
Section 55 of the GIPA Act permits a decision maker to take into account the following personal factors of the application in determining whether there is an overriding public interest against disclosure of information in response to an access application:

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

the applicant's motives for making the access application,

any other factors particular to the applicant.

Section 107 of the GIPA Act provides:

107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

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

(a) the public and the applicant, and

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

This provision was considered in some detail by Principal Member Titterton in Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73 (“Sheehy”) at paragraphs [25] – [32] of the decision.

Applicant’s application for his counsel to be present during confidential hearing conducted pursuant to s 107 of the GIPA Act

During the course of the hearing, the applicants’ counsel made an application that he and his instructing solicitor be allowed to be present during a confidential hearing (conducted pursuant to s 107 of the GIPA Act). The oral submissions of the parties’ counsel are recorded in the transcript of 21 and 22 September 2017. In addition, the respondent relied on Black v Hunter-New England Health District [2011] NSWADT 295 and Amos v Western NSW Local Health District [2017] NSWCATAD 176. In short, the respondent relied on the word “must” appearing in s 107(3) of the GIPA Act.
On the other hand, the applicants submitted that the Tribunal had to receive the confidential evidence in the absence of the public “if [the Tribunal] was of the opinion that it’s necessary to do so”. [1] The applicants submitted while it may appropriate for members of an outlawed motorcycle gang not to know the identity of the complainant, the applicants were not common criminals. Mr Eurell for the applicants submitted that the Tribunal had to form a “value judgment” whether or not it was in the public interest to have a confidential session.
1. Transcript, 21 September 2017, line 18

On 22 September 2018, I decided not to grant the applicants’ application, and indicated that my written reasons would be published later. What follows are those reasons.
The starting point is the words of s 107 of the GIPA Act. That section provides:
107 Procedure for dealing with public interest considerations
(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:
(a) the public and the applicant, and
(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
(emphasis added)
It was the respondent’s application that the Tribunal receive the confidential evidence of Chief Inspector Newton in the absence of the applicants and their legal representatives. [2] That application being made, and a claim of an overriding public interest against disclosure being made, then the matter must be heard in the absence of the public, the applicants and their legal representatives.
2. Transcript, 22 September 2017, line 18
Guidance is provided in the two authorities relied on by the respondent. In Black the Administrative Decisions Tribunal stated:
30 Without a procedure along the lines of section 107, the general rule of an open hearing and the open receipt of evidence would apply, which would be contrary to the objects of the GIPA Act and also render the determination of the respondent nugatory. This clearly was not the intention of Parliament. At the same time, it can be inferred that Parliament did not intend the procedure in section 107 to have a broader application other than to the 'information' that is the subject of the review application and any other information, the disclosure of which would disclose the information the subject of review. This may include information of the surrounding circumstances of the information in dispute.
31 Accordingly, the information to which subsection 107(3) applies, includes information of the kind described by the Appeal Panel in Black, but it will only apply where that evidence or argument is information, relevant to the application and which, if disclosed, will disclose the information for which there is, may be, or claimed to be an 'overriding public interest against disclosure'.
At [37] the Tribunal found that s 107(3) was mandatory in operation where the Tribunal formed the opinion as prescribed in that subsection; it must receive the evidence and hear argument the subject of the agency's application in the absence of the public, the applicant and the applicant's representative: also see Amos at [17].
I agree with the analysis of s 107(3) set out in both Black and Amos. I am of the opinion that it is necessary that part of this hearing be heard in the absence of the public, the applicants and their legal representatives so as to prevent the disclosure of information for which there is claimed to be an overriding public interest against disclosure. I reject the applicants’ submissions to the contrary, and that the assistance and presence of their legal representatives is necessary for the Tribunal to be able to properly understand and scrutinise the claims being made and the evidence being given.
1. In the circumstances of this matter I accepted that it was necessary to receive information on a confidential basis. Accordingly, evidence has been admitted that has not been given to the Applicant. This has been useful in providing details of the context in which the information was created and I have given weight to it.
2. I appreciate that section 107 provides for the denial of procedural fairness to the Applicant. He is in a substantially disadvantaged position in that regard. For this reasons, care must be taken to limit the disadvantage that he might incur.
3. In the circumstances of this matter, the Applicant is aware of most of the Respondent’s material. However, any information that is released in response to a GIPA access application is effectively disclosed to the world at large. Section 73(1) of the GIPA Act provides:

73 Access to be unconditional

(1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.

In Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 the Appeal Panel explained at paragraph [99]:

In contrast with situations such as disclosure of documents under summons solely for the purpose of the legal proceedings in which that summons is issued, other than in limited circumstances such as for medical or psychiatric information no conditions as to use or disclosure of information for which access has been provided under the GIPA Act can be imposed: s 73 GIPA Act. The fact that information the subject of these access applications may have previously been disclosed to the Commissioner, or to the Minister, for the purposes of the public inquiry or in respect of the other processes and considerations under Chapter 13, including the decision to hold a public inquiry, could not determine whether consent should be granted to disclosure in response to an access application made after those events. The fact that some of the information may have been provided to Ms Beregi, or any other person or witness to the inquiry, possibly for some specified purpose or subject to some undertaking or restriction as to use, could not constitute consent to the disclosure to the world under the GIPA Act.

Material before the Tribunal

The Respondent relies on the evidence of Chief Inspector Marc Holgate and Mr Matthew Smith. Each provided written statements but neither was required for cross-examination. The Respondent has provided an unredacted copy of the withheld material which has been filed confidentially. The Respondent has also provided a schedule which identifies each of the documents in dispute and indicates the Respondent’s position in regard to each of those documents.
The Applicant relies on his own evidence. Both parties provided written and oral submissions.

Schedule of documents in dispute

Helpfully, the Respondent has provided a schedule which identifies the documents that remain in dispute and the basis on which the Respondent has dealt with each document. The schedule also summarises the provisions in the GIPA Act on which it is relied. The references in the schedule to T1, T2, and T3 are references to clauses 1, 2 and 3 of the table to section 14 of the GIPA Act.
In these reasons I will adopt the numbering as set out in the schedule.
I note that the Applicant is no longer seeking the document identified as item number 21.

Item

Document description

Date

Outcome of original decision

Legislative provision pressed by Respondent

1.

Alternative Dispute Resolution Outcome Form

14.06.12

Released in part

T3(a)

2.

Senior Management Meeting Minutes - December 2012

N/A

Nil held

GIPA Act s. 58(1)(b)

3.

Senior Management Meeting Minutes - February 2013

15.02.13

Released in part

Not related to this event

4.

Resolution Outcome Report

17.09.13

Released in part

T1(d), T1(e), T1(f), T1(h), T3(a)

5.

Other documents in complaint file

(RTA Enquiry - Licence and Vehicle Details)

06.08.13

Refused in full

T1(f), T3(a)

6.

Other documents in complaint file (Unnamed internal document)

03.08.13

Refused in part

T1(d), T1(f), T1(g), T1(h), T2(a), T3(a)

GIPA Act Schedule 1(1)

7.

Audio recording of conversation between Inspector Callaghan and the Duty Operations Inspector

N/A

Nil held

GIPA Act s. 58(l)(b)

8.

COPS Entries for Event Report E 52124472

03.08.13

Refused in full

T1(d), T1(f), T1(g), T1(h), T2(a), T3(a)

9.

NSWPF Incident Document

06.08.13

Refused in full

T1(d), T1(f), T2(a), T3(a),

10

Tasking Sheets

02.08.13

Refused in full

T1(f)

11

Notebook entries

08.08.13

Refused in Part

T1(d); T1(f),

12

Field Arrest Form

N/A

Nil held

GIPA Act s. 58(l)(b)

13

Duty Officers Shift Synopsis

02.08.13

Released in part

T1(f), T3(a)

14

Complaint, includes Annexures A - E

03.09.13

Released in part

T3(a)

15

Triage Form

30.09.13

Released in part

T1(d), T1(e), T1(f), T1(g), T1(h), T2(a), T3(a), GIPA Act Schedule 1(1)

16

Complaints Management Team Minutes

24.10.13; 17.12.13; 07.11.13

Released in part

T1(e), T1(f), T1(h), T3(a)

17

Resolution Outcome Report

04.02.14

Released in part

T1(d), T1(e), T1(f), T1(g), T1(h), T2(a), T3(a), GIPA Act Schedule 1(1)

18

Document used in evidence in complaint procedure (Handover Document)

22.02.13

Refused in full

T1(f), T3(a)

19

Document used in evidence in complaint procedure (Handwritten notes)

Multiple dates

Refused in full

T1(d), T1(f), T1(g), T1(h), T2(a), T3(a),

20

Document used in evidence in complaint procedure (Diary entries)

Multiple dates

Refused in full

Not related / outside scope

21

Emails between Inspector Lindley and AC Murdoch

N/A

Nil held

GIPA Act s. 58(l)(b)

22

Diary   entries:

•   14.06.12;

•   04.09.12;

•   15.09.12;

•   08.12.12;

•   12.12.12;

•   10.01.13;

•   27.01.13;

•   12.02.13;

•   29.04.13;

•   30.05.13;

   02.08.13;

•   01.08.13

14.06.12 -02.08.13

Released in part

T1(f), T3(a)

Searches

As is apparent from the schedule the Respondent contends that it does not hold several items of requested information. The Respondent decided that it did not hold information responsive to items 2, 7, 12 and 21 as listed in the Schedule.
The applicant continues to press for items 2, 7 and 12. He submitted:

Item 2.

Upon applying for this information, I was required to provide the onus to satisfy the existence of the material in question. The IPC report confirmed I had satisfied this requirement with the onus now laying with the respondent. Until now, it had never been articulated to me that I once again held this onus. I press the information concerning the SMT minutes as I previously stated Inspector Ian Macey attended this meeting. The respondent provided no information to support whether Inspector Ian Macey has been consulted. A Ouija board is not required as Inspector Ian Macey continues to work for the NSWPF and is currently attached to the Newcastle City Police District.

The SMT is a meeting held by Senior Management and I have attended many in my official capacity as an Acting Inspector. The December SMT is one of the year's most important SMT's as it is the last SMT prior to the Christmas period and New Year's Eve celebrations. The suggestion a SMT was not held in December 2012 begs belief. The respondent provided the SMT minutes for February as listed in item 3. This meeting references me but I am not able to read why as the copy provided was illegible.

Item 7.

I have spoken to Inspector Ian Macey; he has confirmed making inquiries with the Duty Operations Inspector relating to this application. However, due to the timeframe he cannot recall whether this was contained as an audio recording, however he did confirm this was articulated in his resolution outcome report (See item 4). This item is being pressed.

Item 12.

Item is being pressed; however, I am satisfied to accept a redacted copy to adhere with the legislative provisions.

The Respondent submits that his searches were reasonable and adequate as required by section 53 of the GIPA Act.
Section 53 of the GIPA Act requires an agency to 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.
In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 the Appeal Panel reviewed a number of authorities relating to section 53 of the GIPA Act and stated at paragraph [36] - [44]:

Section 53 of the GIPA Act imposes an obligation on an agency to undertake “such reasonable searches as may be necessary to find” the requested information: s 53(2). That obligation is limited to “information held by the agency when the [access] application is received”: s 53(1). The search must be conducted “using the most efficient means reasonably available to the agency”: s 53(2). The obligation extends to searches using “any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically”: s 53(3). The obligation to search does not extend to searches that would require a “substantial and unreasonable diversion of the agency’s resources”.
The question of whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by an agency, is plainly relevant to the nature and extent of the searches required to be undertaken to discharge the obligation under s 53. Where, for example, the likelihood of the requested information existing and being held by the agency is farfetched or fanciful, for example, NSW Health holding information about US President Donald Trump’s Twitter account or evidence of alien life in Wagga Wagga, arguably no search could properly be characterised as being a “reasonable search ... as may be necessary to find any of the government information applied for” and, therefore no obligation to search arises. Conversely, where it is reasonably likely that the requested information exists and is held by the agency, a cursory search said to be unable to find the requested information, is unlikely to satisfy the obligation imposed by s 53.
However, in my view, there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake “reasonable searches” is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that “there are reasonable grounds to believe that the requested information exists and is held by the agency”. Being familiar with the type of information it holds, its information management and retrieval systems, generally the agency will be best placed to make an assessment about the likelihood that the requested information exists and is held by it. Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s 53. This is not to say that the stated basis for an applicant’s belief that the requested information exists and is held by the agency. Indeed, the basis for that belief may assist the agency in identifying and finding the requested information. However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency’s “information is not held” is the correct and preferable decision.
While reluctant to depart from a long line of authority, I have concluded that in the context of an administrative review of an “information is not held” decision made under s 58(1)(b) of the GIPA Act, the application of the two-step test in Shepherd is plainly wrong. Applying that test requires the Tribunal to first determine whether there are “reasonable grounds to believe that the requested documents exists and are documents of the agency”. If the Tribunal concludes that the answer to that question is no, the antecedent question of whether the “search efforts made by the agency to locate such documents have been reasonable” does not arise. In my view, that approach is at odds with s 105 of the GIPA Act which places the burden on the agency of establishing that its decision that information is not held, is justified.
In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal’s power when reviewing an “information not held” decision, stating at [33]:
The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search.
I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an “information is not held” decision is the “correct and preferable decision”. I do not understand the Appeal Panel in Klaric to suggest otherwise.
The role of the Tribunal in reviewing an “information not held” decision (ss 58(1)(b), 80(e)) is “to decide what the correct and preferable decision is having regard to the material then before it”: s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The “burden of establishing that the decision is justified lies on the agency”: s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.
In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “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”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.
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.
1. This approach has been adopted in a number of decisions in the Tribunal. See, for example the discussion in Ugur v Commissioner of Police [2020] NSWCATAD 293 from paragraph [16]; Miriani v Transport for NSW [2021] NSWCATAD 16 at paragraph [38].
2. It is for the Respondent to demonstrate the correctness of its decision under section 105 of the GIPA Act.
3. The Respondent submits that there are no reasonable grounds to believe that the requested information exists. He relies on the evidence of Mr Matthew Smith, Senior Advisory Officer with the Respondent, who provided evidence of the searches which had been conducted.
4. As noted, the Respondent has provided open and confidential material.
5. In his statement of 17 July 2020 Mr Smith provided the following details:

Senior Management meeting minutes and Audio Recordings

In relation to items 1 and 2 [of the access application], on 19 August 2018, a NSWPF InfoLink Officer made enquiries of the Inner West Local Area Command, which held the entirety of the complaint file LMI303165. If Senior Management Team ("SMT") meeting minutes were to be held, in my experience, they would be held on this file. Infolink was advised on 27 August 2019 by the Executive Officer of the Inner West Local Area Command that a search of the Complainant File and the Records Management System ("RMS") revealed that that no minutes were found in relation to an SMT meeting which took place on 12 December 2012. On 6 September 2019 a further search enquiry with the Inner West Police Area Command ("PAC") confirmed via email from the Executive Officer that no record was held indicating that any meeting took place on 12 December 2012.

On 10 June 2020, I also undertook an independent inspection of the RMS, as well as the complaint file LMI1303165. All hard copies of complaint files including any minutes are uploaded to the RMS system, which can be searched by record number or title word. A search was undertaken using both the document number and the applicants name as a title-word. As a result of these searches, no minutes were found in relation to a meeting which took place on 12 December 2012, or a recorded conversation between Inspector Callaghan and the Duty Operations manager concerning the applicant.

In my experience, I would expect that records which would relate to formal meetings and audio recordings would be held on the complaints file.

Field Arrest Form

In relation to item 3 [of the access application], on 27 August 2019, Infolink was advised by the Executive Officer of the Inner West Command that the document does not exist as a Future Can was issued. A Future Can is given to an accused when they are charged with an offence but not taken into custody. On 10 June, a NSWPF Infolink officer under my direction searched the Computerised operational policing system ("COPS") to locate the Future Can. The search was conducted using the name of the accused and date of the offence. This document was released to the applicant in full as part of the Supplementary Notice of Decision.

Emails between Inspector Lindley and AC Murdoch

In relation to item 4 [of the access application], a further search was conducted by the Digital, Technology and Innovation Unit ("DTI") of the NSWPF of the email accounts of Mark Murdoch and Dean Lindley.

The DTI is a unit independent of the complaint investigation which was conducted. I am aware that searches between the dates of 1 December 2014 and 30 April 2014 were conducted using the applicant's name ("David Thomson") as a keyword. A keyword search allows for an automated search of the text and headings of all emails which contain that word, or part of that word.

On 10 June 2020 I was advised that no emails were found that met the parameters outlined ...

Mr Smith stated that he believes that the searches that were undertaken in response to the access application were reasonable. He also believes that they are exhaustive of all locations likely to contain information responsive to the access application. He could not think of any other searches that could be undertaken that would be likely to result in further information being located in this matter.
In his statement dated 7 August 2020 Mr Smith added further details in relation to the searches undertaken. He stated:

Senior Management Team meeting minutes

In my previous statement, I outlined details of searches conducted by the Inner West Local Area Command, the Inner West Police Area Command, and myself, which resulted in no Senior Management Team ("SMT") meeting minutes being located for any SMT meeting taking place in December 2012.

On 5 August 2020, I also spoke with Inspector Macey of the Newcastle Local Area Command. I asked whether he recalled attending any meeting in regard to the applicant in December 2012. He stated to me that he could not recall attending any meeting due to the duration of the time that had passed, but further stated that, if a meeting had taken place, the minutes would be retained by the Local Area Command where the meeting took place. Given that, as outlined in my previous statement, no SMT meeting minutes were located for any SMT meeting taking place in December 2012 by the Inner West Local Area Command, I do not have reason to believe that any SMT meeting minutes from December 2012 exist.

On 5 August 2020, I also conducted a search of the documents returned to the NSWPF GIPA Unit by the Inner West Police Area Command. Among these documents was an email from the Executive Officer of the Inner West Police Area Command dated 6 September 2019. This email confirmed that no clearer copy of the SMT minutes from February 2013 (which I understand to be Item 3 in the Amended Schedule of Documents in Dispute filed by the Respondent in this matter) was available. In this email, the Executive Officer also stated that there was no SMT held in December 2012 and that, therefore, there were no minutes.

Audio Recording

In my previous statement, I outlined the details of searches conducted by myself on 10 June 2020 of the complaint file LMI1303165 which resulted in no audio recording of a conversation between Inspector Callaghan and the Duty Operations Manager concerning the applicant being located.

On 5 August 2020, I also reviewed the documents returned by the GIPA Unit to the Inner West Police Area Command, to search for any Audio CD Disk located amongst those documents which might record any conversation held between Inspector Callaghan and the Duty Operations Manager over the radio on 3 August 2013. Although a Cad Log of a VKG transmission was included, there was no audio recording contained in those documents.

On 6 September 2019, in the same email referenced in paragraph 6, the Executive Officer stated that the Inner West Police Area Command does not hold a disk containing any audio recordings of a conversation between Inspector Callaghan and the Operations Duty Officer on the complaint file LMI1303165. I do not have any knowledge of where any audio recording might otherwise be located.

Field Arrest Form

As outlined in my previous statement, on 27 August 2019, Infolink was advised by the Executive Officer of the Inner West Command that no "Field Arrest Form" exists referencing the arrest of a male person of interest at Munni Street Newtown in 2013, as a Future Court Attendance Notice ("CAN") was issued to the accused person.

On 5 August 2020, I also searched the Computerised Operational Policing System ("COPS") in order to locate any Field Arrest Form pertaining to the accused person. The search was conducted using the name of the accused and date of the offence. As a result of this search, no Field Arrest Form was located and the record indicates that the accused was served with a Future CAN.

This accords with my understanding of the nature of a Field Arrest Form. A Field Arrest Form is an administrative document that allows the arresting police officer to record the date, time and details of the arrest, but which is not always required to be completed for every arrest (for example, an officer might simply use their notebook to record the arrest details). A Field Arrest Form is distinct from both a Field CAN and a Future CAN. A Future CAN (as was issued to the accused in this case), is a summons to appear at court, and is usually prepared when an offender is not in custody and is then served on the person at a later time, whereas a Field CAN is issued out of what is similar to a ticket book in the field to provide the person with details of the charge and court appearance requirements.

The essence of the Applicant’s argument is that if proper procedures were followed, these items of information should exist.

Finding in regard to items 2, 7 and 12

The issue that I need to determine is whether the Respondent’s decision is the correct and preferable one.
Section 53 of the GIPA Act requires an agency to undertake such reasonable searches as may be necessary to find the requested information. It is a question of fact whether or not the searches that were undertaken were reasonable and adequate. I am satisfied that Mr Smith conducted the searches as he has stated. As noted, Mr Smith was not required for cross-examination. His evidence has not been challenged. It is apparent that Mr Smith has made follow-up inquiries in light of the Applicant’s submissions and he was unable to locate the items. He has indicated that he is unable to suggest other searches that could have been undertaken.
In my view it is unlikely that any further information sought is held by the agency. If it is held, it is not held in the locations where it would be reasonable to expect that it would be located. In my view the searches that were undertaken were reasonable and adequate and further searches are unlikely to locate the information. There are no reasonable grounds to believe that the requested information in relation to items 2, 7 and 12 exists. Therefore, the correct and preferable decision is to affirm the Respondent’s decision in this respect.

The Withheld Information

The Respondent has refused the information in some documents and made certain redactions to the information released from other documents and has relied upon various clauses in the table to section 14 to the GIPA Act. The Respondent also relies on Schedule 1(1) to the GIPA Act in relation to other information.

Schedule 1(1) to the GIPA Act

The Applicant was involved in complaints made pursuant to Part 8A of the Police Act. As noted above, Schedule 1(1) to the GIPA Act provides that there is a conclusive presumption against release of information if the disclosure of the information is prohibited by section 169A of the Police Act.
The Respondent maintains that Items 6, 15 and 17 of the schedule of documents are within the scope of this conclusive presumption. It submits that some of the information in dispute in those documents relates to the investigation of complaints made under Pt. 8A of the Police Act and that the disclosure of that information would reveal the identity of informants who have made complaints or provided information during the course of internal investigations.
It is clear that if Schedule 1(1) to the GIPA Act and section 169A of the Police Act apply to the withheld information, there is no discretion in regard to whether or not the information should be released. No balancing exercise is required to determine whether or not the public interest considerations in favour of release of the information outweigh those against disclosure.
The Respondent has provided a copy of the withheld information on a confidential basis and I have had the opportunity to view it. The documents speak for themselves.
Having viewed the material it is readily apparent that parts of Items 6, 15 and 17 of the schedule of documents contain information that is captured by those provisions. I am satisfied that the exceptions contained in section 169A of the Police Act do not apply to that part of the withheld information.
It follows that the decision to withhold the information in these documents is the correct and preferable one and it should be affirmed.

Public interest considerations in favour of disclosure - section 14 of the GIPA Act

As noted, there is as general public interest in favour of the disclosure of government information. Section 12 of the GIPA Act provides some examples of considerations in favour of disclosure.
The Applicant contends that the Respondent failed to investigate his bullying complaint satisfactorily. The disclosure of the withheld information would shed light on the investigation that was undertaken and allow the Applicant to form an understanding of the processes that were followed. It may help him to determine whether the Respondent ignored evidence that he provided throughout the course of the internal investigations. He might then be in a position to pursue whatever avenues are available to hold the Respondent and individual officers accountable.
It is common ground that some of the withheld information is the personal information of the Applicant. There is a public interest in individuals being able to have access to their own personal information.
I agree that these are applicable considerations in favour of disclosure of the withheld information.

Public interest considerations against disclosure - section 14 of the GIPA Act

The withheld information relates to workplace issues and the Respondent’s approach to dealing with those issues. Chief Inspector Holgate gave evidence in regard to the NSWPF's investigation of complaints and complaint handling procedures. As a former police officer the Applicant will be familiar with many of these processes. The evidence provides a useful context in which the withheld information can be viewed and it provides support for the Respondent’s contentions regarding the application of various clauses under the table to section 14 of the GIPA Act. Chief Inspector Holgate provided both open and closed statements. The Applicant has not been given a copy of the closed statement. It contains references to specific information that has been withheld from the material that has been released.
At paragraphs [16] – [31] of his open statement dated 17 July 2020 he stated:

Complaints under Pt. 8A of the Police Act 1990

Pursuant to Part 8A of the Police Act, any person (whether a member of the public or a member of the NSWPF) may make a complaint about the conduct of a member of the NSWPF to the Commissioner of Police, NSWPF ("the Commissioner").

The Commissioner has delegated most of his functions under Part 8A and Part 9 of the Police Act to specific positions and ranks within the NSWPF. This means that the assessment, investigation (if required) and any resulting disciplinary action (except removal under section 181D) arising from a complaint will generally be the responsibility of the Commander under whose Command or Unit the subject member of the NSWPF is employed. There are exceptions to this arrangement where, for example, conflicts of interest, complexity, availability of investigative resources and rank of subject police officers or administrative employees warrant referring the misconduct matter to another Unit such as a Region or PSC.

When a complaint is received, an individual complaint file is created in the NSWPF's complaints information system, IAPro. An initial assessment is made of the complaint and a decision is made as to whether the complaint will be investigated. This involves reviewing the complaint and making an assessment. This assessment is recorded in a triage form, which is added to the complaint file. The Customer Assistance Tracking System ("[email protected]") was the system used to manage complaints and misconduct matters between 2002 and 2018. The information in [email protected] has been migrated to IAPro.

If a decision is made to investigate the complaint, a police officer will be appointed to carry out the investigation. During the period of the investigation, interim risk management action may be taken with respect to the subject member of the NSWPF, including a change in duties or additional supervision....

Investigations under Part 8A are particularly sensitive and must be treated confidentially. The statutory provisions under Part 8A coupled with the NSWPF policies and procedures provide extensive and comprehensive rules for the way in which complaints are dealt with. These rules are fundamental to the integrity of the investigation process. The statutory provisions of particular importance include:

a. section 169A of the Police Act, which strictly prohibits members of the NSWPF from disclosing the identity of a complainant, except in particular circumstances;

b. section 170 of the Police Act, which provides that all documents brought into existence for the purposes of Part 8A are privileged and may not be used as evidence except in specified legal proceedings;

c. clause 54 of the Police Regulation 2015, which also imposes non-disclosure obligations on police officers that receive complaints; and

d. clause 76 of the Police Regulation 2015, which prohibits, without proper authority, the disclosure of all information which comes to a member of the NSWPF's knowledge in his or her official capacity.

There are also procedures in place to ensure that complaint information is kept confidential. For example, complaint information must be managed so that its physical security is protected at all times. Triage officers are expected to ensure information is provided to resolution managers securely. Professional Standards Duty Officers ("PSDOs") are expected to monitor the security of information handled by resolution managers. Further, Commanders and or managers are required to ensure that systems and procedures for the safe management and storage of complaint information are established and maintained.

Broadly, and generally, it is essential to withhold information and evidence obtained and created in connection with a complaint from disclosure for three reasons.

First, if such information were disclosed under the GIPA Act, this has the potential to prejudice the supply of complaint information and evidence in support of investigations in the future. The NSWPF must be able to assure persons making complaints and providing information in connection with alleged police misconduct, including NSWPF officers, that their identity will be protected and the information provided will be kept confidential. If the NSWPF could not make such assurances, it would undermine the confidence of people to come forward with information about police misconduct and make them reluctant to make such complaints about police misconduct or disclose such information. As a result, this would likely lead to a decrease in complaints of police officer misconduct and a decrease in the capacity of the NSWPF to capture crucial information about misconduct matters.

Further, information recorded in misconduct matters contains personal information about individuals who have a valid expectation that their personal information will not be divulged to the public. The effectiveness of the police internal disciplinary system relies on the principle that people can be confident that their personal information held by the NSWPF will be kept confidential.

Secondly, there needs to be a degree of confidentiality over the manner in which PACs, PDs and PSC investigate complaints about misconduct and the deliberative processes involved in handling complaints. The disclosure of complaint information generally would reveal:

a. the manner in which internal investigations are conducted;

b. how evidence is sourced and collected; and

c. the nature of the deliberative processes involved in handling complaints.

Such revelations would have the real and probable effect of prejudicing the effective exercise of the NSWPF's investigative disciplinary functions. If members of the NSWPF and the public were able to understand the NSWPF's investigative practices and procedures or deliberative processes, then:

a. members of the NSWPF would be able to effectively deploy counter-measures to navigate their way around detection,

b. members of the NSWPF could circumvent or obtain an unfair advantage to the detriment of the integrity of the deliberative process; or

c. persons could create malicious evidence against members of the NSWPF.

The ability of police officers to evade detection completely, or conversely be the target of malicious allegations, undermines a vital statutory function of the NSWPF to be a police force of the highest integrity. PACs, PDs and PSC must be able to deploy whatever means and investigative techniques deemed appropriate to thoroughly and properly investigate allegation of misconduct. By maintaining secrecy over the investigative and deliberative process, the NSWPF remains one step ahead of those who are alleged to have engaged in misconduct.

Thirdly, it is essential that members of the NSWPF investigating complaints are able to conduct open deliberations in relation to police officer misconduct and any investigation of such misconduct. If deliberations and decisions of the NSWPF (for example, the PSC, PAC or PD) were disclosed with respect to their handling of complaints, their ability to engage in frank and honest deliberations would be hindered. To inhibit candid discussion and opinions during deliberations would potentially compromise any findings or conclusions resulting from the investigation, which correspondingly would have a detrimental effect upon how police misconduct is addressed.

If people are unhappy with their complaint outcomes, they can approach the LECC for review. In many cases, the LECC will be monitoring and overseeing the investigation of the complaint as it unfolds.

Accordingly, it is not in the public interest to allow the investigative methodologies of the NSWPF to be undermined by those who use disclosed information to effectively avoid the detection of their misconduct or, in some instances, criminal behaviour. It is therefore vital for the maintenance of the integrity of the NSWPF's investigative function that detailed complaint file information not be disclosed to the public where that disclosure may reveal how the NSWPF prevents, detects or investigates contravention of the law by its members.

NSWPF officers are legally required to report misconduct of their fellow officers, or give information about their co-workers throughout the complaints handling process, pursuant to section 21 IF of the Police Act. Further, if a particular complaint matter was subsequently taken to the Industrial Relations Commission ("the IRC"), then any police witnesses providing information in connection with the alleged police misconduct would be expected to give evidence in the IRC. NSWPF officers also have a corporate responsibility under the NSWPF Code of Conduct and Ethics to report the misconduct of their colleagues. Section 7(a) and (b) of the Police Act speak to officer's placing integrity above all and upholding the rule of law. My views expressed … above remain the same regardless of whether the NSWPF officers providing information in any particular case do so voluntarily or under a legal or professional obligation to do so, for the following reasons:

a. Regardless of whether a NSWPF is required to report misconduct, such a report is made in the knowledge that the report will be kept confidential. If officers believed that the information they provided would be made public, this would likely lead to a decrease in complaints of police officer misconduct even where these reports are required by law. In my view, this would undermine the integrity and effectiveness of the NSWPF complaints handling process;

b. It is likely that NSWPF officers giving information about co-workers as part of the complaints handling process would be more inhibited in their responses if they knew that any information given could be made public. NSWPF officers may also prefer to have oral conversations, rather than put their responses or complaints in writing, if they knew any notes made as part of the complaints process could be disclosed. This again means that the information flow would be inhibited, hampering NSWPF efforts to identify and correct misconduct;

c. Notwithstanding a NSWPF officer's statutory and corporate obligations, the effectiveness and efficiency of the complaints handling process relies largely on the willingness and voluntary participation of NSWPF officers. In my experience, reporting a colleague's misconduct, or giving evidence against a colleague, is very confrontational to many officers, and causes officers to sometimes 'turn a blind eye' to their colleague's wrongdoing. This is why every assurance possible is required to encourage officers to come forward to report misconduct and to provide full and frank accounts regarding their colleagues when necessary;

d. There is a difference between the requirement to give evidence before the IRC, and disclosing information as part of an application made under the GIPA Act. Any evidence will be subject to various controls or formal application processes before it is given in court or before the IRC, whereas once information is released as part of an application under the GIPA Act, the NSWPF has no subsequent control over how that information is used. This is an additional reason why NSWPF officers may be more inhibited in their responses, and why it is essential to withhold information and evidence obtained and created in connection with a complaint from disclosure; and

e. Where NSWPF officers give information about co-workers as part of internal investigations, the public disclosure of this information would likely affect relationships in the workforce. I am aware of PACs becoming very toxic and divided during internal investigations. If information were to be disclosed publicly, in my view, divisions would then be more likely to form between those involved who support the subject officer due to a long standing loyalty or friendship, and those who support the officers who are providing evidence in the matter. Each group may then attempt to undermine the other group in a dysfunctional, almost 'feud like', manner. In my view, the public disclosure of this information could then lead to a reduction in services provided to the public at all levels, from general calls for assistance to emergencies and serious crime, as the officers are distracted from their sworn duty by workplace conflict.

As Chief Inspector Holgate noted, and as I have discussed above, no restrictions can be placed on the use of information once it is released as part of an application under the GIPA Act. While the Applicant is aware of most of the withheld information, that information has not been disclosed to the world at large.
The issues that the Respondent has raised reflect the views that Chief Inspector Holgate has expressed.
In contrast, the Applicant asserted that the NSWPF has an unwillingness to exercise its functions under the Police Act effectively. He is also extremely critical of the manner in which these proceedings have been conducted in that they put him at a disadvantage in presenting his case without access to the material that has been withheld. In that regard I repeat that the burden of establishing that there is an overriding public interest against disclosure of information lies on the Respondent. The disadvantage that the Applicant has experienced in running his case is balanced, to a large extent, by placing the onus on the Respondent. The Respondent has put forward evidence to meet that obligation and the witnesses have not been required for cross-examination.

Clause 1(d)

As indicated in the schedule set out above, the Respondent relies on this clause in relation to the documents identified as items 4; 6; 8; 9; 11; 15; 17; and 19.
This clause provides that there is a public interest consideration against release of the information where release of information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. The Appeal panel recently considered this clause in the matter of Danis v Commissioner of Police [2021] NSWCATAP 23. At paragraphs [47] – [57] the Appeal Panel stated that:

cl 1(d) requires the subject information be “confidential” information; that it be information that facilitates the exercise by the agency of its functions; and that disclosure of that information could prejudice the supply of such information. ...
At [26] and [37], the Appeal Panel in [Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19], stated that the s 14 public interest considerations against disclosure "are concerned with systemic features of the operation of government" and need to be examined “at a broad operational level”. At [33]-[34], the Appeal Panel stated 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”. That inquiry should “focus on the point of receipt, and the administrative standards and community understandings which surround it".

...

Citing Camilleri, at [62] the Tribunal stated that the question posed by the third limb of cl 1(d):
[I]s not … whether it would reasonably be expected that a particular person considering disclosure may refuse to supply such information but rather whether the agency’s general ability to obtain such information in the future would be likely to be prejudiced.
The Tribunal went on at [34] to conclude:
[I]t is a core function of the NSWPF to investigate and take enforcement action in relation to cases of child abuse and assault and that disclosure could reasonably be expected to prejudice (or impair) the effective exercise by police of their investigative and law enforcement functions.
Mr Danis contends that the principle stated in Camilleri is “contrary to the objects of the GIPA Act” and is “contrary to the well-established and widely accepted principles that each case is unique and ultimately turns on its facts and must be determined by reference to its particular characteristics”. He points out that the words “broad operational level” and “systemic features” are not contained in s 14, or any other provision of the GIPA Act.

…

[T]he chapeau to cl 1 in the Table to s 14 expressly permits the decision maker to inquire whether disclosure of the subject information could reasonably be expected to have one or more of the effects listed in that clause, both in “a particular case” and “generally”:
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)
(emphasis added).
[W]hen read in context it is plain, as explained by the Appeal Panel in Camilleri at [29], that the considerations listed in cl 1 “squarely focus on considerations relating to the conduct of the business of government” and that the relevant inquiry is whether disclosure of the subject information could reasonably be expected to have one or more of the listed effects, such as: prejudicing collective Ministerial responsibility (para (a)); prejudicing relations with, or the obtaining of confidential information from, another government agency (para (c)); prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (para (d)); prejudicing the effective exercise by an agency of the agency’s functions (para (f)).
The Tribunal was entitled, as it did, to inquire whether it could reasonably be expected that in the future the NSWPF’s ability to obtain information from the victims or alleged victims of child abuse and assault would be prejudiced by disclosure of the DVD. We reject Mr Danis’ submission that by posing that question and considering the practices and procedures adopted by the NSWPF in its treatment of information given by victims or alleged victims of child abuse and assault, the Tribunal misapplied cl (1)(d). We note that the Tribunal was also entitled to consider whether disclosure of the subject information could reasonably be expected to have one or more of the effects listed in that clause, in “a particular case”. To the extent Camilleri suggest otherwise we disagree.
1. The subject matter in these proceedings is very different to that in Danis, but the principles outlined there are equally applicable in this matter.
2. The parties have provided written submissions in relation to each of the elements of clause 1(d).

Confidential information

The Respondent relies on views expressed in a number of Tribunal decision in relation to the issue of whether the information in issue was ‘confidential information’.
In Vella v Commissioner of Police [2009] NSWADT 68 at paragraph [13], the Tribunal held that:

"It is well established that in order for an agency to satisfy the Tribunal that information was obtained in confidence ... it is not necessary to show that there was an express obligation or understanding that the information was given in confidence. It is sufficient for this to be implied from the circumstances in which the information was obtained or given."

In Camilleri at paragraph [34], the Appeal Panel held that in considering whether information is "confidential information" the focus should be on the point of receipt of the information and the administrative standards and community understandings which surround it.
In AEZ v Commissioner of Police [2013] NSWADT 90 at paragraph [71], the Tribunal held that information in a witness statement made in support of an application for an apprehended violence order was given in confidence even though there was an express acknowledgement that the person would be prepared to give the same evidence in open court. The Tribunal accepted that, in the operational context in which the statements were taken, there is a concern with "present and ongoing relationships" and a "need for, and expectations of, confidentiality in the Police's protection of individuals from personal and domestic violence".
In Raven v University of Sydney [2015] NSWCATAD 104 at paragraph [62], the Tribunal held that the words "confidential information" do "not connote information which may not be disclosed in any circumstances. The term captures information which is not to be disclosed in ordinary circumstances."
In relation to the issue of confidentiality of information the Applicant submitted:

Firstly, the purpose of providing immediate protection for information is to ensure genuine complaints can be afforded the proper protection. Complaints cannot always be judged on face value, at times requiring investigation prior to an informed decision being able to be made. Therefore, this protection should be considered as 'provisional protection' until contrary information is identified to suggest the protection is not an entitlement, that is, provided on a false or misleading basis.

Secondly, for information to be deemed "confidential" it needs to be information consistent with the principles of the said Acts, in this case the Police Act 1990. That is, information must be provided in "good faith", or "a frank and honest belief/opinion," or "on reasonable grounds to suspect." This is a crucial element and must be considered as without it, they are just rhetoric. ...

Facilitates the exercise by the agency of its functions

In Head v Commissioner of Police (NSW) [2010] NSWADT 27 and Ritson v Commissioner of Police (NSW) [2010] NSWADT 22, the Tribunal held that information received from complainants or witnesses (external or internal) ought to be kept confidential to maintain the flow of information to the Commissioner about the performance of his officers.
In DDT v Charles Sturt University [2017] NSWCATAD 329, the Tribunal concluded that clause 1(d) applied to information concerning a complaint, even though the applicant was the complainant, because it was important that any persons communicating with investigators could be assured, if appropriate, that their communications would be treated confidentially. Disclosure of confidential communications from persons other than the applicant could potentially prejudice future cooperation with such investigations.
In Sheehy at paragraph [65], the Tribunal found that the disclosure of internal investigation files would prejudice the supply of future complaint information to police and prejudice the effectiveness of internal investigations into police officers in the future.
However in Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 Senior Member Lucy did not accept that police officers would not give full and frank responses if confidentiality was not assured. She stated at paragraphs [84] - [85]:

There was evidence from the Commissioner that police are generally obliged to provide information in respect of a Part 8A investigation if the investigator wishes to interview them. Detective Inspector Raper gave evidence that the procedure, when investigating a Part 8A complaint, is to approach the subject officer for interview “under caution in criminal inquiries and under direction in departmental inquiries.” The Detective Inspector stated that “[w]hether or not a subject officer declines to answer under caution, it will usually be the case that the subject officer is directed to answer questions under clause 8 of the [Police] Regulation [2008].”
That is, police officers are generally required to answer the questions put to them in an interview conducted under Part 8A of the Police Act 1990. They are under a duty to provide information in response to the questions they are asked. Further, 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.

Prejudice the supply of such information

In Hurst v Wagga Wagga City Council [2011] NSWADT 307 (“Hurst”) at paragraph [60], the Tribunal held that "prejudice" in the context of the GIPA Act is to be given its ordinary meaning, that is, to "cause detriment or disadvantage" or to "impede or derogate from".
In Director General, Department of Education & Training v Mullett (GD) [2002] NSWADTAP 13 at paragraph [58], in considering the equivalent provision to clause 1(d) under the former Freedom of Information Act 1989, the Appeal Panel held that the provision:

"... 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; [sic] 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. ...'."

In Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at paragraph [55], the Tribunal accepted that the test to be applied in relation to clause 1(d) is "not whether a particular reward claimant whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether the agency will be able to obtain such information in future".

In Transport for NSW v Searle [2018] NSWCATAP 93 at paragraphs [61] - [63], the Appeal Panel held that the Tribunal erred in requiring the agency to provide "factual" evidence of the prejudice to supply that would arise if information were to be disclosed. The Appeal Panel accepted that an inference could be drawn from the confidential nature of the process by which the agency obtained the information and the rationale for the confidentiality.

Consideration

I have considered each of the documents that the Respondent contends are subject to the public interest consideration against disclosure found in clause 1(d). In the circumstances of this matter I am satisfied that the information in issue is information that facilitates the effective exercise of that Respondent’s functions. Clearly, information that is relevant to an investigation regarding the conduct of police officers is information that can be categorised in that way.
I am satisfied that it can be implied from the circumstances in which the information was provided that the information was obtained in confidence. I am satisfied that would be reasonable for those who provided the information to expect that their communications would be treated confidentially.
It is not in dispute that the investigation of complaints about police officers are particularly sensitive. I accept Chief Inspector Holgate’s evidence in regard to these issues. Investigations must be treated confidentially and procedures are in place to ensure that this type of information is kept confidential. I am satisfied that the release of information of this kind would have the potential to undermine the confidence of those who are in a position to provide information about police misconduct. The effective exercise of that Respondent’s functions relies on these people to make complaints about police misconduct and disclose such information.
The question then remains as to whether the information would prejudice the supply of future information of this kind to police and prejudice the effectiveness of internal investigations into police officers in the future. As noted, the test to be applied is whether the agency will be able to obtain such information. Undermining the confidence of complainants who possess information of police officer misconduct has the potential to make them reluctant to come forward with the information that they possess. This would likely lead to a decrease in complaints.
I also accept Chief Inspector Holgate’s evidence of the potential consequences of releasing information that would reveal details about the manner in which complaints about misconduct are investigated. A degree of confidentiality over these processes helps avoid the possibility that police officers engaging in misconduct could evade detection, circumvent procedures or create malicious evidence against other officers. The ability of police officers to evade detection completely, or to be the target of malicious allegations, has the potential to undermine vital functions of the agency.
I accept that the effectiveness and efficiency of the complaints handling process relies largely on the willingness and voluntary participation of officers. If officers believed that the information they provided would be made public, this would likely lead to a decrease in complaints of police officer misconduct even where these reports are required by law. In my view, this would undermine the integrity and effectiveness of the NSWPF complaints handling process.
I accept that frank and honest deliberations could be hindered if information with respect to their handling of complaints were disclosed. It could inhibit candid discussion and offering of opinions and this which have a detrimental effect upon how police misconduct is addressed.
Chief Inspector Holgate’s evidence in this regard is that it is vital for the maintenance of the integrity of the Respondent’s investigative function that information that might reveal how the Respondent prevents, detects or investigates contravention of the law by its members is not released. I accept that evidence.
In the present matter, I am satisfied that the disclosure of the withheld information in these documents would prejudice the supply of future complaint information to police and prejudice the effectiveness of internal investigations into police officers in the future. For the reasons discussed in DDT v Charles Sturt University and in Sheehy I am satisfied that this is the case notwithstanding that the Applicant was a complainant.
In my view, the public interest consideration against disclosure in clause 1(d) of the Table to section 14 of the GIPA Act is applicable to the withheld information in these documents and should be given significant weight.

Clause 1(e)

As indicated in the schedule set out above, the Respondent relies on this clause in relation to the documents identified as items 4; 15; 16; and 17.
In relation to clause 1(e) there are two elements. First one must look to see whether the withheld information concerns a deliberation, consultation, opinion, advice or recommendation. The second element requires consideration of whether the revelation of that information could be reasonably expected to prejudice a deliberative process of government or an agency. The Tribunal must be satisfied that the disclosure of the information in issue could reasonably be expected to "reveal a deliberation" in such a way to "prejudice a deliberative process". The Respondent must demonstrate how and why a prejudice would arise if the withheld information is disclosed.
In Seremetis Senior Member Goodman stated at paragraphs [88] – [91]:

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].
As noted above, the word “prejudice” bears its ordinary meaning.
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].
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.
1. The meaning of the term ‘deliberative process’ was considered by the Administrative Appeals Tribunal in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61], in the context in which it appeared in section 36 of the Commonwealth Freedom of Information Act 1982 as it applied at that time. Although clause 1(e) of the GIPA Act and section 36 of the Commonwealth Freedom of Information Act are not the same, they both deal with the disclosure of information concerning the ‘deliberative process’ of government or an agency. Hence, the following comments of the AAT, in Re Waterford, remain instructive:

58 As a matter of ordinary English the expression “deliberative processes” appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. “Deliberation” means “The action of deliberating: careful consideration with a view to decision”: see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes — the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. …

59 It by no means follows, therefore, that every document on a departmental file will fall into this category. … Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies.

60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure — documents that might, perhaps, have been more aptly described in the headnote as “Internal Thinking Documents”. …

61 In order to test the application of s 36(1)(a) to particular documents, it is helpful, in our view, to endeavour to identify what are the “deliberative processes” involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. …

I accept that the information in issue was created as part of a deliberative process within the Agency.
I am satisfied that the release of records which would reveal sensitive deliberations could be reasonably expected to hinder future communications, thus impacting on the ability of the Respondent to effectively address such issues. Staff may feel inhibited in providing frank and honest views regarding such issues, or may decline to participate in the deliberative process altogether. Staff may also feel reluctant to commit their views in writing, and may only feel comfortable participating in deliberations orally.
Officers should be free to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record: see discussion in McKinnon v Department of Treasury [2006] HCA 45.
In my view, the public interest consideration against disclosure in clause 1(e) of the Table to section 14 of the GIPA Act is applicable to the withheld information in these documents and should be given significant weight.

Clause 1(f)

As indicated in the schedule set out above, the Respondent relies on this clause in relation to the documents identified as items 4; 5; 6; 8; 9; 10; 11; 13; 15; 16; 17; 18; 19; and 22.
Clause 1(f) relates solely to the reasonably expectation of prejudice to the effective exercise of the agency’s functions concerning the information sought to be disclosed. The clause requires an agency to establish that the release would prejudice the effective exercise of its functions.
Clause 1(d) and (f) are often considered together, in cases in which both are raised, such that establishing a basis for clause 1(d) will also establish clause 1(f): Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [91].
However, clause 1(f) will also apply to situations where the disclosure of information which was not provided in confidence might still prejudice the effective exercise of the agency's functions: see Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 at paragraphs [76] - [83].
The Applicant submitted that the information in issue cannot be regarded as "confidential". As I have indicated above, I do not agree with that submission. Nevertheless, if I am wrong in that regard, it is my view that the disclosure of information in question could reasonably be expected to prejudice the effective exercise by the Respondent of its functions.
In my view, the public interest consideration against disclosure in clause 1(f) of the Table to section 14 of the GIPA Act is applicable to the withheld information in these documents and should be given significant weight.

Clause 1(g)

This consideration against disclosure applies if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. As indicated in the schedule set out above, the Respondent relies on this clause in relation to the documents identified as items 6; 8; 15; 17; and 19.
In Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 it was held that the words "found an action for breach of confidence" in the Queensland Freedom of Information Act, should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action:

a cause of action for breach of an obligation of confidence;

a cause of action for breach of a contractual obligation of confidence;

a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.

This case was followed in Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department. That matter concerned an application under the repealed Freedom of Information Act 1989, however I am satisfied that this principle applies equally under the GIPA Act.
However, there is an apparent tension between clause 1(g) and section 113 of the GIPA Act. Section 113 restricts the possibility of an action for breach of confidence in that the Respondent is actually protected from any claim for breach of confidence.
These provisions were considered by Senior Member McAteer in Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379. At paragraph [71] he stated:

… the GIPA Act contemplates (by the fact that cl (1) (g) sits outside of Sch (1), that there will be circumstances whereby irrespective of the fact that the release of information could found an action for breach of confidence etc., that information will be invariably released. If it is released after a proper consideration of the application, the agency is quarantined from any legal repercussion arising by the operation of section 113.
Cl 1 (g) includes other words than ‘breach of confidence’, namely or otherwise result in the disclosure of information provided to the agency in confidence. ...
1. Nevertheless, as I have noted above, I am satisfied that in the circumstances of this matter the information that is in issue was obtained in confidence. It follows that the release of the information would result in the disclosure of information provided to an agency in confidence.
2. In my view, the public interest consideration against disclosure in clause 1(g) of the Table to section 14 of the GIPA Act is applicable to the withheld information in these documents and should be given significant weight.

Clause 1(h)

As indicated in the schedule set out above, the Respondent relies on this clause in relation to the documents identified as items 4; 6; 8; 15; 16; 17; and 19.
Clause 1(h) operates to protect the ongoing effectiveness of the methods adopted by an agency in preventing, detecting, investigating or dealing with crime and complaints. This is to ensure that the agency is able to maintain the integrity of its investigatory methods by protecting the identity of its informants and methods: see the discussion in Sheehy.
The investigation which could be expected to be prejudiced must be the investigation whose purpose, conduct, or results are revealed. In the present matter the investigation is complete. However, clause 1(h) operates to protect the ongoing effectiveness of the methods adopted by the agency in preventing, detecting, investigating or dealing with crime and complaints against the police. This then ensures that the Respondent is able to maintain the integrity of its investigatory methods by protecting the identity of its informants and methods.
In McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 the evidence was that disclosure of complaint information generally would have a tendency of revealing the purpose of the investigation that is being conducted and the manner in which it is being conducted; and that it is critical that persons are not given the opportunity to understand covert police methodology. There is a real public interest in not revealing information about the conduct of internal investigations to the world at large, so that any person can scrutinise the manner in which an investigation is conducted.
It has been held that it is the conduct, effectiveness and integrity of the audit, test, investigation or review in issue, not some other or future audit, which is relevant when applying this consideration: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [75].
However, in Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23 the Tribunal noted that:

The opening words of clause 1, however, refer to “in a particular case or generally” and therefore either can be applied (see Robinson, NSW Administrative Law, GIPAA 14.240). ...

The clause refers to revealing the investigation’s purpose, conduct or results. Information regarding the conduct of the investigation has been disclosed, as has its purpose. Therefore it is a question of whether revealing the results of the investigation will prejudice the conduct, effectiveness or integrity of future investigations – not merely the investigation or review in issue. In my view the confidentiality of the complaints management and investigation process is fundamental to the proper conduct of that process. The disclosure of specific information provided to the investigator and discussed in the conduct of the investigation process could prejudice the conduct or effectiveness of future investigations.
In my view, the public interest consideration against disclosure in clause 1(h) of the Table to section 14 of the GIPA Act is applicable to the withheld information in these documents and should be given significant weight.

Clause 2(a)

As indicated in the table set out above, the Respondent relies on this clause in relation to the documents identified as items 6; 8; 9; 15; 17; and 19.
Clause 2(a) provides for two alternatives: firstly that disclosure could reveal the identity of an informant; and secondly that disclosure could prejudice the future supply of information from an informant.
The function of clause 2(a) of the Table "is to preserve and protect the identity of the informant and the information provided to an agency": Tziolas v Department of Education and Communities (NSW) [2012] NSWADT 69 at paragraph [42].
The term "informant" is not defined in the GIPA Act, and would seem to differ from someone who has merely provided information to an agency in confidence, as public interest considerations of this kind are considered under clauses 1(d) and 1(g). In NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel held at paragraphs [47] – [48] that:

… we do not think that the term 'informant' is restricted to 'police informers' or people who might be seen as themselves involved in the conduct of interest and are ready to 'inform' on their comrades. In our view, the word 'informant' bears a wider connotation of the kind submitted by the agency, that is, a person who gives information.
The interests listed in the Table are ones intended, as we see it, to be applied across the wide range of government functions. The 'Law enforcement and security' (the heading to clause 2) functions of government extend well beyond the prevention and detection of the crimes that engage the attention of police forces. The word 'informant' should not be so read as only to apply to persons who give information in that particular context.
1. This is a broad definition. Thus, an officer who gives information in relation to a situation about which he or she is complaining is an "informant" for the purposes of clause 2(a) of the Table.
2. Clause 2(a) should be used to protect the identity of informers who may be subject to reprisals and ensure that they continue to supply evidence to the Police: Williams v Department of Industry and Investment [2012] NSWADT 192 at paragraphs [63] - [66] and paragraph [92].
3. In McDonald v Commissioner of Police, NSW Police the Tribunal stated at paragraph [95]:

If the identity of the people who give information to the police became publicly known … they will be far less likely to supply the Respondent with information in the future. If the identity of those people is revealed, the Respondent will be significantly prejudiced in its ability to receive information of this kind from informants in the future.

The effect of the provision is to preserve the integrity of intelligence gathering. Accordingly, the public interest consideration under clause 2(a) is of particular significance.
In my view, the public interest consideration against disclosure in clause 2(a) of the Table to section 14 of the GIPA Act is applicable to the withheld information in these documents and should be given significant weight.

Clause 3(a)

As indicated in the table set out above, the Respondent relies on this clause in relation to the documents identified as items 1; 4; 5; 6; 8; 9; 13; 14; 15; 16; 17; 18; 19; and 22.
Clause 3(a) is concerned with revealing an individual's personal information. "Personal information" is defined in Schedule 4, clause 4(1) of to the GIPA Act to mean "information or an opinion (including information or an opinion forming part of a database 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"
The definition of “personal information” specifically provides that personal information does not include “information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions. In my view, that exclusion does not apply to the withheld information.
Issues under clause 3(a) tend to be determined on the particular facts of the case. Whether the identity of a person can "reasonably be ascertained" will depend on the type of information and the context in which it is being used. It is not necessary that the identity of the person be widely known, it will be sufficient to satisfy the definition of personal information if the information is communicated to someone who is able to identify the person.
I am satisfied that the redacted information is personal information of the individuals concerned. The kind of information withheld includes parts of statements containing personal information, names, employment information and personal opinions. This kind of information meets the definition of personal information.
I agree with the Respondent that the words "publicly disclosed" require there to have been a prior disclosure of information to the general public. In Woolley v Lismore City Council [2013] NSWADT 10 at paragraph [88] the Tribunal held that where the applicant knew the name of a person their personal information had not been revealed where there was no evidence that the information had already been publicly disclosed. This view was adopted by the Tribunal in Jamieson v Department of Justice [2019] NSWCATAD 173 at paragraph [59].
I do not agree with the Applicant that redacted personal information has been revealed because the personal information is already known to him. The personal information has not been publicly disclosed and disclosure to the Applicant would therefore “reveal” that personal information.
Misconduct allegations concern the personal information of the officer making the complaint and the person who is the subject of the complaint. To the extent that redacted information pertains to the Applicant but also pertains to another individual, for example because it is their opinion, that information can also fall within the scope of clause 3(a).
It is probable that the Applicant is aware of the identity of the persons whose information is in issue but there is no evidence that this information had been publicly disclosed. In my view, this is not a matter in which de-identifying a document would address concerns about the release of personal information.
In my view, this consideration in favour of disclosure should be given significant weight when balanced against the considerations in favour of release of the redacted information.

Where does the balance lie?

Where the withheld information is not subject to a conclusive presumption against disclosure pursuant to section 14(1) of the GIPA Act, regard must be had to the "public interest test" set out in section 13. It is necessary to identify the public interest in favour of disclosure, identify the public interest against disclosure and determine where the balance lies.
I have set out above the public interest considerations in favour of disclosure that I regard as applicable to the circumstances of this matter. I have also discussed in some detail various public interest considerations against disclosure of the withheld information.
I agree with the Respondent that, in the circumstances of this matter, minimal weight should be placed on the considerations in favour of disclosure. Having regard to the information that has been released to date and the factual circumstances, it is my view that greater weight should be given to the various public interest considerations against disclosure of the redacted information that I have found to be applicable.
To the extent that the withheld information contains the Applicant’s personal information, I agree with the Respondent that limited weight should be given to this consideration. In the circumstances of this matter, it would be extremely difficult to separate the withheld information that contains the Applicant’s personal information from the information to which the public interest considerations against disclosure apply.

Conclusion

On balance, it is my view that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of the withheld information.
It follows that the correct and preferable decision is to affirm the decision under review.

Order

The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

**********

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: 09 March 2021

Medium Neutral Citation:	Thomson v Commissioner of Police [2021] NSWCATAD 53
Hearing dates:	10 August 2020
Date of orders:	9 March 2021
Decision date:	09 March 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	Administrative Law – ADMINISTRATIVE LAW – public access to government information – Request for information concerning a complaint alleging police misconduct – personal information – whether prejudice to the effective exercise of an agency’s functions – public interest in transparency and accountability - balancing public interest considerations
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Police Act 1900 Police Regulation 2015
Cases Cited:	AEZ v Commissioner of Police [2013] NSWADT 90 Amos v Western NSW Local Health District [2017] NSWCATAD 176 Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 Black v Hunter-New England Health District [2011] NSWADT 295 Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 Danis v Commissioner of Police [2021] NSWCATAP 23 DDT v Charles Sturt University [2017] NSWCATAD 329 Director General, Department of Education & Training v Mullett (GD) [2002] NSWADTAP 13 Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 Head v Commissioner of Police (NSW) [2010] NSWADT 27 Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Jamieson v Department of Justice [2019] NSWCATAD 173 Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23 Klaric v Commissioner of Police [2020] NSWCATAP 153 McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 McKinnon v Department of Treasury [2006] HCA 45. Miriani v Transport for NSW [2021] NSWCATAD 16 Miskelly v Transport for NSW [2017] NSWCATAD 207 NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277 Raven v University of Sydney [2015] NSWCATAD 104 Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 Ritson v Commissioner of Police (NSW) [2010] NSWADT 22 Selby v Commissioner of Police (NSW) [2013] NSWADT 61 Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73 Transport for NSW v Searle [2018] NSWCATAP 93 Tziolas v Department of Education and Communities (NSW) [2012] NSWADT 69 Ugur v Commissioner of Police [2020] NSWCATAD Vella v Commissioner of Police [2009] NSWADT 68 Williams v Department of Industry and Investment [2012] NSWADT 192 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Woolley v Lismore City Council [2013] NSWADT 10
Category:	Principal judgment
Parties:	David Thomson (Applicant) Commissioner of Police (Respondent)
Representation:	D Thomson (Applicant in person) Crown Solicitor (Respondent)
File Number(s):	202000112876

Item	Document description	Date	Outcome of original decision	Legislative provision pressed by Respondent
1.	Alternative Dispute Resolution Outcome Form	14.06.12	Released in part	T3(a)
2.	Senior Management Meeting Minutes - December 2012	N/A	Nil held	GIPA Act s. 58(1)(b)
3.	Senior Management Meeting Minutes - February 2013	15.02.13	Released in part	Not related to this event
4.	Resolution Outcome Report	17.09.13	Released in part	T1(d), T1(e), T1(f), T1(h), T3(a)
5.	Other documents in complaint file (RTA Enquiry - Licence and Vehicle Details)	06.08.13	Refused in full	T1(f), T3(a)
6.	Other documents in complaint file (Unnamed internal document)	03.08.13	Refused in part	T1(d), T1(f), T1(g), T1(h), T2(a), T3(a) GIPA Act Schedule 1(1)
7.	Audio recording of conversation between Inspector Callaghan and the Duty Operations Inspector	N/A	Nil held	GIPA Act s. 58(l)(b)
8.	COPS Entries for Event Report E 52124472	03.08.13	Refused in full	T1(d), T1(f), T1(g), T1(h), T2(a), T3(a)
9.	NSWPF Incident Document	06.08.13	Refused in full	T1(d), T1(f), T2(a), T3(a),
10	Tasking Sheets	02.08.13	Refused in full	T1(f)
11	Notebook entries	08.08.13	Refused in Part	T1(d); T1(f),
12	Field Arrest Form	N/A	Nil held	GIPA Act s. 58(l)(b)
13	Duty Officers Shift Synopsis	02.08.13	Released in part	T1(f), T3(a)
14	Complaint, includes Annexures A - E	03.09.13	Released in part	T3(a)
15	Triage Form	30.09.13	Released in part	T1(d), T1(e), T1(f), T1(g), T1(h), T2(a), T3(a), GIPA Act Schedule 1(1)
16	Complaints Management Team Minutes	24.10.13; 17.12.13; 07.11.13	Released in part	T1(e), T1(f), T1(h), T3(a)
17	Resolution Outcome Report	04.02.14	Released in part	T1(d), T1(e), T1(f), T1(g), T1(h), T2(a), T3(a), GIPA Act Schedule 1(1)
18	Document used in evidence in complaint procedure (Handover Document)	22.02.13	Refused in full	T1(f), T3(a)
19	Document used in evidence in complaint procedure (Handwritten notes)	Multiple dates	Refused in full	T1(d), T1(f), T1(g), T1(h), T2(a), T3(a),
20	Document used in evidence in complaint procedure (Diary entries)	Multiple dates	Refused in full	Not related / outside scope
21	Emails between Inspector Lindley and AC Murdoch	N/A	Nil held	GIPA Act s. 58(l)(b)
22	Diary entries: • 14.06.12; • 04.09.12; • 15.09.12; • 08.12.12; • 12.12.12; • 10.01.13; • 27.01.13; • 12.02.13; • 29.04.13; • 30.05.13; 02.08.13; • 01.08.13	14.06.12 -02.08.13	Released in part	T1(f), T3(a)