Vinciguerra v Commissioner of Police

[2020] NSWCATAD 284

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Vinciguerra v Commissioner of Police [2020] NSWCATAD 284

Hearing dates:

14 August 2020

Date of orders:

16 November 2020

Decision date:

16 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision of the respondent made on 4 December 2019 is affirmed.

Catchwords:

GIPA Act – Government Information – Access – Reasonable Search

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009

Law Enforcement (Powers and Responsibilities) Act 2002

Service and Execution of Process Act 1992 (Cth)

Cases Cited:

Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD

Category:

Principal judgment

Parties:

Aniello Vinciguerra (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
M Norquay (Respondent)

File Number(s):

2019/00342161

Publication restriction:

None

REASONS FOR DECISION

1. On 4 July 2019, the applicant lodged an application under the Government Information (Public Access) Act 2009 (“the GIPA Act”) with the respondent seeking:

Exhibit, MFI1, statement or affidavit on oath, application for executing interstate search and arrest warrant including the extradition order under the State of (New South Wales) & (Cth) Rules and Regulations Required by a Magistrate or Judge order or Justice of the Peace sealed and signed, members of the (NT), (NSW) Police Force, Crown Witnesses and Expert Witnesses, that have participated into this inquiry/matter.

2. The application was originally lodged by the applicant with the Department of Justice and transferred to the respondent on 4 July 2019.

3. On 16 July 2019, the respondent wrote to the applicant to request that the application be refined in accordance with s60(4) of the GIPA Act.

4. On 24 July 2019, the applicant responded to the request for refinement with an 8 page letter detailing the information he was seeking.

5. On 13 August 2019, a Notice of Decision - deemed refusal was sent to the applicant.

6. Following the respondent’s decision an application was filed with this Tribunal seeking administrative review on 31 October 2019.

7. The applicant on 13 July 2020, filed with the Tribunal a statement clarifying his request. The applicant confirmed that the information he seeks is set out in paragraph 6 of that document, which was marked in this hearing (A1). The information sought by the applicant is:

1. Statement/affidavit and any reports made to eligible Judge and to Attorney General by any member of the NSW Police Service including but not limited to DESC Michael Wilkins concerning to [sic] the obtained material from extra-territorial evidence by NT, VIC and NSW, the electronic items, angel eye camera, mobile phones, prior telephone intercept from calls and the review of the mobile/prisons phone records involving the applicant.

2. All documents, of any nature, prepared or received at any time by any person either previously or presently in the employ of the NSW Dept of Corrective Services concerning the NSW Police investigation between the [sic] January 2015 to October 2016 in regards to the MRRC Silverwater and Long Bay CC relating to the CS NSW prison telephone interceptions recordings and the review of the phone records involving the applicant as the calling party.

3. Copies of all communications, of any kind, between the servants and agents of the NSW Commissioner for Police and the NSW Dept of Corrective Services concerning the provisions of items covered above.

4. A person to whom a warrant has been granted under (Cth) or (NSW) legislation to obtain the extra-territorial and NSW evidence being the electronic [unreadable], angel eye camera, mobile phones, prison telephone interception calls and the review of the mobile/prison phone records involving the applicant as the calling party, requires within the time specified therefore in warrant, furnish a report to writing to an eligible Judge and to Attorney General refer to the seminal case of Haddad v Theglia. The applicant is requesting any report issued by NSWPF to an eligible Judge and to Attorney General in regards to the above evidence to be released in full in accordance with the aforementioned case authority.

5. The applicant is seeking access to records/information concerning the notice of application for all warrants issued in his matter by NSWPF which have been previously served to Attorney General in relation to the granting of the warrant before it is granted within terms of the NSW or Cth regulations.

6. Statement/affidavit including any reports made to eligible Judge and to Attorney General by DSC Paul Gardiner concerning the applications to execute interstate asset warrant which is in accordance with the Part 5 execution of warrants s83 sub (8) PP (6) of the Service and Execution of Process Act 1992 (Cth) involving the applicant as a person of interest to be released in full.

7. Statement signed by DSC Michael Wilkins in relation to the applicant dated on; 10^th March 2015; 1 September 2015; 3 December 2015; 4 September 2015; 7 September 2015 and 19^th September 2016.

8. Statement of the ACMA expert analysis from the State of VIC James Karamalakis.

9. Statement of witness A and witness B (anonymised to protect the witnesses identity) to be released in full.

10. Statement/affidavit of the DSC Timothy Carter concerning the interstate search warrant issued in the State of VIC requires to furnish a (unreadable):

    (a)   application form - (Annexure C) to request the issue and execution of a search warrant in another State;

    (b)   complete and sign the affidavit (Annexure B) detailing the information to support request for the issue of the search warrant and have if sworn in front of a Justice of the Peace ensure all pages of the affidavit are acknowledged by Justice;

    (c)   application must be checked and endorsed by a crime manager/supervisor before forwarding to coordinator, crime directorate support client;

    (d)   forward signed application form (Annexure C) and affidavit (Annexure B) to the crime directorate support client, State Crime Command, via email (send to the SECOPSCO) for processing, include all known details of a contact officer in the receiving State of known (telephone contact should be made with crime directorate support unit prior to forwarding any request to ensure with compliance;

    (e)   the applicant is requesting the above authorised information all records to be released in full.

    8. On 4 December 2019, the respondent issued a Notice of Decision (Decision) which determined:

to provide access to information requested under s58(1)(b) of the GIPA Act, except where there is an overriding consideration against disclosure noting that certain information sought is not held pursuant to s58(1)(d) of the GIPA Act.

9. Following a case conference held in January 2020 the respondent has released a number of documents in full to the applicant.

10. The following documents remain in contention:

1. Statement/affidavit and any reports made to eligible Judge and to Attorney General by any member of the NSW Police Service including but not limited to DESC Michael Wilkins concerning to [sic] the obtained material from extra-territorial evidence by NT, VIC and NSW, the electronic items, angel eye camera, mobile phones, prior telephone intercept from calls and the review of the mobile/prisons phone records involving the applicant.

2. All documents, of any nature, prepared or received at any time by any person either previously or presently in the employ of the NSW Dept of Corrective Services concerning the NSW Police investigation between the [sic] January 2015 to October 2016 in regards to the MRRC Silverwater and Long Bay CC relating to the CS NSW prison telephone interceptions recordings and the review of the phone records involving the applicant as the calling party.

3. Copies of all communications, of any kind, between the servants and agents of the NSW Commissioner for Police and the NSW Dept of Corrective Services concerning the provisions of items covered above.

4. A person to whom a warrant has been granted under (Cth) or (NSW) legislation to obtain the extra-territorial and NSW evidence being the electronic [unreadable], angel eye camera, mobile phones, prison telephone interception calls and the review of the mobile/prison phone records involving the applicant as the calling party, requires within the time specified therefore in warrant, furnish a report to writing to an eligible Judge and to Attorney General refer to the seminal case of Haddad v Theglia. The applicant is requesting any report issued by NSWPF to an eligible Judge and to Attorney General in regards to the above evidence to be released in full in accordance with the aforementioned case authority.

5. The applicant is seeking access to records/information concerning the notice of application for all warrants issued in his matter by NSWPF which have been previously served to Attorney General in relation to the granting of the warrant before it is granted within terms of the NSW or Cth regulations.

6. Statement/affidavit including any reports made to eligible Judge and to Attorney General by DSC Paul Gardiner concerning the applications to execute interstate asset warrant which is in accordance with the Part 5 execution of warrants s83 sub (8) PP (6) of the Service and Execution of Process Act 1992 (Cth) involving the applicant as a person of interest to be released in full.

7. Statement of the witness A and witness B to be released in full.

Relevant legislation

11. Section 3 of the GIPA Act states that the object of the Act is to open government information to the public and:

1. It is the intention of Parliament:

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

   (b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

   12. Section 5 of the GIPA Act provides:

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

13. Section 12 provides, for public interest considerations in favour of disclosure.

14. Sections 13 and 14 provide:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

14 Public interest considerations against disclosure

1. It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

2. The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

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

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

Table

…

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a)   reveal an individual’s personal information,

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

15. Section 15 provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information.

16. Section 53 provides:

53 Searches for information held by agency

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

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

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

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

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

   17. Section 58 provides: 

6. An agency decides an access application for government information by—

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

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

   (c) deciding that the information is already available to the applicant (see section 59), or

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

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

   (f)   deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. 

Note : These decisions are reviewable under Part 5. 

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

2. If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

   18. Section 59 of the GIPA Act provides:

59 Decision that information already available to applicant

1. An agency can decide that information is already available to an applicant only if the information is:

   …

   (d)   available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant’s possession, or

   …

2. An agency is not required to provide access to information that the agency has decided is already available to the applicant, but notice of the decision must indicate why the agency believes the information is already available to the applicant and, if necessary, how the information can be accessed by the applicant.

   19. Section 60 provides:

60 Decision to refuse to deal with application

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

   …

   (d)   the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order,

   (e)   the agency reasonably believes the applicant, or a person acting in concert with the applicant, is:

   (i)   a party to current proceedings before a court, and

   (ii)   able to apply to that court for the information.

   …

2. Notice of an agency’s decision to refuse to deal with an access application must state the agency’s reasons for the refusal.

3. An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.

   20. Section 74 of the GIPA Act provides:

An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.

21. Section 63 of the Administrative Decisions Review Act 1997 provides:

63 Determination of administrative review by Tribunal

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

   (a)   any relevant factual material,

   (b)   any applicable written or unwritten law.

2. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

3. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

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

The hearing

22. The following evidence was relied upon by each party

Applicant

• Statement of applicant 5.6.20 (A1)

• Statement of applicant 14.4.20 (A2)

• Statement of applicant 13.4.20 (A3)

• Application and letter 7.10.19 (A4)

• Letter 24.7.19 (A5)

• Letter 23 June 2020 (A6)

Respondent

• Statement of Detective Senior Constable Beavis 25.2.20 (R1)

• Statement of Detective Senior Constable Beavis 6.4.20 (R2)

• Statement of Detective Senior Constable Beavis 5.8.20 (R3)

• Access request decision 4.12.19 (R4)

23. Each party filed written submissions.

24. The hearing took place by way of telephone and AVL. DSC Beavis was cross-examined and each of the parties made oral submissions.

25. Following the evidence and cross-examination of DSC Beavis the applicant sought an adjournment as he wished to call evidence from DSC Wilkins. DSC Wilkins is alleged to be involved with making an application to the Parramatta Local Court for a warrant. I refused the application for an adjournment given it being made so late in the hearing. The applicant had the opportunity to issue a summons for the attendance of DSC Wilkins to give evidence in his case should he have thought that was necessary. Adjourning the matter would not be giving effect to the guiding principle as set out in section 36 Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Nothing in the cross-examination of DSC Beavis in my view caused any late notice to the applicant or prejudice in not being able to issue a summons prior to the commencement of this hearing. Further, I accepted the evidence of DSC Beavis that DSC Wilkins could not provide any further information in relation to the information sought by the applicant over and above what he has provided to the Tribunal.

Evidence of Detective Senior Constable Beavis

26. DSC Beavis adopted each of his three statements (exhibits R1, R2 and R3).

26. DSC Beavis is a NSW Police Office working in the robbery and serious crime squad. He was the officer in charge of the investigation into the applicant as part of Strike Force Chiver, a 2014 property crime squad investigation into an Albanian criminal syndicate committing break and enter offences across Australia, targeting automatic teller machines (ATM’s).

27. As the officer in charge, DSC Beavis is familiar with and aware of all documents related to the arrest, extradition and prosecution of the applicant. I accept that he is a person in a position to confirm the existence and location of documents sought by the applicant.

28. DSC Beavis undertook a number of searches of the NSW Police computer systems to locate documents in answer to the applicant’s requests. He searched: the NSW Police mainframe related to the Property Crime Squad, which is a secure police network and the NSW Investigation Management System (Eagle-I). The Eagle-I system stores documents relevant to all investigations, and from this a prosecution brief is generated; word searches of documents relevant to Strikeforce Chiver to confirm whether certain records requested by the applicant exist. DSC Beavis also spoke with other members of the respondent involved in the Strikeforce investigation, including: DSC Wilkins and Detective Sergeant Andrew Knight. He said neither of these officers were able to provide any further information in addition to information obtained by him in the searches he undertook. Despite cross-examination by the applicant, DSC Beavis’ evidence was not disturbed in this regard.

29. DSC Beavis said that the systems in which he searched for documents would include documents concerning an arrest warrant. He said a warrant was not issued under the relevant Listening Devices Act and the Telecommunication Act referring to recording of telephone calls when an inmate is incarcerated. DSC Beavis said that if NSW Police wished to obtain recordings of inmates’ telephone calls they make an application to Corrective Services New South Wales under the relevant provisions of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). DSC Beavis further said that when NSW Police seek to obtain telephone call records from telephone companies they do so by way of a memorandum of understanding with the telephone company and not through the issue of a warrant.

30. DSC Beavis said that he is satisfied all reasonable searches have been undertaken to locate the information sought with respect to the documents contained in the applicant’s request.

31. During cross-examination DSC Beavis was asked questions by the applicant in relation to a Corrective Services statement for prison telephone records and recordings of 14 September 2015, which request was to include the statement from the relevant Corrective Services officers. DSC Beavis said that NSW Police is not provided with a statement from Corrective Services and that it is his understanding Corrective Services are not compelled to give that material and, as such, there is no statement held by NSW Police. I accept his evidence.

32. DSC Beavis was asked whether there was any interstate warrant concerning a Nokia telephone handset. DSC Beavis said that it is his understanding that authorities in the Northern Territory executed their own search warrant and they conducted their own analysis of the Nokia phone and no warrant was needed. He said this was a Northern Territory investigation and the information obtained in relation to that investigation was given to NSW Police as an Exhibit. As such, no warrant was issued and the Northern Territory authorities provided the exhibits to NSW Police under a sharing of information scheme. I accept this evidence.

33. Some time was spent during cross-examination in relation to item (vi) of the access request concerning warrants, statements/affidavits issued by Paul John Gardiner. The applicant in that regard was referring to DSC Paul Gardiner. DSC Beavis says in his evidence that DSC Paul Gardiner did not make an application to the Parramatta Local Court regarding an arrest warrant for the applicant. DSC Beavis said that there is a Registrar at the Parramatta Local Court whose name is Paul Gardiner who shares the same spelling of his surname with Paul John Gardiner who is a DSC with NSW Police Force. The applicant is seeking information requesting the issue of a warrant at the Parramatta Local Court concerning the applicant. DSC Beavis said that a Mr Gardiner granted a search warrant and an arrest warrant, and that person is the Registrar at the Local Court Parramatta. DSC Beavis said that any application made by NSW Police for the issue of a warrant is held by the Local Court and not by NSW Police. DSC Beavis said that he has searched the NSW Police records and no application is held. I accept his evidence.

34. I asked Detective Senior Constable Beavis if a request was completed and a copy retained would that copy of the request document be within the NSW Police records. DSC Beavis said it would, but the likely scenario is that they fill out numerous arrest and search warrants and often change the name of the accused in a draft document which may not always be kept on file as it is presented to the Local Court at the time the warrant is requested.

35. The location of an application for a warrant concerning the applicant at the Parramatta Local Court became relevant as the applicant was told by the Local Court at Parramatta that the Registry did not hold a copy of this document and to contact NSW Police.

Submissions of the Applicant

37. The applicant submits that the application for a warrant issued by DSC Wilkins in the Local Court at Parramatta should be provided. He submitted that the statement of DSC Beavis is not enough and a further search should be undertaken.

38. In relation to the statement of a witness A and witness B, the applicant submits that he should have the statement in full. He says the material has been in the public arena and in any event he would get it in an appeal.

39. The applicant says that a full brief of evidence must be provided to him and the lack of access to information he now seeks is ‘outside natural justice’. The applicant says that the public should be entitled to expect that investigations of the police and the exchange of information is open.

40. In relation to the Northern Territory Warrant XXX166, the Northern Territory authorities informed the applicant that they do not hold records. As indicated above, the applicant has contacted the Local Court at Parramatta which Registry directed the applicant to the NSW Police. In not providing this application for a warrant, the applicant says that it is hindering his Court of Criminal Appeal matter which he is yet to file.

Respondent’s Submission

41. The respondent has released a significant amount of information in response to the access request.

42. The respondent’s position is that it has undertaken reasonable searches for the information requested and has decided to provide access to part of the information (section 58(1)(a) of the GIPA Act; that information is not held by the agency (section 58(1)(b) of the GIPA Act; or to refuse access to part of the information because there is an overriding public interest against disclosure (section 58(1)(d) of the GIPA Act).

Consideration

43. In relation to each of the applicant’s requests for information remaining in issue, I find as follows:

(i) Statement affidavit and any reports to eligible Judge or Attorney General concerning NSW Police Service but not limited to DSC Michael Wilkins

44. I am satisfied that all reasonable searches have been undertaken by the NSW Police. The evidence provided by DSC Beavis was not disturbed during cross-examination. I therefore accept his evidence that the NSW Police Force did not issue a warrant for the material sought by the applicant in relation to the Northern Territory investigation. I am also satisfied that it is unlikely any application for a warrant issued by the Registrar at the Parramatta Local Court is within held by the respondent. The decision of the respondent is affirmed.

(ii) All documents in relation to the NSW Department of Corrective Services concerning NSW Police investigations between January 2015 to October 2016

(iii) Copies of all communications between NSW Commissioner for Police and NSW Department of Corrective Services concerning these items

45. I accept the respondent’s evidence and submissions that the request has been broadened and is outside the scope of the access request. I am satisfied with the decision of the respondent which is affirmed. The request is to be more appropriately dealt with by the Department of Corrective Services.

(iv) The applicant is requesting any report issued by NSWPF to an eligible Judge and to Attorney General in regards to the above evidence to be released in full in accordance with the aforementioned case authority

(v) Records and information concerning the notice of application for a warrant issued by NSW Police Force in relation to the granting of the warrant within the terms of New South Wales or Commonwealth Regulations

46. The respondent has released and disclosed to the applicant all affidavits in full which relate to the prosecution of offences for which the applicant was convicted and imprisoned concerning extra-territorial search warrants sent to Victoria. I accept DSC Beavis’ evidence that a similar procedure was not adopted in relation to the Northern Territory investigation as the information garnered in the Northern territory resulted from that Territory’s own investigation. I accept the evidence of DSC Beavis that no warrant was issued by the respondent to the Northern Territory. The decision of the respondent concerning the Northern Territory warrants is affirmed. I note that the respondent has released all information requested by the applicant as it relates to the Victorian warrants.

(vi) Statement or reports to an eligible Judge or Attorney General by DSC Paul Gardiner concerning applications to execute interstate asset warrants

47. I accept DSC Beavis said that DSC Paul Gardiner did not make any statement in relation to an application to the Parramatta Local Court for an arrest warrant concerning the applicant. DSC Beavis notes that DSC Wilkins on 3 September 2015 refers to an application for an arrest warrant being made in relation to the applicant. I am satisfied that DSC Beavis on 28 July 2020 undertook further searches and could not locate any copy of the application relating to the applicant but only a draft copy relating to his co-accused. I find on the evidence that the search was reasonable.

(vii) Signed statement by DSC Michael Wilkins in relation to the applicant on 10 March 2015, 1 September 2015, 3 September 2015, 4 September 2015, 7 September 2015 and 19 September 2016

48. This request for information has been released to the applicant in full. It became evident in the hearing that the applicant may not have received the statements of 9 and 10 March 2015 and 19 April 2016. The respondent said that the statements will again be sent to the applicant.

49. I note that the statements are included in the bundle of material before me which has been exchanged with the applicant.

(viii) Statement of the ACMA expert analysis from the State of Victoria - James Karamalakis

50. I note this information has been released to the applicant as set out in Exhibit R3 at paragraph 33.

(ix) Statement of witnesses A and B to be released in full

51. The respondent has released to the applicant the statements of witnesses A and B in part. Those parts of the statement which have been redacted include the personal information of witnesses who gave evidence in the prosecution of the applicant as well as the names of third parties. I am satisfied that the respondent has determined to release those statements in part so as to protect the personal information of the witnesses and third parties. I find that should the identity of the said persons be released, they may be exposed to risk of harm or serious intimidation given the nature of the prosecution of the applicant. I have taken into consideration that the witnesses were informants whose evidence in some way contributed to the conviction of the applicant of serious offences - (see Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD at [49] and (see - clause 3(f) in the table section 14 of the GIPA Act).

52. I am also satisfied that the release of the redacted information is more likely than not information that would reveal the personal information of the witnesses and the identity of third parties which may have an effect on the witnesses or third parties mental health given the nature of the subject criminal prosecution (see - clause 3(a) in the table section 14 of the GIPA Act).

53. The evidence demonstrates that the overriding public interest consideration against disclosure is established, as the section 12 considerations are outweighed by the public interest considerations set out above.

54. I affirm the decision of the respondent.

(x) Statement or affidavit of Detective Senior Constable Timothy Carter relating to interstate search warrants issued in the State of Victoria

55. I am satisfied having accepted DSC Beavis’ evidence that the respondent has undertaken a reasonable search for the requested information. The respondent has released the information in full which is annexed to the statement of DSC Beavis (exhibit R3).

Conclusion

1. The decision of the respondent made on 4 December 2019 is affirmed.

**********

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: 16 November 2020