Adams v Commissioner for Police - [2022] NSWCATAD 178 - NSWCATAD 2020 case summary — Zoe

NSWNSWCATAD

Adams v Commissioner for Police

[2022] NSWCATAD 178

NCAT Administrative and Equal Opportunity|2020-11-06

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-11-06

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

The Applicant's case

In this case, the Applicant made detail submissions in regard to the Commissioner's claim of an overriding public interest against disclosure. In summary the Applicant contended that the public interest consideration against disclosure relied on by the Commissioner were not established on the information before the Tribunal and even if the Tribunal were to find that they were established, they did not, on balance, override the public interest considerations in favour of disclosure.
In regard to the public interest considerations against disclosure relied on by the Commissioner, the Applicant : 1. does not accept that the information in issue is confidential, or that a disclosure of the information could reasonably be expected to prejudice the supply of such information in the future. In this regard, the applicant noted that there is no evidence that the information in issue was marked confidential, or that the disclosure of the communications would prejudice the supply of this information in future; 2. accepts that there may be some communications with Human Resources that are properly confidential, but it cannot be a blanket approach to all communications involving Human Resources; 3. submitted that, the WSC's own procedures ('Standard Operating procedures for Managing the Deployment of Injured Police Officers') dictates that there should be transparency where an MMI Officer fails to secure the position offered - hence, the procedures expressly contradict the Commissioner's contention; 4. submitted that: 1. the information for which he sought access in item 4 of his access application, did not relate to the creation of positions for MMI officers - instead he sought inform as to why his successfully trailed position was overturned - that is it was an isolated incident and the communications would reveal how the Commissioner's Officers had orchestrated, explained and justified their decision at the end of the process; and 2. hence, it is not apparent how the disclosure of the withheld information could reveal a deliberative process- even if it was such a process, it was not a legitimate one. 1. accepts that the deployment processes and the placement of Officers with ongoing injuries in the workplace is a function of the NSWPF - however, information relating to the disruption of a confirmed placement did not fall within that function. Nor can it be said that a disclosure of such information could reasonably be expected to prejudice either function of the NSWPF - on the contrary, a disclosure of the information in issue would provide greater transparency; 2. confirmed that he did not seek access to personal information of other officers. However, he pressed his application as he was not confident that the decision of the Commissioner was correct in all cases.

[2]

Cl 3(a): reveal an individual's personal information

It is convenient to first consider the information the Commissioner contends to be personal information of a person other than the Applicant.
There are two aspects to the cl 3(a) public interest consideration against disclosure. These are: 1. the information in issue is personal information; and 2. a disclosure of that information could reasonably be expected to reveal that information.
The term 'personal information' is broadly defined in cl 4 of Sch 4 of the GIPA Act as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, …
The term 'reveal information' is defined in cl 1 of Sch 4 of the GIPA Act to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'.
I have carefully examined the information the Commissioner provided to the Tribunal in confidence, and I am satisfied that the redactions on the following pages in Bundle 1 (the 18 May 2020 decision) and Bundle 2 (the 1 June 2020 decision) is personal information of a person other than the Applicant (including the telephone number or contact details of an employee of the NSWPF), and that a disclosure of this information could reasonably be expected to reveal that information: 1. Bundle 1 - pages 15 and 17 2. Bundle 2 - pages 1, 5, 25 (first redaction on the page), 35 (the middle redactions on the page), 38 (same redaction as on page 35), 78 (last redaction on the page), 80, 86, 87, 94, 95, 118 (redaction at the top of the page), 124, 168, 173, 177, 187, 188, 278, 282, 283, 286, 287,288, 289, 290, 348, 349, 373, 375, 376 (first redaction on the page) and 489.
The redactions on the cl 3(a) personal information grounds on the abovementioned pages are small and easily identified. There is also considerable duplication of the cl 3(a) personal information in the abovementioned pages in Bundle 2.
As the Applicant does not press access to this information or the telephone number or contact details of an employee of the NSWPF it is unnecessary for me to consider this information any further. For completeness, I note that having regard to the material before me, I am satisfied that the Commissioner has established that this public interest consideration against disclosure, on balance, outweighs any public interest consideration in favour of disclosure.

[3]

Cl 1 responsible and effective government

My examination of the documents provided, in confidence, the information withheld on the grounds of the public interest consideration against disclosure under cl 1(d), 1(e), 1(f) and 1(h) of the Table to s 14(2) of the GIPA Act are found on the following pages: 1. Bundle 1 (the 18 May 2020 decision) - the entire information in the 16 un-numbered pages at the end of the Bundle. 2. [NOT FOR PUBLICATION]; and 3. Bundle 2 (the 1 June 2020 decision) - the information (in its entirety or in part) on the following pages:
3, 4, 13-23, 25 (first deletion), 27 (all deletions other than the last deletion), 29 31, 34, 35, 36 (first three deletions), 38, 39, 41, 42, 45, 46, 49, 50, 57, 58, 59, 60, 61, 62, 97, 99, 100, 101, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112, 114 (first and second deletion), 116 (first and second deletion), 118 (all deletions except the last deletion), 120, 123, 124, 125 (first deletion), 127, 128, 130, 131, 137, 141, 145, 148, 151, 154, 160, 190, 191, 192, 193, 194, 195, 196, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 358-366, 376-383, 402-406, 419, 420, 436, 441, 444, 445, 463-465, 467-469, 472-474, 498-504, 510, 511 and 518-521.
As noted above, on 6 November 2020, at the request of the Commissioner I made an order setting aside the decision of the Commissioner to refuse the Applicant access to the withheld information on pages 25 and 72 and specified duplicates of that information in other emails in Bundle 2. In substitution of that decision, I made a decision that the Applicant be provided with a copy of this information. In my examination of the material in the Bundle, there are further duplicates of the information on page 72 and 25. These are contained on pages 27, 28, 30, 32, 33, 36 and 37, 39 and 40, 118 and 119, 121 and 122 and 125 and 126. If these duplicates have not been provided, they should be provided to the Applicant in accordance with my 6 November 2020 order.
The information remaining in issue for which there is a claim of a cl 1 overriding public interest against disclosure is primarily contained within internal email chains. Again, there remains considerable duplication of the email exchanges. In many cases the date of the email or email chain and the subject matter, the name of the sender and the recipient of the email or email chain have been withheld. On what basis they were withheld is difficult to understand, especially where the sender and recipient of the emails in each email chain is an Officer of the NSWPF and the emails all appear to have been sent and received in the ordinary course of the respective duties and responsibilities of these Officers. It is also information which has been disclosed, in part, in the Schedule prepared by the solicitor for the Commissioner.
In his evidence and submissions, the Commissioner does not point to any distinguishing factors in the content of the emails for which the cl 1 public interest consideration against disclosure is claimed. Yet, on my observation of the content of these emails there are some distinguishing factors.
For example, the emails at pages 376 (second deletion) and pages 377-383 of Bundle 2, are email communications, sent and received in March 2019 between the Deployment & Transition Unit of the NSWPF and an external contractor. The information in these emails relate to the provision of training.
The remaining email exchanges are primarily internal email exchanges between senior Officers of the Deployment Unit, the PAC where the Applicant had been deployed, the SWM Region and the NWM Region. These email exchanges all relate to the Applicant and the position he was deployed to.
There is a small group of internal emails, sent in mid-August 2019, which in my view are also distinguishable. They are found in Bundle 2 at pages 419, 420, 441, 444, 445, 463, 464, 467, 468, 469, 472, 473, 474, 510 (second deletion), 511, 518 519, 520 and 521.
[NOT FOR PUBLICATION].
In my opinion, having considered the content of these email exchanges, there is a possibility that a claim of a presumed conclusive public overriding public interest consideration against disclosure may apply to this information. The Commissioner has not made such a claim. This may be an oversight due to his very broad-brush approach to the information in issue. Although the onus is on the Commissioner in this application, in my opinion, given the Commissioner's approach and the possibility of a conclusively presumed overriding public interest against disclosure applying to this information it is appropriate to give the Commissioner an opportunity to reconsider his decision regarding this information under s 65 of the ADR Act. Hence, I have made orders accordingly and not dealt with this information any further in this decision.
Most of the withheld information in the 16 unnumbered pages in Bundle 1, appear to be duplicates of internal emails (other than those referred to at [86] above) that are in Bundle 2.
Finally, included (in part) in the information for which there is a cl 1 claim of public interest consideration against disclosure is personal information of a person other the Applicant and while no claim has been made in respect to that information, my findings would be the same as set out under the cl 3(a) heading above.

[4]

Cl 1(d) prejudice the supply to the agency of confidential information that facilitates the effective exercise of the agencies functions

This is an additional ground of public interest consideration against disclosure the Commissioner relies on in these proceedings.
In order for the public interest consideration against disclosure in cl 1(d) to apply, the Tribunal must be satisfied that the Commissioner has established the following: 1. the information in issue is confidential information; 2. the disclosure of the confidential information of this kind could reasonably be expected to 'prejudice' the 'supply' of confidential information to the respondent in the future; and 3. the information facilitates the effective exercise of the respondent's 'functions'.
The former Freedom of Information Act 1989 (NSW)(repealed) (FOI Act (repealed)) contained a similar provision to cl 1(d) of the GIPA Act: FOI Act repealed, Sch 1cl 13(b)(ii).
In Macquarie University v Howell (No 2) [2009] NSWADTAP 19, at [10], the Appeal Panel of the former Administrative Decisions Tribunal described the approach to be taken to this exclusion as follows: 10 In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.
The same approach has been accepted to apply to cl 1 of the Table to s 14(2) of the GIPA Act.
It is accepted that the question as to whether the information in issue is 'confidential information', is a question of fact that must be examined by reference to the agency's evidence as to the conditions under which it conducts its service/functions within which the information was received: Camilleri, at [33] and McKinnon v Black Town City Council [2012] NSWADT 44, at [54]-[58].
In Camilleri, the information in issue was a triple zero telephone recording of a complaint Mr Camilleri's neighbour had made to the Commissioner. At [33] and [34], the Appeal Panel said: 33 In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service. In our view, the Tribunal did not adequately explain why it rejected the agency's case on this point. 34 We also agree with the agency that the Tribunal should not have introduced factors relating to the later history of the information or document. The enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.
In Raven v The University of Sydney [2015] NSWCATAD 104, at [62], the Tribunal held that: … [The] term "confidential information" in cl 1(d) of the table in s 14 of the GIPA Act does not connote information which may not be disclosed in any circumstances. The term captures information which is not to be disclosed in ordinary circumstances. …
The information in issue in Raven was the information contained in an ethics application, made to the University's Human Research Ethics Committee (HREC), for research that was to involve human participants. At [64], the Tribunal found that the University had established that the relevant information was confidential, even though absolute confidentiality could not be mandated.
It has been accepted that the word 'prejudice' should be given its ordinary meaning, namely - 'to cause detriment or disadvantage' or 'impede or derogate from': see McLennan v University of New England [2013] NSWADT 113.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286, the applicants sought access to the information relied on by the Police Officer in seeking a twenty-eight day provisional Apprehended Personal Violence Order against them for the protection of the complainant. The information sought by the applicant in that application included the complaint made by the complainant. At [51], the Tribunal found that the disputed information was confidential information. At [52], the Tribunal went on to note: 10 The real issue in regard to this public interest against disclosure ground is whether, the disclosure of the information could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions. That is, it is not a question as to whether the particular confider of the information in issue would in future refuse to supply that information. It is a question as to whether information of this nature (a) facilitates the effective exercise of the respondent's functions and (b) the disclosure of such information could reasonably be expected to prejudice the supply of such information.

[5]

Consideration of the Commissioner's cl 1(d) claim

It is not disputed that Human Resources (HR) is a function of the Commissioner and the NSWPF and, an important aspect of that function is the provision of support for injured police officers, including exploring opportunities for their deployment into a vacant position within the NSWPF that is suitable to the injured officer's capabilities and meets the needs of the PAC where the position is located.
Having regard to the author and recipients of the internal emails containing the information in issue, together with their subject matter and content, I accept the evidence of Ms Noy that access to information of the kind contained in the internal emails is likely to be limited. I also accept that the information in issue facilitates the effective exercise of the HR functions of the NSWPF and the Commissioner.
However, I do not accept that this alone establishes that the information in issue was supplied in confidence.
To the extent the information in issue in the internal emails is personal information and health information about the Applicant, I accept that it is information supplied in confidence.
However, as pointed out in the evidence of Ms Noy, while the information in issue 'broadly concerns' the Applicant, 'the documents withheld from release more squarely focus on whether certain individuals involved in the placement were right or wrong'. The individuals to which Ms Noy refers are the Officers who made the decision to deploy and transfer the Applicant into the position for which he had been placed on trial. Information of this kind, in my opinion, is of a general managerial in nature and not confidential in the relevant sense.
As I have already noted, the evidence is that the communications in the internal emails were all made in the ordinary course of the professional duties and responsibilities of the senior Officers who sent and received the emails containing the information in issue.
The senders and recipients of these internal email exchanges, includes a senior HR Officer with experience in the deployment of MMI Officers. Yet, that Officer, nor any of the other senior Officers marked his or her email communication as being confidential. In a very few email exchanges, the subject matter of the email includes the words 'sensitive - personal information' or 'sensitive - health information'. As I have already noted, I accept that information of this kind that is about a specific individual, is confidential. However, this does not mean that the information in its entirety is information that was supplied in confidence.
As the information in the internal emails is largely of a managerial nature, the onus is on the Commissioner to establish that information of this kind is supplied in confidence. In the absence of the Commissioner having identified a policy, procedure, or law that makes provision for the supply of information of this kind to be considered as having been supplied to the Commissioner or NSWPF in confidence, I am not satisfied that the Commissioner has established that the information in issue in the internal emails is confidential information.
This leaves the information in the external emails between the Deployment Unit of the NSWPF and an external contractor (see at [84] above). In my opinion, there is nothing in these email communications to indicate that they contain confidential information or were supplied to the Commissioner or the NSWPF on this basis.
For the reasons set out above, I am not satisfied that the Commissioner has established that the information in issue is information supplied in confidence.
In the event I am wrong in my finding and the information is information supplied in confidence, I am not persuaded by the evidence of Ms Noy that a disclosure of the content of these emails could reasonably prejudice the supply of information of this kind to the Commissioner and the NSWPF. As I have noted, the information in these email exchanges was provided by senior Officers of the NSW Police, in the ordinary course of their duties and within their respective area of responsibility and expertise. On this basis it is difficult to find that an Officer of the NSWPF with the same responsibilities and expertise would be reluctant to, or fail to supply/provide information of this kind in future.
Accordingly, I find that the Commissioner has failed to establish that the public interest consideration against disclosure in cl 1(d) of the Table to s 14 applies to the information in issue.

[6]

Cl 1(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

In order for the public interest consideration against disclosure in cl 1(e) to apply, the Tribunal must be satisfied that the Commissioner has established the following: 1. the disclosure of the information in issue could reveal: 1. a deliberation or consultation conducted; or 2. an opinion, advice or recommendation given; and 1. the revealing of that deliberation or consultation conducted, or opinion, advice or recommendation given would prejudice a deliberative process of the NSWPF.
As I have noted above, the term 'reveal' means: 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).'
In Cameron v Commissioner of Police [2014] NSWCATAD 13 at [66], the Tribunal described the deliberative processes of an agency as follows: The deliberative processes of an agency are its thinking processes - including those by which it seeks internal input and discussions as to possible courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: see the discussion in Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588.
In Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588, at [58] to [61], the Administrative Appeals Tribunal, made the following observations of the meaning of the term 'deliberative processes' as it appeared in s 36(1)(a) of the Commonwealth Freedom of Information Act 1982 (FOI Act (Cth)): 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. …
Although clause 1(e) of the GIPA Act and section 36 of the FOI Act (Cth) are not in exactly the same terms, the Tribunal has accepted that the abovementioned meaning of the term 'deliberative process' remains instructive: see Luxford v Department of Education and Communities [2016] NSWCATAD 118, at [104].
In her evidence, Ms Noy explained that the return-to-work placement of injured workers requires a large amount of deliberative communications between the various sections of the NSWPF. She went on to say that the individuals involved in that process are required to identify suitable positions for workers who are injured and then assessing the suitability of a particular injured worker(s) for that position.
Ms Noy said that in this case, the placement process became the subject of an internal dispute falling within the dispute handling processes of the NSWPF generally. She said that, as with all internal disputes, it is important that they are resolved promptly by the relevant officers and staff providing all relevant information.
Ms Noy noted that, in this case, the deliberative process was recent. In my opinion, consistent with Camilleri this is a matter relevant to the weight that is to be given to this pubic interest against disclosure if established.
As I have already noted, the Applicant contends that the Commissioner's evidence and submissions were based on a false premise.
In my view, this is misconceived and understandably so in the circumstances where the Applicant is unaware of the content of the information in the emails in issue.
With the exception of the information in the emails that are at pages 376 (second deletion) and 377-383, I am satisfied that a disclosure of the information in the remaining emails in issue could reasonably be expected to reveal a deliberation, a consultation, an opinion or advice given. Given the limited circulation of the information in issue, I am also satisfied that the revealing of this information could reasonably be expected to prejudice the deliberative process of the Commissioner or the NSWPF regarding the matters in dispute and more generally.
Hence, I am satisfied that the Commissioner has established that the public interest consideration against disclosure in cl 1(e) of the Table in s 14(2) of the GIPA Act applies to the information in the documents and emails that are at the 16 un-numbered pages in Bundle 1 and the pages in Bundle 2, other than those at page 376 (second deletion) and 377-383.
However, I am not satisfied that the Commissioner has established that the public interest consideration against disclosure in cl 1(e) of the Table in s 14(2) of the GIPA Act applies to the information in the emails that are at page 376 (second deletion) and 377-383 of Bundle 2.

[7]

Cl 1(f) - prejudice the effective exercise by an agency of the agency's functions,

The public interest consideration against disclosure in cl 1(f) of the Table to s 14(2) of the GIPA Act is often seen as a fall-back position to that contained in cl 1(d).
In his reply submissions, the Commissioner explained that 'cl 1(f) appears to be intended to include those situations where disclosure of information which was not provided in confidence might still prejudice the effective exercise of the agency's functions'.
In my view, while the Commissioner is correct that cl 1(f) is intended to include situations where a disclosure of the information in issue could reasonably be expected to 'prejudice' the 'effective exercise' by an agency of its functions. However, the 'prejudice' to which cl 1(d) is directed differs considerably to that of cl 1(f). As I have noted above, cl 1(d) is intended the include situations where a disclosure of the information could reasonably be expected to 'prejudice' the 'supply of confidential information' to the agency that facilitates the effective exercise of the agency's functions. In cl 1(f) it is the 'prejudice' to the 'effective exercise' by the agency of its functions that is the focus.
Hence, the question remains as to whether I am satisfied that the Commissioner has established that a disclosure of the information in issue could reasonably be expected to 'prejudice' the 'effective exercise' of his functions or that of the NSWPF. Again, this is ultimately a question fact.
I understand the Commissioner to submit that, a disclosure of the information in the emails in issue could reasonably prejudice the effective exercise of his (and that of the NSWPF generally) HR function in regard to the deployment of injured officers because officers involved in that function would cease being open and frank in their discussions when a dispute arose. Again, for the reasons set out above under the cl 1(d) public interest consideration against disclosure, I am not satisfied that the evidence of Commissioner establishes this to be the case.
Nor in my opinion, do the decisions of the Tribunal in Cavallaro v Commissioner of Police [2020] NSWCATAD 132 and McCrystal v Commissioner of Police [2020]NSWCATAD assist, as the information in issue before the Tribunal in those matters appear to have been very different to what is before the Tribunal in this application.
Accordingly, I am not satisfied that the Commissioner has established this ground of public interest consideration against disclosure.

[11]

Where does the balanced lie?

The balancing of the public interests is ultimately a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council [2011] NSWCATAD 307, at [94].
Again, based on my findings above, it is only necessary to consider the public interest considerations in favour of disclosure regarding the information that is referred to at [137(3)] above.
In my opinion, in this application, the public interest consideration against disclosure in cl 1(e) of the table to s 14 of the GIPA Act should be given considerable weight, even though the deliberative process has been completed.
In my opinion, the abovementioned public interest considerations in favour should also be given considerable weight. This is especially so as the information in issue relates to the Applicant and the position he was deployed into by reason of his work-related injury. I accept that, after his transfer was stopped, on 20 August 2019, the Applicant was advised that the position he had been deployed into was administrative in nature and not at the Constable/Senior Constable level. However, the Applicant is unaware of how this decision was arrived at after he had successfully completed his trial period and invited to apply for a transfer. The motives of the Applicant for seeking access to the information was so that he could better understand how he was deployed to the position and successfully completed his trial period, but his transfer was stopped.
In my opinion, the public interest public considerations against disclosure of the information on the pages referred to at [137(3)] above, and the public interest considerations in favour of disclosure of that information are evenly balanced. In making this finding I am aware that a disclosure of the information cannot be made subject to conditions.
Having regard to the legislative instructions in section 5 and sub-section 9(1) of the GIPA Act, I find that the public interest public interest considerations against disclosure of the information on the pages referred to at [137(3)] above, does not, on balance override the public interest considerations in favour of disclosure.
Hence, based on the material before me and my abovementioned findings, I find that the correct and preferable decision regarding the information on the pages referred to at [137(3)] above, is that the Applicant be provided access to that information. Hence, the appropriate order is to set aside that decision and substitute it for a decision that the Applicant be provided with access to that information.

[13]

The GIPA Act

As I have already noted, s 60(1)(a) of the GIPA Act provides that an agency may refuse to deal with an access application (in whole or part) because dealing with the application would require an unreasonable and substantial diversion of the agency's resources. Sub-section 60(2) to (5) prescribe a number of matters relevant to making a decision to refuse to deal with an access application on these grounds, as follows: 60 Decision to refuse to deal with application … (2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided. (3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications. (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. …
Sub-sections 60(3A) and (3B) were inserted into the GIPA Act in 2018, by the Government Information (Public Access) Amendment Act 2018 (2018 Amendment Act). That Act commenced on 28 November 2018.

[14]

Relevant legal principles

Sub-sections 60(3A) and (3B) of the GIPA Act draw on two previous decisions of the former Administrative Decisions Tribunal: see Cianfrano v Director General, Premier's Department [2006] NSWADT 137 (Cianfrano) and Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 (Colefax).
The legislative provision before the Tribunal in Cianfrano was the predecessor to the GIPA Act, the FOI Act (repealed), which contained a similar provision to that contained in s 60(1)(a) of the GIPA Act: FOI Act (repealed), s 25(1(a1). At [62], in Cianfrano, the President of the Tribunal (O'Connor DCJ) said that the factors relevant to an assessment as to whether dealing with an access application would, if carried out, substantially and unreasonably divert the agency's resources include: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; … (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort … (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency estimate as [to] the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency … (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
At [63], the President went on to say that the abovementioned list was not an exhaustive one. These factors are incorporated, in part, to s 60(2), (3) and (3A) of the GIPA Act.
In Colefax, at [21], the Tribunal (P Molony, Judicial Member) noted that a decision to refuse to deal with an access application under s 60(1)(a) of the GIPA Act requires the decision maker to exercise a discretion in reaching that conclusion. The Tribunal went on to say that relevant to the exercise of that discretion were the instructions contained in ss 5 (presumption in favour of disclosure) and 3(2) (intention of Parliament) of the GIPA Act, which were not contained in the former FOI Act (repealed). These factors have also now been incorporated into s 60(3B) of the GIPA Act.
At [25], the Tribunal, went on to say that the non-exclusive factors identified by the Tribunal in Cianfrano were otherwise equally applicable to a consideration as to whether an access request under the GIPA Act constituted an unreasonable and substantial diversion of resources.
In Commissioner of Police v Danis [2017] NSWCATAP 7, at [45], the Appeal Panel said that: Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or …
In a very recent decision, Woodhouse v Commissioner of Police [2022] NSWCATAD 41, at [55], the Tribunal said that the 'power to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist an applicant in narrowing the request'.

[15]

The Commissioners case

In her evidence (statement of 28 October 2020), Ms Evan acknowledged that there was an overlap of items 3 and 4 of the Applicant's access application and that some information was likely to be duplicated in response to these items. Ms Evans went on to say that this was one of the reasons why she decided it was an unreasonable diversion of the Commissioner's resources to deal with item 3 of the Applicant's access application.
In her evidence (statement of 11 September 2020), Ms Evans gave the following explanation of the number of GIPA applications received each year and the resources available to the Commissioner and the NSWPF to deal with these: 1. at that time the Commissioner and the NSWPF receive approximately 6,000 GIPA applications a year. With the introduction of the new online platform, in July 2020, that number has increased and expected to continue to do so; 2. within InfoLink, there are 13 officers allocated to the determination of access applications at first instance and 2 officers allocated to internal reviews and remitted decisions; and 3. this means that each of the 13 officers allocated to determine applications are required to decide approximately 10 applications each working week, or 2 per day. On this basis, each officer has, on average, 3.5 hours to deal with each access application, which does not include the time spent by other parts of the NSWPF searching for records and responding to Infolink queries.
Ms Evans also said that, based on the more limited time frame for the item 3 information, Digital Technology and Innovation identified approximately 900 pages of emails, not including attachments, that were responsive to the searches for information falling within item 3 of the Applicant's access application. Ms Evans also reiterated what was contained in her decision that, of the 900 pages, she took a sample of 50 pages and that it took her approximately two minutes to review each page and determine if it was in scope, a duplicate and which public interest considerations might apply. On this basis, she determined that it would take about 30 hours for her to review the entire 900 pages.
Ms Evans also explained that she had already spent more than 35 hours processing the Applicant's access application. This involved a review of approximately 950 pages of information, which included over 500 pages of emails responsive to item 4. She said that the applicant had been granted access to most of the information contained in the 950 pages.

[17]

Consideration

In my opinion, even though Ms Evans was not altogether clear in her evidence, during cross-examination, about the schedule on which she relied in making her estimates of the number of pages and time to deal with item 3 of the Applicant's access application, overall, the evidence she gave in her statement were not substantially challenged.
In this regard, it does not appear to be disputed that the information sought in item 3 of the Applicant's access request is in very broad terms and captured within this item is some of the information for which the Applicant sought access to in items 1, 2 and 4 to 11. Otherwise, there is no evidence that the Applicant is a repeat applicant for access to information held by the Commissioner or the NSWPF.
Notwithstanding the Applicant's limit on the period of time for which the item 3 information was sought, this was the period during which the dispute concerning the Applicant's transfer into the deployed position arose and when decisions were made that he was to return to his substantive position. Hence, it can be anticipated that it was during this limited time period when the majority of the email exchanges occurred. This is also supported by the information contained in Bundle 1 and Bundle 2.
At the same time, the Applicant did not limit who sent or were the recipients of the emails, as he had done for item 4.
There is no dispute that the searches undertaken by, or at the request of, Ms Evans for the information held by the Commissioner and NSWPF falling within item 3 of the Applicant's access request, was conducted in accordance with the Commissioner's obligation under section 53 of the GIPA Act. That is, the searches were conducted using the most efficient means reasonably available to the agency, which included using the InfoLink electronic system where the information was stored.
In my opinion, Ms Evans' estimate as to: (a) the number of pages held by the Commissioner and the NSWPF containing information falling within item 3 (as limited in time) of the Applicant's access application, and (b) the time it would take to process that information are both reasonable. I appreciate that this information might include information that had already been dealt with by the Commissioner in respect of the other items in the Applicant's access application. However, in determining whether this was so also involves time.
In my opinion, on the material before the Tribunal, the evidence of Ms Evans that she had already spent 35 hours in dealing with the Applicant's access request is reasonable and should be taken into account.
In Ruyters v Commissioner of Police [2020] NSWCATAD 223, at [34], the Tribunal noted that there can be no doubt that the NSWPF is a large organisation and that this is a factor that can be take into account in determining whether the matters in s 60(1)(a) are in fact satisfied.
As explained by Ms Evans, the Commissioner and the NSWPF do not have unlimited resources to deal with the large number of access applications that are received each year, let alone access applications which involve a considerable amount of time to deal with all the information sought. This, as Ms Evan's explained, only prevents the Commissioner and the NSWPF from dealing with other access applicants which are limited in scope.
In dealing with the Applicant's access application, the Commissioner well and truly exceeded the 20 working days within which he was to decide that application (see GIPA Act, s 57). Nevertheless, this remains a factor to be taken into account together with the number of access applications received by the Commissioner and the resources that are available to deal with those applications.
I note the general public interest in favour of the disclosure of government information as set out in s 12(1) of the GIPA Act. However, the Applicant has not demonstrated the importance of the information referred to in item 3 of his access application which is not included in the other items of his access application (including item 4) and for which he has been granted access, or which has been withheld on the grounds of an overriding public interest against disclosure.
I appreciate that, based on the information the Applicant has been granted access to, he may seek access to further or related information. However, in this application, the Applicant has not pointed to any information which he asserts to be of specific importance to him that falls within item 3 and which he has not already been provided access to.
Accordingly, given the breadth of item 3 of the Applicant's access application, the time estimated to deal with that item, the time already spent in dealing with the other items on that application and the resources of the Commissioner and the NSWPF to deal with access applications within the prescribed time, I am satisfied that the Commissioner has established that to deal with item 3 of the Applicant's access application would be an unreasonable and substantial diversion of his and those of the NSWPF resources.
Hence, I am satisfied that the decision of the Commissioner is the Correct and preferable decision and should be affirmed.

[18]

Conclusions and Orders

For the reasons set out above: 1. I am not satisfied that the decision of the Commissioner regards to the following withheld information in Bundle 1 and Bundle 2 is the correct and preferable decision: 1. Bundle 1: the 16 un-numbered pages; and 2. Bundle 2 - pages 3, 4, 13-23, 25 (first deletion), 27 (all deletions other than the last deletion), 29 31, 34, 35, 36 (first three deletions), 38, 39, 41, 42, 45, 46, 49, 50, 57, 58, 59, 60, 61, 62, 97, 99, 100, 101, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112, 114 (first and second deletion), 116 (first and second deletion), 118 (all deletions except the last deletion), 120, 123, 124, 125 (first deletion), 127, 128, 130, 131, 137, 141, 145, 148, 151, 154, 160, 190, 191, 192, 193, 194, 195, 196, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 358-366, 376-383, 402-406, 436, 465, 498-504, 510 (first deletion); 1. I have found that the withheld information on the following pages in Bundle 2 be remitted to the Commissioner, under s 65 of the ADR Act, for reconsideration in accordance with these reasons for decision: pages 419, 420, 441, 444, 445, 463, 464, 467, 468, 469, 472, 473, 474, 510 (second deletion), 511, 518 519, 520 and 52; 1. For abundant caution I have found that the withheld information on the following pages of Bundle 2 be provided to the applicant in accordance with order 1 made on 6 November 2020: pages 27, 28, 30, 32, 33, 36 and 37, 39 and 40, 118 and 119, 121 and 122 and 125 and 126; 1. I am otherwise satisfied that the remaining withheld information in Bundle 1 and Bundle 2 that is personal information of a person other than the Applicant is the correct and preferred decision and should be affirmed; and 2. I am satisfied that the decision of the Commissioner that to deal with item 3 of the Applicant's access application would be an unreasonable and substantial diversion of the Commissioner's and the NSWPF's resources is the correct and preferable decision and should be affirmed.
In my opinion it is appropriate to include a timetable within which the Commissioner is to make his decision on remittal regarding the withheld information and when the Applicant is to respond thereto.
Accordingly, I make the following orders: 1. (a) The decision of the Commissioner regarding the withheld information in Bundle 2, at pages 419, 420, 441, 444, 445, 463, 464, 467, 468, 469, 472, 473, 474, 510 (second deletion), 511, 518 519, 520 and 521 is remitted for reconsideration under s 65 of the Administrative Decisions Review Act 1997. (b) Within 20 working days of the publication of this decision the Commissioner is to provide the Tribunal and the Applicant with his decision, and reasons for decision regarding the withheld information in the abovementioned pages. In the event the Commissioner decides to refuse access to the withheld information (in whole or part), the Commissioner is to provide the Tribunal and the Applicant with a Schedule that lists each email chain, the date of the email, the name of the sender and recipient of the email and the subject matter of the email. (c) Within 20 working days after having received the Commissioner's decision on reconsideration, the Applicant is to inform the Tribunal and the Commissioner if he wishes to withdraw his application or presses his application regarding the withheld information for which access has been refused (if any). In the event the Applicant presses his application, the Applicant is to include grounds on which his application is pressed. (d) The Applicant's application in regard to the abovementioned withheld information is listed for further directions on a date to be fixed. 1. The decision of the Commissioner regarding the following withheld information in Bundle 1 and Bundle 2 is set aside and in substitution of that decisions a decision is made to provide the Applicant with access to that information: 1. Bundle 1: the 16 un-numbered pages; and 2. Bundle 2 - pages 3, 4, 13-23, 25 (first deletion), 27 (all deletions other than the last deletion), 29 31, 34, 35, 36 (first three deletions), 38, 39, 41, 42, 45, 46, 49, 50, 57, 58, 59, 60, 61, 62, 97, 99, 100, 101, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112, 114 (first and second deletion), 116 (first and second deletion), 118 (all deletions except the last deletion), 120, 123, 124, 125 (first deletion), 127, 128, 130, 131, 137, 141, 145, 148, 151, 154, 160, 190, 191, 192, 193, 194, 195, 196, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 358-366, 402-406, 436, 465, 498-504, 510 (first deletion); 1. For abundant caution, the decision of the Commissioner regarding the withheld information in Bundle 2 at pages 27, 28, 30, 32, 33, 36 and 37, 39 and 40, 118 and 119, 121 and 122 and 125 and 126 that is a duplicate of the information on page 25 or 72 that was provided to the Applicant pursuant to order 1 made on 6 November 2020, is set aside and in substitution thereof a decision is made that the Applicant be provide with access to that information within 28 days of the publication of this decision.

Parties

Applicant/Plaintiff:

Adams

Respondent/Defendant:

Commissioner for Police

Legislation Cited (5)

Freedom of Information Act 1989(NSW)

Administrative Decisions Review Act 1997(NSW)

Freedom of Information Act 1982(Cth)

Government Information (Public Access) Act 2009(NSW)

Privacy and Personal Information Protection Act 1998(NSW)

Cases Cited (11)

Freedom of Information Act 1989 (NSW) (repealed) Government Information (Public Access) Act 2009 (NSW) Government Information (Public Access) Amendment Act 2018 Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Cameron v Commissioner of Police [2014] NSWCATAD 13 Cianfrano v Director General, Premier's Department [2006] NSWADT 137 Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 Commissioner of Police v Danis [2017] NSWCATAP 7 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Hurst v Wagga Wagga City Council [2011] NSWCATAD 307 Leech v Sydney Water Corporation [2010] NSWADT 298 Luxford v Department of Education and Communities [2016] NSWCATAD 118 Macquarie University v Howell (No 2) [2009] NSWADTAP 19 McKinnon v Black Town City Council [2012] NSWADT 44 McLennan v University of New England [2013] NSWADT 113 Neary v State Rail Authority [1999] NSWADT 107 Raven v The University of Sydney [2015] NSWCATAD 104 Ruyters v Commissioner of Police [2020] NSWCATAD 223 Searle Australia Pty Ltd v PIAC [1992] FCA 241; (1992) 108 ALR 163 Woodhouse v Commissioner of Police [2022] NSWCATAD 41 Category: Principal judgment Parties: Rodney Adams (Applicant) Commissioner for Police, NSW Police (Respondent) Representation: Counsel: P Lowson (Applicant)

GIPA Act s 14(2) - Public interest considerations against disclosure -- general principles

As noted above, the s 14(2) public interest considerations against disclosure are dependent on whether the disclosure of the information in issue 'could reasonably be expected to' have the effect as prescribed in the relevant clause in the Table to that subsection. This is to be assessed objectively and approached from the view point of a reasonable decision maker and based on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; (1992) 108 ALR 163 and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [25], the Appeal Panel noted that there was a structured approach to the decision-making task under the GIPA Act in that: 25 … [The] agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government
At [26], the Appeal Panel went on to note that when examining whether there is a public interest consideration against disclosure, this needs to be examined at the broader operational level of the relevant agency, rather than introducing particulars of the 'instant situation' that is before the Tribunal, which should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations.

[2011] NSWCATAD 307

[1992] FCA 241

(1992) 108 ALR 163

Cited By (3)

GGC v Commissioner of Police, NSW Police Force

Moore v Southern NSW Local Health District

Sicard v The Hills Shire Council